Piper v SSA

2018 DNH 060

• Court: District Court, D. New Hampshire
• Decided: March 20, 2018
• Docket: 16-cv-455-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Marcia Gay Piper

v. Civil No. 16-cv-455-JL Opinion No. 2018 DNH 060 Nancy A. Berryhill, Acting Commissioner, U.S. Social Security Administration,

ORDER ON APPEAL

Marcia Gay Piper has appealed the Social Security

Administration’s (“SSA”) denial of her application for a period

of disability and disability insurance benefits. An

administrative law judge (“ALJ”) at the SSA ruled that, despite

severe impairments, Piper retains the residual functional

capacity (“RFC”) to perform jobs that exist in significant

numbers in the national economy, and thus is not disabled. See

20 C.F.R. §§ 404.1505(a), 416.905(a). The Appeals Council later

denied Piper’s request for review, see id. § 404.967, with the

result that the ALJ’s decision became the final decision on her

application, see id. § 404.981. Piper then appealed the

decision to this court, which has jurisdiction under 42 U.S.C.

§ 405(g) (Social Security).

Piper has moved to reverse the decision. See LR 9.1(b).

The Acting Commissioner of the SSA has cross-moved for an order

affirming the ALJ’s decision. See LR 9.1(e). After careful consideration, the court denies Piper’s motion and grants the

Acting Commissioner’s motion.

I. Applicable legal standard

The court limits its review of a final decision of the SSA

“to determining whether the ALJ used the proper legal standards

and found facts upon the proper quantum of evidence.” Ward v.

Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). It

“review[s] questions of law de novo, but defer[s] to the

Commissioner's findings of fact, so long as they are supported

by substantial evidence,” id., that is, “such evidence as a

reasonable mind might accept as adequate to support a

conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quotations omitted). Though the evidence in the record may

support multiple conclusions, the court will still uphold the

ALJ’s findings “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).

II. Background1

The ALJ invoked the requisite five-step sequential

evaluation process in assessing Piper’s request for disability

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their

2 and disability insurance benefits. See 20 C.F.R. §§ 404.1520,

416.920. After determining that Piper had not engaged in

substantial gainful activity after the alleged onset of her

disability on July 22, 2013, the ALJ analyzed the severity of

her impairments. At this second step, the ALJ concluded that

Piper had several severe impairments: depression, anxiety, a

personality disorder, polysubstance abuse, and degenerative disc

disease (cervical and lumbar spine).2

At the third step, the ALJ found that Piper’s severe

impairments did not meet or “medically equal” the severity of

one of the impairments listed in the Social Security

regulations.3 See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925, and 416.926. After reviewing the medical

evidence of record, Piper’s own statements, and the opinions of

a medical consultative examiner, Dr. Matthew J. Masewic, M.D., a

State agency medical consultant, Dr. Natacha Sochat, M.D., a

State agency psychological consultant, Dr. Edward Martin, Ph.D.,4

Joint Statement of Material Facts (doc. no. 12) is incorporated by reference. See LR 9.1(d). 2 Admin. R. at 22. 3 Id. 4 In his decision, the ALJ refers to Dr. Edward Martin as “Edward Healy.” See Admin. R. at 27, 87. The parties agree that the opinion that the ALJ cited as Dr. Healy’s was in fact Dr. Martin’s, and argue their respective positions accordingly.

3 and Piper’s treating physicians, Dr. Eric Lewis, M.D., and

Dr. Lester Nicholson, M.D., the ALJ concluded that Piper

retained the RFC to perform light work with a variety of

limitations.5 Finding that, even limited in this manner, Piper

was able to perform jobs that exist in significant numbers in

the national economy, see 20 C.F.R. §§ 404.1566 and 416.966, the

ALJ concluded his analysis and found that Piper was not disabled

within the meaning of the Social Security Act.

III. Analysis

Piper challenges the ALJ’s treatment of the opinion

evidence concerning both her physical and mental impairments.

With respect to her physical impairments, she contends that the

ALJ relied on his own lay knowledge in forming her RFC. As to

her mental impairments, she contends that the ALJ improperly

weighed the opinion evidence of her treating psychiatrist,

Dr. Nicholson, and an agency consultant, Dr. Martin. As

discussed below, the court finds no error on either front.

See Plaintiff’s Mem. (doc. no. 8-1) at 9; Defendant’s Mem. (doc. no. 11-1) at 8-8; Joint Statement of Facts (doc. no. 12) at 9. 5 Admin. R. at 24-28.

4 A. Physical impairments

The ALJ found that Piper suffered one severe physical

impairment -- degenerative disc disease.6 The ALJ concluded that

Piper has the RFC to perform light work, see 20 C.F.R.

§ 404.1567(b), with the physical limitations that “[s]he is able

to occasionally balance, stoop, kneel, crouch, crawl, and climb

ramps, stairs, ladders, ropes and scaffolds.”7 In crafting this

RFC, the ALJ relied on two medical opinions concerning Piper’s

physical impairments.8 He afforded “great weight” to the opinion

of Dr. Masewic, the medical consultative examiner, and “less

than great weight” to the opinion of Dr. Sochat, the state

agency medical consultant.9

Piper challenges the ALJ’s physical RFC determination on

two fronts. First, she argues that the ALJ based that RFC on

his own, lay interpretation of raw medical data, because no

medical opinion addressed Piper’s back troubles on a function-

by-function basis.10 She also argues that the ALJ erred in

relying on Dr. Masewic’s opinion, which was rendered without the

6 Admin. R. at 22. 7 Admin. R. at 24. 8 Id. at 26-27. 9 Id. at 26-27. 10 Plaintiff’s Mem. (doc. no. 8-1) at 4.

5 benefit of all of her medical records.11 The court finds no

error here.

Lay interpretation. “Although determination of a

claimant’s RFC is an administrative decision that is the

responsibility of the Commissioner, an ALJ, as a lay person,

cannot interpret a claimant’s medical records to determine his

RFC. An ALJ must rely to some degree on RFC evaluations from a

physician or another expert.” Delafontaine v. Astrue, 2011 DNH

005, 25–26. “[A]lthough an ALJ cannot ab initio interpret

medical records to determine a claimant’s RFC, he can ‘render[ ]

common-sense judgments about functional capacity based on

medical findings.’” Id. at 26 (quoting Gordils v. Sec'y of

Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990)); see

also Graham v. Barnhart, No. 02–243, 2006 WL 1236837, at *7

(D.N.H. May 9, 2006) (Barbadoro, J.). “Thus, observations from

medical sources can still inform the ALJ’s RFC determination

even where the medical source does not explicitly address the

claimant’s functional limitation ‘as long as the [ALJ] does not

overstep the bounds of a lay person’s competence and render a

medical judgment.’” Couture v. Colvin, 2015 DNH 128, 14

(quoting Gordils, 921 F.2d at 329).

11 Id. at 5-6.

6 Here, as in Couture, the ALJ did not interpret the raw

medical data, but “properly grounded his RFC assessment not in

raw medical data, but in Dr. Masewic's medical findings.” 2015

DNH 128, 14. Dr. Masewic based those findings on his

examination of Piper’s medical records and, importantly, Piper

herself.12 The ALJ did not err when he crafted an RFC taking

into account those findings, as well as those of Dr. Sochat and

other record evidence.13

Post-dating evidence. Dr. Masewic issued his opinion on

October 19, 2013. Piper submitted medical evidence for the

ALJ’s review post-dating that opinion. Piper also argues that

the ALJ erred by giving great weight to Dr. Masewic’s opinion

when Dr. Masewic did not review all relevant evidence concerning

her back condition.14

“It can indeed be reversible error for an administrative

law judge to rely on an RFC opinion of a non-examining

consultant when the consultant has not examined the full medical

record.” Strout v. Astrue, Civil No. 08-181-B-W, 2009 WL

12 See Admin. R. at 26. 13Piper appears to suggest that the ALJ ought to have interpreted the results of multiple MRIs taken in 2014 to conclude that she suffered greater limitations. See Plaintiff’s Mem. (doc. no. 8-1) at 5-6. Unlike his reliance on Dr. Masewic’s findings, such a lay interpretation may well constitute an improper interpretation of raw medical data. 14 Id. at 5.

7 214576, at *8 (D. Me. Jan. 28, 2009) (citing Rose v. Shalala, 34

F.3d 13, 18 (1st Cir. 1994)). “However, an ALJ may rely on such

an opinion where the medical evidence postdating the reviewer's

assessment does not establish any greater limitations, or where

the medical reports of claimant’s treating providers are

arguably consistent with, or at least not ‘clearly inconsistent’

with, the reviewer’s assessment.” Ferland v. Astrue, 2011 DNH

169, 11 (internal citations omitted). Here, the ALJ reviewed

the subsequent evidence and did not conclude that it supported

greater limitations.15 The court, accordingly, finds no error.

B. Mental impairments

The ALJ also concluded that Piper suffered from several

severe mental impairments, including depression, anxiety, a

personality disorder, and polysubstance abuse.16 In crafting her

RFC, he determined that she could perform light work, see 20

C.F.R. § 404.1567(b), but limited her to “simple and unskilled

work” with a variety of additional limitations, such as that she

“avoid social interaction with the general public,” but could

“sustain brief and superficial social interaction with coworkers

and supervisors,” and would be “able to maintain attention and

concentration[ ] for two hour increments throughout an eight-

15 Admin. R. at 25-27. 16 Id. at 22.

8 hour workday in a low stress environment . . . .”17 In doing so,

the ALJ relied on the opinions of the state agency psychological

consultant, Dr. Martin, and Piper’s treating psychologist,

Dr. Nicholson.18 Piper contends that the ALJ erred in his

reliance, or lack thereof, on these opinions.

Dr. Nicholson. Piper challenges the ALJ’s treatment of Dr.

Nicholson’s opinions in three ways. None warrant reversal.

First, she contends that, though the ALJ considered

Dr. Nicholson’s February 3, 2015 opinion, he improperly ignored

Dr. Nicholson’s September 20, 2013 opinion. The ALJ is, of

course, obligated to evaluate every medical opinion in the

record. 20 C.F.R. § 404.1527(c) (“Regardless of its source, we

will evaluate every medical opinion we receive.”). “Ordinarily,

therefore, an ALJ's failure to consider a medical opinion in the

record is legal error that requires remand.” Muniz v.

Berryhill, 2017 DNH 195, 18 (citing Rosado v. Sec'y of Health

and Human Servs., 807 F.2d 292, 293 (1st Cir. 1986)). There

are, however, “limited exceptions” to this rule, such as that

“an ALJ need not address specific evidence in the record that

17 Admin. R. at 24. 18In his decision, the ALJ refers to Dr. Lester Nicholson as both “Dr. Lester” and “Dr. Nicholson.” See id. at 28. Piper acknowledges that these are the same individual. Plaintiff’s Mem. (doc. no. 8-1) at 10 n.2.

9 either does not support the claimant's position or simply

repeats other evidence that the ALJ's decision does consider.”

Grenier v. Colvin, 2015 DNH 133, 6.

In his 2015 opinion, Dr. Nicholson explained that he first

saw Piper on July 22, 2013, and that, at that time, “she was

much like she is currently.”19 His 2015 opinion largely reflects

the same observations as made in his 2013 opinion, including:

that Piper appeared to have a “childlike tone and manner” with

poor eye contact20; chronic depression and anxiety21; that she

performs daily activities around the house22; that she interacts

“with acquaintances [without] difficulty generally but is quick

to become angry and feel threatened if feels criticized”23;

difficulty with concentration and energy24; and that she has

difficulty controlling her temper.25 It then expands on those

19 Admin. R. at 640. 20 Id. at 384, 635. 21 Id. at 384, 635. 22Id. at 385 (cooking, gardening, spending time on the computer, watching TV, reading, etc.) 23Id. at 385, 638 (indicating “extreme sensitivity to criticism”). 24Id. at 385 (indicating “difficulty . . . with energy”), 636 (indicating “[d]ecreased energy (fair energy)”). 25Id. at 385, 638 (difficulty interacting with the public when “upset”).

10 observations, and reflects greater limitations than the 2013

opinion. Because Dr. Nicholson’s 2013 opinion is not

significantly more favorable to Piper, remand for consideration

of this perhaps improperly overlooked report is unnecessary.

See Zabala v. Astrue, 595 F.3d 402, 409-410 (2d Cir. 2010).

Second, Piper contends that Dr. Nicholson’s 2015 opinion

was not, as the ALJ concluded in affording it “little weight,”

internally inconsistent. As the ALJ explained, Dr. Nicholson

concluded that Piper had “marked social limitations and ability

to maintain concentration, persistence or pace, but then notes

that she is able to interact superficially with the public,” and

that she thought “she could work in an environment ‘she enjoys’,

independently of others.”26 He further noted, despite finding

that Piper had “marked limitations,” that she could yet

“maintain a schedule, follow instructions, set goals and

maintain socially appropriate behavior.”27

Piper attempts to overcome these inconsistencies by

pointing to other ways in which the 2015 opinion is internally

consistent.28 For example, she points out that Dr. Nicholson

found that Piper had difficulty with other aspects of social

26 Admin. R. at 28. 27 Id. at 28. 28 Plaintiff’s Mem. (doc. no. 8-1) at 10-11.

11 functioning, such as getting along with co-workers or peers and

an inability to accept criticism.29 That some portions of

Dr. Nicholson’s 2015 opinion are internally consistent does not,

however, undercut the ALJ’s conclusion that other portions are

inconsistent with one another.

Finally, Piper contends that the ALJ erred because he did

not give “good reasons” for discounting Dr. Nicholson’s opinion.

The ALJ must “give good reasons” for the weight he affords a

“treating source's medical opinion.” 20 C.F.R.

§ 404.1527(c)(2). To satisfy this requirement, the ALJ’s order

“must contain specific reasons for the weight given to the

treating source’s medical opinion, supported by evidence in the

case record, and must be sufficiently specific to make clear to

any subsequent reviewers the weight the adjudicator gave to the

treating source’s medical opinion and reasons for that weight.”

Titles II & XVI: Giving Controlling Weight to Treating Source

Med. Opinions, SSR 96-2P, 1996 WL 374188, at *5 (S.S.A. 1996).

Here, the ALJ explained that he discounted Dr. Nicholson’s

opinion because it was internally inconsistent.30 He also found

that it was inconsistent with other evidence in the record, such

as Piper’s continued employment and her ability to run errands

29 Id. at 10. 30 Admin. R. at 28.

12 and go camping independently.31 The ALJ’s explanations satisfy

the requirement that he give “good reasons” for discounting that

opinion. See 20 C.F.R. § 404.1527(c)(4) (“Generally, the more

consistent a medical opinion is with the record as a whole, the

more weight we will give to that medical opinion.”); Hudon v.

Colvin, 2016 DNH 19, 6-7 (opinion’s inconsistency with record

evidence satisfies the “good reasons” requirement); Couture,

2015 DNH 128, 6-7 (internal inconsistencies satisfy “good

reasons” requirement).

Dr. Martin. In addition to arguing that the ALJ erred in

discounting Dr. Nicholson’s opinion, Piper contends that the ALJ

erred in giving “great weight” to the assessment of Dr. Martin,

the state agency psychological consultant because Dr. Martin had

not reviewed “the totality of the evidence.”32 She argues,

generally, that “the unviewed [sic] mental health records

supports [sic] Plaintiff’s alleged limitations,” and that

Dr. Martin’s opinion was “inconsistent with [Piper’s]

symptomology reported to her mental health providers, and

recorded by her primary care physician.”33

31 Id. 32 Plaintiff’s Mem. (doc. no. 8-1) at 8-9. 33 Id. at 9.

13 As discussed supra, “an ALJ may rely on such an opinion

where the medical evidence postdating the reviewer’s assessment

does not establish any greater limitations, or where the medical

reports of claimant’s treating providers are arguably consistent

with, or at least not ‘clearly inconsistent’ with, the

reviewer’s assessment.” Ferland, 2011 DNH 169, 11 (internal

citations omitted). As with Piper’s physical limitations, the

ALJ considered evidence post-dating Dr. Martin’s opinion, and

explained how it did not support a more restrictive RFC.34

The only specific piece of evidence that Piper argues that

Dr. Martin failed to consider is Dr. Nicholson’s 2013 opinion.35

However, Dr. Martin appears to have referenced that opinion in

explaining that “[s]ources are L. Nicholson, MD (treating

source) and J. Glick, LCMHC (treating) whose opinions are given

weight.”36 Piper offers no other argument as to just how the

evidence that Dr. Martin did not review supports her proposed

limitations, or how his opinion is inconsistent with her later-

reported symptoms. Such an undeveloped argument leaves nothing

for the court to evaluate, or any basis for the court to

34 Admin. R. at 26-29. 35 Plaintiff’s Mem. (doc. no. 8-1) at 8-9. 36 Admin. R. at 85.

14 conclude that the ALJ erred. See United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990).

IV. Conclusion

For the reasons discussed herein, Piper’s motion to reverse

and remand the Acting Commissioner’s decision37 is DENIED and the

Acting Commissioner’s motion to affirm38 is GRANTED. The Clerk

of Court is directed to enter judgment in accordance with this

order and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: March 20, 2018

cc: D. Lance Tillinghast, Esq. T. David Plourde, AUSA

37 Document no. 8. 38 Document no. 11.