UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Ann Rice
v. Case No. 17-cv-169-PB Opinion No. 2018 DNH 151 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Mary Ann Rice challenges the denial of her claim for Social
Security disability insurance (SSDI) benefits and supplemental
security income (SSI) under Title II and Title XVI of the Social
Security Act. 42 U.S.C. § 423; 42 U.S.C. § 1381a. Rice argues
that the administrative law judge’s (ALJ) residual functional
capacity (RFC) determination was not supported by substantial
evidence because it was based on her lay interpretation of raw
medical data and failed to properly consider Rice’s subjective
pain complaints. The Acting Commissioner moves for an order
affirming the decision. For the following reasons, I affirm.
I. BACKGROUND
A. Facts
In accordance with Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts. Doc. 12. Because that joint statement is part of the court’s record, I
only briefly discuss the facts here. I discuss further facts
relevant to the disposition of this matter as necessary below.
Rice was a 57 year-old woman on January 24, 2014, her
alleged onset date. Administrative Record (AR) 73. She
formerly worked as a “coding/billing clerk,” a “data entry
clerk,” and a fast food “crew member.”
Rice spent the majority of her career working at the
Dartmouth Hitchcock Medical Center as a billing clerk, data
entry clerk, and medical coding clerk. AR 56. She left that
job voluntarily and, after a period of unemployment, ended up as
a McDonald’s crew member. AR 46, 56. She stopped working at
McDonald’s in January 2014 because of weakness in her back and
knees that made it impossible to stand for her entire shift and
lift the heavy weight required. AR 46. Worsening back and knee
problems reduced her ability to remain physically active to the
point where she gained a significant amount of weight and became
obese. AR 43, 46-47.
B. Procedural History
Rice filed claims for both SSDI and SSI on February 4,
2014. AR 73, 84. The Social Security Administration denied her
claims on July 16, 2014. AR 96, 97, 101, 104. On July 22,
2 2014, she requested a hearing before an ALJ. AR 107.
The ALJ conducted the hearing on September 1, 2015. AR 39.
The ALJ denied Rice’s claims for SSDI and SSI in a written
decision on January 21, 2016. AR 32. In doing so, she applied
the five-step analysis required by 20 C.F.R. § 404.1520 (for
SSDI claims) and 20 C.F.R. § 416.920 (for SSI claims). At step
one, the ALJ determined that Rice had not engaged in substantial
gainful activity since her alleged onset date of January 24,
2014. AR 23. At step two, the ALJ determined that Rice had the
following severe impairments: “degenerative disc disease,
degenerative joint disease, and obesity.” AR 23. At step
three, the ALJ determined that Rice did not have any of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1, which
would render her disabled per se. AR 25. At step four, the ALJ
determined that Rice’s RFC allowed her to:
lift and carry less than ten pounds occasionally and frequently[;]
stand and walk for two hours and sit six hours of an eight- hour day[;]
never climb ladders, ropes[,] or scaffolds[;]
occasionally climb stairs and ramps, balance, stoop, kneel, crouch, and crawl[;]
avoid concentrated exposure to extreme heat and cold, vibrations, fumes, odors, dusts, gases[,] and pulmonary irritants[;]
3 never work with hazards, such as moving mechanical parts and unprotected heights[;]
requires a sit/stand option that permits her to change positions at will, but any time off task would not exceed normal break times[; and] . . .
only occasionally reach overhead with both arms.
AR 25-26. The ALJ determined that, in light of this RFC, Rice
could return to her past relevant work as a “data entry clerk
and coding/billing clerk.” AR 31. Therefore, the ALJ found
that Rice was not disabled and denied her claims for both SSDI
and SSI. AR 31-32.
Rice petitioned the Appeals Council to review the ALJ’s
decision, but she filed after the deadline, and the Appeals
Council denied her request for review. AR 6. Rice filed a
complaint for judicial review on June 26, 2017. 1 Doc. 1.
II. STANDARD OF REVIEW
I am authorized under 42 U.S.C. § 405(g) to review the
pleadings submitted by the parties and the administrative record
and enter a judgment affirming, modifying, or reversing the
1 Rice’s complaint only specifically requests “disability benefits” under 42 U.S.C. § 405(g), the statute for SSDI. But, because Rice seeks review of the ALJ’s decision, which also denied her SSI benefits, I construe the complaint as also addressing the denial of SSI, under 42 U.S.C. § 1383(c)(3).
4 “final decision” of the Commissioner. 2 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, as long as
those findings are supported by substantial evidence. Id.
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.” Irlanda Ortiz, 955 F.2d
at 770. If, however, the ALJ “ignor[ed] evidence, misappl[ied]
the law, or judg[ed] matters entrusted to experts,” her findings
are not conclusive. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.
1999) (per curiam). The ALJ determines issues of credibility
and draws inferences from evidence in the record. Irlanda
2 Title 42 U.S.C. § 1383(c)(3) authorizes me to review the denial of SSI under the same standard as 42 U.S.C. § 405(g).
5 Ortiz, 955 F.2d at 769. The ALJ, and not the court, must
resolve conflicts in the evidence. Id.
III. ANALYSIS
Rice argues that the ALJ erred by interpreting raw medical
data without the aid of expert medical opinions and ignoring
Rice’s subjective pain complaints when determining her RFC.
Doc. 10-1 at 4, 8.
A. Lay Interpretation of Raw Medical Data
On June 3, 2014, Dr. Hugh Fairley evaluated Rice’s medical
records, but did not perform an examination of Rice herself. AR
73. He noted that she had “severe, bilateral degenerative
arthritis [in her] knees”, as well as “sciatica, diabetes,
asthma,” and “obesity.” AR 80-81. He opined that her RFC
permitted her to sit for up to six hours of an eight-hour
workday and occasionally stoop, among other things. AR 80.
On November 14, 2014, Dr. Robert Bassett evaluated Rice.
AR 237-242. He stated that Rice had pain, stiffness, and
weakness in her knees because osteoarthritis had worn away the
cartilage in both knees. AR 237. He noted, however, that she
had received cortisone injections in her knees, which caused her
pain to “markedly improve[].” AR 237. He listed her symptoms
6 as “pain and stiffness [in her] knees, weakness, [and] easy
fatigue.” AR 237. Dr. Bassett opined that Rice could sit for
only four hours a day, see AR 239, and could not stoop or crouch
at all. AR 241.
On July 6, 2015, Physician Assistant Patrick Evans
evaluated Rice. AR 561. He wrote that she has back pain,
osteoarthritis, knee pain, and an injury to her rotator cuff,
but that these issues have been somewhat successfully treated
with physical therapy and injections. AR 561. He opined that
she could only sit for 30 minutes at a time and stand for ten
minutes at a time, and both sit and stand for less than two
hours in a workday. AR 558. He also noted that she could only
reach for five percent of the day with her right arm and 20
percent of the day with her left arm. AR 560. He noted that
she could crouch for five percent of the day and never stoop.
AR 560.
The ALJ considered all of these opinions, as well as Rice’s
medical records, when determining her RFC. AR 29-30. The ALJ,
however, stated that “the more restrictive limitations assessed
by Dr. Bassett and Mr. Evans are not supported by the evidence
of record and therefore, overall, I have given these opinions
less weight than [Dr. Fairley].” AR 30. The ALJ specifically
7 noted several pieces of evidence that contradicted Bassett’s and
Evans’ opinions. This included “abnormal imaging studies of
claimant’s shoulder and lumbar spine” and “physical therapy and
office notes.” AR 29. The ALJ also supported her RFC
determination by noting that Rice’s “treatment, including
injections and physical therapy,” significantly improved her
symptoms and functions. AR 29.
Thus, even though Dr. Bassett and Physician Assistant Evans
opined that Rice could only sit for 2 hours a day, never stoop,
and reach overhead only 5 percent of the time with her right arm
and 20 percent of the time with her left, the ALJ rejected these
limitations and adopted Dr. Fairley’s opinion, finding that she
could sit for six hours a day, occasionally stoop, and
occasionally (30 percent of the time) reach overhead. 3 AR 25-
26.
Rice argues the ALJ’s RFC is not supported by substantial
evidence because the ALJ evaluated “raw medical data” without
the aid of medical expert opinion, Doc. 10-1 at 4, and because
3 These differences between the ALJ’s RFC and Dr. Bassett’s and Mr. Evans’ opinions are significant. See Nguyen, 172 F.3d at 36 (“The inability to remain seated may constitute an exertional impairment which significantly erodes the occupational base for sedentary work and requires use of additional vocational resources.” (citing Rose v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994)).
8 the ALJ ignored the opinions of her treating sources, Dr.
Bassett and Physician Assistant Evans, Id. at 7.
1. Raw Medical Data
Although the ALJ relied on Dr. Fairley’s expert medical
opinion to interpret the medical evidence submitted up to that
point, the record also includes raw medical evidence that was
submitted after Dr. Fairley evaluated Rice. Because the ALJ
rejected the opinions of the other medical experts who reviewed
Rice’s records after Dr. Fairley, Rice argues, the ALJ must have
relied on her own interpretation of the raw medical data that
was added to the record after Dr. Fairley completed his review.
I reject this argument because the ALJ was entitled to rely on
Dr. Fairley’s evaluation, given that the subsequent medical
evidence did not reveal a significant change in her condition.
An ALJ must evaluate all of the medical evidence in the
record when determining a claimant’s RFC. Nguyen, 172 F.3d at
35 (a hearing officer cannot “ignore medical evidence”).
Furthermore, an ALJ is a lay person when it comes to medical
evidence, and so cannot translate “raw medical data” into a
functional limitation without the aid of a medical expert. Id.
at 35. Where a medical expert issues an opinion after having
examined some, but not all, of the medical records, “[a]n ALJ is
9 entitled to accord substantial weight to [the] RFC opinion if
the treatment notes postdating the medical source’s assessment
are available to the ALJ and document the same complaints of
pain and clinical findings.” Chabot v. Social Security
Administration, 2014 DNH 067, *13. Furthermore, the ALJ is not
“precluded from rendering common-sense judgments about
functional capacity based on medical findings, as long as the
[ALJ] does not overstep the bounds of a lay person’s competence
and render a medical judgment.” Gordils v. Sec’y of Health &
Human Servs., 921 F.2d 327, 329 (1st Cir. 1990).
Here, the ALJ stated that she based her RFC determination
on the opinion of Dr. Fairley, the medical records submitted
after his evaluation, and the opinions of Dr. Bassett and
Physician Assistant Evans, insofar as they were consistent with
Dr. Fairley’s opinion. AR 29-30. While Dr. Fairley did not
evaluate Rice’s full medical records, his opinion was supported
by the evidence available to him when he conducted his review,
and the subsequent medical evidence in the record contains
evidence of the same conditions. See Chabot, 2014 DNH 067, *13.
Therefore, I decline to reverse the decision of the ALJ on the
basis of an improper evaluation of raw medical data.
10 2. Treating Source
An ALJ cannot reject the opinion of a “treating source”
unless she gives “good reasons” that are “both specific . . .
and supportable.” Jenness v. Colvin, 2015 DNH 167, *6 (citing
Soto-Cedeno v. Astrue, 380 Fed.Appx. 1, 4 (1st Cir. 2010)).
These “good reasons” are outlined in 20 C.F.R. § 404.1527(c)
(for SSDI) and 20 C.F.R. § 416.927(c) (for SSI), which state
that an ALJ may reject the opinion of a treating source if it is
not “well-supported by medically acceptable clinical and
laboratory diagnostic techniques . . . [or] inconsistent with
the other substantial evidence in [the claimant’s] case record.”
20 C.F.R. § 404.1527(c)(2); see 20 C.F.R. § 416.927(c).
Furthermore, “[w]hen a treating physician’s opinion is
inconsistent with other medical evidence, the ALJ’s task is to
examine the other physicians’ reports to see if they outweigh
the treating physician’s report, not the other way around.”
Goatcher v. U.S. Dept. of Health & Hum. Servs., 52 F.3d 288, 290
(10th Cir. 1995) (quotations and citations omitted).
Dr. Bassett and Physician Assistant Evans were both
“treating sources,” entitling their opinions to special
deference. See Benton ex rel. Benton v. Barnhart, 331 F.3d
1030, 1035 (9th Cir. 2003). The ALJ rejected only the portions
11 of the opinions of Dr. Basset and Physician Assistant Evans that
were not consistent with the opinion of Dr. Fairley and were not
supported by the medical evidence in the record. AR 30. The
medical records, Dr. Fairley’s opinions, and Dr. Bassett’s and
Physician Assistant Evans’ opinions all support a finding that
Rice had significant knee, back, and shoulder problems, caused
by osteoarthritis and exacerbated by obesity. The opinions only
differ as to how this finding affects Rice’s RFC: Dr. Fairley
and the ALJ stated that she can sit for six hours, occasionally
stoop and occasionally reach overhead, whereas Dr. Bassett and
Physician Assistant Evans stated she could only sit for two
hours a day, never stoop, and reach overhead only five percent
of the time with her right arm and 20 percent of the time with
her left. The ALJ’s adoption of Dr. Fairley’s less restrictive
RFC is supported by the subsequent medical records, which state
that Rice reported an improvement in her symptoms with
treatment, AR 27, 267, 615. Therefore, the ALJ’s RFC was
supported by substantial evidence.
B. Subjective Pain Complaints
Rice next argues that the ALJ erred by ignoring her
subjective pain complaints. Rice claims she reported that her
ability to work is limited by significant pain and that the ALJ
12 formed her RFC without mentioning any of the “Avery factors” for
evaluating pain. Doc. 10-1 at 8.
The ALJ must consider the claimant’s assertion of physical
pain when considering the claimant’s RFC. 20 C.F.R. § 404.1529.
However, the ALJ is not required to accept the claimant’s
assertion of pain wholesale. Shaw v. Sec’y of Health & Human
Servs., 25 F.3d 1039, 1994 WL 251000, *2 (finding claimant’s
assertion of pain was unsupported by the other medical
evidence). When evaluating the claimant’s assertions of pain,
the ALJ must consider certain factors, known as the “Avery
factors.” Avery v. Secretary of Health & Human Servs., 797
F.2d. 19, 29 (1st Cir. 1986) (when evaluating the level of
disability brought on by a physical injury, the ALJ should
consider, (i) the nature/location of the pain, (ii) the
precipitating and aggravating factors, (iii) any medicine that
the claimant is taking to combat the pain, (iv) any pain
treatment other than medication, (v) any functional
restrictions, and (vi) the claimant’s daily activities). The
Avery factors require consideration of: the subjective symptoms
of the claimant’s pain, whether the claimant’s daily activities
are limited by the pain, whether there are factors that make the
pain worse or better, whether the claimant is receiving
13 treatment for the pain, and whether the pain is consistent with
the claimant’s other objective medical evidence. 20 C.F.R. §
404.1529(c); see Avery, 797 F.2d. at 29.
Here, the ALJ did consider the Avery factors when
determining how much weight to give to Rice’s subjective pain
complaints. The ALJ noted that, initially, Rice reported that
her pain made it difficult to stand, walk, and lift even light
objects. AR 26. But, her pain had improved with medical
treatment, specifically cortisone injections. AR 27. By 2015,
her physical therapist noted that her shoulder was improving and
that she was exercising without pain or fatigue. AR 27; 267;
615. The ALJ also noted that the degree of pain that Rice
reported was inconsistent with her objective medical records.
AR 27 (“the intensity of [her] pain and degree of incapacity . .
. are inconsistent with the medical evidence of record.”).
Therefore, the ALJ considered the relevant Avery factors, and
her RFC determination is supported by substantial evidence.
IV. CONCLUSION
For the aforementioned reasons, I grant the Acting
Commissioner’s motion to affirm, Doc. 11, and deny Rice’s motion
to reverse, Doc. 10. The clerk is directed to enter judgment
14 accordingly and close the case.
SO ORDERED.
/s/ Paul Barbadoro ________ Paul Barbadoro United States District Judge
July 25, 2018
cc: Robert J. Rabuck, Esq. D. Lance Tillinghast, Esq.