UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mariah McGowen
v. Civil No. 15-cv-329-JD Opinion No. 2016 DNH 056 Carolyn W. Colvin, Acting Commissioner
O R D E R
Mariah McGowen seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying her application for
supplemental security income. McGowen moves to reverse and
remand the decision, contending that the Administrative Law
Judge (“ALJ”) erred in finding substantial improvement following
a closed period of disability, in evaluating her treating source
opinions, in interpreting raw medical data for purposes of the
residual functional capacity assessment, and in finding her
statements not entirely credible. The Acting Commissioner moves
to affirm.
Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, 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 Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ’s
factual findings as long as they are supported by substantial
evidence. § 405(g). “Substantial evidence is more than a
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Astralis
Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d
62, 66 (1st Cir. 2010).
Background
Mariah McGowen applied for supplemental security income
benefits in March of 2012 when she was eighteen years old,
alleging disability due to chronic polycystic kidney disease,
Type A, and bipolar disorder. She later amended the onset date
of disability to March 6, 2012. She had completed the eleventh
grade and had no previous work experience.
McGowen’s medical history as presented in the parties’
joint statement of material facts begins in February of 2012
when she was seen by Mary Gheen, APRN, for follow-up of her
bladder and bowel dysfunction. Nurse Gheen noted that McGowen’s
condition caused her to have urinary urgency and frequency with
accidents. She found that the medication Ditropan, prescribed
to calm the bladder, was working well.
2 Five days later, McGowen had an appointment with Dr. Sarah
Oxnard to follow-up on her asthma. Dr. Oxnard found that
McGowen’s asthma was mild but persistent and caused minor
limitations with activity. In March, her asthma was again found
to be mild but persistent.
In early March of 2012, McGowen was hospitalized for a
urinary tract infection. X-rays showed that she had dilation of
the large and small bowels but not an obstruction. A kidney
ultrasound showed multiple cysts in both kidneys and an enlarged
kidney.
Dr. Adam Weinstein, McGowen’s nephrologist, wrote a
statement about McGowen’s condition on March 9, 2012. He stated
that McGowen had polycystic kidney disease with high blood
pressure, urinary tract infections, and cyst infections. She
had developed severely enlarged cystic kidneys with chronic pain
that was sometimes severe to the point of being disabling.
McGowen went to the hospital on April 20 and April 26,
2012, for abdominal pain. At the visit on April 26, the
attending physician found that her abdomen was tender and that
she appeared to be in pain. The CT scan of her kidneys showed
multiple cysts.
On May 2, 2012, Dr. John MacEachran reviewed McGowen’s
medical records and completed a physical residual functional
capacity assessment for purposes of her application. Dr.
3 MacEachran found that McGowen was capable of work at the light
exertional level with postural limitations. He noted that
McGowen was an eighteen year old who had polycystic kidney
disease that caused infrequent pain crises. He concluded that
the pain crises were not sufficiently frequent to preclude full
time work.
McGowen saw Dr. Weinstein on May 21, 2012. Dr. Weinstein
noted that she had had a pain flare-up because of a change in
her living situation but that had resolved. On examination, Dr.
Weinstein found some abdominal tenderness and otherwise normal
results. He noted that her right kidney had reduced in size,
both kidneys had cysts, her renal ultrasound was stable, and her
blood pressure was well-controlled. Dr. Weinstein also found
that McGowen no longer needed Dilaudid, a pain medication.
On May 22, 2012, Sandra Vallery, Ph.D., did a comprehensive
psychological profile of McGowen for Disability Determination
Services. McGowen reported a variety of psychological issues,
including six years of therapy and a diagnosis of bipolar
disorder. On examination, Dr. Vallery found that McGowen was
oriented, had average intelligence and knowledge, had fair to
good memory, and had other normal results. Dr. Vallery found no
evidence of psychosis or suicidal ideation. The results of the
mental status examination show no cognitive impairment. Dr.
Vallery concluded that McGowen could complete several activities
4 during a day, could pace herself and complete tasks, could
remember short and simple instructions but not detailed
instructions, could maintain attention but had difficulty with
concentration, could maintain attendance, and could interact
appropriately with supervisors.
On June 1, 2012, Dr. Michael Schneider reviewed McGowen’s
records and completed a Mental Residual Functional Capacity
Assessment. Dr. Schneider found that McGowen’s records showed
she could understand, remember, and carry out short and simple
instructions; concentrate for two-hour periods; keep a regular
schedule; sustain full-time work; and tolerate routine changes
in a work setting.
On July 10, 2012, McGowen went to the emergency room
because of abdominal pain. The examining physician found that
she was in mild to moderate distress, she was tender in the
upper left part of her abdomen, and she had swelling in her
feet. A series of abdominal tests showed a possible partial
small bowel obstruction. Also in July, Community Partners
discontinued her therapy, after she had not been in therapy for
ninety days, and noted her progress.
McGowen went to the emergency room on November 1, 2012,
after four days of flank pain. The attending physician found
mild abdominal tenderness and diagnosed renal colic. She saw
Dr. Weinstein on November 14, 2012, who noted that McGowen had
5 been doing reasonably well until she developed flank pain during
the past month. The renal ultrasound showed that her kidney had
decreased in size but that both kidneys had renal cysts.
McGowen’s blood pressure was well controlled.
McGowen had an appointment with Priscilla Merrill, APRN, at
Lamprey Health Care, on January 30, 2013. Nurse Merrill found
no acute distress and other normal results.
In June of 2013, McGowen was seen by Regina Osime, LCSW at
Ware Adult Day Services. McGowen was anxious and reported
paranoia and auditory hallucinations. She was inattentive, had
racing thoughts, and her concentration and judgment were poor.
Dr. Olujimi Adefisan saw McGowen the next day at Ware Adult Day
Services, and she told him that she wanted to return to
treatment. Dr. Adefisan found that McGowen’s behavior, speech,
mood, affect, thought processes, memory, cognition, and
attention were within normal limits.
In July of 2013, McGowen went to the emergency room of a
hospital in Waycross, Georgia, because of dysuria (painful
urination). William Benz, P.A. found that McGowen was in mild
distress with left flank tenderness. Benz diagnosed an acute
urinary tract infection.
McGowen saw Nurse Merrill in August of 2013 and reported
that she was not having pain and that her medication was helping
her symptoms. Nurse Merrill found McGowen’s mental health was
6 improved and that her blood pressure was better. She also noted
that because of not having insurance, McGowen had not seen her
nephrologist in six months and that she would make an
appointment when she was back on her mother’s insurance in April
of 2014.
In September of 2013, McGowen had another episode of flank
pain and went to the emergency room. The attending physician
found that she was not in acute distress but was tender in the
upper left quadrant. A CT scan showed renal cysts but no kidney
stones. An X-ray showed new punctuate calcifications in the
abdomen. Medical appointments in December of 2013 and January
of 2014 showed that McGowen was not in acute distress and that
her psychological aspects were normal.
McGowen went to the emergency room three times during a
week in the middle of February of 2014. She presented with
acute distress and diffuse tenderness in her abdomen. An x-ray
showed no signs of a bowel obstruction. The attending physician
at the last visit noted that she had been there three times but
concluded that she did not meet the criteria for admission. On
February 19, the same day as her last visit to the emergency
room, Nurse Merrill found that McGowen was diffusely tender over
her abdomen, that she appeared ill, and that she had CVA
tenderness, which is related to the kidneys. Nurse Merrill
concluded that McGowen was unable to work at that time.
7 Dr. Weinstein completed a second Physical Impairment
Medical Source Statement on February 20, 2014. He wrote that
when McGowen’s kidney condition was under control, she would
rarely or only occasionally have pain that would interfere with
her attention and concentration. When she had a flare-up,
however, her pain would constantly interfere with her attention
and concentration. He thought she could stand or walk for less
than two hours in a work day, could sit for four to six hours
but less during a flare-up, she would need to walk at times
during the day, she would need to shift positions, and would
need unscheduled breaks every five to ten minutes. He also
found she could lift or carry less than ten pounds and had
postural limitations. Dr. Weinstein also added that McGowen
would miss more than four days of work in a month.
Nurse Merrill also completed a Physical Impairment Medical
Source Statement on February 20, 2014. She wrote that emotional
factors contributed to the severity of McGowen’s symptoms, that
McGowen frequently experienced pain that would interfere with
her attention and concentration, but that she could do a low
stress job. Nurse Merrill found no physical exertional
limitations but thought that McGowen would miss one day of work
per month.
Nurse Merrill saw McGowen on February 25, 2014, for urinary
urgency and frequency with back pain. McGowen was not in acute
8 distress but had CVA tenderness. She was depressed and her mood
disorder had deteriorated.
A hearing on McGowen’s application was held before an ALJ
on March 6, 2014. McGowen was represented by an attorney and
testified. She said that she was then twenty years old and had
stopped attending school in her senior year of high school. She
testified that her primary problem was kidney disease and that
stress triggered her pain and explained the treatment she
received and her medications. McGowen also testified that she
had been diagnosed with a variety of mental health disorders and
had been prescribed medication for her personality issues.
McGowen’s mother testified that McGowen had a great deal of
stress because of her kidney condition, which increased her
pain. A vocational expert also testified at the hearing.
In a decision issued on March 21, 2014, the ALJ found that
McGowen had polycystic kidney disease with chronic abdominal
pain, asthma, bipolar disorder, mood disorder, anxiety,
personality disorder, attention deficit hyperactivity disorder,
and polysubstance abuse. The ALJ found that none of the
impairments met or medically equaled a listed impaired. He
concluded that McGowen retained the functional capacity to do
light work with postural and environmental limitations and
limited to simple and unskilled work in a low-stress job with
only occasional interaction with co-workers and the public.
9 Based on the testimony of the vocational expert, the ALJ found
that McGowen was not disabled.
Discussion
McGowen contends that the ALJ erred in finding that she is
not disabled. She asserts that the ALJ found that she was
disabled for a closed period, and seeks payment for that time,
and that the ALJ improperly found that she had improved so that
she was no longer disabled. She also contends that the ALJ did
not properly weigh the medical opinion evidence, erred in
assessing her residual functional capacity based on his own
interpretation of the medical records, and did not properly
assess her credibility. The Acting Commissioner disputes
McGowen’s theory of a closed period of disability and contends
that the decision is supported by substantial evidence.
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis. 20 C.F.R. § 416.920. The claimant bears
the burden through the first four steps of proving that her
impairments preclude her from working. Freeman v. Barnhart, 274
F.3d 606, 608 (1st Cir. 2001). At the fifth step, the Acting
Commissioner has the burden of showing that the claimant is
employable. Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir.
1991).
10 A. Closed Period of Disability
McGowen argues that the ALJ found a closed period of
disability and subsequent improvement based on the ALJ’s “many
remarks about [McGowen’s] disabling symptoms from 2010, 2011,
and into 2012.” Based on that dubious conclusion, McGowen then
asserts that the ALJ erred in finding that she had improved
after that time so that she was no longer disabled.
Because McGowen seeks supplemental security income
benefits, the relevant period for determining disability began
on the date of her application, March 6, 2012. 20 C.F.R. §
416.501; see also Vazquez v. Comm’r of Social Security, 2015 WL
4562978, at *1 n.3 (S.D.N.Y. July 21, 2015); Lekousis v. Colvin,
2015 WL 3856543, at *1 n.2 (N.D. Ill. June 19, 2015). In
addition, to qualify for supplemental security income benefits,
the claimant must show that the disability is expected to last
for a continuous period of at least twelve months. 42 U.S.C. §
1382c(a)(3)(A); 20 C.F.R. § 416.905(a).
The ALJ found that McGowen was not disabled from her
alleged onset date, March 6, 2012, through the date of the
decision in March of 2014. McGowen’s theory of a closed period
of disability depends on an alleged disability before the onset
date. Therefore, she has not shown any error by the ALJ based
on a theory of a closed period of disability.
11 B. Medical Opinions
McGowen contends that the ALJ did not properly evaluate the
opinions of her nephrologist, Dr. Weinstein. She also contends
that the ALJ erred in relying on the opinion of the state agency
reviewing physician, Dr. MacEachern, because he did not review
the medical evidence after May of 2012.
An ALJ is required to consider the medical opinions along
with all other relevant evidence in a claimant’s record. 20
C.F.R. § 416.927(b). Medical opinions are evaluated based on
the nature of the medical source’s relationship with the
claimant, the consistency of the opinion with the other record
evidence, the medical source’s specialty, and other factors that
may be brought to the ALJ’s attention. § 416.927(c). In the
decision, the ALJ must explain the weight given to the medical
opinions, including the opinions of state agency reviewing
physicians. § 416.927(c)(2) & § 416.927(e)(2)(ii).
1. Dr. Weinstein’s opinions
A treating physician’s opinion is given controlling weight,
because of the nature of the treating relationship, if it “is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other
substantial evidence.” § 416.927(c)(2). “If the treating
physician’s opinion is inconsistent with other evidence in the
12 record, the conflict is for the ALJ, not the court, to resolve.”
Rivera v. Colvin, 2016 WL 778360, at *10 (D. Mass. Feb. 26,
2016).
Dr. Weinstein provided opinions about McGowen’s condition
and the effects of her kidney disease on March 9, 2012, and
February 20, 2014. In both, Dr. Weinstein explained that
McGowen had kidney disease that caused chronic pain which
occasionally became severe. During episodes of severe pain, Dr.
Weinstein said, McGowen would not be able to work. His opinion
on February 20, 2014, was in the form of a Physical Impairment
Medical Source Statement, which included an evaluation of
McGowen’s capacity to walk, stand, sit, carry weight, and do
postural activities.
In the decision, the ALJ first considered an assessment
done by Dr. Weinstein in April of 2010, before the alleged onset
date, and gave that opinion only some weight because the ALJ
found that the medical evidence after March of 2012 showed
improvement and that McGowen would not require regular absences
from work. The ALJ also gave some weight to Dr. Weinstein’s
assessment in March of 2012 but found that the opinion was more
pertinent to McGowen’s condition prior to March of 2012 rather
than for the period afterwards. The ALJ credited a new
medication prescribed by Dr. Weinstein in November of 2012 for
improvement in McGowen’s kidney condition. The ALJ also found
13 that McGowen’s medical records “from late 2012 and into 2013”
did not show that her kidney disease would cause constant
interference with her ability to concentrate or difficulty in
maintaining attendance at work. Further, the ALJ found no
support in the record for limiting McGowen’s physical ability to
less than the light exertional level.
The ALJ gave little weight to Dr. Weinstein’s opinion from
February of 2014. The ALJ inferred that because Dr. Weinstein
had not treated McGowen after November of 2012, she had not
needed treatment. In response to McGowen’s explanation that she
did not see Dr. Weinstein during that period because she did not
have medical insurance, the ALJ noted that McGowen received
other medical treatment during that time.
The ALJ’s explanation for the weight given to Dr.
Weinstein’s opinions is problematic. The insurance issue is far
from clear, particularly because when Nurse Merrill advised
McGowen to see Dr. Weinstein, McGowen said she would go when she
could be covered under her mother’s insurance. Those
circumstances suggest that her treatment with Nurse Merrill was
not affected by the lack of insurance. In addition, the ALJ
gave little weight to Nurse Merrill’s opinion about the
disabling effects of McGowen’s kidney disease, because he found
the opinion was not supported, again because of the lack of
treatment between late 2012 and into 2013. It is unnecessary to
14 determine whether reversal would be required based on Dr.
Weinstein’s opinions, however, because of the problem with the
ALJ’s reliance on the opinion of state agency physician, Dr.
John MacEachern.
2. Dr. MacEachern’s Opinion
The ALJ may rely on opinions of state agency consultant
physicians under the same analysis as that applied to opinions
of treating or examining medical sources. § 416.927(e); Ormon
v. Astrue, 497 F. App’x 81, 84 (1st Cir. 2012); Smallidge v.
Colvin, 2014 WL 799537, at *5 (D.N.H. Feb. 28, 2014); see also
Titles II and XVI: Consideration of Administrative Findings of
Fact by State Agency Medical and Psychological Consultants and
Other Program Physicians, SSR 96-6p, 1996 WL 374180 (July 2,
1996). A state agency physician’s opinion based on a review of
the record can be given weight only to the extent the opinion is
supported by evidence in the record. SSR 96-6p, 1996 WL 374180,
at *2. An opinion that is based on review of only part of the
record cannot provide substantial evidence to support the ALJ’s
residual functional capacity finding if other evidence, not
reviewed, supports the claimant’s limitations. Alcantara v.
Astrue, 257 F. App’x 333, 334 (1st Cir. 2007); Padilla v.
Barnhart, 186 F. App’x 19, 20 (1st Cir. 2006); Jones v. Colvin,
15 2015 WL 687219, at *13 (D.R.I. Feb. 18, 2015); Spielberg v.
Astrue, 2011 WL 4971971 at *6 (D.N.H. Oct. 18, 2011).
In this case, the ALJ gave great weight to the opinion of
state agency physician, Dr. MacEachern, which was completed
based on a review of McGowen’s medical records up to May 2,
2012. The ALJ gave little weight to the two opinions provided
by McGowen’s nephrologist, Dr. Weinstein, and her primary care
provider, Nurse Merrill, because the ALJ found that those
opinions were not supported by the record. McGowen contends
that the ALJ erred relying on Dr. MacEachern’s opinion because
he did not review any of her records after May 2, 2012, and she
notes the treatment she received during that time.
The ALJ found that McGowen’s medical records after Dr.
MacEachern’s opinion in May of 2012 show improvement in her
condition. The records themselves, however, are not as clear as
the ALJ presents them. McGowen was ill in July of 2012 and was
treated at Lamprey Health Care and the hospital emergency room.
She was treated at emergency rooms in November of 2012, in July
of 2013, September of 2013, and February of 2014. During that
period she did not have insurance, and Nurse Merrill noted in
her treatment record that McGowen should be seeing her
nephrologist. Because Dr. MacEachern did not review the medical
records after May of 2012, he did not provide any opinion about
the significance of McGowen’s treatment during that time.
16 Therefore, the ALJ has not properly supported the weight he
attributed to Dr. MacEachern’s opinion.
C. Residual Functional Capacity
McGowen challenges the ALJ’s residual functional capacity
assessment on the grounds that no medical opinion supports the
assessment of her condition after May of 2012 and that the ALJ
interpreted her medical records himself to assess her functional
capacity. The Acting Commissioner contends that the ALJ
properly relied on Dr. MacEachern’s opinion.
A residual functional capacity assessment determines the
most a person can do in a work setting despite her limitations
caused by impairments. 20 C.F.R. § 416.945(a)(1). The Acting
Commissioner’s residual functional capacity assessment will be
affirmed if it is supported by substantial evidence. Irlanda
Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991); Pacensa v. Astrue, 848 F. Supp. 2d 80, 87 (D. Mass.
2012).
The ALJ interpreted McGowen’s medical records from late
2012 and 2013 to show improvement. There is no medical opinion
to support the ALJ’s assessment of the record. Instead, as
McGowen charges, it appears that the ALJ interpreted McGowen’s
medical records on his own to evaluate the extent of her illness
and functional loss because of kidney disease.
17 As a lay person, an ALJ is “not qualified to interpret raw
medical data in functional terms.” Nguyen, 172 F.3d at 35;
Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 17
(1st Cir. 1996). For that reason, an expert generally is
necessary to provide a functional capacity assessment based on
medical data. Manso-Pizarro, 76 F.3d at 17. Nevertheless, an
ALJ can “render[] 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); accord Couture v. Colvin,
2015 WL 3905273, at *5 (D.N.H. June 25, 2015); Pelletier v.
Colvin, 2015 WL 247711, at *17 (D.R.I. Jan. 20, 2015).
The exception for a common-sense finding without a
supporting expert opinion applies only when the medical findings
in the record show relatively little impairment. Manso-Pizarro,
76 F.3d at 17. An expert opinion is necessary “unless the
extent of functional loss, and its effect on job performance,
would be apparent even to a lay person.” Id. (internal
quotation marks omitted). While an ALJ may assess functional
capacity based on the findings of more than one medical source,
the assessment still must be based on some medical findings and
opinions. See Evangelista v. Sec’y of Health & Human Servs.,
826 F.2d 136, 144 (1st Cir. 1987); Perry v. Astrue, 2014 WL
18 4965910, at *6 (D. Mass. Sept. 30, 2014); Frotten v. Colvin,
2014 WL 4659309, at *4 (D.N.H. Sept. 17, 2014).
Here, the ALJ relied on the opinion of Dr. MacEachern to
assess McGowen’s residual functional capacity, but Dr.
MacEachern did not review McGowen’s records after May of 2012.
Although the ALJ interpreted the records after May of 2012 to
show improvement, it is beyond the ability of a lay person to
assess the medical evidence pertaining to McGowen’s kidney
disease in functional terms. Because Dr. MacEachern’s opinion
cannot provide substantial evidence of McGowen’s functional
capacity and the ALJ was not qualified to make that medical
determination, the ALJ lacked substantial evidence to support
his assessment.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (document no. 9) is granted. The Acting
Commissioner’s motion to affirm (document no. 10) is denied.
The decision of the Acting Commissioner is reversed, and
the case is remanded for further proceedings pursuant to
sentence four of 42 U.S.C. § 405(g).
19 The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
March 15, 2016
cc: Laurie Smith Young, Esq. Terry L. Ollila, Esq.