UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Ann Snow
v. Civil No. 14-cv-161-JD Opinion No. 2015 DNH 006 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
O R D E R
Mary Ann Snow 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 and disability insurance benefits. Snow moves to
reverse and remand the decision on the grounds that the
Administrative Law Judge (“ALJ”) erred by ignoring the lay
evidence of her disabilities, by relying on the opinion of a
state agency physician, by improperly assessing her credibility,
and in finding that she had the residual functional capacity to
do substantial gainful activity on a sustained basis.1 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
1 Snow seeks only reversal of the decision of the Acting Commissioner. Except in unusual circumstances which do not exist here, this court cannot reverse and award benefits. See Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001). Therefore, Snow’s motion is construed to seek reversal and remand. 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, 276 F.3d at 9.
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). Substantial evidence, however, “does not approach the preponderance-of-the-
evidence standard normally found in civil cases.” Truczinskas v.
Dir., Office of Workers’ Compensation Programs, 699 F. 3d 672,
677 (1st Cir. 2012).
Background2
Mary Ann Snow was fifty-one years old when she applied for
social security benefits, alleging disability since April 6,
2011. Snow has a tenth-grade education and previously worked as
a construction laborer, home health care worker or nursing
assistant, a waitress, and a cashier/checker.
She was diagnosed with early stage breast cancer in March of
2011 and underwent surgery. The biopsy showed no sign of
metastatic disease. She then had a course of radiation treatment
2 The parties’ joint statement of material facts provides the full recitation of the background in this case.
2 from June to August of 2011. Snow’s follow-up examinations
showed good results.
Snow’s other medical records show that she was seen during
the relevant period for complaints of neck and back pain with
mostly normal findings on examination. She was treated with
medication and was given recommendations for weight loss and
exercise. She was also treated for breathing problems, with a
diagnosis of mild asthma, and she was strongly encouraged to stop
smoking. During the period, Snow also complained of anxiety,
difficulty sleeping, and depressed mood. She was treated with
various medications. Dr. Lorene Sipes did a consultative
psychological examination on November 30, 2012. Dr. Sipes
diagnosed major depressive disorder but concluded that Snow could
adequately perform activities of daily living, could manage the
social demands of most work situations, could understand and
remember simple instructions, could concentrate and complete
common work tasks, and could effectively manage common work
stresses. Dr. Sipes also noted that Snow would benefit from
medication management and individual therapy.
Dr. Jonathan Jaffe, a state agency physician, reviewed
Snow’s medical evidence on November 13, 2012. Based on his
review, Dr. Jaffe found that Snow could lift and carry twenty
pounds occasionally and ten pounds frequently and could stand,
walk, and/or sit for six hours in an eight hour work day. Dr.
3 Jaffe found that Snow did not have any other limitations on her
ability to work.
On December 6, 2012, Dr. Michael Schneider, a state agency
psychologist, reviewed Snow’s records to complete a Psychiatric
Review Technique form. Dr. Schneider found that Snow had mild
restrictions in her activities of daily living; no difficulties
in social functioning; mild difficulties in maintaining
concentration, persistence, and pace; and no repeated episodes of
decompensation for extended durations. In support of her application for benefits, Snow also
submitted her own function report, describing her activities and
problems, and providing her evaluation of her functional
limitations. Snow also submitted a questionnaire prepared by her
former employer, Darlene Raboin, who described Snow’s work during
the time when she was diagnosed and treated for breast cancer.
Raboin reported that Snow stopped working in October of 2011
because of health problems.
Snow’s adult daughter, Amy Tynan, provided a narrative
describing her mother’s condition. Tynan said that breast cancer
changed Snow so that she became more limited in the things she
could do because of uncontrollable pain. Tynan also reported
that glaucoma caused Snow to be partially blind in her left eye.
A hearing was held on August 29, 2013. Snow testified that
she had problems with pain in her back and legs and could not
sleep despite medication. She said that her family helped her
with all of her activities and that she has to force herself to
4 get out of bed and try to walk. She also said she was diagnosed
with glaucoma just a few weeks before the hearing.
A vocational expert testified about the Dictionary of
Occupational Titles numbers for Snow’s prior work. The ALJ did
not ask the vocational expert any other questions because he said
he wanted to see the results of a more recent MRI to determine
whether there was any progression in her orthopedic issues.
The ALJ issued the decision on October 18, 2013. He found
that Snow had impairments due to degenerative disc disease and asthma. Despite those impairments, the ALJ found that Snow
retained the functional capacity to do a full range of light work
without prolonged exposure to excessive heat, humidity, and
respiratory irritants. The ALJ also limited Snow to work outside
of a fast-paced work environment, to brief and superficial
interactions with the public, and to occasional and routine
interactions with co-workers. Based on Medical-Vocational Rule
202.10, the ALJ found that Snow was not disabled.
Discussion
Snow contends that the ALJ erred in failing to consider the
lay evidence of her disability, in relying on the state agency
physician’s opinion, in failing to properly assess her
credibility, and in the residual functional capacity finding.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Ann Snow
v. Civil No. 14-cv-161-JD Opinion No. 2015 DNH 006 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
O R D E R
Mary Ann Snow 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 and disability insurance benefits. Snow moves to
reverse and remand the decision on the grounds that the
Administrative Law Judge (“ALJ”) erred by ignoring the lay
evidence of her disabilities, by relying on the opinion of a
state agency physician, by improperly assessing her credibility,
and in finding that she had the residual functional capacity to
do substantial gainful activity on a sustained basis.1 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
1 Snow seeks only reversal of the decision of the Acting Commissioner. Except in unusual circumstances which do not exist here, this court cannot reverse and award benefits. See Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001). Therefore, Snow’s motion is construed to seek reversal and remand. 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, 276 F.3d at 9.
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). Substantial evidence, however, “does not approach the preponderance-of-the-
evidence standard normally found in civil cases.” Truczinskas v.
Dir., Office of Workers’ Compensation Programs, 699 F. 3d 672,
677 (1st Cir. 2012).
Background2
Mary Ann Snow was fifty-one years old when she applied for
social security benefits, alleging disability since April 6,
2011. Snow has a tenth-grade education and previously worked as
a construction laborer, home health care worker or nursing
assistant, a waitress, and a cashier/checker.
She was diagnosed with early stage breast cancer in March of
2011 and underwent surgery. The biopsy showed no sign of
metastatic disease. She then had a course of radiation treatment
2 The parties’ joint statement of material facts provides the full recitation of the background in this case.
2 from June to August of 2011. Snow’s follow-up examinations
showed good results.
Snow’s other medical records show that she was seen during
the relevant period for complaints of neck and back pain with
mostly normal findings on examination. She was treated with
medication and was given recommendations for weight loss and
exercise. She was also treated for breathing problems, with a
diagnosis of mild asthma, and she was strongly encouraged to stop
smoking. During the period, Snow also complained of anxiety,
difficulty sleeping, and depressed mood. She was treated with
various medications. Dr. Lorene Sipes did a consultative
psychological examination on November 30, 2012. Dr. Sipes
diagnosed major depressive disorder but concluded that Snow could
adequately perform activities of daily living, could manage the
social demands of most work situations, could understand and
remember simple instructions, could concentrate and complete
common work tasks, and could effectively manage common work
stresses. Dr. Sipes also noted that Snow would benefit from
medication management and individual therapy.
Dr. Jonathan Jaffe, a state agency physician, reviewed
Snow’s medical evidence on November 13, 2012. Based on his
review, Dr. Jaffe found that Snow could lift and carry twenty
pounds occasionally and ten pounds frequently and could stand,
walk, and/or sit for six hours in an eight hour work day. Dr.
3 Jaffe found that Snow did not have any other limitations on her
ability to work.
On December 6, 2012, Dr. Michael Schneider, a state agency
psychologist, reviewed Snow’s records to complete a Psychiatric
Review Technique form. Dr. Schneider found that Snow had mild
restrictions in her activities of daily living; no difficulties
in social functioning; mild difficulties in maintaining
concentration, persistence, and pace; and no repeated episodes of
decompensation for extended durations. In support of her application for benefits, Snow also
submitted her own function report, describing her activities and
problems, and providing her evaluation of her functional
limitations. Snow also submitted a questionnaire prepared by her
former employer, Darlene Raboin, who described Snow’s work during
the time when she was diagnosed and treated for breast cancer.
Raboin reported that Snow stopped working in October of 2011
because of health problems.
Snow’s adult daughter, Amy Tynan, provided a narrative
describing her mother’s condition. Tynan said that breast cancer
changed Snow so that she became more limited in the things she
could do because of uncontrollable pain. Tynan also reported
that glaucoma caused Snow to be partially blind in her left eye.
A hearing was held on August 29, 2013. Snow testified that
she had problems with pain in her back and legs and could not
sleep despite medication. She said that her family helped her
with all of her activities and that she has to force herself to
4 get out of bed and try to walk. She also said she was diagnosed
with glaucoma just a few weeks before the hearing.
A vocational expert testified about the Dictionary of
Occupational Titles numbers for Snow’s prior work. The ALJ did
not ask the vocational expert any other questions because he said
he wanted to see the results of a more recent MRI to determine
whether there was any progression in her orthopedic issues.
The ALJ issued the decision on October 18, 2013. He found
that Snow had impairments due to degenerative disc disease and asthma. Despite those impairments, the ALJ found that Snow
retained the functional capacity to do a full range of light work
without prolonged exposure to excessive heat, humidity, and
respiratory irritants. The ALJ also limited Snow to work outside
of a fast-paced work environment, to brief and superficial
interactions with the public, and to occasional and routine
interactions with co-workers. Based on Medical-Vocational Rule
202.10, the ALJ found that Snow was not disabled.
Discussion
Snow contends that the ALJ erred in failing to consider the
lay evidence of her disability, in relying on the state agency
physician’s opinion, in failing to properly assess her
credibility, and in the residual functional capacity finding.
The Acting Commissioner contends that substantial evidence
supports all of the ALJ’s findings.
5 One issue requires that the case be remanded for further
proceedings. The only opinion evidence in the record pertaining
to Snow’s physical residual functional capacity is Dr. Jaffe’s
evaluation of Snow’s medical records. The ALJ relied on that
opinion for the residual functional capacity finding.
An ALJ may rely on a state agency physician’s opinion as to
the claimant’s ability to perform work as long as that opinion
meets the standards for evaluating medical opinion evidence but
only to the extent the opinion is supported by evidence in the record. 20 C.F.R. § 404.1527(e); 20 C.F.R. § 416.927(e); Ormon
v. Astrue, 497 F. App’x 81, 84 (1st Cir. 2012); 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 may be substantial evidence to support
the ALJ’s findings “if the physician had access to most of the
medical evidence for [] review and if the reports of multiple
physicians ‘tend somewhat to reinforce each other’s
conclusions.’” Howard v. Colvin, --- F. Supp. 3d ---, 2014 WL
5361533, at *8 (D. Mass. Oct. 22, 2014) (quoting Berrios Lopez v.
Sec’y of Health & Human Servs., 951 F.2d 427, 431 (1st Cir.
1991)). Further, a state agency physician’s opinion that did not
consider the most recent medical evidence can still constitute
substantial evidence as long as the more recent evidence does not
show “a sustained (and material) worsening in Plaintiff’s
condition.” Phan v. Colvin, 2014 WL 5847557, at *15 (D.R.I. Nov.
6 12, 2014) (citing Ferland v. Astrue, 2011 WL 5199989, at *4
(D.N.H. Oct. 31, 2011)).
In this case, Dr. Jaffe’s opinion was issued on November 13,
2012, ten months before the hearing. Snow cites the medical
records that post date Dr. Jaffe’s opinion but makes no argument
that those records demonstrate impairments of greater severity
than were found by Dr. Jaffe. The ALJ addressed the more recent
medical evidence, noting essentially normal results.
Despite that evidence, however, at the hearing, the ALJ emphasized the importance of the August MRI results to determine
the severity of Snow’s orthopedic condition. The ALJ noted that
prior results did not show enough. The evidence of the August
MRI consists of an MRI report prepared by Dr. Tyler Zapton. The
report is raw medical data without any indication of Snow’s
functional capacity in light of those results. In the decision,
the ALJ repeated the statements in the MRI report but
appropriately did not attempt to correlate those statements to
functional capacity.3 Nguyen, 172 F.3d at 35 (holding that ALJ
is not qualified to interpret raw medical data in functional
terms). No medical opinion addresses the MRI report.
Although most of the more recent medical evidence does not
conflict with Dr. Jaffe’s opinion, the ALJ put particular
3 The ALJ repeated the statement from the report that at L4- L5 there was “moderate bilateral neural foraminal narrowing that is unchanged.” Admin. Rec. at 25. In the absence of a medical opinion, however, neither the ALJ nor the court can determine what that statement means relative to Snow’s functional capacity.
7 emphasis on the August MRI results. Without a medical opinion to
address the MRI results, Dr. Jaffe’s opinion is not necessarily
supported by the record evidence. For that reason, Dr. Jaffe’s
opinion does not constitute substantial evidence to support the
ALJ’s residual functional capacity assessment.
In addition, the ALJ did not ask the vocational expert for
opinions about what work Snow could do because the ALJ wanted to
have the August MRI results to assess her residual functional
capacity. The ALJ then relied on the Medical-Vocational Guidelines (“the Grid”), Rule 202.10, to find that Snow was not
disabled. In doing so, the ALJ stated that Snow had a full
capacity for light work, ignoring the nonexertional limitations
the ALJ had assigned of environmental restrictions, pace
limitations, and limitations on interaction with the public and
co-workers.
At Step Five of the sequential analysis, see 20 C.F.R.
§§ 404.1520 and 416.920, the Acting Commissioner bears the burden
of proving that the claimant is employable. Heggarty v.
Sullivan, 947 F.2d 990, 995 (1st Cir. 1991). That burden may be
met by reliance on the Grid as long as the claimant’s non-
exertional impairments do not significantly erode the occupation
base at the identified exertional level. Nguyen, 172 F.3d at 36.
When the record shows non-exertional impairments and particularly
when an ALJ identifies non-exertional impairments, the ALJ
generally will need the assistance of a vocational expert to
determine whether those impairments significantly erode the
8 occupational base. See Candelaria v. Barnhart, 195 F. App’x 2, 4
(1st Cir. 2006); Heggarty, 947 F.2d at 996; Green v. Colvin, 2014
WL 6071444, at *3-*4 (D.N.H. Nov. 13, 2014).
Here, the ALJ ignored the non-exertional limitations that he
imposed in the residual functional capacity assessment. Without
a properly supported finding that those limitations do not
significantly erode the occupational base for light work, the ALJ
could not rely on the Grid. Therefore, the Acting Commissioner
did not carry the burden of showing that Snow is employable and not disabled.
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. 13) is denied.
The case is remanded for further administrative proceedings
pursuant to sentence four of § 405(g).
SO ORDERED.
____________________________ Joseph A. DiClerico, Jr. United States District Judge
January 15, 2015
cc: Judith E. Gola, Esq. T. David Plourde, Esq.