Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Erin M. Murphy
v. 	Case No. 23-cv-281-PB-AJ
Acting Commissioner, Social
Security Administration
Report and Recommendation
Erin M. Murphy seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the Acting Commissioner’s denial of her application
for disability insurance benefits under Title II of the Social
Security Act. She argues that the Administrative Law Judge
(“ALJ”) improperly relied on his own medical opinion in
assessing her residual functional capacity and improperly
evaluated medical opinions provided by state agency reviewing
consultants. Because of those errors, Murphy contends, the ALJ’s
finding that she was not disabled is not supported by
substantial evidence. The Acting Commissioner moves to affirm
the ALJ's decision.
The motions were referred to the undersigned magistrate
judge for a report and recommendation. For the following
reasons, the court recommends that the district judge grant the
Acting Commissioner’s motion to affirm and deny Murphy’s motion
to reverse and remand.
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 1 of 16

2
Standard of Review
In a 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 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,
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 2 of 16

3
(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
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 she 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
A. Medical Background
Claimant Erin Murphy injured her cervical spine in a diving
accident in July 2020. She had surgery to repair the spinal
injury in September 2020 through anterior cervical discectomy
and fusion. Following surgery, Murphy continued to have pain and
other symptoms, including neck pain, limited neck motion, and
weakness in her arms.
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 3 of 16

4
On February 1, 2021, Murphy fell on ice and went to a
hospital emergency room for treatment.1 The fall exacerbated her
symptoms from the neck injury and caused numbness in her left
arm. She was seen on February 2, by DNP Aaron Kahn who found
cervical muscle tenderness, cervical pain with motion and
decreased range of motion, thoracic and lumbar spinal
tenderness, but full or nearly full strength in both arms. NHP
Kahn noted that Murphy had an antalgic gait.
On March 2, 2021, Murphy saw Jason Doran, PA-C, at Seacoast
Orthopedic and Sports Medicine. Based on his review of x-rays,
PA-C Doran stated that Murphy’s spinal fracture had not solidly
fused. He prescribed pain medication and referred Murphy to pain
management.
Murphy accidentally hit herself in the face with a hammer
in August 2021 and was treated in a hospital emergency
department and in follow up with DNP Kahn. In January 2022, she
had a follow-up appointment with PA-C Doran for neck pain. He
found that Murphy’s range of motion in the cervical spine was
limited due to pain and that rotation of her neck to the right
caused crunching and grinding. PAC Doran questioned whether
Murphy had a solid spinal fusion.
1 Some medical records show that the fall happened during
the last week in January 2021. The exact date of the fall is not
material to the issues raised for review.
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 4 of 16

5
On April 7, 2022, PA-C Doran reviewed the imaging of
Murphy’s spine since July 2020. In the CT scan done on January
29, 2021, PA-C Doran noted “no acute bony abnormalities” but
evidence of the surgical procedure at C5-6, with a question
about whether the bones were fully fused. He also reviewed with
Murphy the MRI done on March 17, 2022, with the radiologist’s
interpretation that showed “a C5-6 anterior cervical discectomy
and fusion” and “a right-sided C4-5 disc herniation with
impingement on the C5 nerve root.”2 Doc. no. 4-9 at 521. An x-ray
taken in PA-C Doran’s office on the same day, April 7, showed no
degenerative changes but still showed a lack of full fusion.
PA-C Doran prescribed medication for pain.
B. 	Procedural Background
Murphy applied for social security disability benefits in
August 2020, alleging a disability beginning when she was
injured in the accident in July 2020. The application was denied
initially on June 1, 2021. As part of that determination, Dr.
William Kirmes, a state agency consultant with a specialty in
internal medicine, reviewed Murphy’s medical records and
provided a residual functional capacity assessment dated May 6,
2021.
2 The record does not appear to include the actual MRI test
result with the radiologist’s notes and interpretation.
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 5 of 16

6
Dr. Kirmes found that Murphy could do work at the light
exertional level with some activities limited to occasionally
and walking and standing limited to four hours and sitting to
six hours in an eight-hour workday. On reconsideration, Dr.
Meghana Karande, another state agency consultant with a
specialty in internal medicine, reviewed Murphy’s records and
concurred with Dr. Kirmes’s findings in a determination dated
January 18, 2022.
After her application for benefits was denied, Murphy
requested a hearing. An ALJ held a telephonic hearing on June
14, 2022. Murphy was represented during the hearing and
testified. A vocational expert also testified.
The ALJ issued a decision on July 28, 2022. At Step Two,
the ALJ found that Murphy had severe impairments due to
degenerative disc disease and cervical fracture status post
spinal fusion with peripheral neuropathy. Despite those severe
impairments, the ALJ found that Murphy had the residual
functional capacity to do light work except that she was limited
to only occasionally climbing, such as climbing stairs, and
occasionally doing postural activities, such as stooping. Based
on that residual functional capacity assessment, the ALJ found
that Murphy would be able to return to her former work as a
flagger and could also be a fast-food worker, a cashier, or a
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 6 of 16

7
cleaner. For that reason, the ALJ found that Murphy was not
disabled.
Murphy sought review by the Appeals Council, which was
denied on March 29, 2023, making the ALJ’s decision the final
decision of the Acting Commissioner.
Discussion
Murphy challenges the ALJ’s decision on two grounds. She
contends that the ALJ’s residual functional capacity assessment
is unsupported because he relied on his own opinion about her
functional limitations related to the MRI done on March 17,
2022. Alternatively, Murphy contends that the ALJ improperly
relied on the opinions provided by the state agency consultants
without the limitations they found related to standing and
walking. The Acting Commissioner argues that the ALJ properly
assessed Murphy’s residual functional capacity and properly
evaluated the consultants’ opinions.
I. 	Whether the ALJ Improperly Relied on his Own
Interpretation of Raw Medical Data
Dr. Kirmes and Dr. Karande provided the only medical
opinion evidence that assessed Murphy’s residual functional
capacity. Medical evidence was submitted to Murphy’s record
after Drs. Kirmes and Karande provided their opinions, including
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 7 of 16

8
PA-C Doran’s treatment notes from January and April 2022 and an
MRI done on March 17, 2022. The ALJ found that the later and
unreviewed medical evidence “does not show a significant change
in objective findings” and relied on the consultants’ opinions.
“An opinion provided by a state agency reviewing consultant
cannot provide substantial evidence to support an ALJ's residual
functional capacity assessment if the opinion was based on a
significantly incomplete record.” Clark v. Kijakazi, 2023 WL
3336404, at *6 (D.N.H. May 10, 2023). A claimant’s medical
record, which has been reviewed by a state agency consultant, is
significantly incomplete if there are medical records “added or
generated after the review [that] ‘would materially change the
basis for assessing the claimant's limitations.’” Id. (quoting
Provencal v. Kijakazi, 2022 DNH 14, 2022 WL 17324286, at *3
(D.N.H. Nov. 29, 2022)). The ALJ bears the burden to both
determine and explain whether the later medical evidence is
material, and a conclusory statement without explanation is
insufficient to carry that burden. Id.
Taken in isolation, the ALJ’s conclusory statement that the
later medical evidence did not show “a significant change in
objective findings” is insufficient to carry that burden. Taken
in context, however, the ALJ reviewed medical treatment notes
and evaluations from the time of the diving accident through
April 2022 and discussed the evidence to explain his functional
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 8 of 16

9
capacity assessment. The ALJ noted the providers’ findings that
Murphy at times had neck pain and limited neck movement but also
that she had full strength in her arms and legs and normal
sensation and reflexes.
PA-C Doran’s description of the March 17, 2022, MRI, based
on the radiologist’s interpretation, was that it showed “a
right-sided C4-5 disc herniation with impingement on the C5
nerve root.” As reported by PA-C Doran, the March 17 MRI
included different findings than prior imaging. Doc. no. 4-9 at
66. Nevertheless, despite disc herniation with impingement, the
contemporaneous objective findings from Murphy’s treatment
records with PA-C Doran show normal results, before and after
the March 17 MRI. The ALJ correctly stated that the medical
evidence did not show a significant change in the objective
findings about Murphy’s impairments.
Murphy argues, however, that the ALJ improperly relied on
his own lay interpretation of the functional effects of the
March 17 MRI to conclude that the later medical evidence did not
show a significant change. Because an ALJ is a lay person and
not a physician, an ALJ is not qualified to interpret raw
medical data in functional terms for purposes of assessing
residual functional capacity and, instead, must have a medical
opinion that assesses functional capacity. Nguyen v. Chater, 172
F.3d 31, 35 (1st Cir. 1999); Curtis v. Kijakazi, 2022 WL 994500,
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 9 of 16

10
at *5 (D.N.H. Mar. 29, 2022). An ALJ’s inability to interpret
raw medical data in functional terms precludes an ALJ from
interpreting test results, such as an MRI, for purposes of
assessing a residual functional capacity. See Ouellette v.
Berryhill, 2018 WL 3031855, at *5 (D.N.H. June 19, 2018);
Giandomenico v. Acting Commissioner, SSA, 2017 WL 5484657, at *5
(D.N.H. Nov. 15, 2017). On the other hand, however, an ALJ can
rely on a medical professional’s interpretation of test results,
even when that information is not part of a formal functional
assessment. See, e.g., Fitts v. Kijakazi, --- F. Supp. 3d ---,
2023 DNH 114, 2023 WL 5928316, at *9, n.10 (D.N.H. Sept. 12,
2023); Martin v. Berryhill, 2018 WL 799159, at *6 (D.N.H. Feb.
9, 2018).
In this case, PA-C Doran repeated the radiologist’s
interpretation of the March 17 MRI, stating that it showed “a
right-sided C4-5 disc herniation with impingement on the C5
nerve root.” Neither the radiologist nor PA-C Doran provided a
functional assessment of the March 17 MRI. The ALJ relied on the
objective examination findings by PA-C Doran before and after
the March 17 MRI that that showed no significant change in the
objective findings as to Murphy’s impairments.3 In other words,
3 The ALJ acknowledged that Murphy experienced some
exacerbation of her symptoms immediately after she fell in
February of 2021, including mild left arm weakness, but that
those symptoms had resolved in later orthopedic evaluations.
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 10 of 16

11
on examination, Murphy’s arm and leg strength and gait were
normal before the March 17 MRI, except for a brief period after
Murphy fell on the ice in February 2021, and remained normal
after the MRI. Therefore, substantial evidence in the record
supports the ALJ’s reliance on the opinions provided by the
state agency consultants despite the later-added medical
evidence.
II. 	Whether ALJ Property Evaluated State Agency Consultants’
Opinions
Alternatively, Murphy argues that the ALJ improperly
evaluated the opinions provided by the state agency consultants
when he did not accept their opinions as to the limitations on
Murphy’s ability to walk and stand. The ALJ considers the
medical opinions and prior administrative medical findings in
the administrative record as part of the process of assessing a
claimant’s residual functional capacity. 20 C.F.R.
§ 404.1520c(a). The ALJ determines the persuasiveness of medical
opinions and findings based on the following factors: (1) the
supportability of a medical opinion; (2) the extent to which the
opinion is consistent with evidence from other sources; (3) the
medical source’s relationship with the claimant,(4) the
specialization of the medical source, and (5) certain other
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 11 of 16

12
factors such as the familiarity of the medical source with the
disability program. 20 C.F.R. § 404.1520c(c).
The most important factors are the supportability and
consistency of the opinion. § 404.1520c(a); § 404.1520c(b)(2);
Purdy v. Berryhill¸ 887 F.3d 7, 13, n.8 (1st Cir. 2018).
Supportability means that “[t]he more relevant the objective
medical evidence and supporting explanations presented by a
medical source are to support his or her medical opinion(s) or
prior administrative medical finding(s), the more persuasive the
medical opinions or prior administrative medical finding(s) will
be.” § 404.1520a(c)(1). Consistency means that “[t]he more
consistent a medical opinion(s) or prior administrative medical
finding(s) is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical
opinion(s) or prior administrative medical finding(s) will be.”
§ 404.1520a(c)(2).
The consultants found that Murphy could do work at the
light exertional level with a notable exception that she was
limited to walking and standing for only four hours in an eight-
hour day. The ALJ found that the consultants’ opinions were
partially persuasive, as to the light exertional level with
certain climbing and postural limitations, but he found that the
limitation on walking and standing was not persuasive because it
was not supported by objective findings in the record. The ALJ
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 12 of 16

13
explained: “No providers observed any difficulties with gait leg
motion, or leg strength and no providers recommended any
standing or walking restrictions.” Doc. no. 4-2 at 22.
Murphy challenges the ALJ’s characterization of the record,
noting that DNP Kahn found that she had an antalgic gait
immediately after she fell on the ice in February 2021. At
Murphy’s appointment two weeks after the fall, however, DNP Kahn
found on examination that Murphy had normal strength in her arms
and legs (except a slight strength deficit in her left arm) and
a normal gait. In March 2021, PA-C Doran found that Murphy had
“normal gait, no limp, and ambulating with no assistive devices.
Tandem walking not off balance.” Doc. no. 4-9, at 50. During a
pain management appointment in May 2021, Dr. Thomas Zouki found
that Murphy’s gait was “intact” and that she could heel-toe
walk. On January 6, 2022, PA-C Doran found that Murphy had a
normal gait with no limp and had normal strength, reflexes, and
sensation in her arms and legs. And, again on April 7, 2022, PA-
C Doran found that Murphy had a normal gait. Therefore, the
record evidence overwhelmingly supports the ALJ’s explanation
for discounting the consultants’ opinions about Murphy’s
limitations as to walking and standing.
Nevertheless, Murphy argues that the consultants supported
their opinions by citing an x-ray done on March 2, 2021, that
showed “‘lucency of the host bone and inferior endplate of C5
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 13 of 16

14
and the superior endplate of C6.’” Doc no. 8-1, at 9 (quoting
doc. 4-3, at 65 & 73). Murphy contends that it would be
“reasonable” that she could not walk more than the consultants
found because she did not have a solid fusion at C5-6. Id.
Murphy also argues that the March 2, 2021, examination report
supports the consultant’s findings because she reported
debilitating pain.
Contrary to Murphy’s explanation, the consultants reviewed
the x-ray done on March 2, 2021, but did not cite the x-ray or
the lack of a solid fusion as the reason they limited the time
she could walk and stand. In the absence of a medical opinion
linking the lack of a solid fusion to limitations on the ability
to walk and stand, the x-ray does not provide evidence to
support that opinion.
The consultants cited the examination done at Seacoast
Orthopedics on March 2, 2021, as part of the support for their
exertional limitations. In his notes from the March 2
appointment with Murphy, PA-C Doran wrote that Murphy was there
for an evaluation of her neck injury and because she was having
difficulty with gripping and strength in her hands and with
dizziness when bending down. Murphy reported that she had sharp
pain when bending down and when turning her head from side to
side and that the pain was worse on the left side.
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 14 of 16

15
On examination, PA-C Doran found that Murphy had a normal
gait, no limp, and tandem walking was not off balance. The test
results for her legs were normal. He also found that flexion and
range of motion in Murphy’s neck was limited by pain. Because
Murphy reported that she had debilitating pain when bending or
turning her head, PA-C Doran referred her to pain management.
PA-C Doran did not find that Murphy was limited in her ability
to walk or stand, and nothing in the treatment notes expressly
supports the consultants’ limitations on her ability to walk or
stand.
The ALJ properly evaluated the state agency consultants’
residual functional capacity opinions.
Conclusion
For the foregoing reasons, the district judge should deny
Erin Murphy’s motion to reverse and remand (doc. no. 8) and
grant the Acting Commissioner’s motion to affirm (doc. no. 11).
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 to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 15 of 16

16
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
December 26, 2023
cc: Counsel of record
Case 1:23-cv-00281-PB-AJ Document 13 Filed 12/26/23 Page 16 of 16