Montrose v. US Social Security Administration, Acting Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Debra Montrose
v. Case No. 17-cv-148-SM
Nancy A. Berryhill, Acting
Commissioner, Social
Security Administration
REPORT AND RECOMMENDATION
Pursuant to 42 U.S.C. § 405(g), Debra Montrose moves to
reverse the Acting Commissioner’s decision to deny her
applications for Social Security disability insurance benefits,
or DIB, under Title II of the Social Security Act, 42 U.S.C. §
423, and for supplemental security income, or SSI, under Title
XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves
for an order affirming her decision. For the reasons that
follow, the decision of the Acting Commissioner, as announced by
the Administrative Law Judge (“ALJ”), should be affirmed.
I. Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
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affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . . .
42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions); see also 42 U.S.C. § 1383(c)(3) (establishing §
405(g) as the standard of review for SSI decisions). However,
the court “must uphold a denial of social security . . .
benefits unless ‘the [Acting Commissioner] has committed a legal
or factual error in evaluating a particular claim.’” Manso-
Pizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per
curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW, 612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
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[Acting Commissioner] to determine issues of credibility and to
draw inferences from the record evidence. Indeed, the
resolution of conflicts in the evidence is for the [Acting
Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted). Moreover, the court “must uphold the [Acting
Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.” Tsarelka v. Sec’y of HHS, 842 F.2d 529,
535 (1st Cir. 1988) (per curiam). Finally, when determining
whether a decision of the Acting Commissioner is supported by
substantial evidence, the court must “review[] the evidence in
the record as a whole.” Irlanda Ortiz, 955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
II. Background
The parties have submitted a Joint Statement of Material
Facts. That statement, document no. 14, is part of the court’s
record and will be summarized here, rather than repeated in
full.
On October 30, 2013, Montrose had a stroke and was
hospitalized for approximately five days. When she was taken to
the hospital, she complained of difficulty with speech, and was
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diagnosed with a speech disturbance.
In March of 2014, Montrose saw Dr. Ruth James, complaining
of swelling in her right ankle. That complaint did not result
in a diagnosis, but Dr. James instructed Montrose to elevate her
ankle, wear compression stockings, and wear a brace if possible.
In August of 2014, Montrose saw Dr. Eric Samuel, complaining of
a flare-up of swelling in her right leg. He gave a diagnosis of
peripheral edema1 and prescribed compression hose. In July of
2015, Dr. James or Dr. Samuel ordered an x-ray of Montrose’s
right ankle, based upon her complaints of swelling and pain.
That x-ray resulted in these impressions: “1. No acute fracture
or dislocation. 2. Diffuse soft tissue swelling about the
ankle. 3. Achilles enthesopathy.”2 Administrative Transcript
(hereinafter “Tr.”) 477.
With regard to Montrose’s physical residual functional
capacity (“RFC”),3 the record includes one opinion, rendered by
1 The term “edema” is “[a]t the gross level, used to
describe the physical sign commonly likened to swelling or
increased girth that often accompanies the accumulation of fluid
in a body part, most often a limb.” Stedman’s Medical
Dictionary 617 (28th ed. 2006).
2 Enthesopathy is “[a] disease process occurring at the site
of insertion of muscle tendons and ligaments into bones or joint
capsules.” Stedman’s, supra note 1, at 649.
3 “Residual functional capacity” is a term of art that means
“the most [a claimant] can still do despite [her] limitations.”
20 C.F.R. §§ 404.1545(a)(1) & 416.945(a)(1).
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Dr. Burton Nault, a state agency consultant. According to Dr.
Nault, who rendered his opinion in May of 2014, Montrose could
occasionally lift 10 pounds, frequently lift less than 10
pounds, stand and/or walk (with normal breaks) for a total of
two hours, sit (with normal breaks) for a total of about six
hours in an eight-hour work day, and push and/or pull the same
amount she could lift and/or carry. He further opined that
Montrose could occasionally climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl, but could never climb ladders,
ropes, or scaffolds. He identified no manipulative, visual,
communicative, or environmental limitations.
In March of 2014, Dr. Stefanie Griffin conducted a
consultative psychological examination of Montrose and prepared
a Mental Health Evaluation Report based upon her examination.4
Dr. Griffin provided a diagnosis of “[a]djustment disorder with
depressed mood.” Tr. 448. She also gave the following opinions
on Montrose’s then-current level of functioning:
Activities of Daily Living: . . . Ms. Montrose
appears independent in completing daily activities. .
. .
Social Functioning: . . . Overall, she appears
4 “A consultative examination is a physical or mental
examination or test purchased for [a claimant] at [the Social
Security Administration’s] request.” 20 C.F.R. §§ 404.1519 &
416.919.
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capable of appropriate social functions at this time.
Understanding and Remembering Instructions: . . .
Ms. Montrose appears capable of understanding and
remembering instructions. . . .
Concentration and Task Completion: . . . M[s].
Montrose appears generally capable of attending to and
completing tasks. . . .
Reaction to Stress, Adaptation to Work or Work-like
Situations: . . . From a cognitive and psychological
standpoint, Ms. Montrose appears generally capable of
adhering to a work schedule, interacting appropriately
with supervisors and co-[workers] . . . .
Tr. 447-48.
After Dr. Griffin wrote her report, Dr. Nicholas Kalfas, a
non-examining consulting psychologist, conducted a psychiatric
review technique (“PRT”)5 assessment based upon Montrose’s
medical records. After noting a diagnosis of affective
disorders, Dr. Kalfas opined that Montrose had no restrictions
on her activities of daily living, no difficulties in
maintaining social functioning, mild difficulties in maintaining
concentration, persistence, or pace, and had no repeated
episodes of decompensation, each of extended duration.
In June of 2014, Montrose’s therapist referred her to Dr.
Paul Lindstrom for a psychiatric evaluation. He gave her a
diagnosis of “major depressive disorder, recurrent, moderate.”
5 The Social Security Administration uses the PRT to
evaluate the severity of mental impairments. See 20 C.F.R. §§
404.1520a & 416.920a (describing the PRT).
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Tr. 453. Under the heading “Impression,” Dr. Lindstrom wrote:
The woman has a post stroke depression, partly due to
her changed life circumstance and having to live in a
shelter now, and partly due to the stroke itself. . .
. I don’t think that she has capacity to work at
present as a result of the stroke she had, which has
affected her physical capacity and diminished her
capacity for expressive language.
Id.
After Montrose’s claims were denied at the initial level,
she received a hearing before an ALJ. The ALJ, in turn, issued
a decision that includes the following relevant findings of fact
and conclusions of law:
3. The claimant has the following severe impairments:
central nervous system (“CNS”) (20 CFR 404.1520(c) and
416.920(c)).6
. . . .
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
. . . .
5. After careful consideration of the entire record,
I find that the claimant has the residual functional
capacity to perform sedentary work as defined in 20
CFR 404.1567(a) and 416.967(a) with the following
additional limitations: she can stand/walk for two
6 Obviously, “central nervous system” is not a physical
impairment. However, later on in his decision, the ALJ made it
clear that the impairment he deemed to be severe is called, by
the applicable regulations, “vascular insult to the brain.” 20
C.F.R. Pt. 404, Subpt. P, App’x 1, Listing 11.04.
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hours in an eight-hour workday. She can occasionally
climb ramps and stairs, but can never climb ladders,
ropes, or scaffolds. Lastly, she can occasionally
balance, stoop, kneel, crouch, and crawl.
. . . .
6. The claimant is unable to perform any past
relevant work (20 CFR 404.1565 and 416.965).
. . . .
10. Considering the claimant’s age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).
Tr. 33, 37, 41. Based upon his assessment of Montrose’s RFC,
and a hypothetical question posed to a vocational expert that
incorporated the RFC recited above, the ALJ determined that
Montrose was able to perform the jobs of document preparer,
addresser, and stuffer.
III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability. See 42 U.S.C. §§ 423(a)(1)(A)-(D). To be
eligible for supplemental security income, a person must be
aged, blind, or disabled, and must meet certain requirements
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pertaining to income and assets. See 42 U.S.C. § 1382(a). The
question in this case is whether the ALJ correctly determined
that Montrose was not under a disability from October 20, 2013,
through November 13, 2015.
To decide whether a claimant is disabled for the purpose of
determining eligibility for either DIB or SSI benefits, an ALJ
is required to employ a five-step process. See 20 C.F.R. §§
404.1520 (DIB) and 416.920 (SSI).
The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform
past relevant work, then the application is denied; 5)
if the [claimant], given his or her residual
functional capacity, education, work experience, and
age, is unable to do any other work, the application
is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920).
The claimant bears the burden of proving that she is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v.
Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982)). Finally,
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[i]n assessing a disability claim, the [Acting
Commissioner] considers objective and subjective
factors, including: (1) objective medical facts; (2)
[claimant]’s subjective claims of pain and disability
as supported by the testimony of the [claimant] or
other witness; and (3) the [claimant]’s educational
background, age, and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).
B. Montrose’s Claims
Montrose claims that the ALJ erred by failing to properly
consider: (1) the opinion provided by Dr. Lindstrom; and (2) her
ankle impairment. Neither claim has merit.
1. Dr. Lindstrom’s Opinion
Montrose begins her discussion of the ALJ’s evaluation of
Dr. Lindstrom’s opinion by noting that the ALJ considered her
depression, but determined that it was not a severe impairment.
Then, after identifying various purported deficiencies in the
ALJ’s evaluation of Dr. Lindstrom’s opinion, she makes the
following claim: “The ALJ’s error regarding Dr. Lindstrom’s
opinion led him to not considering [claimant]’s depression in
the RFC and ultimately affected the credibility assessment.”
Cl.’s Mem. of Law (doc. no. 11-1) 6.7
7 The Acting Commissioner understands Montrose to be
claiming that the ALJ’s mistakes led him to make an error at
step 2 of the sequential evaluation process, see Resp’t’s Mem.
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The Acting Commissioner concedes, and the court agrees,
that the ALJ made several mistakes in his discussion of Dr.
Lindstrom’s opinion. Specifically, the ALJ erred by: (1)
finding that Dr. Lindstrom had assigned Montrose a global
assessment of functioning (“GAF”) score of 41;8 (2) using the
incorrectly attributed GAF score to find internal
inconsistencies in Dr. Lindstrom’s opinion;9 (3) failing to
evaluate Dr. Lindstrom’s opinion that Montrose had no capacity
to work at the time he examined her.10 The problem with
Montrose’s reliance upon those errors is that those errors did
not lead to the consequences that, in her view, flowed from
of Law (doc. no. 13-1) 3, but the court takes claimant’s
memorandum at face value, and understands her to be claiming
that the ALJ incorrectly assessed: (1) her RFC; and (2) the
credibility of her statements about the symptoms of her
impairment(s).
8 Claimant’s GAF score was actually reported in a document
captioned “Initial Clinical Summary” that was signed by three
medical professionals other than Dr. Lindstrom. See Tr. 459-61.
9 In addition, the court can see no basis for the ALJ’s
finding that Dr. Lindstrom “opined that the claimant has a
moderate severity level of functioning,” Tr. 35, which is the
opinion that, in the ALJ’s view, conflicts with the GAF score.
10 While the opinion in question concerned an issue reserved
to the Acting Commissioner, and was not entitled to any “special
significance,” 20 C.F.R. §§ 404.1527(d)(3) & 416.927(d)(3), an
ALJ is “required to evaluate all evidence in the case record
that may have a bearing on the determination or decision of
disability, including opinions from medical sources about issues
reserved to the Commissioner,” Social Security Ruling 96-5p,
1996 WL 374183, at *3 (S.S.A. July 2, 1996).
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them.
a. Montrose’s RFC
Montrose states that “[i]t is unclear whether the ALJ noted
Dr. Lindstrom’s opinion on work capacity,” Cl.’s Mem. of Law
(doc. no. 11-1) 5, and then claims that “[t]he ALJ’s error
regarding Dr. Lindstrom’s opinion led him to not considering
[her] depression in the RFC,” id. at 6. But even if the ALJ had
evaluated the opinion that Montrose correctly faults him for
overlooking, there is nothing in that opinion that would have
supported the inclusion of a depression-related limitation in
her RFC.
Dr. Lindstrom stated that he did not think that Montrose
had a capacity to work “as a result of the stroke she had, which
has affected her physical capacity and diminished her capacity
for expressive language.” Tr. 453. While Dr. Lindstrom
diagnosed Montrose with major depressive disorder, he did not
identify any functional limitations that resulted from
Montrose’s depression. To the contrary, he mentioned an effect
on her physical capacity and a diminution of her linguistic
capacity that resulted from her stroke, not limitations that
resulted from the depression that resulted, in part, from her
stroke. Moreover, while Dr. Lindstrom referred to an effect on
Montrose’s physical capacity, he did not say what that effect
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was, and while he referred to a diminution of Montrose’s
linguistic capacity, he did not indicate the magnitude or the
scope of that diminution. Thus, nothing that Dr. Lindstrom said
in the opinion at issue provides substantial evidence for a
limitation in Montrose’s RFC. And, for her part, Montrose does
not identify any limitation that the ALJ should have included in
her RFC but did not on account of his failure to properly
evaluate Dr. Lindstrom’s opinion.11 In short, Montrose has
identified nothing in the ALJ’s handling of Dr. Lindstrom’s
opinion that calls into question of the validity of his RFC
assessment.
b. Credibility
Equally unavailing is Montrose’s claim that the ALJ’s
mishandling of Dr. Lindstrom’s opinion infected his assessment
of the credibility of statements she made about the symptoms of
her impairment(s). That claim rests upon the following passage,
drawn from the ALJ’s assessment of Montrose’s statements:
Additionally, given the claimant’s allegations of
totally disabling symptoms, one might expect to see
some indication in the treatment records of
11 Given the lack of concrete limitations in Dr. Lindstrom’s
psychiatric evaluation, the ALJ could only have used that
evaluation to craft limitations on Montrose’s RFC by
interpreting the raw medical data reported in it, which is
impermissible, see Giandomenico v. U.S. Soc. Sec. Admin., Acting
Comm’r, No. 16-cv-506-PB, 2017 WL 5484657, at *4 (D.N.H. Nov.
15, 2017) (quoting Manso-Pizarro, 76 F.3d at 17; citing Berrios
Lopez v. Sec’y of HHS, 951 F.2d 427, 430 (1st Cir. 1991)).
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restrictions placed on the claimant by her medical
treatment providers. Yet a review of the record
reveals no such restrictions. In fact, the record
does not contain any opinion from treating or
examining physicians indicating that the claimant is
disabled or even has limitations greater than those
determined in this decision.
Tr. 40. Plainly, Montrose is correct in asserting that the ALJ
erred by stating the record contains no opinion from an
examining source that Montrose is disabled; that is precisely
what Dr. Lindstrom said when he opined that he did not “think
that she [had] the capacity to work at present.” Tr. 453.
However, the ALJ’s error is not enough to undermine his
credibility assessment.
To begin, the ALJ was correct when he stated that no
treatment provider ever placed any restrictions on Montrose.
And, as the court has already noted, while Dr. Lindstrom opined
that Montrose was unable to work (due to physical and linguistic
impairments, rather than the depression he had diagnosed), he
provided no specific limitations on her capacity to perform
work-related activities, either physical or mental.
For her part, Montrose identifies the ALJ’s error, but
develops no real argument, simply claiming that the ALJ’s
“statement that there was ‘no opinion’ in Plaintiff’s favor”
somehow “affected the credibility assessment.” Cl.’s Mem. of
Law (doc. no. 11-1) 6. Montrose’s undeveloped argument falls
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short of establishing a reversible error. In the discussion
that follows, the court begins with the relevant law and then
turns to Montrose’s claim.
An ALJ must assess the credibility of a claimant’s
statements about her symptoms when: (1) the claimant has “an
underlying impairment that is shown by medically acceptable
diagnostic techniques and could be expected to cause the
claimant’s symptoms,” Natsis v. Berryhill, No. 16-cv-063-LM,
2017 WL 1032258, at *4 (D.N.H. Mar. 16, 2017) (quoting Hunt v.
Colvin, No. 13-CV-074-JD, 2013 WL 5273807, at *8 (D.N.H. Sept.
17, 2013)); but (2) “the objective medical evidence in the
record does not substantiate the claimant’s statements,” Floyd
v. Berryhill, No. 15-cv-456-PB, 2017 WL 2670732, at *5 (D.N.H.
June 21, 2017). “[T]he ALJ should evaluate the credibility of
the [claimant’s] statements ‘based on a consideration of the
entire case record’” id. (citing Social Security Ruling (“SSR”)
96-7p, 1996 WL 374186, at *2, *5 (S.S.A. July 2, 1996),
superseded by SSR 16-3p, 2016 WL 1119029 (S.S.A. Mar. 16,
2016)), and “must take into account a number of factors, known
in this circuit as the Avery factors,” id. (citing 20 C.F.R. §
416.929(c)(3); Avery, 797 F.2d at 28). The Avery factors are
the claimant’s daily activities, the frequency and
intensity of pain and symptoms, precipitating and
aggravating factors, medication taken to address pain
and symptoms, other treatment for pain and symptoms,
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other measures taken to relieve pain or symptoms, and
other factions related to functional limitations and
restrictions.
Squeglia v. Berryhill, No. 16-cv-238-JD, 2017 WL 773528, at *5
(D.N.H. Feb. 28, 2017) (citing 20 C.F.R. § 404.1529(c)(3).
“Although an ALJ must consider the Avery factors, he or she need
not address each one.” Floyd, 2017 WL 2670732, at *5 (citing
Phelps v. Astrue, No. 10-cv-240-SM, 2011 WL 2669637, at *7
(D.N.H. July 7, 2011)).
“The credibility determination by the ALJ, who observed the
claimant, evaluated his demeanor, and considered how that
testimony fit in with the rest of the evidence, is entitled to
deference, especially when supported by specific findings.”
Natsis, 2017 WL 1032258, at *3 (quoting Frustaglia v. Sec’y of
HHS, 829 F.2d 192, 195 (1st Cir. 1987); citing Flood v. Colvin,
No. 15-2030, 2016 WL 6500641, at *1 (1st Cir. Oct. 20, 2016)).
In the end, “[a]n ALJ’s credibility determination will be
affirmed if it is supported by substantial evidence.” Squeglia,
2017 WL 773528, at *5.
The court starts its analysis by noting that claimant’s
sole criticism of the ALJ’s credibility determination – his
failure to properly consider Dr. Lindstrom’s opinion – does not
involve any of the Avery factors. More importantly, the ALJ’s
credibility assessment touched upon many of the Avery factors,
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including claimant’s minimal and conservative treatment, her
general medical improvement, and her activities of daily living.
Finally, while clamant argues in a vague and conclusory way that
the ALJ’s mishandling of Dr. Lindstrom’s opinion “ultimately
affected the credibility assessment,” Cl.’s Mem. of Law (doc.
no. 11-1) 6, she does not identify any statement about a symptom
that was improperly discounted and, necessarily, does not
indicate how a purported error in crediting such a statement
resulted in an erroneous determination that she was not
disabled. In short, the ALJ’s assessment of claimant’s
statements about her symptoms is supported by substantial
evidence, and that is all that is required. See Squeglia, 2017
WL 773528, at *5.
c. Summary
While the ALJ made several mistakes in considering Dr.
Lindstrom’s opinion, those errors did not lead him to
erroneously exclude depression-related limitations from her RFC
or to incorrectly assess the credibility of her statements about
her symptoms. Accordingly, the ALJ’s handling of Dr.
Lindstrom’s opinion creates no basis for a remand.
2. Montrose’s Ankle Impairment
Montrose also claims that the ALJ erred by failing to
consider her ankle impairment. Her argument on this issue,
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however, is somewhat difficult to follow. Legally, she pins her
argument upon the requirement that when assessing a claimant’s
RFC, an ALJ must “consider all of [a claimant’s] medically
determinable impairments of which [he is] aware, including . . .
medically determinable impairments that are not ‘severe,’” 20
C.F.R. §§ 404.1545(a)(2) & 416.945(a)(2). As it happens, the
ALJ cited those regulations in his decision and stated that he
was going to “take in account all of the allegations of symptoms
arising from both severe and non-severe physical impairments in
determining the claimant’s residual functional capacity.” Tr.
34-35. And, indeed, the ALJ noted that Montrose was prescribed
an ankle brace in 2014, and he discussed the results of her 2015
ankle x-ray, noting that the imaging report “failed to show
evidence of an acute ankle fracture or dislocation.” Tr. 34.
So, it is not accurate to say that the ALJ failed to consider
Montrose’s ankle impairment.
Nonetheless, Montrose claims that the ALJ erred in his
consideration of that impairment. She asserts:
A dislocation/fracture is not the only possible
impairment and an x-ray confirmed Achilles
[enthesopathy] in 2015. No medical opinion considered
this condition. Further, the ALJ seems to have
overlooked this in the medical record. . . .
This should have been considered in combination
with the other impairments. In combination with the
residual effects of [claimant]’s central nervous
[system] disease, it could affect balance and
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[claimant]’s ability to walk the required two or more
hours for sedentary work.
Cl.’s Mem. of Law (doc. no. 11-1) 7-8. However, “[a]n ALJ, as a
lay person, is not qualified to interpret raw data in a medical
record.” Giandomenico v. U.S. Soc. Sec. Admin., No. 16-cv-506-
PB, 2017 WL 5484657, at *4 (D.N.H. Nov. 15, 2017) (quoting
Manso-Pizarro, 76 F.3d at 17). As a result, an “ALJ is not
qualified to assess claimant’s [RFC] based on the bare medical
record.” Berrios Lopez v. Sec’y of HHS, 951 F.2d 427, 430 (1st
Cir. 1991) (per curiam). Thus, the ALJ in this case cannot be
faulted for failing to ascribe functional limitations to
Montrose based upon the results of her x-ray or her diagnosis of
Achilles enthesopathy.
Indeed, “an ALJ ordinarily cannot consider raw medical data
in an RFC assessment until its functional significance is
assessed by a medical expert.” Giandomenico, 2017 WL 5484657,
at *4 (citing McGowen v. Colvin, No. 15-cv-329-JD, 2016 WL
1029480, at *6 (D.N.H. Mar. 15, 2016)). Here, as claimant
correctly observes, there is no medical opinion in the record
that assesses the functional significance of her Achilles
enthesopathy. Because claimant bears the burden of proving that
she is disabled, see Bowen, 482 U.S. at 146, the lack of an
opinion assessing the functional significance of her Achilles
enthesopathy provides no basis for determining that the ALJ
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committed a reversible error in assessing her RFC, and the mere
possibility that Achilles enthesopathy “could affect balance and
[claimant’s] ability to walk the two or more hours [required]
for sedentary work,” Cl.’s Mem. of Law (doc. no. 11-1) 8, does
not alter that conclusion.
Montrose’s final claim is that “[t]he ALJ’s ignorance of
[her] ankle condition affected [his] credibility assessment.”
Cl.’s Mem. of Law (doc. no. 11-1) 8.12 While that claim is not
as clear as it might be, Montrose seems to be asserting that
because the ALJ ignored her ankle condition, he erroneously
discounted her testimony that she could only stand for 30
minutes at a time. There are two problems with that claim.
First, it does not appear that the ALJ ever discounted the
testimony at the center of Montrose’s claim. He did note her
testimony “that she could only stand for 30 minutes.” Tr. 38.
Then, when discussing “claimant’s statements concerning the
intensity, persistence and limiting effects of [her] symptoms,”
Tr. 38, the ALJ referred to “the credibility of her alleged
disabling symptoms,” Tr. 39 (emphasis added), and to her
allegations of totally disabling symptoms,” Tr. 40 (emphasis
12 As the court has already noted, the ALJ did mention the
2015 x-ray, so he was not ignorant of claimant’s ankle
condition; he merely decided, correctly, not to include any
limitations in claimant’s RFC based upon that impairment.
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added). But, an inability to stand for more than 30 minutes is
not a totally disabling symptom, given the regulatory definition
of sedentary work. See 20 C.F.R. §§ 404.1567(a) & 916.967(a)
So, while the ALJ found Montrose’s statements about totally
disabling symptoms to be “not entirely credible,” Tr. 38, he did
not discount the specific testimony on which Montrose bases her
claim.
But, beyond that, even if the ALJ did discount that
testimony, and did so in error, that error would be harmless
because there is nothing in that testimony that runs counter to
anything in the ALJ’s decision. First, the ALJ found that
claimant could “stand/walk for two hours in an eight-hour
workday.” Tr. 37. That limitation is not inconsistent with
claimant’s testimony; a person who can only stand for 30 minutes
at a time is not, by virtue of that limitation, unable to
stand/walk for a total of two hours in an eight-hour workday.
Then, the ALJ found that claimant was capable of a limited range
of sedentary work. “Jobs are sedentary if walking and standing
are required occasionally,” 20 C.F.R. §§ 404.1567(a) &
916.967(a), and there is nothing about an inability to stand for
more than 30 minutes that is inconsistent with an ability to
occasionally walk or stand. So, even if the ALJ had erroneously
discounted claimant’s testimony that she could only stand for 30
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minutes at a time, that testimony is not inconsistent with the
ALJ’s RFC assessment, which means that any failure to credit
that testimony had no bearing on the ALJ’s RFC assessment. For
that reason, plaintiff’s final argument is unavailing.
In sum, the ALJ’s consideration of claimant’s ankle
impairment did not result in either a faulty RFC or an erroneous
credibility assessment.
IV. Conclusion
Because the ALJ committed neither a legal nor a factual
error in evaluating Montrose’s claim, see Manso-Pizarro, 76 F.3d
at 16, her motion for an order reversing the Acting
Commissioner’s decision, document no. 11, should be denied; the
Acting Commissioner’s motion for an order affirming her
decision, document no. 13, should be granted; and the clerk of
the court should be directed to enter judgment in accordance
with this order and close the case.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). The 14-day period may be extended upon
motion. Failure to file a specific written objection to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. See Santos-Santos
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v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
December 14, 2017
cc: D. Lance Tillinghast, Esq.
T. David Plourde, Esq.
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