Bell v . SSA CV-11-45-PB 1/17/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Diane Bell
v. Case N o . 11-cv-45-PB Opinion N o . 2012 DNH 010 Michael J. Astrue, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Diane Bell seeks judicial review of a decision by the
Commissioner of the Social Security Administration denying her
application for supplemental security income benefits. Bell
contends that the Administrative Law Judge (“ALJ”) who
considered her application made multiple errors in assessing her
residual functional capacity (“RFC”) and in eliciting vocational
expert testimony. For the reasons provided below, I grant
Bell’s motion to reverse and remand the Commissioner’s decision.
I. BACKGROUND1
Bell applied for supplemental security income benefits on
August 1 5 , 2008, when she was fifty-two years old. She alleged
a disability onset date of August 1 , 2006, due to spinal
1 The background information is taken from the parties’ Joint Statement of Material Facts. See L.R. 9.1(b). Citations to the Administrative Transcript are indicated by “Tr.” stenosis and other allegedly disabling conditions. She finished
the eleventh grade and did not subsequently obtain a GED. She
last worked in 1992.
A. Bell’s Medical Conditions and Treatment
Bell visited numerous treatment providers for her
conditions. She received treatment at GEROMED PC between May
and October 2006. During that time, she reported feeling
depressed and suffering from hip, hand, shoulder, and neck pain.
She was diagnosed with bipolar disorder, depression, chronic
pain, and fibromyalgia, and was prescribed pain and depression
medication. After a number of follow-up appointments, the
providers noted that her bipolar disorder generally was not well
controlled, her chronic pain continued, and her fibromyalgia was
generally stable.
Bell visited Riverfront Medical Group in December 2006.
She was more tearful and sad than usual. Her chronic back and
joint pain was noted to be stable on medication. During January
and February 2007 follow-up visits, Bell reported increased mood
swings and depression. She was instructed to restart Seroquel,
a psychotropic medication she had stopped taking due to weight
gain. Her pain was again noted to be stable on medication.
In March 2007, Bell presented for another appointment at
Riverfront. She stated that her back pain had left her 2 bedridden for two weeks prior to the appointment. She was
tearful and sad. She reported that she was still not taking
Seroquel, and was again instructed to restart the medication.
In May, she reported that her moods had improved, but her pain,
especially in her hip, had worsened. X-rays of her pelvis and
hips were unremarkable. She was observed to have degenerative
disk disease at L4-5, but it was uncertain whether this related
to her hip issues.
In June, Bell reported worsening pain, soreness, limping,
and more time spent in bed. She reported worsening back pain
again in July, and in August she complained of pain in her neck,
back, and right arm that had become more severe over the prior
several weeks. She exhibited tenderness to palpation in her
shoulders, neck, and back. Three weeks later, her back pain was
stable, but her depression was worse due to family problems and
running out of a medication for panic disorder. After she
reported worsening left hip pain again in September,
Riverfront’s D r . Hare referred Bell for an M R I , which was
unremarkable with no specific pathology evident.
In January 2008, Bell reported not sleeping well and
feeling more depressed after she stopped taking Lexapro, an
anti-depressant and anti-anxiety medication. A month later, she
complained of sharp pains shooting through her back and her legs 3 almost giving out. An MRI of the lumbar spine showed that Bell
had degenerative changes of lumbar vertebrae and disks,
including severe neural foraminal narrowing on the left side at
the L2-L3 disk level. The interpreting radiologist could not
exclude involvement of the left L2 nerve root. There were also
some mild disk protrusions and disk bulges, some of which were
associated with canal stenosis. At her next appointment in
March, Bell reported more pain in her upper back and difficulty
sleeping due to pain.
In April 2008, Bell sought treatment at Concord
Orthopedics. She complained of a long history of lower-back
pain radiating to the lateral aspect of her left hip. On
examination, she exhibited decreased lumbosacral range of motion
in all planes due to pain and stiffness, and palpable tenderness
about her left hip. She was diagnosed with lumbar degenerative
disk disease and left greater trochanter bursitis. It was
recommended that she start physical therapy.
Bell returned to Riverfront for another appointment in May
2008. She informed D r . Hare that her left hip pain was more
severe and prevented her from walking, sitting, or sleeping.
Her regular medications were not providing her with sufficient
relief. On examination, she had diffuse tenderness to palpation
and left hip tenderness. Her depression was also worsening, but 4 she refused to go back on treatment. In June, Bell again
complained of depression, chronic pain, and stress at home.
In July 2008, Bell complained of neck and head pain and
difficulty sleeping. She informed D r . Hare that she had been
arrested with her husband for selling Methadone. D r . Hare
discussed pain medication abuse and informed Bell that she would
not refill her narcotics prescriptions. Over the next few
weeks, Bell sought emergency medical care on three occasions.
She complained of pains in various parts of her body, including
chronic pain in her back, and requested morphine. Attending
physicians did not prescribe her any narcotics and instead
referred Bell to her primary care doctor.
In September 2008, Bell had a new patient intake visit with
Dr. Nicole Antinerella at Concord Hospital’s internal medicine
department. She complained of severe disabling chronic pain in
her lower back and neck that prevented her from sleeping, and
stated that she had nerve damage in both hips. On examination,
Bell’s spine exhibited reduced mobility and tenderness, with the
range of motion in her cervical spine extremely limited
bilaterally. There were also positive fibromyalgia tender
points. D r . Antinerella advised Bell that she would restart her
on a much lower dose of morphine than she had been taking if she
agreed to a pain management referral. 5 In October, Bell returned to D r . Antinerella’s office. She
complained of severe body pain “all over” and rated it as 10 on
a scale of 1 to 1 0 . She also reported that she had been
arrested for possible involvement in the sale of narcotics to an
undercover police officer.2 She explained that it was a “false
arrest” and that the medicine her husband was trying to sell was
not hers. D r . Antinerella informed Bell that she would not be
providing her with any opioids due to the arrest.
At the next month’s follow-up appointment, Bell reported
that while off of her usual pain medications her pain had been
uncontrolled. She rated its severity as greater than 1 0 .
Examination showed that her condition had remained unchanged
since the last appointment. After reviewing the results of an
unremarkable chest x-ray and pulmonary function test, D r .
Antinerella advised Bell that she did not have COPD.
Several weeks later, Bell presented to D r . Paul Clark, who
worked with D r . Antinerella. She complained of dramatically
increased pain virtually everywhere, including pain in her upper
back region, as well as trouble sleeping. On examination, her
spine exhibited tenderness and multiple trigger points
consistent with the diagnosis of fibromyalgia. She had
2 It is unclear from the record whether Bell was reporting the July 2008 arrest or a subsequent incident. 6 localized tenderness in left upper back and bilateral tenderness
in her lower back. D r . Clark chose not provide opioid therapy.
At her next appointment with D r . Antinerella, in December
2008, Bell presented a letter from her attorney stating that her
case had been resolved without trial. Bell reported that her
pain “all over” had been unbearable, rating it as a constant 10
every day, and stated that she had been unable to sleep or
function. She complained of malaise and fatigue, and reported
that her pain was most severe in her spine and hips. On
examination, her paraspinal muscles were extremely tender
throughout the entire spine, and she exhibited limited range of
motion throughout the cervical spine with point tenderness over
the midthoracics. Multiple trigger points were noted on her
extremities, and she exhibited tenderness in her bilateral hips
and pain with minimal range of motion. D r . Antinerella
restarted her on opioids.
At her next appointment in January 2009, Bell stated that
her pain was debilitating and that she was “unable to function.”
Her chronic pain was essentially unchanged, although the
location varied. D r . Antinerella increased the dosage of Bell’s
morphine prescription from two to three times a day.
In February 2009, Bell presented to D r . Adam Cugalj for an
orthopedic evaluation. She reported diffuse pain in her head, 7 neck, and upper, middle, and lower back that extended into each
leg. Following an examination, D r . Cugalj diagnosed Bell with:
(1) depression; (2) diffuse myofascial pain; (3) right
sacroiliac pain and dysfunction; (4) cervical and lumbar
spondylosis; (5) deconditioning; (6) muscle imbalances with
biomechanical deficits; (7) possible nutritional deficiency; (8)
diffuse lumbar degenerative disk disease; (9) lumbar stenosis;
(10) and lumbar focal disk herniation at L1-2, L3-4, and L4-5.
He recommended that Bell begin functional-based physical therapy
and a home exercise program.
In March 2009, Bell had a pain consultation with D r . Yulan
Wang. Examination of her back revealed no visual evidence of
structural abnormalities. On palpation of her back, there was
moderate tenderness on the right buttock, but her range of
motion was within normal limits. Her hip exhibited good
internal range of motion and was pain free. D r . Wang’s
impression was that Bell’s condition was most consistent with
modic-type degenerative changes of the lumbar vertebral
endplates. She could not explain Bell’s severe lower-back pain
without radiographic and physical exam findings.
Several weeks later, Bell had an appointment with a nurse
practitioner in D r . Antinerella’s office to follow up on another
recent visit to the emergency room for chronic pain. She 8 continued to complain of pain in the back of her head. On
examination, her cervical spine exhibited a very limited range
of motion in all directions.
In April 2009, a few weeks after seeing D r . Antinerella for
“all over body pain,” Bell sought emergency medical care for
neck pain. An MRI of the lumbar spine showed no significant
changes from her prior examination. She was noted to have
multilevel degenerative disk and facet disease. The next day,
Bell had an appointment with a nurse practitioner in D r .
Antinerella’s office for her severe neck pain. On examination,
her cervical spine displayed a very limited range of motion in
all directions, with mild paraspinous spasm in both the cervical
and left trapezius region. An MRI of her cervical spine
revealed moderate spinal stenosis at C5-C6, which had progressed
from the previous study and was associated with marked right and
moderate-to-marked left degenerative neural foraminal narrowing.
Degenerative wasting/borderline minimal spinal stenosis was
observed at C6-7, which had mildly progressed from the previous
study with mild to moderate bilateral degenerative neural
foraminal narrowing.
At her next appointment with D r . Antinerella in May 2009,
Bell reported that she had self-referred to a spine center for
epidural injections. Bell’s biggest complaint concerned ongoing 9 issues with her back, with pain that radiated down her left leg,
and neck pain that radiated down her left arm. On examination,
her cervical spine exhibited a very limited range of motion in
all directions and her paraspinal muscles were very tender.
Two weeks later, Bell presented to a nurse practitioner in
Dr. Antinerella’s office, complaining of pain on the top of her
head and difficulty sleeping. She was very depressed, but the
nurse was concerned about starting her on an anti-depressant
because of her history of bipolar disorder. At their next
appointment in June, Bell reported having suicidal ideations
that had passed. She again complained of worsening hip and neck
pain. A week later, at an appointment with D r . Antinerella,
Bell complained of worsening migraines and neck pain.
At her last appointment with D r . Antinerella, in August
2009, Bell reported that she had tripped over boxes she was
moving and was experiencing worsening neck and back pain, as
well as left hip and right shoulder pain. She had gone to the
emergency room after the fall. On examination, she exhibited a
very limited range of motion in all directions in her cervical
spine, and her paraspinal muscles were very tender and in spasm.
Her fibromyalgia was noted to be stable on pain medication. She
was strongly urged to consider going back to pain management.
10 In October 2009, Bell visited the Interventional Spine
Clinic, complaining of lower-back pain, hip pain, and nighttime
numbness in her shoulders. She rated her pain at 9 out of 1 0 ,
and reported that 80% of her pain was relieved by medication. A
nurse practitioner explained to Bell that the clinic did not
generally treat fibromyalgia with high-dose narcotics. At a
follow-up appointment in January 2010, Bell again complained of
lower-back pain and fibromyalgia, and she reported 70% relief
from pain medication. She reported the same the following
month.
At a follow-up appointment in April, Bell complained of
neck pain that radiated to her shoulders and arms. She had pain
in her legs, muscle cramps, backaches, back pain, joint pain,
muscle pain, myalgia, and swelling of the lower extremities.
She again reported satisfaction with her medication regimen. At
a follow-up visit in May, Bell’s status was unchanged since her
last visit. She continued to report that 70% of her pain was
relieved by medication.
In May, Bell also had an MRI of her cervical spine. The
interpreting physician noted that: (1) degenerative changes were
worse at the C5-6 level, where there was mild to moderate
overall spinal canal narrowing, moderate right C6 neural
foraminal narrowing, and moderate to severe left C6 neural 11 foraminal narrowing; (2) degenerative changes were next most
marked at the C6-7 level where there was mild spinal canal
narrowing, moderate right C7 neural foraminal narrowing, and
borderline moderate to severe left C7 neural foraminal
narrowing; and (3) milder changes were seen elsewhere without
any other evidence of neural compression to explain Bell’s
symptoms. An MRI of the lumbar spine was interpreted to show
multilevel up to moderate degenerative changes, without any
clear evidence for neural compression.
At a follow-up visit to the Spine Clinic in June 2010, Bell
reported that she continued to suffer from fatigue and pain in
the neck, shoulder, back, leg, and hand. Her pain relief from
medication had dropped from 70% to 6 0 % . Trigger point
injections were considered to try to alleviate Bell’s pain.
Between September 2009 and March 2010, Bell also received
treatment at Health First Laconia. Her care provider was nurse
practitioner Laura Zakorchemny. At her first appointment, Bell
complained of back pain, joint pain, muscle weakness, stiffness,
and arthritis. A month later, she complained of anxiety, but
denied depression, memory loss, or mental disturbance. In
November, she again complained of anxiety due to problems with
her son. She reported that Prozac was not helping with her
12 anxiety. In February 2010, she agreed to a renewed referral for
psychotherapy.
In March, Nurse Zakorchemny and D r . Bassem Azkul together
completed medical source statements regarding Bell’s physical
and mental abilities. They opined that Bell could lift less
than ten pounds, could stand/walk at least two hours in an
eight-hour workday, and could sit about six hours in an eight-
hour workday. They noted that Bell’s ability to push and pull
was limited in her upper and lower extremities. Further, they
opined that Bell was limited to occasional climbing, balancing,
kneeling, crouching, crawling, stooping, and reaching.
Regarding Bell’s mental abilities, they indicated that Bell’s
ability to understand, remember, and carry out detailed
instructions was “markedly limited or effectively precluded,” as
was her ability to complete a normal workday and workweek
without interruptions from psychologically based symptoms. They
added that their opinions regarding Bell’s mental limitations
were supported by the diagnosis of generalized anxiety disorder.
In February 2010, Bell underwent an intake assessment at
Genesis Behavioral Health. She complained of anxiety symptoms
and reported panic attacks approximately five times per day.
She stated that migraine headaches kept her awake at night. She
reported that her anxiety and depression were having a 13 significant impact on her everyday functioning, and she appeared
very upset. She was diagnosed with adjustment disorder with
mixed anxiety and depressed mood, and assigned a Global
Assessment of Functioning (“GAF”) score of 5 5 .
At a follow-up appointment in May, Bell complained of
worsening depression. She was tearful throughout the interview
and exhibited a depressed mood and affect. Bell reported
symptoms consistent with a depressive disorder, as well as
anxiety with restlessness, muscle tension, excessive worry, and
difficulty sleeping. She was diagnosed with moderate major
depressive disorder and generalized anxiety disorder. She was
assigned a GAF score of 6 8 . At a counseling session in July,
Bell was extremely distressed and anxious.
B. Agency Examinations
In October 2008, state agency reviewing physician D r .
Jonathan Jaffe reviewed Bell’s record and completed a residual
functional capacity assessment. D r . Jaffe opined that Bell was
limited to the light exertional level and that her capacity was
reduced primarily by pain. D r . Jaffe noted that, although Bell
had reported fibromyalgia, the diagnosis had never been
confirmed by a rheumatologist.
In November 2008, Bell underwent a comprehensive
psychological profile with William Dinan, Ph.D. She reported 14 difficulties with bipolar disorder since 2001, increasing back
pain due to spinal stenosis, significant neck pain subsequent to
a surgery in 2003, and fibromyalgia that was diagnosed in 2001,
resulting in pain on the left side of her face, head, hips, and
ankles. Bell’s gait was slow and she walked with a cane. She
had some difficulty remaining seated, and was experiencing mild
discomfort throughout the interview.
Bell was pleasant and outgoing throughout her interview.
Her speech articulation was clear. She had no significant
problems with receptive or expressive language, and had no
indications of looseness of association, pressured speech, or
flights of ideas. D r . Dinan observed mild clinical signs of
depression. Bell reported daily sadness and weepiness,
occasional suicidal thoughts but no intentions, and difficulty
with sleep, primarily due to pain. In the area of mania, Bell
reported racing thought patterns which occasionally influenced
her sleep onset.
Dr. Dinan also observed mild clinical signs of anxiety.
Bell reported that she began exhibiting symptoms of anxiety
within the prior two years, which she attributed to stressful
life events primarily involving her children. Her affect tended
to reflect a depressive manner, along with a low self-image.
15 Dr. Dinan assessed Bell’s current level of functioning, and
found that her ability to understand and remember instructions
was without impairment; her ability to interact appropriately
and communicate effectively was without impairment; her ability
to sustain attention and complete tasks was limited to brief,
light tasks completed on an intermittent basis; and her ability
to tolerate stresses common to a work environment limited her to
brief, light job tasks that allowed for intermittent attendance.
He diagnosed Bell with bipolar II disorder.
In December 2008, state agency reviewing psychologist Craig
Stenslie, Ph.D., reviewed Bell’s record and completed a
psychiatric review technique form and a mental residual
functional capacity assessment. D r . Stenslie indicated that
Bell suffered from bipolar II disorder, and that the condition
produced mild restrictions in activities of daily living, mild
difficulties in maintaining social functioning, and moderate
difficulties in maintaining concentration, persistence, or pace.
Dr. Stenslie opined that Bell’s allegations of impairments were
only partially credible and would appear possibly affected by
her drug-seeking behavior.
Dr. Stenslie further opined that Bell retained the mental
residual functional capacity to deal adequately with short and
simple instructions, to maintain attention for two hours, and to 16 sustain ordinary routine without special supervision. She could
work within a schedule at a somewhat slower than usual pace and
with a higher than typical number of interruptions. She could
deal adequately with change in a low stress environment.
C. Administrative Proceedings
After her claim for disability benefits was denied at the
initial level, Bell requested an administrative hearing. Bell
attended the hearing on August 1 3 , 2010, and testified. She was
represented by counsel. A vocational expert also testified.
On September 3 , 2010, the ALJ issued a decision finding
that Bell was not disabled because she retained the residual
functional capacity to perform a significant number of jobs in
the national economy. Specifically, the ALJ found that Bell had
the residual functional capacity to perform light work with
unlimited use of her lower extremities to operate foot controls.
According to the ALJ, she could stand or walk for up to six
hours in an eight-hour day, and sit for up to six hours in an
eight-hour day. The ALJ added that due to her mental health
condition, Bell was able t o : (1) deal adequately with short and
simple instructions but would need some help with complex
instructions; (2) sustain attention for two-hour periods; (3)
work near others; and (4) sustain an ordinary routine without
special supervision. 17 The ALJ’s decision became the final decision of the
Commissioner on February 1 , 2011, after the Decision Review
Board failed to complete a timely review.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the “final decision” of the Commissioner. My
review is limited to determining whether the ALJ used “the
proper legal standards and found facts [based] upon the proper
quantum of evidence.” Ward v . Comm’r of Soc. Sec., 211 F.3d
652, 655 (1st Cir. 2000).
The findings of fact made by the ALJ are accorded deference
as long as they are supported by substantial evidence. Id.
Substantial evidence to support factual findings exists “‘if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his 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 2 1 8 , 222 (1st Cir. 1981)). If
the substantial evidence standard is met, factual findings are
18 conclusive even if the record “arguably could support a
different conclusion.” Id. at 770.
Findings are not conclusive, however, if they are derived
by “ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v . Chater, 172 F.3d 3 1 , 35 (1st
Cir. 1999). The ALJ is responsible for determining issues of
credibility and for drawing inferences from evidence on the
record. Ortiz, 955 F.2d at 769. It is the role of the ALJ, not
the court, to resolve conflicts in the evidence. Id.
The ALJ follows a five-step sequential analysis for
determining whether an applicant is disabled. 20 C.F.R. §
404.1520; 20 C.F.R. § 416.920. The applicant bears the burden,
through the first four steps, of proving that his impairments
preclude him from working. Freeman v . Barnhart, 274 F.3d 606,
608 (1st Cir. 2001). At the fifth step, the ALJ determines
whether work that the claimant can d o , despite his impairments,
exists in significant numbers in the national economy and must
produce substantial evidence to support that finding. Seavey v .
Barnhart, 276 F.3d 1 , 5 (1st Cir. 2001).
19 III. ANALYSIS
Bell moves to reverse and remand the Commissioner’s
decision denying her application for supplemental security
income benefits on the grounds that the ALJ committed a number
of errors in assessing her physical and mental residual
functional capacity (“RFC”) and in eliciting vocational expert
testimony. Because I find that the ALJ committed reversible
errors in his assessment of Bell’s physical RFC, I need not
address her remaining claims.
In finding that Bell’s physical impairments did not prevent
her from performing light work with certain limitations, the ALJ
gave substantial weight to the opinion of state agency
consultative physician, D r . Jaffe. The ALJ gave little weight
to the only other medical opinion on Bell’s physical
functioning.3 Bell challenges the ALJ’s reliance on D r . Jaffe’s
opinion because D r . Jaffe did not have the benefit of
significant medical evidence in the record that post-dates his
opinion.
Social Security Ruling 96-6p provides that state agency
consultants’ opinions
3 That other opinion is the medical source statement signed by Dr. Azkul and Nurse Zakorchemny. Bell contends that D r . Azkul is her treating physician and that the ALJ improperly rejected his opinion. In light of my disposition of the case, I need not address that claim. 20 can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence including any evidence received at the administrative law judge and Appeals Council levels that was not before the State agency, the consistency of the opinion with the record as a whole, including other medical opinions, and any explanation for the opinion provided by the . . . consultant . . . .
SSR 96-6p, 1996 WL 374180, at * 2 . “[T]he amount of weight that
can properly be given the conclusions of non-testifying, non-
examining physicians will vary with the circumstances, including
the nature of the illness and the information provided the
expert.” Rose v . Shalala, 34 F.3d 1 3 , 18 (1st Cir. 1994)
(internal quotation marks and citations omitted). A state
agency consultant’s opinion that is based on an incomplete
record, when later evidence supports the claimant’s limitations,
cannot provide substantial evidence to support the ALJ’s
decision to deny benefits. See, e.g., Alcantara v . Astrue, 257
Fed. Appx. 333, 334 (1st Cir. 2007); Padilla v . Barnhart, 186
Fed. Appx. 1 9 , 21 (1st Cir. 2006); Russell v . Astrue, 742 F.
Supp. 2d 1355, 1378-79 (N.D. G a . 2010); L.B.M. ex rel. Motley v .
Astrue, N o . 1:08-cv-1354-WTL-DML, 2010 WL 1190326, at *13 (S.D.
Ind. Mar. 2 3 , 2010).
In this case, it is unclear whether medical evidence
subsequent to D r . Jaffe’s evaluation undermines his opinion.
Dr. Jaffe’s opinion is based on his review of the medical
21 records prior to his October 2008 opinion. Bell’s medical
conditions are documented through June 2010. In addition to
subsequent treatment notes, the evidence that D r . Jaffe could
not have reviewed includes a cervical MRI performed in May 2009
and lumbar and cervical MRIs performed in May 2010. The
subsequent MRIs appear to suggest that Bell’s condition was
deteriorating, but there is no medical opinion in the record
interpreting their results in functional terms.
The ALJ could not rely on D r . Jaffe’s opinion as indicative
of Bell’s current condition without first deciding that the
record underwent no material change since the date of D r .
Jaffe’s review. See Alcantara, 257 Fed. Appx. at 334. As a lay
person, however, the ALJ could not decide whether the subsequent
MRIs materially changed the record. Nguyen, 172 F.3d at 35 (“As
a lay person, [ ] the ALJ was simply not qualified to interpret
raw medical data in functional terms and no medical opinion
supported the determination.”). Here, the ALJ did just that.
He discussed the results of the MRIs, extensively reciting
language from the reports that is beyond the ken a lay person,4
4 The ALJ’s description of the MRIs is as follows: “The May 2010 scan showed L2-3 mild to moderate spinal canal narrowing due to a broad-based disc bulge and mild to moderate facet hypertrophy, moderate foraminal narrowing at L3-4 with mild to moderate spinal canal narrowing, and L4-5 mild spinal canal narrowing due to a broad-based disc bulge with mild to moderate facet 22 and subsequently concluded that the record as a whole did not
match Bell’s alleged physical limitations. He erred in doing so
because “[a]bsent a medical advisor’s or consultant’s assessment
of the full record, the ALJ effectively substituted his own
judgment for medical opinion.” Alcantara, 257 Fed. Appx. at
334; see Berrios Lopez v . Sec’y of Health & Human Servs., 951
F.2d 4 2 7 , 430 (1st Cir. 1991) (“Since bare medical findings are
unintelligible to a lay person in terms of residual functional
capacity, the ALJ is not qualified to assess claimant’s residual
functional capacity based on the bare medical record.”). The
ALJ, therefore, improperly concluded that D r . Jaffe’s opinion
provided significant evidence of Bell’s current physical
capabilities by interpreting subsequent raw medical data as
consistent with that opinion.5
hypertrophy. In the cervical spine, the scan showed C3-4 left- sided asymmetric facet hypertrophy with only mild narrowing on the left C4 foramen, C4-5 mild facet hypertrophy, C5-6 broad- based disc osteophyte complex causing mild to moderate spinal canal narrowing, and C6-7 mild narrowing with moderate to severe left C7 neural foraminal narrowing.” T r . 1 2 . As Bell points out, the ALJ’s review of the MRIs appears to be an overview, as he did not include the statement from the report that “[t]here is moderate right and moderate to severe left C6 neural foraminal narrowing due to uncovertebral osteophytes.” T r . 569. 5 Even if I assume that the ALJ simply noted the results of the MRIs but did not consider them in making the RFC assessment, as the Commissioner suggests was the case, the ALJ nonetheless erred because he “was not at liberty to ignore medical evidence . . . .” See Nguyen, 172 F.3d at 3 5 . 23 The Commissioner’s argument that regardless of the ALJ’s
reliance on D r . Jaffe’s opinion, the ALJ appropriately evaluated
Bell’s medical record is equally unpersuasive. The ALJ’s
rationales for his finding that “the record as a whole” did not
support finding Bell disabled due to her degenerative disk
disease of the cervical and lumbar spines simply do not bear the
weight placed upon them.
One rationale the ALJ offered is that on examination in
March 2009, Bell “displayed normal range of motion in the back,
good range of motion in the hips, and only moderate tenderness
on the right buttock.” T r . 1 3 . He failed to reconcile this
treatment note with numerous examinations between April 2008 and
August 2009 where Bell exhibited very limited range of motion in
all directions in her cervical spine and diffuse tenderness in
her spine and hips. The ALJ also reasoned that “[a]s early as
October 2006, doctors noted that the claimant’s pain was
stable.” T r . 1 3 . He again failed to indicate that he
considered treatment notes throughout the relevant time period
that repeatedly indicated that Bell was experiencing worsening
pain and reporting lesser degrees of relief from pain
medications. Although conflicts in the evidence are for the ALJ
to resolve, see Ortiz, 955 F.2d at 769, the ALJ may not simply
ignore relevant evidence, especially when that evidence supports 24 a claimant’s cause. See Nguyen, 172 F.3d at 3 5 ; Suarez v . Sec’y
of Health & Human Servs., 740 F.2d 1 , 1 (1st Cir. 1984) (per
curiam); Dedis v . Chater, 956 F. Supp. 4 5 , 51 (D. Mass. 1997)
(“While the ALJ is free to make a finding which gives less
credence to certain evidence, he cannot simply ignore the body
of evidence opposed to his view.”) (internal quotation marks and
alterations omitted).
The ALJ could have discounted evidence showing that Bell’s
condition was more severe than what the cited evidence
indicated. In the absence of an indication that the ALJ even
considered the conflicting evidence, however, “the reviewing
court cannot tell if significant probative evidence was not
credited or simply ignored.” Cotter v . Harris, 642 F.2d 7 0 0 ,
705 (3d Cir. 1981). Because he failed to demonstrate that he
considered the portions of the record that conflict with his
conclusion, the ALJ’s determination that the record as a whole
did not support Bell’s alleged physical limitations cannot
withstand review. See Nguyen, 172 F.3d at 3 5 .
In sum, the ALJ improperly relied on D r . Jaffe’s outdated
opinion regarding Bell’s physical RFC as substantial evidence
that Bell could perform light work. The ALJ discussed the
results of the more recent MRIs that D r . Jaffe could not have
considered, but without medical opinion on the issue. Neither I 25 nor the ALJ is qualified to determine what those MRIs mean in
functional terms without the assistance of an expert. Lastly,
the ALJ proceeded to cherry-pick evidence from the record to
support his conclusion that “the record as a whole” did not
match Bell’s alleged limitations without acknowledging
conflicting evidence. These errors are significant enough to
warrant a remand.
IV. CONCLUSION
For the foregoing reasons, I grant Bell’s motion to reverse
(Doc. N o . 8 ) , deny the Commissioner’s motion to affirm (Doc. N o .
1 2 ) , and pursuant to 42 U.S.C. § 405(g), remand this case to the
Social Security Administration. The clerk is directed to enter
judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge January 1 7 , 2012
cc: Francis M . Jackson, Esq. Karen B . Fitzmaurice, Esq. Gretchen Leah Witt, AUSA