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Quaglia v. Colvin

United States District Court, D. Massachusetts

October 8, 2014

CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant

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[Copyrighted Material Omitted]

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For Carlene M. Quaglia, Plaintiff: Morris Greenberg, LEAD ATTORNEY, Green & Greenberg, Providence, RI.

For Michael J Astrue, Commissioner, Social Security Administration, Defendant: Anita Johnson, LEAD ATTORNEY, United States Attorney's Office, Boston, MA.

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Carlene M. Quaglia (" Quaglia" ) brings this action against Carolyn W. Colvin,[1] Acting Commissioner of the Social Security Administration (the " Commissioner" ). Quaglia asks this Court to reverse and remand the Commissioner's decision denying Quaglia's application for Social Security Disability Insurance Benefits and Supplemental Security Income. Pl.'s Mot. Reverse Decision Comm'r (" Quaglia's Mot." ), ECF No. 18. The Commissioner requests an order affirming the decision. Mot. Order Affirming Decision Comm'r (" Def.'s Mot." ), ECF No. 22.

A. Procedural Posture[2]

Quaglia filed for Social Security Disability Insurance benefits and Supplemental Security Income on June 24, 2004, asserting disability beginning September 1, 2003. Pl.'s Mem. Supp. Mot. Reverse Decision Comm'r (" Quaglia's Mem." ) 1, ECF No. 19. After an initial denial of benefits, Quaglia requested a hearing on May 12, 2005. Administrative Record (" Admin. R." ) 79.[3] She appeared and testified at a hearing before Administrative Law Judge Barry H. Best (the " first hearing officer" ) on August 17, 2006. Id. at 79, 88. Quaglia, her attorney, a medical expert, and a vocational expert appeared at a supplemental hearing held November 21, 2006. Quaglia's Mem. 2. In an opinion dated January 26, 2007, the first hearing officer determined Quaglia was entitled to neither disability insurance benefits nor supplemental security income. Admin. R. 88. The Appeals Council denied Quaglia's request for review, prompting her to appeal to this Court for relief. Quaglia's Mem. 2.

Quaglia filed the complaint in this action on March 18, 2009, requesting this court reverse the first hearing officer's decision denying benefits. Compl. 1, ECF No. 1. For reasons not clear from the record or the parties' filings, the transcript from the November 21, 2006 hearing could not be located, prompting the Commissioner to request voluntary remand to the agency to carry out further proceedings and to reconstruct the administrative record. Def.'s Assented Mot. Remand Case Further Admin. Action Pursuant Sentence 6 42 U.S.C. § 405(g), ECF No. 9. This Court granted that motion in January 2010. Order Remand, Jan. 7, 2010, ECF No. 10.

On September 27, 2010, a new hearing occurred at the Social Security Administration before Administrative Law Judge Joel F. Gardiner (the " hearing officer" ). Quaglia's Mem. 2. Quaglia, her attorney, and a vocational expert appeared. Id. The hearing officer rendered unfavorable decisions in a recommended decision dated

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October 15, 2010, and a final decision dated January 19, 2011, which both concluded Quaglia was not disabled and denied benefits. See Admin. R. 16-39. On April 3, 2012, the Appeals Council declined to exercise jurisdiction, id. at 7, finalizing the hearing officer's decision and leading to the reinstatement of the case before this Court on May 21, 2012. Assented Mot. Vacate Order Remand & Reinstate Case & Request Leave File Answer 1, ECF No. 13; Electronic Order, May 21, 2012.

The Commissioner answered Quaglia's original complaint on September 5, 2012. Answer, ECF No. 14. On November 12, 2012, Quaglia filed a motion to reverse the Commissioner's decision, together with a memorandum in support. Quaglia's Mot; Quaglia's Mem. The Commissioner in turn filed a motion to affirm the decision with a memorandum in support on January 23, 2013. Def.'s Mot.; Mem. Supp. Comm'r's Mot. (" Def.'s Mem." ), ECF No. 23.

B. Facts

Quaglia was a thirty-five year old woman with a college education when the purported disability started; on the date of the Commissioner's decision, Quaglia was forty-two years old. Quaglia's Mem. 2. Quaglia contends that her various physical and psychological ailments -- including peripheral neuropathy and neuropathic pain, pancreatitis, and depression -- constitute a disability that rendered her unable to work during the relevant period. Id. at 2-3; Admin. R. 700. She was insured for disability through September 30, 2007. Quaglia's Mem. 2. Quaglia alleges a period of disability of roughly six and a half years, running from September 2003 to March 2010. Def.'s Mem. 2.

1. Relevant Work and Medical History

Quaglia has held a variety of occupations, including jobs as a personal care assistant, deli clerk, after school instructor, and waitress. Admin. R. 698. She apparently struggled to hold on to these positions due to failure to show, lateness, and making excuses to switch her schedule around. Id. at 696, 698.

Quaglia has a history of depression and alcohol abuse. Id. at 705, 708. She was admitted to a treatment center from March to April 2004 for psychiatric and substance abuse reasons. Id. at 241. After the treatment stint, she quit drinking alcohol entirely and maintained her sobriety. Id. at 709. Sometime in or around 2008, Quaglia's mother and aunt committed her for psychiatric treatment for belligerence and depression. See id. at 707.

Quaglia's disability claim stems from physical and psychological conditions that she alleges prevented her from engaging in gainful employment. Id. at 699-700.

a. Physical Disability

Physically, Quaglia has peripheral neuropathy in her hands and feet. Id. at 700. The condition limits her ability to walk, and her feet hurt constantly. Id. at 155. At the hearing, she testified that she can stand for " maybe an hour if [she] ha[s] to, but [she] feel[s] pain all the time." Id. at 719. She described her pain as 10 out of 10, lessening to 8 out of 10 with medication that she takes three times each day. Id. at 719-21.

Throughout the period of alleged disability, a number of doctors attended to Quaglia. In July 2004, Dr. Ranbir Dhillon diagnosed her with neuropathy related to alcohol abuse " with predominantly sensory symptoms." Id. at 243. Dr. Edgar Ross (" Dr. Ross" ) confirmed this diagnosis in January 2005, noting alcohol and peripheral neuropathy with " decreased pinprick sensation in the lower extremities." Id. at 305. By December 2005, Dr. Ross observed that it was " difficult to understand how [the loss of sensation] could be related

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to alcohol, when [Quaglia] reports that she has not had a drink in 20 months." Id. at 352. That same month, Dr. Fereshteh Soumekh also diagnosed peripheral neuropathy. Id. at 353-54.

In February 2005, Dr. Jean Siddall-Bensson (" Dr. Siddall-Bensson" ), Quaglia's primary care physician, reported that she suffered from distal neuropathy and irritable bowel syndrome, limiting her ability to walk distances greater than one block and to stand for longer than twenty to thirty minutes. Id. at 294-95. Dr. Siddall-Bensson opined that Quaglia was " unable to work." Id. at 297. Dr. Siddall-Bensson again concluded in October 2005 that Quaglia was limited in her ability to walk, stand, or lift things, and experienced pain in her lower extremities. Id. at 334. In May 2006, Dr. Ross opined that Quaglia was unable to sit, stand, or walk for more than two hours during an eight-hour workday, and that she suffered from severe pain. Id. at 336-37. He concluded this pain would preclude Quaglia from sustaining the necessary concentration to hold full-time employment. Id. at 337.

Dr. Ross treated Quaglia through 2010, observing that she continued to suffer from peripheral neuropathy and neuropathic pain. Id. at 637-38, 644, 650-51, 658, 664. Dr. Siddall-Bensson also saw Quaglia throughout the entire period for which she seeks disability benefits. Quaglia's Mem. 5.

Several state agency doctors rendered opinions about Quaglia's functional capacity to work. In September 2004, a state physician found Quaglia could occasionally lift twenty pounds, frequently lift ten pounds, stand or walk for at least two hours in an eight-hour day, and sit for about six hours (both with breaks). Admin. R. 245, 251. The state physician stated that, as compared to the opinions of the treating physicians, he drew no significantly different conclusions about Quaglia's limitations and restrictions. Id. at 250. A second examination by a state physician in May 2005 found Quaglia could stand and/or walk (with normal breaks) for two to three hours in an eight-hour workday. Id. at 309, 315. The physician observed sensory neuropathy and noted " sharp, constant, burning, aching pain in the bottom of her feet." Id. at 309.

b. Psychiatric/Psychological Disability

Quaglia's alleged psychological disability is major depressive disorder, which doctors have treated with Zoloft and Cymbalta. Id. at 700, 704.

The state agency requested that Dr. Irwin Bennett examine Quaglia in October 2004. Id. at 252, 254. He diagnosed her with Bipolar I disorder and depression, with a Global Assessment of Functioning (" GAF" ) of 55.[4] Id. at 254. The following month, another state physician concluded Quaglia's moderate limitations in concentration, following instructions, and ability to respond to changes would allow her to work for two to eight hours in an unpressured setting, handling routine work tasks with some infrequent accommodations. Id. at 255-57. A follow-up state psychiatric evaluation in February 2005 found Quaglia had some moderate limitations maintaining concentration and performing consistently, but concluded she retained functional capacity to remember, adapt to, and carry out most work tasks and relate to others. Id. at 274-76.

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In January 2005, Dr. Robert Newlin Jamison (" Dr. Jamison" ) diagnosed Quaglia with depression. Id. at 302-03. In June 2005, Dr. Judy Froehlich (" Dr. Froehlich" ) recorded Quaglia's GAF as 50. Id. at 365. In October 2005, however, Dr. Siddall-Bensson noted that " [Quaglia's] depressive symptoms have been controlled and she is in therapy for this and has been compliant with the therapy." Id. at 334. Dr. Froehlich thereafter recorded a GAF of 70 in November 2005. Id. at 386. While visiting Dr. Siddall-Bensson in December 2005, Quaglia denied depression and anxiety. Id. at 485-86. Furthermore, in May 2006, Dr. Jamison recorded a GAF of 67 to 70, despite noting symptoms of depression and anxiety. Id. at 356.

In July 2006, however, Dr. Emily Deans (" Dr. Deans" ) assessed Quaglia's GAF as 45 and noted major depressive disorder. Id. at 453-54. Dr. Deans concluded that due to her limitations, Quaglia had a " substantial loss of ability to respond appropriately to supervision, co-workers and usual work situations" as well as to " changes in a routine work setting." Id. at 448. Also in July 2006, psychotherapist Lauretta Valenti, MA (" Valenti" ) found Quaglia experienced a moderately severe impairment in relating to other people, responding to customary work pressures, and performing complex tasks. Id. at 446-47. The record lacks psychological treatment notes from late 2006 until mid-2009. Def.'s Mem. 3.

During the fall of 2009, Valenti recorded GAFs between 40 and 60 related to Quaglia's moderate major depressive disorder. Admin. R. 564-71. In September 2010, Valenti continued to diagnose moderate major depressive disorder and noted neuropathy interfering with Quaglia's ability to work, and concluded Quaglia could not sustain competitive full-time work on an ongoing basis. See id. at 625-26.

As of her hearing in September 2010, Quaglia was not seeing a psychiatrist. Id. at 701. She stopped seeing her previous psychologist, Dr. Joshua Golden (" Dr. Golden" ), because he made her " feel worse," made her cry, and told her there was nothing wrong with her. Id. at 701-02. Dr. Golden took Quaglia off medications for narcolepsy and bipolar disorder. Id. at 704. Prior to Dr. Golden, Quaglia saw Dr. Deans, who ended their doctor-patient relationship when Quaglia was unable to keep appointments. Id. at 702-03.

2. Hearing before the Social Security Administration

At the hearing, Quaglia testified that she lived with her aunt and uncle. Id. at 689. She had returned to work in March 2010 as a personal care assistant, and was working between eighteen and forty-five hours a week, typically twenty-five hours. Id. at 691-93. When the hearing officer asked Quaglia why she returned to work, she stated she was " being tossed out of the house." Id. at 695. She agreed that " financial necessity" was the primary motivation, and there was no change in her condition that led her to return to work. Id. at 696-97. When asked why she did not return to work two or three years earlier when she was able to do so now despite there being no change in her condition, Quaglia replied that she " had no vehicle" and " no money." Id. at 699. She added that lying, procrastination, and general unreliability have hampered her ability to return to work and hold a steady job. See id. Quaglia expressed concern that due to " bad days" when her depression makes it difficult to get out of bed, she is " going down the same road" by " doing exactly what made [her] lose jobs before." Id. at 716-17.

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C. Federal Jurisdiction

This Court has jurisdiction over this action pursuant to 42 United State Code section 405(g), granting judicial review of final orders and decisions by the Commissioner of Social Security. 42 U.S.C. § 405(g).


A. Standard of Review

In reviewing the Commissioner's decision, this Court considers the entire administrative record along with the pleadings and retains the power to affirm, modify, or reverse. Id. Review is limited to determining whether the hearing officer employed the correct legal standards; findings of fact are conclusive, provided they are supported by substantial evidence. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (citing Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996)).

Substantial evidence is the touchstone of reviewing an administrative agency's findings of fact; those findings will stand where " a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [the Commissioner's] conclusion." Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)) (internal quotation mark omitted). It is the role of the hearing officer, not a reviewing court, to make credibility determinations and to draw inferences from the record. Rodriguez, 647 F.2d at 222. This Court must affirm a decision supported by substantial evidence " even if the record arguably could justify a different conclusion." Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987) (citing Lizotte v. Sec'y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981)).

The hearing officer may not, however, ignore evidence and " must take into account whatever in the record fairly detracts from its weight." Diaz v. Sec'y of Health & Human Servs., 791 F.Supp. 905, 912 (D.P.R. 1992) (quoting Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951)) (internal quotation marks omitted). " The search for substantial evidence is thus a qualitative exercise without which our review of social security disability cases ceases to be merely deferential and becomes instead a sham." Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).

B. Social Security Disability Standard

To have a recognized disability within the meaning of the Social Security Act, an individual must be unable " to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

Social Security Administration regulations require a hearing officer to proceed through a five-step analysis to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). The hearing officer must determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a sufficiently severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant has the residual functional capacity to perform his past relevant work; and (5) whether the impairment prevents the claimant from doing any other work considering the

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claimant's age, education, and work experience. Id.

The claimant bears the burden in the first four steps to prove disability within the meaning of the Act. Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 7 (1st Cir. 1982) (citing Sherwin v. Sec'y of Health & Human Servs., 685 F.2d 1, 2 (1st Cir. 1982)). Once the claimant has established the fourth step -- that she is unable to return to her former employment -- the burden shifts to the Commissioner to prove the final step: that the claimant is able to engage in some other substantial gainful activity that exists in significant numbers in the national economy. Put differently, the Commissioner must show that, despite her inability to return to past job, the claimant has the ability to pursue another less physically or psychologically demanding career. Id. The Social Security Administration has promulgated medical-vocational guidelines to aid this inquiry. Id. (citing 20 C.F.R. § 404, Subpart P, app. 2).

C. The Hearing Officer's Decision

The hearing officer first found that Quaglia had started working in March 2010, with that work rising to the level of substantial gainful activity from April 2010 onward. Admin. R. 18.[5] The hearing officer next determined Quaglia had a number of severe impairments during the relevant time period, including distal peripheral alcoholic neuropathy, syncope, depression, bipolar disorder, and alcohol abuse disorder in remission. Id. Moving on to step three, the hearing officer concluded that none of Quaglia's impairments, nor the combined effect of her impairments, constituted a listed impairment under the applicable regulations. Id. at 19. At the fourth step, the hearing officer concluded that Quaglia retained the residual functioning capacity to engage in sedentary to light work. Id. at 21. While noting that Quaglia's mental impairments may interfere with her ability to concentrate, the hearing officer concluded that she nonetheless had the capacity to perform repetitive, routine work on a regular basis, including her past jobs as a personal care attendant, waitress, and deli clerk. Id. at 21, 24. Although the hearing officer found that Quaglia could perform past relevant work -- a finding sufficient to preclude a conclusion of disability and to deny benefits -- he nonetheless offered alternative findings under step five. Id. at 24. Relying on the vocational expert's testimony, the hearing officer determined that Quaglia had the functional capacity to work other jobs in the national and Massachusetts economy, including as a motel clerk, dispatcher, telephone operator, or telemarketer. Id. at 25.

The hearing officer ultimately concluded that Quaglia was not disabled as defined in sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act and therefore denied benefits and supplemental security income. Id. at 26.


Quaglia challenges the hearing officer's decision on two grounds. Quaglia first asserts the hearing officer's findings are not supported by substantial evidence owing to the relative weight assigned to treating and non-examining medical opinions. Quaglia's Mem. 9. Additionally, Quaglia argues the hearing officer failed properly to apply the standard for pain evaluation and credibility as set out in Avery v. Sec'y of Health & Human Servs.,

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797 F.2d 19 (1st Cir. 1986), and Social Security Ruling 96-7p, . Quaglia's Mem. 11.

A. Weight Given to Treating and Non-Examining Medical Sources in Determining Residual Functioning Capacity

Quaglia argues that the hearing officer erred in his residual functioning capacity determination by giving insufficient weight to the opinions of her primary care physician, pain management specialist, psychiatrist, and therapists. Id. at 9. Quaglia further notes that the state agency physicians' opinions were derived from assessments in 2004 and 2005 and failed to consider later evidence supporting Quaglia's diagnosis of physical and psychiatric disability. Id. at 9-10.[6]

Hearing officers can neither ignore medical evidence nor substitute their views for medical opinions that went uncontroverted. Nguyen, 172 F.3d at 35 (citing Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994)). They must, however, weigh the evidence in the record and resolve conflicts. So long as a hearing officer's conclusion is supported by substantial evidence, such determination will not be disturbed even if a reasonable mind could have reached a different result. See Rodriguez Pagan, 819 F.2d at 3.

The relevant regulations define a " treating source" as a medical source who " has provided [the claimant] with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant]." 20 C.F.R. § 404.1502. The hearing officer ought give " more weight to opinions from [the claimant's] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s)." 20 C.F.R. § 404.1527(c)(2). But where treating sources' opinions are " 'inconsistent with other substantial evidence' in the record, [a hearing officer] need not give the opinions controlling weight." Small v. Astrue, 840 F.Supp.2d 458, 465 (D. Mass. 2012) (quoting 20 C.F.R. § 404.1527(d)(2)). Whatever weight the hearing officer ultimately assigns to a treating source's opinion, the hearing officer must give " good reasons" for the determination. Rosa v. Astrue, 783 F.Supp.2d 179, 186 (D. Mass. 2011) (Gertner, J.) (quoting 20 C.F.R. § 404.1527(d)) (internal quotation marks omitted).

The hearing officer gave " significant weight to the state agency medical and psychological consultants' assessments" in considering Quaglia's physical and psychological condition. Admin. R. 24. Conversely, the hearing officer gave limited weight to the opinions of Drs. Siddall-Bensson, Deans, Jamison, and Ross and to that of Ms. Valenti. Id. There is no dispute that these were Quaglia's treating sources. Each provided her with medical treatment during the relevant period, and several continued that treating relationship through the hearing date.

In conferring minimal weight on Dr. Sidall-Bensson's and Dr. Ross's opinions finding disability, the hearing officer concluded they were both internally inconsistent and inconsistent with other medical opinions and with the record as a whole, including Quaglia's work activity during the alleged disability period. Id. Specifically, Dr. Sidall-Bensson opined in July

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2004 and August 2006 that Quaglia's severe neuropathy in her feet limited her ability to stand for long periods of time and prevented her from working. Id. at 294-97, 455-57. In May 2006, Dr. Ross concluded Quaglia could sit, walk, or stand for no longer than two hours, and, like Dr. Sidall-Bensson, concluded her severe pain due to neuropathy prevented her from working full-time on an ongoing sustained basis. Id. at 336-37.

Turning to the non-examining sources, one state agency physician assessment in 2004 determined Quaglia could walk or stand for " at least" two hours in an eight-hour workday, lift twenty pounds occasionally, lift ten pounds frequently, and sit for about six hours in an eight-hour workday. Id. at 245, 251. The physician checked " no" in response to a question as to whether any of these conclusions differed from those of treating physicians on file. Id. at 250. Another state agency physician came to similar conclusions about Quaglia's physical condition in 2005. See id. at 309-10, 315.

The hearing officer specifically relied on the state agency opinions to conclude that Quaglia had the residual functional capacity to perform sedentary to light work, with some limitations on her ability to push and pull, and could stand for two to three hours during an eight-hour workday. Id. at 23-24. The hearing officer focused on the fact Quaglia was physically active throughout the periods that she claimed to suffer from debilitating physical pain. Id. at 22. She worked (albeit sporadically) during the alleged disability period, cared for and walked her dogs regularly, and at the time of the hearing, had returned to work despite no apparent change in her medical condition. Id. at 22-23. The hearing officer further noted that Quaglia visited her pain management specialist, Dr. Ross, " only intermittently." Id. at 22.

The ultimate disability conclusion aside, there is in reality little discernible conflict between the assessment of Quaglia's physical impairments by the state agency physicians and those by the treating physicians. Both found Quaglia suffered from pain related to her neuropathy, causing symptoms that affected her physical ability to stand and sit in a workplace setting. Compare id. at 336 (reflecting treating source's determination that Quaglia would be unable to sit, walk, or stand for more than two hours due to pain), with id. at 245, 250 (reflecting state physician's determination that Quaglia could stand or walk for at least two hours with breaks and noting that the treating source's findings were not " significantly different" ). On the whole, the hearing officer noted these symptoms, but in light of Quaglia's testimony and conduct during the relevant period, concluded that the symptoms were not sufficient to support a finding of disability. Id. at 21-24. This determination was supported by substantial evidence.

The conflict was more marked among the psychological evaluations. Ms. Valenti concluded that Quaglia's moderate major depressive disorder would preclude full-time employment. Id. at 625. State assessments concluded, however, that despite Quaglia's moderate limitations, she could work two-to-eight-hour days in an unpressured setting. Id. at 256-57, 276.

Weighing the psychiatric evidence, the hearing officer described Quaglia's psychiatric treatment as " sporadic." Id. at 23. Specifically, he emphasized that Quaglia received no psychiatric treatment from 2007 until August 2009. Id. at 24. Moreover, although Quaglia's GAF scores fluctuated, she showed signs of improvement in treatment and worked during the relevant period. Id. at 23. State agency consultants evaluating Quaglia's mental state concluded that she was capable of concentrating

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sufficiently to carry on routine, repetitive tasks. Id. at 24.

Quaglia invites this Court independently to resolve the conflicts between medical source opinions and reweigh the evidence, yet this would exceed the Court's powers on judicial review. Resolving evidentiary conflicts in the record is strictly the domain of the hearing officer. Barrientos v. Sec'y of Health & Human Servs., 820 F.2d 1, 2 (1st Cir. 1987). The medical records, hearing testimony, and other materials of record " amounted to substantial evidence, i.e., 'such relevant evidence as a reasonable mind might accept to support a conclusion,' that [Quaglia] was not disabled." See Perez v. Sec'y of Health, Educ. & Welfare, 622 F.2d 1, 3 (1st Cir. 1980) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). This Court cannot, on the basis that a different outcome was possible, say that the hearing officer erred. See Rodriguez Pagan, 819 F.2d at 3. This would amount to second-guessing the hearing officer, which this Court simply cannot do. Id. The above conflicts and inconsistencies in medical evidence and hearing testimony, a quantum of which supported the finding that Quaglia was not disabled, were thus adequate for the hearing officer to confer less weight on the treating sources. See Small, 840 F.Supp.2d at 465.

Turning from the question of whether the hearing officer was permitted to assign less weight to the opinion of treating sources and focusing instead on how that weighing affected the hearing officer's ultimate determination, this Court observes that there was evidence that Quaglia suffered from physical and psychiatric conditions that prevented her from working, or at least made work quite difficult. All medical experts found that her physical ailments rendered her unable to work in jobs requiring physical activity or sitting for long periods of time. See, e.g., id. at 245, 336. Mentally, Quaglia's condition was cyclical, worsening and then improving several times over the relevant period. See id. at 302-03, 365, 386, 564-68, 577 (reporting GAF scores and mental health assessments that fluctuated significantly over time). Thus, there was evidence in the record that could have supported a finding of disability. See id. at 297, 334, 337. The hearing officer gave due consideration to this medical and testimonial evidence put forth by Quaglia. See id. at 22 (" [T]he claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms . . . ." ). Ultimately, however, viewing the entire evidentiary record, the hearing officer concluded " the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functioning capacity assessment . . . ." Id.

The root of Quaglia's argument on this point is that, in making this overall determination, the hearing officer wrongly resolved inconsistencies between treating and non-treating sources in favor of the latter. See Quaglia's Mem. 9-11. An examination of the record and the decision below, however, suggests that these inconsistencies between medical sources actually mattered little to the outcome of Quaglia's case: rather, the hearing officer grounded his decision more strongly in inconsistencies between Quaglia's allegations of disability and her proferred non-medical evidence. He noted, for instance, that reports made by Quaglia's treating sources were " inconsistent with . . . claimant's reported work activity." Admin. R. 24. Additionally, the hearing officer focused on Quaglia's admission that her decision to return to work had nothing to do

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with any change in her medical condition, but rather was financially motivated. Id. at 23. The hearing officer properly emphasized this fact -- if Quaglia's physical and psychological conditions had indeed rendered her unable to work during the period of alleged disability, a return to work without any physical or psychological improvement seriously undermines Quaglia's contention that she was disabled. Thus, at bottom, Quaglia's attack on the hearing officer's decision largely flows from his determination of her own credibility. For the reasons set forth below, that attack fails.

B. Pain Evaluation and Credibility Determination

Quaglia contends that the hearing officer erred in finding that her testimony about pain was not credible, arguing that the hearing officer failed properly to apply the so-called Avery factors. Quaglia's Mem. 13. Avery sets out a multi-factor analysis for subjective complaints of pain by Social Security claimants. See 797 F.2d at 28-29. In assessing a claimant's credibility under Avery, a hearing officer must consider " (1) [t]he nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) [p]recipitating and aggravating factors, (e.g., movement, activity, environmental conditions); (3) [t]ype, dosage, effectiveness, and adverse side-effects of any pain medication; (4) [t]reatment, other than medication, for relief of pain; (5) [f]unctional restrictions; and (6) [t]he claimant's daily activities." 797 F.2d at 29.

" [The First Circuit] pay[s] 'particular attention' to [the hearing officer's] evaluation of complaints of pain in light of their 'subjective nature.'" Ortiz v. Sec'y of Health & Human Servs., 890 F.2d 520, 523 (1st Cir. 1989) (quoting Sherwin v. Sec'y of Health & Human Servs., 685 F.2d 1, 3 (1st Cir. 1982), cert. denied, Picard v. Sec'y of Health & Human Servs., 461 U.S. 958, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983)). Testimony about pain does not require corroboration with objective evidence, but " must be consistent with medical findings." Bazile v. Apfel, 113 F.Supp.2d 181, 185 (D. Mass. 2000) (quoting Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989)) (internal quotation marks omitted).

As noted above, it is the hearing officer's role to make credibility determinations. Irlanda Ortiz, 955 F.2d at 769. This determination is entitled to deference where supported by substantial evidence, for the hearing officer has the opportunity to observe the claimant, examine the claimant's demeanor, and consider how the testimony squares with other evidence in the record. Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir. 1987). Where a claimant's testimony is discredited, the First Circuit requires the hearing officer to " make specific findings as to the relevant evidence he considered in determining to disbelieve the [claimant]." Da Rosa v. Sec'y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986). This Court has held that not only are specific findings required, but the hearing officer must point to the precise testimony and evidence suggesting that the claimant's complaints of pain lack credibility. Bazile, 113 F.Supp.2d at 187 (tracing the Ninth Circuit precedent and cases the First Circuit relied upon in Da Rosa to elucidate a stricter credibility standard).

The hearing officer began the credibility analysis by observing that Quaglia's impairments could cause the symptoms complained of, but ultimately concluded that Quaglia's statements about the frequency, intensity, and duration of the symptoms were not credible. Admin. R. 22. In support of his own credibility conclusion, the

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hearing officer cited the first hearing officer's credibility determination:

In January 2007, [the first hearing officer] found the claimant's allegations as to severity of pain and symptoms to be exaggerated and not credible. [The first hearing officer] further found her capable of performing work at the light exertion level with moderate restriction in her ability to maintain attention and concentration. While I find she credibly testified regarding her present work activities, I also find that she is not credible regarding her limitations and pain level, as the objective medical evidence does not support these assertions.

Id. The hearing officer further noted that " [n]either the Federal District Court nor the Appeals Council found the findings of the prior [hearing officer] to be erroneous." Id.

Had the hearing officer reached his credibility determination simply by relying upon that of the first hearing officer, this would certainly be problematic. Cf. Simmons v. Barnhart, 148 F.App'x 134, 137 (3d Cir. 2005) (noting that hearing officer's use of notes by previous hearing officer from prior hearing where transcript was lost would deprive claimant the chance to cross-examine witnesses and rebut evidence and testimony). The reason courts defer to a hearing officer's credibility determination, at least in part, is the critical evaluation process made possible in a live, first-person testimonial setting. See Frustaglia, 829 F.2d at 195. Accordingly, a reviewing court ought pause before conferring such deference when the hearing officer adopts credibility determinations from a hearing over which he did not preside.

Upon this record, however, the hearing officer did not simply adopt the first hearing officer's credibility findings. Rather, the hearing officer concluded that Quaglia was not credible after comparing Quaglia's medical records and testimony against the residual functioning capacity determination. Admin. R. 22 (" [T]he claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment . . . ." ); see also id. at 24 (" [T]he above residual functional capacity assessment is supported by the objective medical evidence, the opinions as discussed and the record as a whole, including hearing testimony." ).

In other words, the hearing officer considered and discredited Quaglia's subjective complaints of pain based upon the entire record -- not just on the prior determination by the first hearing officer. He summarized Quaglia's testimony that " her neuropathy is beyond repair," that she needs medications such as Gabapentin and Neurotin to function (which " serve to take the 'edge' off" ), and that she experiences pain and numbness in her feet that limits her ability to stand for more than one hour. Id. at 21-22. During the hearing, Quaglia rated her pain as 10 out of 10, lessening to 8 out of 10 only with medication. Id. at 719-20. In questioning Quaglia about her pain, the hearing officer told her that a pain level of 10 would be the " most excruciating pain imaginable," i.e., " an emergency room level of pain." Id. Quaglia maintained this was the level of pain she experienced " 24/7." Id. The hearing officer then compared this testimony regarding pain with Quaglia's testimony that she considered treating the pain with alternative treatments like Botox, regularly walked her dogs each day, worked on the administrative side of a catering company in 2006, worked double shifts in January 2010 despite intense pain, had returned to work as of the hearing date due to financial necessity rather than a change in condition, and saw Dr. Ross,

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her pain management physician, infrequently from 2006 to 2010. Id. at 22-23. In making this comparison, the hearing officer expressed skepticism that Quaglia would be able to carry on all of these activities while suffering from " constant debilitating pain." Id. at 22.

By summarizing and weighing Quaglia's specific testimony regarding her pain against activities she undertook, the hearing officer correctly employed the level of specificity required under Avery. Cf. Bazile, 113 F.Supp.2d at 187 ( " [C]redibility determinations must be backed by specific findings." (quoting Da Rosa, 803 F.2d at 26) (internal quotation marks omitted)). While the hearing officer's treatment of each factor can hardly be described as thorough, there is no requirement that the hearing officer discuss each and every Avery factor at length in reaching a conclusion. See Gordils v. Sec'y of Health & Human Servs., 921 F.2d 327, 330 (1st Cir. 1990) (finding minimal discussion of the claimant's daily activities and demeanor sufficiently considered non-medical evidence as required under Avery); see also Vega v. Astrue, No. 11-10406-WGY, 2012 WL 5989712 at *8 (D. Mass. Mar. 30, 2012) (interpreting Avery to require inquiry and consideration of each factor, but not " explicit written analysis" of each factor). " We cannot doubt, therefore, that the [hearing officer] gave due consideration to non-medical evidence relating to claimant's pain." Gordils, 921 F.2d at 330.

Thus, there were clear inconsistencies between the complaints of pain and activity undertaken, creating conflict that the hearing officer resolved against Quaglia. The hearing officer's resolution of the conflict and conclusion, supported by substantial evidence, may not be disturbed. See Barrientos, 820 F.2d at 2. Quaglia urges this Court to reverse the Commissioner on the grounds that the hearing officer failed to make adequate pain findings. Quaglia's Mem. 11-13. While the hearing officer could have made more express findings, a review of the entire record shows that substantial evidence supports the hearing officer's ultimate determination. See Frustaglia, 829 F.2d at 195 (citing Gray v. Heckler, 760 F.2d 369 (1st Cir. 1985)). This Court must therefore affirm the decision.


For the reasons set forth above, this Court DENIES Quaglia's motion for an order reversing the decision of the Commissioner, ECF No. 18, and GRANTS the Commissioner's motion to affirm the Commissioner's decision, ECF No. 22. Judgment shall enter for the Commissioner.


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