UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mark A. Giandomenico
v. Civil No. 16-cv-506-PB Opinion No. 2017 DNH 237 U.S. Social Security Administration, Acting Commissioner
MEMORANDUM AND ORDER
Mark Giandomenico challenges the Social Security
Administration’s denial of his claim for Supplemental Security
Income (“SSI”) benefits, pursuant to 42 U.S.C. § 405(g). He
contends that the Administrative Law Judge (“ALJ”) erred in
assessing his residual functional capacity (“RFC”) by improperly
relying upon the opinion of a consultative physician who
allegedly relied on an outdated medical record. The Acting
Commissioner, in turn, moves for an order affirming the ALJ’s
decision. For the reasons that follow, I grant Giandomenico’s
motion to reverse and remand the Commissioner’s decision.
I. BACKGROUND
Giandomenico is a 48 year-old man who has worked as a bell
ringer for the Salvation Army, a concession-stand clerk, and a
cook. See Administrative Transcript (hereinafter “Tr.”) 213,
229 (Doc. No. 4). He applied for SSI in October 2013, alleging disability as of July 23, 2012, due to heart disease, stroke,
asthma, and high blood pressure, among other ailments. See Tr.
12, 211.1 At the forefront of Giandomenico’s claim,
symptomatically speaking, are his severe breathing difficulties
and the residual effects of an October 2013 stroke, which caused
numbness, a tingling sensation, and diminished strength in the
right side of his body. See Tr. 34-35. Furthermore, beginning
as late as March 2015 and occurring as recently as July 2015,
Giandomencio has experienced presynocopal episodes, or fainting
spells. See Tr. 623, 785. The cause of these episodes has not
been determined, although altered blood flow of the cerebral and
extracranial vessels, or stenosis of the prostatic aortic valve
have both been suspected. See Tr. 779, 785, 794.
Giandomenico now appeals from a September 21, 2016 decision
of the SSA Appeals Council denying his request to review the
ALJ’s determination that he was “not disabled.” See Tr. 20.
II. THE ALJ’S DECISION
The ALJ’s conclusion followed from his application of the
five-step, sequential analysis required by 20 C.F.R. §
1 In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts, (Doc. No. 9). See LR 9.1. Because that joint statement is part of the court’s record, I only briefly recount it here. I discuss facts relevant to the disposition of this matter as necessary below. 2 416.920(a). See Tr. 12-21. At step one, the ALJ found that
Giandomenico had not worked since October 1, 2013, the date of
his application. See Tr. 14. At step two, the ALJ found that
Giandomenico had severe impairments of obesity, asthma, sleep
apnea, hypertension, status post cardiovascular accident with
residual right-sided weakness, status post aortic valve
replacement, and psoriasis. Id. The ALJ further found that
Giandomenico’s only medically-determinable mental impairments,
depression and memory impairment, were nonsevere. See Tr. 14-
15. At step three, the ALJ found that none of Giandomenico’s
impairments, individually nor in combination, qualified for any
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Id.; see 20 C.F.R. §§ 416.920(d), 416.925-26. Specifically, the
ALJ considered Giandomenico’s pulmonary and cardiac impairments
under the pertinent listings, along with the potential
contributive effects of obesity to those impairments, but
concluded that the evidence of record did not demonstrate the
requisite severity under either listing. See Tr. 16.
At step four, the ALJ determined that Giandomenico had the
RFC to perform light exertional work, as defined in 20 C.F.R. §
416.967(b), with several postural, manipulative, and
environmental limitations.2 See Tr. 16-19. In so doing, the ALJ
2 Specifically, the ALJ found that Giandomenico: (i) could “no more than frequently push or pull, handle, feel or finger with 3 found that although there was a reasonable nexus between
Giandomenico’s impairments and his alleged symptoms, his
statements regarding the “intensity, persistence and limiting
effects” of those symptoms were not “entirely credible.” Tr.
17-18. Moreover, the ALJ found that “the nature, duration and
frequency of [Giandomenico’s] pain resulted in only a minimal
actual functional limitation based on his own description of his
daily activities and the treatment notes of examining
physicians.” Tr. 19. Although, the ALJ determined that
Giandomenico was unable to perform his past relevant work, he
concluded that Giandomenico “can perform a wide range of light
exertional work activities despite his physical impairments.”
Tr. 19.
In reaching his conclusion, the ALJ essentially adopted the
findings of Burton Nault, M.D, a physician employed by the State
Disability Determination Services (“DDS”), who reviewed
Giandomenico’s medical records as of February 6, 2014 and
offered an opinion regarding his RFC. Id. The ALJ reasoned
that nothing had been admitted into the record indicating that
Giandomenico’s condition had worsened from the time of Dr.
the right upper extremity”; (ii) could only occasionally climb ramps or stairs, or crawl; (iii) could “never climb ladders, ropes, or scaffolds” ; and (iv) “must avoid concentrated exposure to extreme temperatures, humidity, pulmonary irritants, hazardous machinery, and unprotected heights.” Tr. 16. 4 Nault’s review, and no treating source had opined that
Giandomenico had incurred additional limitations as of that
time. Id.
Finally, at step five, the ALJ determined that despite his
limitations, Giandomenico could work in a significant number of
“light exertional” jobs available in both the regional and
national economy.3 Consequently, the ALJ found that Giandomenico
was “not disabled” under the appropriate framework, and denied
his claim for SSI. Tr. 20-21.
III. STANDARD OF REVIEW
I am authorized to review the pleadings submitted by the
parties and the administrative record and enter a judgment
affirming, modifying, or reversing the “final decision” of the
Commissioner. See 42 U.S.C. § 405(g). That review is limited,
however, “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). I defer to the ALJ’s findings of fact, so long as
those findings are supported by substantial evidence. Id.
3 Specifically,the representative, light-exertional occupations considered by the ALJ included usher, ticket taker, and photo copy machine operator. See Tr. 20. A vocational expert opined that those positions would be suitable for a hypothetical person of Giandomenico’s age, education, work experience, and RFC. Id. 5 Substantial evidence 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
218, 222 (1st Cir. 1981)).
If the ALJ’s factual findings are supported by substantial
evidence, they are conclusive, even where the record “arguably
could support a different conclusion.” Id. at 770. If,
however, the ALJ derived her findings by “ignoring evidence,
misapplying the law, or judging matters entrusted to experts,”
they are not conclusive. Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999) (per curiam). The ALJ is responsible for determining
issues of credibility and for drawing inferences from evidence
in the record. Irlanda Ortiz, 955 F.2d at 769. Furthermore,
resolving conflicts in the evidence is the exclusive role of the
ALJ. Id.
III. ANALYSIS
Giandomenico asks me to reverse and remand the
Commissioner’s decision because the ALJ committed multiple
errors in assessing his RFC and improperly relied upon certain
vocational expert testimony at step five. Among his other
arguments, Giandomenico contends that the ALJ erred in his RFC
6 assessment by improperly relying upon the opinion of the state-
agency consultative physician, Dr. Nault, which he claims was
made without review of his full medical record. See Doc. No. 6
at 5-10. Specifically, he cites multiple doctor’s appointments
and tests that did not take place until months after Dr. Nault
rendered his opinion, which he claims indicate a decline in his
condition. In response, the Commissioner argues that the ALJ’s
consideration of Dr. Nault’s opinion was appropriate because
none of the medical evidence postdating Dr. Nault’s review tends
to contradict his RFC opinion, require a finding of additional
functional limitations, or show a worsening in Giandomenico’s
condition. See Doc. No. 7-1 at 7-8. Alternatively, the
Commissioner argues that even if such evidence does evince a
regression in Giandomenico’s condition, “the ALJ accounted for
this change by imposing greater [functional] limitations than
Dr. Nault.” Id. at 9. Because I determine that the ALJ
committed reversible error in adopting Dr. Nault’s opinion, I
need not address Giandomenico’s remaining claims.
A. Dr. Nault
On February 6, 2014, Dr. Nault offered an opinion regarding
Giandomenico’s physical RFC as part of the SSA’s initial
disability determination. Tr. 19, 74, 77. Dr. Nault concluded
that Giandomenico could perform light exertional work, could
stand and/or walk for a total of six hours out of an eight hour
7 work day, and could sit for up to six hours as well. Id. He
did not find any postural, manipulative, or environmental
limitations necessary. Id. In reaching his conclusion, Dr.
Nault considered Giandomenico’s heart disease, stroke, asthma,
high blood pressure, and aortic disease. Tr. 73.
In his explanation, Dr. Nault first noted Giandomenico’s
“history of aortic valve replacement with adequate recovery.”
Tr. 73. He found that as of October 24, 2013, an “EKG supported
a right bundle block only,” and an “[e]chocardiogram was
satisfactory.” Tr. 73. Second, he noted that on October 2,
2013, Giandomenico had “developed some numbness and tingling on
the right side with a subacute left thalamic infarct with good
recovery,” but as of December 4, 2013, his treating neurologist
found “only mild tingling left in the face.” Id. Third, he
noted that pulmonary function studies conducted on October 30,
2013 “supported an FEV1 of 2.25 liters at 66” pre-bronchodilator
study only,” and that a pulmonary study conducted on November
18, 2013 “supported no significant breathing problems.” Id.
Lastly, Dr. Nault noted Giandomenico’s “mild psoriasis history”
and that “[h]e used Vistaril occasionally for asthma.” Id.
On November 2, 2015, the ALJ “essentially adopted” the
findings of Dr. Nault in reaching his conclusion that
Giandomenico retained the RFC to perform a wide range of light
exertional work with certain additional limitations, as
8 discussed supra note 2. Tr. 19. In support, the ALJ simply
stated that “nothing [had] been admitted into the record to
indicate that [Giandomenico’s] condition [had] worsened since
[Dr. Nault] conducted his review [or] to indicate that [he] had
additional limitations during the period at issue.” Id. He
further noted that “no treating source has opined that
[Giandomenico] has additional limitations.” Id. Although the
ALJ did discuss some of the medical evidence postdating Dr.
Nault’s review in conducting his own RFC assessment, the quoted
passage was the full extent of his explanation for giving Dr.
Nault’s opinion “substantial weight.” Id. at 18-19. No other
medical opinions were explicitly discussed.
Giandomenico now contends that Dr. Nault’s opinion is based
on an incomplete review of his medical records, alleging that
some of his impairments had not yet been diagnosed at the time
of Dr. Nault’s review, and that some then-existing impairments
had worsened by the time of the ALJ’s decision. See Doc. No. 6
at 9. Giandomenico specifically cites 11 records postdating Dr.
Nault’s review that he claims generally evince additional
diagnoses and worsening conditions. Id. at 9-10. The records
cited consist mostly of treatment notes4 between April 14, 2014,
and May 5, 2015, and also include the results of a pulmonary
4 See Doc. No. 6 at 9-10 (citing Tr. 589-92, 727-30, 625-27, 584- 87, 612, 620-24, 747-48, 580-83, 763-64, 631, 743). 9 function test5, dated December 16, 2014, and a CT angiography of
Giandomenico’s neck6, dated April 24, 2015.
B. Reviewing-Physician’s Opinion Based on Incomplete Record
The opinion of a reviewing consultant based on a
“significantly incomplete record” cannot provide substantial
evidence to support an ALJ’s RFC finding, and therefore cannot
bear “any significant weight.” See, e.g., Alcantara v. Astrue,
257 Fed. Appx. 333, 334 (1st Cir.2007); Padilla v. Barnhart, 186
Fed. Appx. 19, 21 (1st Cir.2006); Meldrem v. Colvin, 2017 DNH
096, *2; Bell v. Astrue, 2012 DNH 010, *8-9. A record is not
“significantly incomplete,” however, based merely on the fact
that time has passed since the consultant’s review and an
incidental update in the claimant’s condition has since
occurred. Diggett v. Berryhill, No. 16-233-M, 2017 WL 3705072,
at *1 (D. R.I. Aug. 25, 2017). “Rather, the change must be
material.” Id. Thus, an ALJ may rely on a consultant’s
outdated opinion if he determines that the evidence postdating
the opinion did not materially change the record on which it was
based. See Alcantara, 257 Fed. Appx. at 334; Bell, 2012 DNH
010, *8-9. The record remains materially unchanged where the
new evidence either reveals no greater limitations or is
5 See Tr. 612
6 See Tr. 763-64 10 arguably consistent with the consultant’s assessment. See
Ferland v. Astrue, 2011 DNH 169, *4 (internal citations
omitted). The burden is on the ALJ, however, to make that
determination and he must make it adequately clear. See
Alcantara, 257 Fed. Appx. at 334 (ALJ erred in simply stating
that “the record underwent no material change” without
explaining his analysis); Snead v. Barnhart, 360 F.3d 834, 838
(8th Cir. 2004); Meldrem, 2017 DNH 096, *2; see also Heggarty v.
Sullivan, 947 F.2d 990, 997 (1st Cir.1991) (internal quotations
and citations omitted) (“Because Social Security proceedings are
not adversarial in nature, the Secretary had a duty to develop
an adequate record from which a reasonable conclusion can be
drawn.”),
Here, Dr. Nault’s February 2014 RFC opinion was not based
on a review of Giandomenico’s full medical record, as his
medical conditions are documented through July 2015. See Tr.
73, 784-93. Nonetheless, the ALJ gave Dr. Nault’s opinion
substantial weight, finding that nothing in the postdated
medical records indicated a worsening of conditions warranting
additional limitations. Tr. 19. In this case, however,
reaching that conclusion would have necessarily required the ALJ
to interpret raw medical data contained in Dr. Nault’s review.
See, e.g., Tr. 612, 763-64.
11 “An ALJ, as a lay person, is not qualified to interpret raw
data in a medical record.” Manso-Pizarro v. Sec’y of Health &
Hum. Servs., 76 F.3d 15, 17 (1st Cir. 1996); Berrios Lopez v.
Sec’y of Health & Hum. Servs., 951 F.2d 427, 430 (1st Cir.
1991)(“Since bare medical findings are unintelligible to a lay
person in terms of [RFC], the ALJ is not qualified to assess
claimant's [RFC] based on the bare medical record.”).
Consequently, an ALJ ordinarily cannot consider raw medical data
in an RFC assessment until its functional significance is
assessed by a medical expert. See McGowen v. Colvin, 2016 DNH
056, *6. Although an ALJ may “render[] commonsense judgments
about functional capacity based on medical findings,” he may
only do so within “the bounds of a lay person’s competence.”
Gordils v. Sec’y of Health & Hum. Sevs., 921 F.2d 327, 329 (1st
Cir. 1990). Therefore, “unless the extent of functional loss,
and its effect on job performance, would be apparent even to a
lay person,” Manso-Pizarro, 76 F.3d at 17 (quoting Santiago v.
Sec’y of Health & Hum. Servs., 944 F.2d 1, 7 (1st Cir. 1991)),
“an expert is needed to assess the extent of functional loss.”
Roberts v. Barnhart, 67 Fed. Appx. 621, 622-23 (1st Cir. 2003).
Thus, an ALJ can only make the required RFC assessment without
supportive expert opinion where the evidence shows a “relatively
mild physical impairment posing, to the layperson’s eye, no
12 significant restrictions.” Id. at 623(internal quotations and
citations omitted).
Here, the evidence postdating Dr. Nault’s review includes
raw medical data, e.g. the results of a pulmonary function test
(“PFT”) performed in December 2014, and a CT angiography of
Giandomenico’s neck in April 2015.7 See Tr. 612, 763-64.
Because Giandomenico’s disability claim is based, in part, on
pulmonary issues, the results of a PFT and a CT angiography of
his neck clearly have a bearing upon his claim. Thus, for the
ALJ to rely on Dr. Nault’s opinion, he would have had to
independently determine that the results of those two tests did
not materially change the record since the time of Dr. Nault’s
review, February 2014. See Bell, 2012 DNH 010, *8-9 (citing
Alcantara, 257 Fed. Appx. at 334).
As a lay person, however, the ALJ was not qualified to
decide whether the subsequent tests materially changed the
record, because their content is beyond the competence of a
layperson. See Gordils, 921 F.2d at 329; Nguyen, 172 F.3d at
35; Bell, 2012 DNH 010, *8-9. For example, the PFT, dated
December 16, 2014, indicates a “[m]oderate obstructive defect
7 The two records cited are problematic examples requiring remand, and not necessarily an exhaustive list of subsequent records that would have required expert review to interpret the subsequent medical evidence into functional capacity terms.
13 without significant bronchodilator response,” among other
findings8, and contains several raw data points, such as “FEV1 is
2.37 liters or 66% predicted.” Tr. 612. Similarly, the CT
angiography, conducted on April 24, 2015, apparently reveals
“[m]arked tortuosity of the internal carotid arteries resulting
in flow defects at the bends in the vessels,” among other
impressions.9 Tr. 763-64. Without the assistance of an expert,
such language and figures are unintelligible to a layperson.
See Berrios Lopez, 951 F.2d at 430; see also, Vega v. Colvin,
164 F. Supp. 3d 249, 262 (D. Mass. 2016) (rheumatological
symptoms); Thao v. Colvin, No. 15-cv-2327, 2016 WL 4698827, at
8 The “conclusion” contained in the PFT report notes: “Moderate obstructive defect without a significant bronchodilator response. Lung volumes show mild air trapping and diffusion capacity is normal.” Tr. 612. The rest of the report provides raw data points, such as “FEV1 ratio is 68,” “FEV1 is 2.37 liters or 66% predicted,” “Total lung capacity 90% predicted,” and similar notations. Id. The “reason for testing” was apparently “sarcoidosis.” Id. Although treating sources noted features of sarcoidosis in Giandomenico as early as October 2013, see Tr. 536-37, he was not diagnosed with “likely sarcoidosis” until April 2015, see Tr. 582; Doc. No. 9 at 18, well after Dr. Nault’s review. The ALJ makes no mention of Giandomenico’s likely sarcoidosis. 9 The “impression” from the diagnostic imaging report of Giandomenico’s neck lists a number of other findings using technical terminology, such as “[b]ilateral maxillary sinus disease,” “right upper lobe consolidation of unknown signifigance.” Tr. 763-64. The report intimates that the scan was conducted in relation to Giandomenico’s fainting episodes. See Tr. 763-64. Again, nothing in the record appears to offer a medical opinion as to the functional significance of these results. 14 *5 (N.D. Cal. Sept. 8, 2016) (antibody testing); Bell, 2012 DNH
010, *8-9 (MRI results).
Because the record does not appear to contain any expert
medical opinions as to the functional significance of these
results, we cannot know what they actually mean and whether they
reflect a material change in Giandomenico’s record. See
Roberts, 67 Fed. Appx. at 623 (“[A]n expert's RFC evaluation is
required where “the record ... is sufficiently ramified that
understanding it requires more than a layperson's effort at a
commonsense functional capacity assessment.” (quoting Manso–
Pizarro, 76 F.3d at 19)). Cf Torres-Tricoche v. Astrue, No. 09-
1241, 2010 WL 606793, at *8 (D. P.R. Feb. 18, 2010). Moreover,
the accompanying notes do not appear to contain any lay
terminology that clearly tends to “displace the materiality” of
the results. See Diggett, 2017 WL 3705072, *2 ; see also
Pelletier v. Colvin, No. 13-651, 2015 WL 247711, at *16 (D. R.I.
Jan. 20, 2015). Nor does it appear in the ALJ’s written
decision that he made any attempt to articulate a common-sense
inference from any of the subsequent findings, which would have
been permissible had he made the effort. See Douglas v. Colvin,
2016 DNH 176, *4-5 (ALJ’s reasoning that “the ability to
exercise regularly at a gym is generally consistent with an
ability to perform at least light work” was a fair inference to
reconcile consultant’s RFC opinion of claimant’s ability to
15 perform light exertional work with subsequent treatment
recommendation to exercise). Thus, “[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. His RFC determination,
therefore, was not supported by substantial evidence.
In sum, because the medical evidence postdating Dr. Nault’s
review contained raw medical data pertaining to Giandomenico’s
claimed disabilities, the ALJ was unqualified to fully assess
whether or not that evidence reflected a material change in
Giandomenico’s condition. Because the ALJ failed to identify or
otherwise obtain medical opinion on the issue, he could not have
determined that Dr. Nault’s opinion was based on a sufficiently
complete record. Therefore, Dr. Nault’s opinion could not
equate to substantial evidence and the ALJ erred in adopting it
in his RFC assessment.10
The government argues that even if the subsequent records do 10
indicate a worsening of Giandomenico’s condition, the ALJ accounted for it by finding a more limiting RFC than Dr. Nault. See Doc. No. 7-1 at 9. Although it may be true that where an ALJ purportedly errs in finding a more restrictive RFC it will typically be considered harmless error, as it is generally favorable to the claimant, that proposition is inapposite here. Here, the ALJ erred not in finding further restrictions, but rather in relying on Dr. Nault’s opinion. Moreover, in the absence of a reviewing or treating expert’s opinion, this determination is beyond the competence of a lay person for the same reasons discussed above. See, e.g., Duffany v. Berryhill, No. 16-11888, 2017 WL 4102585, at *9 (D. Mass. Sept. 15, 2017). 16 IV. CONCLUSION
For the reasons set forth above, I grant Giandomenico’s
motion to remand (Doc. No. 6) and deny the Acting Commissioner’s
motion to affirm (Doc. No. 7). Pursuant to sentence four of 42
U.S.C. § 405(g), the clerk is directed to enter judgment
accordingly and close the case, which I remand to the Acting
Commissioner for further administrative proceedings consistent
with this Memorandum and Order.
SO ORDERED. /s/Paul Barbadoro Paul Barbadoro United States District Judge
November 15, 2017
cc: Christine Woodman Casa, Esq. T. David Plourde, Esq.