Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Douglas Martin
v. 	Case No. 21-cv-416-SE
Acting Commissioner,
Social Security Administration
Report and Recommendation
Paul Douglas Martin seeks judicial review pursuant to 42
U.S.C. § 405(g) of the decision of the Social Security
Administration to deny his claim for disability insurance
benefits under Title II of the Social Security Act.1 	In support,
Martin contends that that the Administrative Law Judge (“ALJ”)
erred in assessing his impairments and his residual functional
capacity. 	The Acting Commissioner moves to affirm, asserting
that substantial evidence supports the decision.
Standard of Review
For purposes of review under § 405(g), 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
Sacilowski v. Saul, 959 F.3d 431, 437 (1st Cir. 2020). 	The
1 Although Martin cites regulations for claims made under
Title XVI, this is a Title II claim only.
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court defers to the ALJ’s factual findings if they are supported
by substantial evidence. 	Biestek v. Berryhill, 139 S. Ct. 1148,
1153 (2019). 	Substantial evidence is “more than a mere
scintilla” and means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” 	Id. at
1154. 	The court must affirm the ALJ’s findings, even if the
record could support a different conclusion, when “a reasonable
mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support [the ALJ’s] conclusion.”
Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991); accord Purdy v. Berryhill, 887 F.3d 7, 13
(1st Cir. 2018).
In making a disability determination, an ALJ follows a
five-step process, asking “questions that are sequential and
iterative, such that the answer at each step determines whether
progression to the next is warranted.” 	Sacilowski, 959 F.3d at
433. 	The steps are as follows: (Step 1) whether the claimant is
currently engaging in substantial gainful activity; if not,
(Step 2) whether the claimant has a severe impairment; if so,
(Step 3) whether the impairment meets or medically equals an
entry in the Listing of Impairments; if not, (Step 4) whether
the claimant’s residual functional capacity is sufficient to
allow her to perform any of her past relevant work; and if not,
(Step 5) whether, in light of the claimant’s residual functional
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capacity, age, education, and work experience, she can make an
adjustment to other work available in the national economy.2 	Id.
(citing 20 C.F.R. § 404.1520(a)(4)(i)-(v). 	The claimant bears
the burden of showing he is disabled through the first four
steps, but at Step 5 the Commissioner must provide evidence to
show that there are jobs in the national economy that the
claimant can do. 	Id. at 434.
Background
Martin has an eighth-grade education and previously worked
as a driver, a general farm worker, construction worker, and a
stocker in a grocery store. 	He stopped working in 2014, when he
was in his mid-forties, and his last insured date was December
31, 2015. 	He applied for benefits on the ground that he was
disabled because of diabetes, hypertension, paroxysmal atrial
fibrillation, peripheral neuropathy, chronic pain, morbid
obesity, degenerative disc disease in the lumbosacral spine,
difficulty walking, diverticulitis, asthma, obstructive sleep
apnea, and depression and anxiety. 	His application was denied,
and Martin requested a hearing before an ALJ.
2 Between Step 3 and Step 4, the court assesses the
claimant’s residual functional capacity to determine whether he
has the capacity to work despite his limitations. 	20 C.F.R.
§ 404.1545(a).
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A telephonic hearing was held on February 1, 2017. 	An
independent medical expert, Dr. Joseph Gaeta, who is a
cardiologist, reviewed the record and testified at the hearing.
Dr. Gaeta stated that cardiac arrhythmia was Martin’s major
impairment in 2015. 	Dr. Gaeta noted that Martin was morbidly
obese and had a history of diabetes but without complications.
He said that although neuropathy had been diagnosed, there was
nothing in the record to show a significant impairment as a
result, no abnormal neurological findings on physical
examination, and no EMG test.3 	The ALJ found that Martin had
severe impairments due to cardiac arrhythmia and obesity.
With respect to function, Dr. Gaeta testified that Martin
had no limitations on physical activities such as walking,
sitting, carrying, lifting, or pulling. 	He said that because of
his weight, Martin would be limited to only occasionally doing
postural activities such as bending and crawling. 	He also said
that Martin should not climb ladders or scaffolding.
The ALJ found a residual functional capacity based on Dr.
Gaeta’s opinion. 	He found that Martin was not disabled because
he could return to his former work as a grocery store clerk.
The Appeals Council denied review.
3 EMG stands for electromyography, which is a test used to
confirm a diagnosis of neuropathy.
https://neurotestinggroup.com/conditions/emg-best-test-to-
diagnose-neuropathy/ (last visited April 6, 2022).
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Martin sought judicial review in this court. 	Martin v.
Berryhill, 18-cv-461-JL (D.N.H. May 25, 2018). 	There, the court
concluded that the ALJ erred in assessing Martin’s residual
functional capacity by failing to evaluate correctly Martin’s
statements about his symptoms. 	Specifically, after the ALJ
determined that the symptoms Martin alleged were not consistent
with objective medical evidence, he was required to, but did
not, consider other evidence in the record, including Martin’s
own statements, medical sources, and other sources. 	Martin, 18-
cv-461, at *11, 2019 DNH 073, May 6, 2019. 	The decision was
reversed and remanded for further proceedings.
The Appeals Council directed the same ALJ, Thomas Merrill,
to reevaluate Martin’s statements about his symptoms. 	The ALJ
held a telephonic hearing on October 14, 2020. 	Martin was
represented by counsel at the hearing and testified. 	A
vocational expert also testified. 	No medical expert reviewed
the record or testified.
During the hearing, Martin testified about his impairments
and symptoms. 	He said that during the relevant time diabetes
caused him to have neuropathy and fatigue.4 	He was so tired that
he had difficulty walking to the sink to get a glass of water.
4 In the record, neuropathy is referred to as both diabetic
neuropathy and peripheral neuropathy. 	Because the parties do
not distinguish between those designations, both are used in
this decision, following the context of the parties’ usage.
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Neuropathy caused numbness and tingling in his feet and hands so
that he was unable to walk. 	The circulation in his feet was
poor, and he had to elevate his feet at night and several times
during the day. 	He had trouble picking things up because of the
numbness in his hands. 	He used a cane to walk and had a ramp
built at his house for access to the door. 	The neuropathy also
caused severe pain in his hands and feet. 	He would sometimes
fall for no reason.
Martin testified that his wife is legally blind. 	Through
their insurance, they had access to a car service that would
drive them to medical appointments. 	Martin testified that he
had consulted with a dietician to address his obesity and had
been able to lose weight. 	Martin also had difficulty breathing
because of COPD. 	He was taking medication for high blood
pressure.
The ALJ asked the vocational expert a hypothetical question
based on a residual functional capacity for work without
exertional limitations but with some nonexertional limitations.
The vocational expert testified that based on those criteria,
that worker could return to Martin’s former work as a stocker
and that other jobs were also available.
Martin’s attorney asked a hypothetical that would limit the
worker to two hours of sitting or standing in a work day, a need
for frequent breaks, and a need to elevate his feet for five
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minutes every two hours. 	The vocational expert responded that
there would be no jobs available with those limitations.
The ALJ issued his decision on October 30, 2020. 	As he had
in his prior decision, the ALJ relied on the opinions provided
by Dr. Gaeta, who testified at the first hearing. 	The ALJ found
severe impairments due to cardiac arrhythmia and obesity. 	The
ALJ considered other diagnosed impairments, including diabetic
neuropathy, and concluded that those impairments did not more
than minimally affect Martin’s functional capacity for work.
The ALJ also found that Martin had the same residual
functional capacity during the covered period as he had
previously found, which was a capacity to perform a full range
of work at all exertional levels with non-exertional limitations
to avoid certain hazards and only occasionally postural
activities. 	The ALJ considered the impairments that were found
to be non-severe at Step Two, including diabetic neuropathy and
obesity, for purposes of the residual functional capacity
assessment. 	Noting Martin’s testimony about severe symptoms and
impairments, the ALJ concluded that Martin’s statements did not
support more limitations because there were no medical signs or
laboratory findings that showed a medically determinable
impairment that could reasonably be expected to produce the
symptoms Martin described.
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The ALJ found that Martin was not disabled. 	When the
Appeals Council denied review, that decision became the final
decision of the Acting Commissioner.
Discussion
In support of his motion to reverse the decision, Martin
argues that the ALJ improperly assessed his symptoms and his
activities of daily living and also improperly assessed his
residual functional capacity. 	Martin challenges the ALJ’s
evaluation of evidence in the record, including his failure to
address findings of Dr. Marcia Lipski, a state agency physician
who provided a residual functional capacity assessment in April
of 2015, and his determination that Dr. Caloras’s opinion was
not retrospective. 	The Acting Commissioner moves to affirm on
the grounds that the ALJ properly addressed Martin’s statements
about his symptoms and properly assessed his residual functional
capacity.
A claimant’s residual functional capacity is “the most [a
claimant] can still do despite [his] limitations.” 	20 C.F.R.
§ 404.1545(a)(1). 	That assessment considers the claimant’s
impairments and related symptoms. 	Id. 	A residual functional
capacity assessment is made based on all of the evidence in the
case record, including all medical and other evidence. 	Id.
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The ALJ found that Martin had the residual functional
capacity to do work at all exertional levels with certain non-
exertional limitations. 	Martin contends that the residual
functional capacity assessment is wrong because the ALJ failed
to properly consider medical opinion evidence and failed to
properly assess the limiting effects of his symptoms related to
peripheral neuropathy. 	The Acting Commissioner contends that
assessment was correctly done and is supported by substantial
evidence.
A. 	Medical Opinions
Much of the dispute in this case involves the weight given
to medical opinion evidence in the record. 	Because Martin
applied for benefits in 2015, before the pertinent regulations
were amended, the weighted standard applies. 	20 C.F.R.
§ 404.1527. 	Under that framework, an ALJ is required to
consider medical opinions along with all other relevant evidence
in a claimant’s record. 	20 C.F.R. § 404.1527(b). “Medical
opinions are statements from acceptable medical sources that
reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do
despite impairment(s), and [the claimant’s] physical or mental
restrictions.” 	§ 404.1527(a)(1). 	Medical opinions are
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evaluated based upon the nature of the medical source’s
relationship with the claimant, the extent to which the source
provides evidence to support the opinion, the extent the opinion
is consistent with other evidence in the record, the
specialization of the medical source, and other factors
including the understanding the source has of the social
security system. 	§ 404.1527(c); see also Brunnell v.
Commissioner of Social Security, 18-cv-569-LM, 2019 WL 4201068,
at *4 (D.N.H. Sept. 5, 2019).
1. 	Dr. Caloras’s Opinion
Martin argues that the ALJ failed to properly consider the
opinion provided by his treating physician, Dr. Daniel Caloras,
on September 18, 2020, about Martin’s peripheral neuropathy.
The ALJ gave that opinion no weight because it was provided
almost five years after Martin’s last insured date and because,
the ALJ stated, the opinion did not include a date when the
described limitations began. 	Martin points out that the opinion
does include a date, contrary to the ALJ’s statement.
A retrospective opinion, for purposes of a social security
determination, is one that provides a diagnosis or assesses a
claimant’s condition during the covered period, that is, before
the claimant’s last insured date. 	Marcotte v. Callahan, 992 F.
Supp. 485, 491 (D.N.H. 1997). 	An ALJ may consider a
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retrospective diagnosis or opinion to the extent it
substantiates limitations that existed during the covered period
and is corroborated by medical evidence generated during that
time. 	Scott v. Saul, 2021 WL 735851, at *9 (D.N.H. Feb. 25,
2021). 	An ALJ need not accept a retrospective opinion, however,
if there are other well-supported reasons to reject it. 	Devon
A. G. v. Saul, 2020 WL 7335027, at *7 (D. Me. Dec. 14, 2020).
Dr. Caloras provided two opinions dated September 18, 2020.
The first, titled “Peripheral Neuropathy Medical Source
Statement,” states that Martin had peripheral neuropathy and
agreed that his impairments due to peripheral neuropathy
manifested by September 1, 2014.5 	Admin. Rec. at 2931-34. 	The
second opinion is titled “Neuropathy in Lower Extremities
Medical Source Statement.” 	That opinion does not indicate when
the described limitations began. 	Nevertheless, because it was
signed the same day as the prior opinion, the same onset date
might be presumed.
5 The Acting Commissioner argues in support of his motion to
affirm that Dr. Caloras’s opinion should not be considered a
retrospective opinion because Dr. Caloras did not say that the
assessed restrictions began on that date. 	If the ALJ intended
to make that distinction, it was not articulated clearly in the
decision. 	Further, taken in context, Dr. Caloras’s opinion
assessed restrictions due to impairments that he found began in
September of 2014. 	To the extent the ALJ required clarification
of Dr. Caloras’s opinion, that opportunity was available to him.
See 20 C.F.R. §§ 404.1512(b) & 404.1520b(b)(2); Tegan v. Saul,
546 F. Supp. 3d 162, 170 (D.R.I. 2021). 	Instead, it appears
that the ALJ overlooked the date in the opinion.
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In those opinions, Dr. Caloras checked boxes and wrote
descriptions that show Martin was diagnosed with peripheral
neuropathy and had severe pain in both hands and feet. 	Dr.
Caloras found that Martin could sit, stand, and walk for less
than two hours in a work day and could only sit or stand for a
very limited continuous period. 	He would need to change
positions while working and would have to elevate his legs. 	He
was not able to lift more than ten pounds, and he could do that
only rarely. 	He would likely be absent from work for more than
four days each month.
The ALJ gave Dr. Caloras’s opinion no weight because “it
was provided nearly 5 years after the relevant period ended and
it does not indicated [sic] when the limitations began.” 	Admin.
Rec. 1806. 	Based on the record, the ALJ’s statement is
incorrect.
Dr. Caloras was Martin’s treating physician during the
covered period and continued to be his treating physician
thereafter. 	The ALJ failed to give the treating physician’s
opinion weight based on a mistake. 	That mistake undermines the
evidentiary bases for the ALJ’s residual functional capacity
assessment.
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2. 	Dr. Lipski’s Evaluation
Dr. Marcia Lipski, who is a family medicine physician,
reviewed Martin’s medical records in April of 2015 to provide an
evaluation as a state agency non-examining consultant. 	State
agency medical consultant physicians’ opinions must be
considered along with other medical opinion evidence. 20 C.F.R.
§ 404.1527(e); 20 C.F.R. § 404.1413(a)(5). 	Further, because of
their familiarity with the social security disability programs
their opinions are entitled to evidentiary weight and cannot be
ignored by an ALJ. 	SSR 96-6p, 1996 WL 374180, at *2 (July 2,
1996); Scott v. Saul, 2021 WL 735851, at *10 (D. Mass. Feb. 25,
2021).
The records that Dr. Lipski reviewed included Martin’s
records from Charlestown Family Medicine, where Dr. Caloras
practiced and provided primary care to Martin. 	Dr. Lipski found
that Martin’s primary impairment was peripheral neuropathy. 	In
her residual functional capacity assessment, Dr. Lipski stated
that Martin had exertional limitations so that he could lift up
to twenty pounds occasionally and ten pounds frequently. 	She
found that he could stand or walk for a total of two hours in a
work day and could sit about six hours. 	He could do pushing and
pulling only occasionally and had limitations in doing postural
activities.
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The ALJ did not mention Dr. Lipski’s findings or her
residual functional capacity assessment. 	For that reason, it
appears that the ALJ may not have considered all of the medical
evidence in the record.
3. 	Dr. Gaeta’s Opinion
Dr. Gaeta testified to his opinions during the first
hearing. 	He is a cardiologist and focused on Martin’s cardiac
arrythmia. 	The ALJ gave Dr. Gaeta’s opinions great weight and
adopted Dr. Gaeta’s residual functional capacity assessment.
As noted, Dr. Gaeta is a cardiologist, and no information
was provided pertaining to his expertise with respect to
diabetic peripheral neuropathy. 	Dr. Gaeta testified that Martin
had a history of diabetes but had no complications. 	Although he
acknowledged that neuropathy had been diagnosed, Dr. Gaeta found
nothing in the record to show a significant impairment as a
result of neuropathy. 	He testified that the record showed no
abnormal neurological findings on physical examination, and no
EMG test.
As the ALJ stated in his decision, however, the medical
record shows that Martin had abnormal monofilament tests during
the covered period. 	While the initial monofilament test results
in September of 2014 were normal, later testing in 2014 and in
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2015 produced abnormal results. 	Dr. Gaeta appears to have been
unaware of those tests.
As a result, Dr. Gaeta’s opinion is not supported by the
record. 	Further, neither Dr. Gaeta nor the ALJ addressed the
marked difference between Dr. Gaeta’s opinion and Dr. Lipski’s
opinion as to Martin’s residual functional capacity. 	The court
also notes that Dr. Gaeta did not claim expertise in the medical
specialty related to diabetic peripheral neuropathy. 	Therefore,
Dr. Gaeta’s opinion does not provide substantial evidence to
support the ALJ’s residual functional capacity assessment.
B. 	Other Evidence
As provided above, Martin testified during the hearing
about his symptoms that negatively impacted his ability to
function. 	Martin contends that the ALJ failed to properly
assess the limitations caused by his symptoms. 	The ALJ found
that Martin’s reported activities of daily living indicated that
he was more active and capable than his testimony about his
symptoms suggested.
It appears, however, that the ALJ primarily relied on
Martin’s reports of daily activities early in the covered period
to discount his symptoms. 	Later reports to medical care
providers document increased pain, fewer activities, no driving,
and less waking. 	That progression is confirmed by the letter he
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submitted from his neighbor who described the decline in
Martin’s ability to do activities in his yard and at home.
C. 	Result
The ALJ’s residual functional capacity assessment, which
adopted Dr. Gaeta’s opinion, is not based on substantial
evidence. 	For that reason, the decision of the Acting
Commissioner should be reversed.
Conclusion
For the foregoing reasons, the undersigned recommends that
the claimant’s motion to reverse and remand (document no. 18) be
granted, and that the Acting Commissioner’s motion to affirm
(document no. 21) be denied.
The undersigned also recommends that a different ALJ be
assigned to this case on remand to permit a fresh look at the
record and to consider having an independent medical expert with
expertise in peripheral neuropathy review the record.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. 	See Sch. Union No. 37 v. United Natl Ins. Co.,
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617 F.3d 554, 564 (1st Cir. 2010). 	Any issues not preserved by
such objection(s) are precluded on appeal. 	See id. 	Failure to
file any objections within the specified time waives the right
to appeal the district court's order. 	See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 8, 2022
cc: Counsel of Record
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