UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Darrell Kimball
v. Civil No. 21-cv-943-LM Opinion No. 2022 DNH 084 P Kilolo Kijakazi, Acting Commissioner Social Security Administration
ORDER
Darrell Kimball seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the
decision of the Acting Commissioner of the Social Security Administration that
denied his applications for disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act. In support, Kimball
contends that the decision that he is not disabled should be reversed because the
Administrative Law Judge (“ALJ”) erred in four ways: (1) by omitting knee pain as
a severe impairment at Step Two; (2) in her evaluation of Kimball’s testimony in
light of other evidence in the record; (3) in her consideration of the medical opinion
evidence; and (4) in the residual functional capacity assessment. The Acting
Commissioner moves to affirm, and Kimball moves to reverse. The court grants the
Acting Commissioner’s motion to affirm and denies Kimball’s motion to reverse.
STANDARD OF REVIEW
For purposes of review under § 405(g), the court “is limited to determining
whether the ALJ deployed the proper legal standards and found facts upon the
proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Sacilowski v. Saul, 959 F.3d 431, 437 (1st Cir. 2020). The court defers to the
ALJ’s factual findings if they are supported by substantial evidence. Biestek v.
Berryhill, 139 S. Ct. 1148, 1153 (2019). Substantial evidence is “more than a mere
scintilla” and means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. at 1154. “Substantial evidence review is
more deferential than it might sound to the lay ear: though certainly more than a
scintilla of evidence is required to meet the benchmark, a preponderance of evidence
is not.” Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018). Therefore, the court must
affirm the ALJ’s findings, even if the record could support a different conclusion,
when “a reasonable mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support [the ALJ’s] conclusion.” Irlanda Ortiz v. Sec’y of
Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991); accord Purdy, 887 F.3d
at 13.
DISABILITY ANALYSIS FRAMEWORK
To establish disability for purposes of the Social Security Act, a claimant
must demonstrate an “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Social Security Administration has
established a five-step sequential process for determining whether a claimant has
made the requisite demonstration. 20 C.F.R. § 404.1520(a)(4); 20 C.F.R.
2 § 416.920(a)(4)1; see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The five-step
process poses “questions that are sequential and iterative, such that the answer at
each step determines whether progression to the next is warranted.” Sacilowski,
959 F.3d at 433.
The steps are as follows: (Step 1) whether the claimant is currently engaging
in substantial gainful activity; if not, (Step 2) whether the claimant has a severe
impairment; if so, (Step 3) whether the impairment meets or medically equals an
entry in the Listing of Impairments; if not, (Step 4) whether the claimant’s residual
functional capacity is sufficient to allow him to perform any of her past relevant
work; and if not, (Step 5) whether, in light of the claimant’s residual functional
capacity, age, education, and work experience, he can make an adjustment to other
work available in the national economy. Id. (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-
(v)). The claimant bears the burden of showing he is disabled through the first four
steps, but at Step 5 the Commissioner must provide evidence to show that there are
jobs in the national economy that the claimant can do. Sacilowski, 959 F.3d at 434.
BACKGROUND
Kimball was laid off from his job as a facilities worker at Sodexo (a food
services and facilities management company) on June 1, 2015, because the Sodexo
1 Unless otherwise noted, the court will cite the regulations under Title II, 20
C.F.R. pt. 404, which are not materially different from the Title XVI regulations, 20 C.F.R. pt. 416, in the context of this case. See Sullivan v. Zebley, 493 U.S. 521, 525 n.3 (1990); Monteiro v. Saul, No. 20-cv-12189-RWZ, 2022 WL 867988, at *1 n.1 (D. Mass. Mar. 23, 2002). The analysis, however, applies equally to the application under Title XVI. Monteiro, 2022 WL 867988, at *1 n.1.
3 facility was closing. He has not returned to full-time work since. He states that he
has held part-time jobs since then with UPS, in food preparation, and at Lowe’s.
Kimball lives with his parents and his adult brother. He has a history of mental
health issues.
I. Health History
Kimball was treated for depression by Dr. Richard Pohl, a psychiatrist, from
1999 until September 2016, when Dr. Pohl retired. In July 2016, Kimball was
admitted to the hospital because of delusional thoughts about his father kidnapping
the family. Staff determined that the issue was caused by Kimball’s misuse of
Ativan in combination with a lack of sleep and high anxiety. He was discharged on
August 5, 2016, with medications and instructions to follow up with his primary
care physician.
After Dr. Pohl’s retirement, Kimball was arrested for threatening his family.
His father tried to have him involuntarily committed for emergency psychiatric
care, but that treatment was denied because Kimball was in jail. Kimball received
treatment with Christopher O’Shea at Wilmington Family Counseling until June
2018. Kimball then received medication management services at Smallwood Clinic
in Nashua. When the clinic closed, Kimball received treatment at the Center for
Life Management.
Kimball developed pain in his right knee in August 2019 after a fall in April
of that year. By October 2019, his knee pain had improved significantly, despite his
4 failure to go to physical therapy. On examination, Kimball had a full range of
motion in his knee, normal strength, and normal sensation. Treatment notes
indicate that despite anxiety and a practitioner’s concern related to Kimball having
two separate prescriptions for Ativan, he was not in emotional distress and showed
no signs of functional impairment.
II. Evaluations
In connection with his application for benefits, Kimball was examined by
Philip Robbins, Ph.D., for a consultative evaluation in April 2017. Kimball reported
that he was working part time. His daily activities included going to his parents’
home to help them, cleaning, doing laundry, driving, shopping, paying bills, and
taking his mother to appointments. Based on his examination, Dr. Robbins found
that Kimball could function and interact appropriately in a work setting and could
manage his anxiety and depression. Dr. Robbins’s prognosis was guarded because
of Kimball’s history and because treatment had not lessened his symptoms. State
agency psychologist Edward Martin, Ph.D., reviewed Kimball’s records, including
Dr. Robbins’s report, and concluded that Kimball had only mild functional
limitations.
Consultative examiner Darlene Gustavson examined Kimball in August
2018. Dr. Gustavson administered several tests and determined that Kimball was
capable of functioning in a work setting. John Pelletier, Sc.D., reviewed Kimball’s
5 records, including the reports submitted by Drs. Robbins and Gustavson, and found
no evidence as of September 2018 of significant functional limitations.
In April 2019, Dr. Christopher Smallwood, who treated Kimball from June
2018 until April 2019, completed a Mental Impairment Questionnaire for Kimball.
On the form, Dr. Smallwood checked boxes to show that Kimball was “moderately”
and “markedly” limited in all areas of mental functioning. The form indicates that
Kimball had serious and persistent impairments over the past two years with only
marginal adjustment.
Andrew Carlsen, MS, conducted a mental health intake evaluation at the
Center for Life Management in May 2020. Carlsen noted that Kimball was alert
and oriented with proper memory and recall and that he reported healthy daily
activities but appeared disheveled with poor hygiene. Carlson diagnosed Kimball
with generalized anxiety disorder and post-traumatic stress disorder and concluded
that Kimball would benefit from case management at the Center for Life
Management, individual therapy, medication monitoring, and supportive
employment.
III. Procedural Background
The first hearing on Kimball’s applications for benefits was held on May 10,
2019. Kimball was represented by counsel and testified at the hearing. His father,
Randall H. Kimball, also testified. A vocational expert provided testimony about
jobs available. The ALJ issued a decision on July 31, 2019, finding that Kimball
6 was not disabled. The Appeals Council sent the case back to the ALJ to address
seven specified matters from the original decision.
A second hearing was held on October 22, 2020. Kimball, represented by
counsel, testified. A vocational expert also testified. The ALJ issued her second
decision on January 4, 2021. She found that Kimball had severe impairments
because he had a depressive disorder and an anxiety disorder. Despite those
impairments, the ALJ found that Kimball had the residual functional capacity to do
work at the medium exertional level with certain limitations, was able to
understand and remember simple instructions, and was able to attend and focus
enough to complete simple tasks. She found that, while he could interact
appropriately with co-workers, he should have only brief and superficial contact
with the public.
Based on that residual functional capacity and the vocational expert’s
testimony, the ALJ found the Kimball was unable to return to any of his former
work. However, the ALJ further found that Kimball could work as a cart attendant,
lab equipment cleaner, and hand packager. As a result, the ALJ found that Kimball
was not disabled. The Appeals Council denied review on September 15, 2021,
making the ALJ’s second decision the final decision of the Acting Commissioner.
DISCUSSION
Kimball moves to reverse the Acting Commissioner’s decision on the grounds
that the ALJ erred in the following four ways: (1) at Step 2 by not finding that his
7 knee pain was a severe impairment; (2) in accepting Kimball’s testimony and
rejecting his father’s testimony and evidence of his lack of earnings; (3) in relying on
the opinions of consultative physicians; and (4) in her residual functional capacity
assessment of Kimball’s physical capacity. The Acting Commissioner moves to
affirm, asserting that the ALJ properly assessed and construed the testimony and
evidence, properly assessed severe impairments at Step 2, and properly assessed
Kimball’s residual functional capacity. The court addresses each of Kimball’s
arguments below.
I. Step 2 Findings
At Step 2, the ALJ reviews the record to determine whether the claimant has
a severe medically determinable impairment. 20 C.F.R. § 404.1520(a)(4)(ii). An
impairment is medically determinable if it “result[s] from anatomical, physiological,
or psychological abnormalities that can be shown by medically acceptable clinical
and laboratory diagnostic techniques.” Id. § 404.1521. “Therefore, a physical or
mental impairment must be established by objective medical evidence from an
acceptable medical source” but cannot be based on the claimant’s “statement of
symptoms, a diagnosis, or a medical opinion to establish the existence of an
impairment.” Id. An impairment is severe, at Step 2, if it significantly limits the
claimant’s ability to work. § 404.1520(c). Any error at Step 2 is harmless if at least
one severe medically determinable impairment is found, and the ALJ continues
along the sequential analysis. Syms v. Astrue, No. 10-cv-499-JD, 2011 WL
8 4017870, at *1 (D.N.H. Sept. 8, 2011); accord Tammy B. v. Kijakazi, No. 21-22MSM,
2022 WL 909400, at *2 (D.R.I. Mar. 29, 2022).
The ALJ found that Kimball had severe medically determinable impairments
of a depressive disorder and an anxiety disorder. She also considered Kimball’s
right knee condition in analyzing whether he had a severe impairment. The ALJ
noted that Kimball alleged a bad right knee but that his treatment records showed
that he had never been diagnosed with a specific medically determinable knee
condition and that more recent treatment notes show a full range of motion in his
knee and normal strength. The ALJ stated, however, that she was construing the
record in Kimball’s favor, and while not finding a severe impairment because of his
knee, she did restrict his residual functional capacity based on his reports of pain.
Therefore, Kimball has not shown any error, and even if error occurred, it would
have been harmless.
II. Non-Medical Source Opinion
Next, Kimball argues that the ALJ erred in relying on Kimball’s statements
to medical care providers about his ability to function and his work activity as
opposed to relying on Kimball’s testimony at both hearings, his father’s third-party
function reports, or his father’s testimony at the first hearing that Kimball was
significantly limited in his ability to function and had not worked since May 2015.2
2 Kimball told medical care providers that he had held several part-time jobs.
As the ALJ noted, Kimball’s descriptions of those jobs were quite specific and detailed, and Kimball and his father both had referred to Kimball’s work doing online
9 Kimball further argues that his earnings records show that he did not have part-
time work during that period. He contends that the ALJ did not follow the direction
from the Appeals Council to explain the weight given to the non-medical opinion
evidence and, specifically, his father’s reports and testimony.
20 C.F.R. § 404.1527(f) directs the consideration that is given to opinions
from nonmedical sources, including the claimant’s family members. See Kolberg v.
Kijakazi, No. 20CV560, 2021 WL 3861339, at *4 (M.D.N.C. Aug. 30, 2021); Kelsey
P. v. Comm’r of Soc. Sec., No. 19-CV-317 (JLS), 2020 WL 6937986, at *4 (W.D.N.Y.
Nov. 24, 2020). In weighing that evidence, an ALJ should consider the nature of the
source’s relationship with the claimant, the degree of consistency with other
evidence in the record and with the claimant’s own statements, and any other
relevant factors. Dougherty v. Saul, No. 20-CV-504, 2021 WL 3077504, at *6 (M.D.
Pa. July 21, 2021); Marquez v. Saul, No. 20-CV-110-KRS, 2021 WL 2073510, at *9
(D.N.M May 24, 2021); Kelsey, 2020 WL 6937986, at *4; Larue v. Saul, No. 20-cv-
391-PAB, 2021 WL 1207448, at *9 (D. Colo. Mar. 31, 2021). An ALJ can credit the
claimant’s testimony about his functional and work capacity even if it conflicts with
his parent’s opinion, may consider the parental relationship in assessing that
opinion, and may give less weight to conflicting opinions. Kelsey, 2020 WL
6937986, at *4.
surveys. Kimball’s father, however, testified and made reports that Kimball had not held any part-time jobs and had not worked since 2015. Kimball also testified at the hearings that he had not worked. The ALJ reported that the earnings statements in the record did not show any earnings since 2015.
10 The ALJ addressed Kimball’s father’s testimony and reports. She noted the
family relationship and described the father’s opinions and testimony in detail. She
stated that she gave little weight to Kimball’s father’s reports and prior hearing
testimony about the severity of Kimball’s mental health symptoms because the
record showed that the issues the father described were addressed when Kimball
took his prescribed medications. She stated that the medication side-effects the
father described were not included in the medical providers treatment notes. The
ALJ also explained that Kimball had the same mental health issues long before his
alleged onset date, and he was able to work despite those issues. She also recited
Kimball’s own reports about his activities to his medical providers that corroborated
his other statements.
The ALJ adequately addressed the third-party reports and testimony
provided by Kimball’s father and properly explained why she gave his opinions little
weight. To the extent Kimball focuses on the conflicting evidence about whether he
did part-time work after 2015, he has not shown that the ALJ relied on that
evidence to support her residual functional capacity assessment or her finding that
he was not disabled.3 Therefore, Kimball has not shown that the ALJ erred in her
assessment of his father’s opinions.
3 Instead, the ALJ reviewed those records in detail at Step 1 for the purpose of
determining that Kimball was not engaged in substantial gainful activity. When Kimball’s reports to medical providers about his part-time work are mentioned, the ALJ states that she has included that information “for the record.” Admin. Rec. 29.
11 III. Medical Opinion Evidence
Third, Kimball argues that the ALJ erred in her consideration of the medical
opinion evidence. All medical opinions are considered as part of the disability
determination, 20 C.F.R. § 404.1527(c)4, but they are given different weight under
this regulation depending on the following factors:
(1) Examining relationship. Generally, we give more weight to the medical opinion of a source who has examined you than to the medical opinion of a medical source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to medical opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's medical opinion on the issue(s) of the nature and severity of your impairment(s) is well- supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's medical opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the medical opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source's medical opinion. (i) Length of the treatment relationship and the frequency of examination. Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source’s medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the medical source's medical opinion more weight than we would give it if it were from a nontreating source.
4 Because Kimball filed his application for benefits in January of 2017, the
version of the regulation before amendment in March of 2017 applies here.
12 (ii) Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her medical opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain. When the treating source has reasonable knowledge of your impairment(s), we will give the source’s medical opinion more weight than we would give it if it were from a nontreating source.
(3) Supportability. The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion. The better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion. Furthermore, because nonexamining sources have no examining or treating relationship with you, the weight we will give their medical opinions will depend on the degree to which they provide supporting explanations for their medical opinions. We will evaluate the degree to which these medical opinions consider all of the pertinent evidence in your claim, including medical opinions of treating and other examining sources.
(4) Consistency. Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion.
(5) Specialization. We generally give more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist.
(6) Other factors. When we consider how much weight to give to a medical opinion, we will also consider any factors you or others bring to our attention, or of which we are aware, which tend to support or contradict the medical opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that a medical source has, regardless of the source of that understanding, and the extent to which a medical source is familiar with the other information in your case record are relevant factors that we will consider in deciding the weight to give to a medical opinion.
13 Under § 404.1527(c), prior to amendment, generally a treating physician’s opinion
was entitled to more weight than the opinions of consultants or non-examining
sources, and the ALJ was required to give good reasons for the weight given to a
treating source’s opinion if the ALJ did not give it controlling weight. See, e.g.,
Ramos v. Kijakazi, --- F. Supp. 3d ---, 2022 WL 993754, at *3 (D. Mass. Mar. 31,
2022). Kimball contends that the ALJ erred in the weight given to the opinions of
Drs. Pohl and Smallwood and the state agency consultants.
A. Drs. Pohl and Smallwood
Kimball contends that the ALJ did not properly consider opinions provided by
Dr. Pohl, his treating psychiatrist until September 2016, and Dr. Smallwood, his
treating psychologist from 2018 to 2019. In support, Kimball cites Dr. Pohl’s
treatment notes in 2015 and 2016, but he does not cite a functional capacity opinion
provided by Dr. Pohl. In his April 2019 opinion, Dr. Smallwood indicated that
Kimball would have marked limitations in concentration and adaptation and would
miss more than four days of work per month.
The ALJ provided good reasons for the weight she gave the opinions of Drs.
Pohl and Smallwood. The ALJ noted that Dr. Pohl had treated Kimball for mental
health issues for many years while Kimball was able to maintain full-time
employment. The ALJ reported that Dr. Pohl wrote in his treatment records that
Kimball’s family took away his medications, which caused changes in Kimball’s
behavior, and that Dr. Pohl issued new prescriptions. The ALJ also noted that Dr.
14 Pohl had written that Kimball experienced an exacerbation of his mental health
issues in anticipation of Dr. Pohl’s retirement and a resulting change in treatment.
Kimball improved significantly, however, when his medications were restarted, and
he began treatment with a new provider. Moreover, the pages of Dr. Pohl’s
handwritten notes that Kimball cites do not include opinions about Kimball’s
functional capacity.5 Therefore, Kimball has not shown that the ALJ failed to
properly consider any opinion provided by Dr. Pohl.
The ALJ acknowledged that Dr. Smallwood had a treating relationship with
Kimball, although he had treated Kimball on only three occasions. Because of the
brevity of the relationship, however, the ALJ concluded that Dr. Smallwood lacked
a treating relationship that would give him actual knowledge about Kimball’s
conditions. The ALJ also noted that Dr. Smallwood’s opinion was “drastically
different” from the opinions of other providers and was inconsistent with Kimball’s
medical record, which she discussed in detail. Therefore, the ALJ gave good reasons
for affording little weight to Dr. Smallwood’s opinion.
B. Consultants’ Opinions
Kimball also contends that the ALJ erred in relying on the opinions of four
consultants who provided opinions about Kimball’s mental functioning. Two
consultants based their opinions on their examinations of Kimball, and two gave
5 The cited medical record from Melrose-Wakefield Hospital also does not provide a functional capacity opinion.
15 opinions based on a review of the record. Kimball contends that the ALJ erred in
relying on the consultants’ opinions because the consultants did not have the
following pieces of evidence: Kimball’s father’s third-party function reports and
testimony, Dr. Smallwood’s opinion, and evidence of Kimball’s knee pain. Kimball
argues that the missing evidence would support greater limitations than the ALJ
found and required the ALJ to provide an explanation.
A reviewing consultant’s opinion does not provide substantial evidence to
support an ALJ’s residual functional capacity finding if the opinion was based on a
significantly incomplete record. Giandomenico v. U.S. Soc. Sec. Admin., No. 16-cv-
506-PB, 2017 WL 5484657, at *4 (D.N.H. Nov. 15. 2017) (citing Alcantara v. Astrue,
257 F. App’x 333, 334 (1st Cir. 2007)). The record reviewed by a consultant is
significantly incomplete if “evidence added after the consultant’s review materially
changed the basis for assessing the claimant’s limitations.” Reed v. Saul, No. 19-
12369-FDS, 2020 WL 4938341, at *6 (D. Mass. Aug. 21, 2020) (quoting Blakley v.
Saul, No. 18-cv-702, 2019 WL 4668020, at *5 (D.N.H. Sept. 25, 2019)). When the
record reviewed by a consultant is significantly incomplete, the ALJ must explain
whether missing evidence was material to assessing the claimant’s limitations.
Laberge v. Berryhill, No. 18-cv-257-JL, 2018 WL 6819328, at *8 (D.N.H. Dec. 28,
2018).
In this case, the ALJ found highly persuasive Dr. Pelletier’s September 2018
consultative review of the record, in which he concluded that the record contained
no recent evidence that Kimball was experiencing serious mental health symptoms
16 that caused significant functional limitations. The ALJ noted that Dr. Pelletier did
not review Dr. Smallwood’s opinion, as Dr. Pelletier’s opinion was prepared before
Dr. Smallwood’s. But the ALJ explained that Dr. Smallwood’s opinion was not
entitled to weight because it was inconsistent with his treatment notes,
observations, diagnoses, and prescribed medications. The ALJ also summarized
more recent treatment records that showed Kimball was doing well and had not
exhibited any behaviors that required hospitalization since 2016. The ALJ credited
Dr. Pohl’s theory that Kimball’s behavior in 2016 was caused by Kimball’s anxiety
due to Dr. Pohl’s retirement.
The ALJ also gave weight to the opinion of examining consultant Dr. Robbins
and the reviewing opinion of consultant Dr. Martin, who both found that Kimball’s
mental impairments did not render him disabled and that he was able to function
adequately. The ALJ explained the weight given to those opinions in detail. The
ALJ also gave weight to the functional assessment of Kimball by Dr. Gustavson,
who found, based on her examination, that Kimball could function in a work setting.
In sum, the ALJ relied on opinions of examining consultants to support the
residual functional capacity assessment. To the extent the ALJ relied on the
opinions of reviewing consultants, she properly addressed the later opinion Dr.
Smallwood provided. As Kimball acknowledges, his father’s third-party reports
were available to some of the reviewing consultants. Further, the ALJ explained
why those reports did not provide evidence of materially different limitations.
17 Kimball has not, therefore, shown reversible error in the ALJ’s consideration of the
consultants’ opinions.
IV. Residual Functional Capacity
Finally, Kimball argues that the ALJ erred in the residual functional
capacity assessment. A claimant’s residual functional capacity is “the most [a
claimant] can still do despite [his] limitations.” § 404.1545(a)(1). That
determination is made based on all the evidence in the administrative record. Id.
In making a residual functional capacity assessment, an ALJ need not have a
medical opinion that specifically provides that assessment but instead may rely on
the relevant medical facts as a whole in assessing residual functional capacity.
Evangelista v. Sec’y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987).
In doing so, however, the ALJ, as a lay person, may not interpret functional
capacity from raw medical data or substitute her opinion for that of a physician.
Nguyen, 172 F.3d at 35. Nevertheless, an ALJ may make common-sense
assessments that are within the bounds of a lay person’s understanding. Gordils v.
Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990).
The ALJ found that Kimball had the residual functional capacity to do
medium work, lifting 50 pounds occasionally and 25 pounds frequently, without
other physical limitations except that his ability to do postural activities and push
and pull with his leg was limited to occasionally. The ALJ also included limitations
related to Kimball’s mental impairments. Kimball faults the ALJ for limiting only
18 some of his physical functioning based on the pain he alleges in his knee, arguing
first that the ALJ did not consider whether the limits preclude work at the medium
functional level, and, second, that the ALJ interpreted raw medical data to assess
limitations due to knee pain.
A. Work at Medium Functional Level
When a claimant is not able to do the full range of work at an assessed
functional level, the ALJ cannot rely exclusively on the Medical-Vocational
Guidelines (commonly referred to as “the Grid”) to determine that the claimant is
not disabled. See, e.g., Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); Nguyen,
172 F.3d at 36; Stephen B. v. Kijakazi, No. 21-305-WES, 2022 WL 1156188, at *5
(D.R.I. Apr. 19, 2022). In that situation, the ALJ must seek the opinion of a
vocational expert to determine what, if any, work the claimant can do. Biestek, 139
S. Ct. at 1152-53; Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374, 375 (1st
Cir. 1982).
In this case, the ALJ relied on the testimony of the vocational expert to
determine what work Kimball could do with his limitations and did not rely
exclusively on the Grid. Thus, the ALJ considered Kimball’s ability to work at the
medium functional level plus additional restrictions for his mental impairments and
knee pain.
19 B. Evidence of Knee Pain
Kimball argues that because there is no medical opinion that provides the
limitations the ALJ found based on his knee pain, the ALJ must have interpreted
raw medical data herself, which is not allowed. He also contends that the ALJ
erred in failing to explain why the knee pain did not further limit his activities,
including standing and walking.
The ALJ wrote at Step 2 that Kimball’s treatment records did not support the
level of pain he was claiming, and for that reason, she did not find a severe
medically determinable impairment caused by pain in his knee. In other words, the
lack of medical evidence precluded the limitations Kimball was claiming. Despite
the lack of medical evidence, the ALJ took Kimball’s statements in the light most
favorable to him and included restrictions in the residual functional capacity on his
ability to push and pull and do postural activities to account for his knee pain. The
basis of those restrictions was Kimball’s own statements, not the medical record,
and an ALJ may give the claimant’s statements the benefit of the doubt.
Marceine D. v. Kijakazi, No. 20-cv-317-GZS, 2021 WL 5585730, *3 (D. Me. Nov. 20,
2021). Contrary to Kimball’s challenge, the ALJ explained why she did not find any
greater limitations based on knee pain and did not interpret raw medical data in
finding those restrictions. Therefore, Kimball has shown no reversible error.
20 CONCLUSION
For these reasons, Kimball’s motion to reverse and remand (doc. no. 9) is
denied. The Acing Commissioner’s motion to affirm (doc. no. 11) is granted.
The decision of the Acting Commissioner is affirmed.
The clerk of court shall enter judgment accordingly and close the case.
SO ORDERED.
______________________________ Landya McCafferty United States District Judge July 12, 2022
cc: Counsel of record.