Jayne-Chandler v. US Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Jamie Jayne-Chandler
v. Civil No. 18-cv-606-JL
Opinion No. 2019 DNH 121
Commissioner of the
Social Security Administration
ORDER ON APPEAL
Jamie Jayne-Chandler has moved to reverse the Social
Security Administration’s (“SSA”) decision to deny her
application for a period of disability and disability insurance
benefits. An administrative law judge (“ALJ”) at SSA found that
Jayne-Chandler, despite having severe impairments, retains the
residual functional capacity (“RFC”) to perform a range of work
at all exertional levels, subject to certain limitations, and
thus is not disabled, as defined by the social security
regulations.1 See 20 C.F.R. § 404.1505(a). This decision was
affirmed by the Appeals Council and thus became the final
decision on her application. See id. § 404.981. Jayne-Chandler
then appealed the decision to this court, which has jurisdiction
under 42 U.S.C. § 405(g) (Social Security).
1 Pl. Mot. for Order Reversing Decision (doc. no. 8); see also
Pl. Reply (doc. no. 12).
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On appeal, Jayne-Chandler raises five issues of fact or law
regarding the ALJ’s step 3 and step 5 determinations. See
LR 9.1(b). The SSA Acting Commissioner contests these issues
and has cross-moved for an order affirming the ALJ’s decision.2
See LR 9.1(e). After careful consideration, the court denies
Jayne-Chandler’s motion and grants the Acting Commissioner’s
cross-motion to affirm the SSA’s final decision.
Background3
On September 1, 2017, an ALJ followed the established five-
step sequential evaluation process, see 20 C.F.R. § 404.1520,
and found that Jayne-Chandler is not disabled under section
216(i) and 223(d) of the Social Security Act.
At Step 1, he found that Jayne-Chandler had not engaged in
substantial gainful activity since December 15, 2015.4
At Step 2, he found that Jayne-Chandler had three severe
impairments that significantly limit the ability to perform
basic work activities – Bi-Polar Disorder, Depression, and
2 Doc. no. 11-1.
3 The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitation in their
Joint Statement of Material Facts (doc. no. 12) is incorporated
by reference.
4 Admin. R. at 15.
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Anxiety.5 In doing so, he declined to find that Jayne-Chandler’s
degenerative disc disease diagnosis constituted a severe
impairment because Jayne-Chandler had not alleged it was severe
and because the disease appeared to be improving under a
conservative treatment plan.6 He also declined to find that her
obesity, as evidenced by biometrics, constituted a severe
impairment, after finding that there was no evidence that her
obesity had any specific or quantifiable impact on pulmonary,
musculoskeletal, endocrine, or cardiac functioning.7 As such,
the ALJ did not integrate obesity-related limitations into the
RFC and instead only considered the potential impact of obesity
on Jayne-Chandler’s co-existing severe impairments.8
At Step 3, he found that Jayne-Chandler’s mental
impairments, considered both individually and in combination,
did not meet or medically equal the severity criteria of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.9
In making this determination, he applied the recently revised
“Paragraph B” criteria and found that Jayne-Chandler had
5 Id.
6 Id. at 16.
7 Id.
8 Id.
9 Id. at 16-20 (emphasis added).
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moderate limitations in understanding, remembering, or applying
information; moderate limitations in interacting with others;
moderate limitations in concentrating, persisting, or
maintaining pace; and mild limitations in adapting or managing
herself.10 On the entire record, he found that Jayne-Chandler
retains the residual functional capacity “to perform full range
of work at all exertional levels,” subject to the non-exertional
limitations that she perform simple and routine tasks and have
no more than frequent interaction with others.11 Although Jayne-
Chandler suffered symptoms of her mental impairments, the ALJ
found that her statements concerning the intensity, persistence,
and limiting effects of her symptoms were inconsistent with
medical and testimonial evidence showing her limitations were
mild to moderate for the purposes of listings 12.04 and 12.06.12
At Step 4, he found that Jayne-Chandler is unable to
perform any past relevant work.13
At Step 5, he found, based on the testimony of a vocational
expert, that Jayne-Chandler, given her age, education, work
experience, and residual functional capacity, is capable of
10 Id. at 17-18.
11 Id. at 18.
12 Id. at 19-20.
13 Id. at 21-22.
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making a successful adjustment to other work that exists in
significant numbers in the national economy, including
assembler, material handler, and laborer.14
Under this framework, the ALJ concluded that a finding of
“not disabled” was appropriate.
Applicable legal standard
In reviewing a challenge of a final determination by the
SSA, the court limits its review “to determining whether the ALJ
used the proper legal standards and found facts upon the proper
quantum of evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d
652, 655 (1st Cir. 2000). As such, the court “review[s]
questions of law de novo, but defer[s] to the [Acting]
Commissioner’s findings of fact, so long as they are supported
by substantial evidence,” id., that is, “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotations omitted). Though the evidence in the record may
support multiple conclusions, the court must still uphold an
ALJ’s findings “if a reasonable mind, reviewing the evidence in
the record as a whole, could accept it as adequate to support
his conclusion.” Irlanda Ortiz v. Sec’y of Health & Human
14 Id. at 22-23.
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Servs., 955 F.2d 765, 769 (1st Cir. 1991). The court therefore
“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 Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996)
(per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885
(1989)).
Analysis
Jayne-Chandler challenges the ALJ’s Step 3 and Step 5
determinations, raising five issues: that the ALJ erred by (A)
failing to provide “good reasons” for discounting a treating
source opinion, (B) impermissibly interpreting raw medical
evidence, (C) failing to account for her moderate limitations in
concentration, persistence, or pace in his residual functional
capacity assessment, (D) failing to account for her degenerative
disc disease and obesity in the RFC assessment, and (E) relying
on vocational expert testimony based on an allegedly flawed RFC
assessment that resulted from the errors above.15 After
reviewing each issue raised, the court finds no grounds
warranting reversal or remand.
15 See Pl. Reply (doc. no. 12) at 1.
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A. The weight assigned to treating source opinions
Jayne-Chandler first argues that the ALJ’s RFC
determination improperly gave little weight to the medical
opinion of Jayne-Chandler’s treating source physician,
Dr. Michelle Gunning, M.D., contravening the treating source
rule. But as discussed below, the ALJ’s decision to discount
Dr. Gunning’s opinion and not give it controlling weight was
adequately supported, given Dr. Gunning’s brief treatment
relationship with Jayne-Chandler and the fact Dr. Gunning
limited her medical opinion to a form questionnaire containing
no narrative explanations in RFC terms.
Generally, a treating source’s opinion on the nature or
severity of impairments is given controlling weight if well-
supported by medically acceptable clinical techniques and
consistent with other substantial evidence in the record. See
20 C.F.R. § 404.1527(c)(2). “[T]hese sources are likely to be
the medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or
from reports of individual examinations.” 20 C.F.R. §
404.1527(c)(2); 416.927(c)(2). Nevertheless, an ALJ may
discount the weight given to a treating source opinion where it
is inconsistent with other substantial evidence in the record.
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20 C.F.R. § 404.1527(c)(2)-(4); 416.927(c)(2)-(4); see also SSR
96-2p, 1996 WL 374188, at *2. When controlling weight is not
given, the ALJ may consider an array of factors to determine
what weight to grant the opinion, including the length of the
treatment relationship, the frequency of examinations, the
degree to which relevant evidence supports the opinion, and the
opinion’s consistency with the record as a whole. See 20 C.F.R.
§ 404.1527(c)(2) – (6); 416.927(c)(2)-(6).
In determining Jayne-Chandler’s RFC, the ALJ gave three
reasons for according Dr. Gunning’s opinion little weight:
Dr. Gunning had a “short treatment relationship” with Jayne-
Chandler; Dr. Gunning did not express her opinion in RFC terms,
and Dr. Gunning’s conclusions about Jayne-Chandler having
“[m]arked” limitations were not consistent with the record as a
whole.16 Jayne-Chandler challenges each reason, as
insufficiently supported by the record.
With respect to the ALJ’s first reason — the short
treatment relationship, Jayne-Chandler correctly identifies that
the ALJ erred by stating Jayne-Chandler “had seen Dr. Gunning
only once” when in fact, she had seen Dr. Gunning twice.17 But
16 Admin. R. at 21.
17 See Pl. Mot. to Reverse (doc. no. 8) at 2 (citing Admin. R. at
421, 426, 428-30).
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this error is harmless. The difference between one and two
meetings does not undermine the ALJ’s ultimate conclusion that
there had been insufficient contact between Jayne-Chandler and
Dr. Gunning to give Dr. Gunning a “longitudinal view of [Jayne-
Chandler] that another treating source might generally have.”18
This reason is sufficient for not giving Dr. Gunning’s opinion
controlling weight, but it is a questionable ground for
according the opinion little weight, especially where the same
critique can be raised against the other medical opinion
evidence in the record.
The ALJ’s second stated reason – Dr. Gunning’s failure to
state her opinion in RFC terms – by comparison, does constitute
a good reason for giving Dr. Gunning’s opinion. As the Acting
Commissioner notes, “medical opinions,” as defined by social
security regulations, must reflect judgments about “what [a
claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.” 20 C.F.R.
§ 404.1527(a)(1). Dr. Gunning’s opinion contained no such
judgments, and in fact, offered little to no substance beyond a
check-off form that rated Jayne-Chandler’s symptoms and
18 Admin. R. at 21; see also 20 C.F.R. § 404.1527(a)(2).
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limitations on a five-point scale.19 “That itself goes a long
way toward supporting the ALJ’s determination to accord Dr.
[Gunning’s] opinion little weight.” See Purdy v. Berryhill, 887
F.3d 7, 13 (1st Cir. 2018) (holding that an SSA ALJ properly
discounted a medical opinion that had “no discussion or
analysis”). By contrast, the other medical experts supplemented
their findings with narrative explanations about the bases for
their conclusions and offered opinions on what Jayne-Chandler
can still do despite her impairments.20 As such, the ALJ’s
weight decision was proper.
Because the ALJ’s first two reasons for discounting
Dr. Gunning’s opinion have substantial support in the record as
a whole, the ALJ’s ultimate weight decision passes muster, and
the court need not address the ALJ’s third reason – consistency.
See Gonzalez Perez v. Sec’y of Health & Human Servs., 812 F.2d
747, 749 (1st Cir. 1987); see also McNelley v. Colvin, No. 15-
1871, 2016 WL 2941714, at *2 (1st Cir. Apr. 28, 2016); Arroyo v.
Barnhart, 295 F. Supp. 2d 214, 221 (D. Mass. 2003) (Neiman, J.)
(“[A]n administrative law judge’s decision can still pass muster
if the other reasons given to accord medical reports little
19 Admin. R. at 419-20.
20 Admin. R. at 56-66, 347-52.
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weight are adequately supported.” (citations omitted)). For
similar reasons, the ALJ also did not fail to grasp the
significance of Dr. Gunning’s findings, contrary to Jayne-
Chandler’s suggestion.21 Accordingly, the ALJ’s credibility
determinations were sufficiently supported.
B. Paragraph B Criteria
Jayne-Chandler next argues that the ALJ’s “Paragraph B”
criteria findings, which served as the bases for his RFC, were
impermissibly based only on lay assessments of raw medical
evidence and thus not supported by substantial evidence.22 At
Steps 2 and 3, the ALJ must assess a claimant’s mental
impairments using the Paragraph B criteria. See 20 C.F.R.
§ 404.1520a(c)(3)-(4); 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.00(A)(2)(b), (E). In January 2017, the Social Security
Administration revised these criteria. See 81 Fed. Reg. 66138
et seq. (Sept. 26, 2016). The ALJ made his findings under these
new criteria, but in doing so, relied in part on the September
2016 opinion of the state agency reviewer, Dr. John J. Warren,
Ed. D.,23 who opined that Jayne-Chandler’s mental impairments did
21 Pl. Mot. to Reverse (doc. no. 8) at 4-5.
22 Id. at 5-8.
23 Admin. R. at 20.
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not satisfy the old Paragraph B severity criteria. Jayne-
Chandler asserts that because Dr. Warren’s opinion was
“obsolete,” any decision made by the ALJ must have been based on
improper lay determinations.
This argument lacks merit. Under social security
regulations, the assessment of the Paragraph B criteria is
properly performed by the ALJ, not by a physician. 20 C.F.R.
§§ 404.1520a, 416.920a; see also 20 C.F.R. § 404.1527(d)(2)
(“Although we consider opinions from medical sources on issues
such as whether your impairment(s) meets or equals the
requirements of any [Listing], . . . the final responsibility
for deciding these issues is reserved to the Commissioner.”).
The ALJ is “not required to adopt prior administrative medical
findings” when issuing decisions. 20 C.F.R. § 404.1513a(b)(1);
see SSR 17-2p, 2017 WL 3928306, at *3 (Mar. 27, 2017). And
while the ALJ has discretion to return a file to the state
agency or seek additional evidence from a medical expert to
complete his or her Paragraph B consideration, see 20 C.F.R.
§ 404.1513a(b)(2), Jayne-Chandler cites no authority suggesting
that an updated opinion is required.
In Benoit v. Berryhill, No. 18-cv-61-SM, 2018 WL 6304353
(D.N.H. Dec. 3, 2018), a recent social security appeal decision
by Judge McAuliffe, the court rejected this very argument when
the claimant argued that his case should be remanded because the
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ALJ made adverse Paragraph B findings under the new criteria
based on a medical expert opinion rendered before the regulatory
revision. See id. at *8-9. Judge McAuliffe found that the
expert’s assessment was not compromised just because it used the
prior criteria. Id. at 20 n.14. Moreover, he found that even
if the Paragraph B revision somehow tainted the expert’s
assessment, the ALJ’s decision was supported by other evidence
in the record, including the claimant’s own hearing testimony.
Id. at *9. Accordingly, the court found no grounds for remand.
Here, ALJ Menard completed his Paragraph B assessment using
the revised criteria and cited to facts from the record to
support the degree of limitation assessed in each functional
area.24 He drew these facts from general observations made by
several medical experts, witness testimony, and the ALJ’s lay
observations, but not raw medical data.25 Indeed, in her motion,
Jayne-Chandler points to not one instance where the ALJ
interpreted raw data. To the extent the ALJ referenced Jayne-
Chandler’s medical records, it was to draw upon behavioral
observations made therein by her medical examiners.26 An ALJ is
24 Admin. R. at 16-18.
25 Id. at 16-18.
26 Id. at 15-17. These observations include that “[Jayne-
Chandler] performed a variety of tasks quickly and accurately”;
“her problem solving skills were also sharp and clear”; “she
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qualified to make judgments from such observations. See Gordils
v. Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir.
1990) (“[ALJ] is [not] precluded from rendering common-sense
judgments about functional capacity based on medical findings,
as long as the [he] does not overstep the bounds of a lay
person’s competence and render a medical judgment.”); Guzman v.
Colvin, No. 15-cv-230-PB, 2016 WL 1275036, at *3-4 (D.N.H. Apr.
1, 2016) (Barbadoro, J.) (“[S]imple statements about actions
[the claimant] could perform [like being] ‘able to sit down and
stand up without difficulty, get on and off the exam table
without difficulty, don and doff shoes without difficulty . . .
[are] not inscrutable medical terminology that required an
expert to interpret.”).
In addition, substantial evidence from the record supports
the ALJ’s assessment for each Paragraph B criterion. Jayne-
Chandler does not raise any specific objections to the facts the
ALJ considered or his ultimate findings for the first three
Paragraph B criterion. The court sees no need to delve deeper
to find a reversible error. See Bourque v. Berryhill, No. 17-
CV-268-LM, 2018 WL 3536087, at *11 (D.N.H. July 23, 2018)
engages easily with medical providers, but also appeared weepy
and depressed”; “she communicates with her family, friends, and
neighbors”; and “she does all the shopping and errands for her
family.” See id.
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(McCafferty, J.) (finding that a claimant had waived issues that
he failed to previously raise).
Substantial evidence also supports the ALJ’s findings for
the fourth criterion (mild limitations in adapting or managing
oneself). Jayne-Chandler asserts that the ALJ considered the
wrong evidence in assessing this criterion by considering her
daily living activities – a factor replaced by the 2017
revision.27 But the 2017 revision explains that daily living
activities continue to provide a central “source of information
about all four of the Paragraph B areas of mental functioning.”28
In addition, evidence from Jayne-Chandler’s daily living
activities was supplemented by other observations made by Dr.
Weil and in Dr. Warren’s assessment,29 which remain highly
probative as the revised “adapt or manage oneself” criterion “is
not new or different from what adjudicators [were] already
accustomed to evaluating and documenting” for the fourth
criterion. 81 Fed. R. 661456. Even though the record documents
a few instances where Jayne-Chandler could not regulate her
emotions, these instances do not undermine the fact that the
27 Pl. Mot. to Reverse (doc. no. 8) at 6-8.
28 81 Fed. Reg. at 66143.
29 Admin. R. at 60; see also id. at 21 (giving opinion “great
weight”).
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ALJ’s ultimate finding is consistent with the greater record as
a whole. See Irlanda Ortiz, 955 F.2d at 769 (a reversal is
warranted only where the ALJ’s conclusions are unsupported by
the record as a whole, not where evidence supports alternative
conclusions).
Finally, to the extent any flaws may exist with the ALJ’s
Paragraph B analysis, such flaws do not doom the ALJ’s RFC.
Jayne-Chandler contends that “[l]ong standing precedent in this
circuit holds that RFC assessments, which are based on the
“Paragraph B” assessments in cases, such as this, involving
mental impairments, must be based on medical expert opinion.”30
But as noted by Judge McAuliffe, the Paragraph B criteria and
the RFC “are two different things.” Benoit v. Berryhill, No.
18-CV-61-SM, 2018 WL 6304353, at *8 (D.N.H. Dec. 3, 2018). The
Paragraph B criteria “are not an RFC assessment but are used to
rate the severity of mental impairment(s) at steps 2 and 3 of
the sequential evaluation process.” SSR 96-8p, 1996 WL 374184,
at *4. After Step 3, the ALJ no longer looks to the Paragraph B
findings and instead draws from the medical expert opinion to
assess a claimant’s RFC. See id. The ALJ’s decision comported
30 Pl. Mot. to Reverse (doc. no. 8) at 8 (citing Nguyen v.
Chater, 172 F.3d 31, 34 (1st Cir.1999); Manso-Pizarro, 76 F.3d
at 16; Gordils, 921 F.2d at 329).
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with this framework and, as discussed below, relied on expert
medical opinion in assessing Jayne-Chandler’s RFC. Remand is
therefore unwarranted.
C. Concentration, persistence, and pace limitations
Jayne-Chandler’s third argument on appeal is that the ALJ
erred by not including any restrictions relating to her moderate
difficulties in concentration, persistence, or pace in his RFC.
This argument is unpersuasive.
As a general rule, when an ALJ relies on “an acceptable
medical source” opining that “despite moderate limitations in
concentration, persistence, or pace the claimant is able to do
unskilled work or simple routine work,” no further restrictions
need be included in an RFC. Mudgett v. Colvin, No. 14-cv-143-
JD, 2014 WL 6977863, at *3 (D.N.H. Dec. 9, 2014) (DiClerico,
J.); Montore v. Astrue, No. 11–CV–190-SM, 2012 WL 3583346, at *7
(D.N.H. Aug. 20, 2012) (McAuliffe, J.) (same). In Mudgett, for
example, Judge DiClerico held that an ALJ adequately accounted
for moderate difficulties in concentration, persistence, and
pace when he relied on an expert opinion stating the claimant
could do unskilled work in making the RFC assessment. 2014 WL
6977863, at *3. Likewise, in Montore, Judge McAuliffe held that
an ALJ’s vocational hypotheticals did not fail to account for
the claimant’s moderate limitations in concentration,
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persistence, and pace where there was medical evidence that the
limitation did not rule out the ability to do unskilled, routine
work. 2012 WL 3583346, at *7.
Jayne-Chandler argues that this general rule is in tension
with dicta from Dimambro v. US Soc. Sec. Admin., Acting Comm’r,
No. 16-CV-486-PB, 2018 WL 301090, at *10 (D.N.H. Jan. 5, 2018)
(Barbadoro, J.), in which Judge Barbadoro stated that when “an
ALJ has identified moderate limitations in concentration,
persistence, or pace, his RFC finding or hypothetical at step
five must either adopt restrictions that address ‘staying on
task’ or explain why such restrictions are unwarranted.”31 The
court sees no tension among the holdings of this District’s
judges. In Mudgett, the ALJ explained why restrictions were
unwarranted by citing to the medical expert’s opinion that the
claimant could do unskilled work in making the RFC. See 2014 WL
6977863, at *3. And in Montore, the ALJ similarly accepted the
medical expert’s assessment, and even included a more
restrictive limitation than the one the expert proposed. See
2012 WL 3583346, at *7.
Likewise, in crafting Jayne-Chandler’s RFC, the ALJ in this
case adequately explained why restrictions as to concentration,
31 Pl. Reply (doc. no. 12) at 3.
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persistence, or pace were unwarranted by relying on and
referencing Dr. Warren’s opinion that Jayne-Chandler could
“sustain the mental demands associated with carrying out simple
tasks over the course of [a] routine workday/workweek within
acceptable attention, persistence and pace tolerance.”32
Accordingly, the ALJ’s RFC restriction to “simple and routine
tasks,”33 without further restrictions, adequately accounts for
plaintiff’s moderate concentration, persistence and pace
limitations.
D. Excluding degenerative disc disease and obesity from
the RFC assessment
Fourth, Jayne-Chandler argues that the ALJ erred by failing
to consider limitations and restrictions imposed by her
nonsevere degenerative disc disease and obesity in the RFC.34
The Acting Commissioner contends that it was Jayne-Chandler’s
burden — not the ALJ’s — to show specific limitations based on
either her degenerative disc disease or obesity, that she did
32 Admin. R. at 63; see also id. at 20 (“Dr. Warren also felt
that the claimant retained the capacity to perform basic tasks,
relate well enough for routine workplace purposes, and can adapt
and manage herself for routine workplace purposes. This is
persuasive.” (citing Admin. R. at 63-64)).
33 Id. at 18.
34 Pl. Mot. to Reverse (doc. no. 8) at 10 (citing SSR 96-8p, 1996
WL 374184, at *5).
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not do so, and that no physician found that such conditions
imposed additional limitations or restrictions.35 Further, the
Acting Commissioner contends that the ALJ reasonably found that
Jayne-Chandler’s obesity and degenerative disc disease were non-
severe and did not limit her functionality.36 The court agrees.
With respect to Jayne-Chandler’s obesity, the ALJ
individually assessed that there was “no evidence that the
claimant’s obesity has any specific or quantifiable impact on
pulmonary, musculoskeletal, endocrine, or cardiac functioning.”37
And despite Jayne-Chandler’s assertion to the contrary, the ALJ
specifically “considered the potential impact of obesity in
causing or contributing to co-existing impairments,” which
included depression and anxiety.38
The ALJ similarly “recognized” Jayne-Chandler’s
degenerative disc disease diagnosis and concluded, based on her
conservative treatment plan, that the diagnosis was a nonsevere
35 Def. Mot. to Affirm Mem. (doc. no. 11-1) at 14 (citing West v.
Berryhill, No. 17-1170, 2017 WL 6499834, at *1 (1st Cir. Dec.
11, 2017) (unpublished, citations omitted)); Boston v. Astrue,
No. 10–cv–00250–PB, 2011 WL 2491120, at *10 n.19 (D.N.H. June
22, 2011) (Barbadoro, J.) (noting that “[the] claimant bears the
burden of proving the limitations that factor into the RFC”)).
36 Id. at 14-15.
37 Admin. R. at 16.
38 Id.
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impairment.39 Jayne-Chandler argues that her clinical social
worker Mr. Rosario noted she struggled with pain even though she
completed physical therapy,40 but this note was made prior to
Jayne-Chandler beginning the pool therapy treatment plan the ALJ
found to be conservative.41 See McNelley v. Colvin, No. 15-1871,
2016 WL 2941714, at *2 (1st Cir. 2016) (finding that a
conservative treatment undercut a claimant’s allegations).
Finally, Jayne-Chandler argues that there was no basis for
the ALJ to find that she had no exertional limitations despite
her obesity and degenerative disc disease, as physical
impairments were not considered by the State Agency. But Jayne-
Chandler had the burden to present evidence of exertional
limitations arising from these impairments or, at the very
least, present enough evidence to alert the ALJ to the issue.
See West, 2017 WL 6499834, at *1; Boston, 2011 WL 2491120, at
*10 n.19. She did not do so in her initial motion42 and in her
Reply, points to only one passing statement from her hearing
39 Id.
40 Pl. Mot. to Reverse (doc. no. 8) at 11.
41 Admin. R. at 437.
42 Pl. Mot. to Reverse (doc. no. 8) at 11-12 (instead arguing
that it “defies common sense to conclude that an obese
individual with a medically determinable back impairment can
lift and carry” heavy loads for a portion of the workday); see
also Pl. Reply (doc. no. 12) at 4-5.
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testimony, conducted with the aid of counsel, possibly
suggesting a physical limitation – specifically that her missing
disk “just makes it hard to [do] any of my lifting, sitting,
standing, all that good stuff, moving.”43 Upon learning this
fact (and without a prompt from counsel), the ALJ inquired
further regarding Jayne-Chandler’s physical condition and
medication. She responded that she felt “sore, antsy,” took
only ibuprofen, would not take opiates, and would be getting
shots in her back later that year.44 Neither she nor her counsel
went any further to demonstrate that her pain or present
condition was so severe as to impose exertional limitations.
Crediting this statement and considering the other medical
evidence about Jayne-Chandler’s obesity and improving back pain,
substantial evidence still supports the ALJ’s ultimate
determination. The ALJ was not required to find that Jayne-
Chandler’s degenerative disc disease or obesity limited her
43 Pl. Reply (doc. no. 12) at 4 (quoting Admin R. at 48).
44 Admin R. at 48:
Q: “Are you feeling it now as you sit?”
A: “Yeah, sore, antsy. I keep moving.”
Q: “Do you take any medication for the –“
A: “Ibuprofen.”
Q: “Your PCP – not the PCP or the ortho have recommended
anything stronger?”
A: “Oh, yeah, I have an appointment to go get shots in my
back in September. I won’t take opiates.”
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physically on a record so sparsely suggesting that such
limitations could exist. Nor was he required to develop the
record further. Although “[an ALJ] has a duty to develop an
adequate record from which a reasonable conclusion can be
drawn,” Perry v. Colvin, No. 13-CV-229-JL, 2014 WL 4725380, at
*1 (D.N.H. Sept. 23, 2014), this duty “is only triggered once
[the ALJ is] alerted by the record to the presence of an issue.”
Gillis v. Astrue, No. 08–cv–225–SM, 2009 WL 948655, at *6
(D.N.H. Apr. 6, 2009) (McAuliffe) (quoting Santiago v. Sec’y of
Health & Human Servs., 944 F.2d 1, 6 (1st Cir. 1991)). Again,
the problem here is that neither Jayne-Chandler’s testimony nor
the other evidence of record goes far enough to raise a
meaningful issue as to whether Jayne-Chandler’s degenerative
disc disease and obesity physically limited her ability to
work.45
Despite Jayne-Chandler’s assertion to the contrary, the
ALJ’s limitations determination was not based on impermissible
lay assessments of medical evidence and instead merely reflected
the reality that the record contained little to no evidence
45 The court declines to presume, as Jayne-Chandler appears to
request, see Pl. Reply (doc. no. 12) at 6, that an individual
with obesity inherently has exertional limitations under a
“common sense” theory.
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supporting a physical limitation.46 In Manso-Pizarro, the Court
of Appeals remanded an adverse social security disability
determination where medical reports, “coupled with identifiable
diagnoses and symptoms” like tachycardia “that seem[ed] to
indicate more than mild impairment,” should have “alerted the
ALJ to the need for expert guidance regarding the extent of the
claimant’s residual functional capacity to perform her
particular past employment.” Id. at 19.
Here, by contrast, there are no medical reports or
identifiable diagnoses that indicate more than mild impairment.
There are no medical records suggesting that her obesity had a
specific or quantifiable impact on her pulmonary,
musculoskeletal, and cardiac functioning.47 And the only
evidence suggesting that Jayne-Chandler suffered physical
limitations is from her own testimony, during which she
testified that she manages her back pain with ibuprofen and pool
therapy.48 Unlike the medical reports in Manso-Pizarro, this
observational evidence was not so “ramified that understanding
[them] require[d] more than a layperson’s effort at a
46 See id. at 6 (citing Manzo-Pizarro, 76 F.3d at 16.
47 Admin. R. at 16. Additionally, Dr. Warren’s 2016 report
concluded that based on the strength factors of the physical
RFC, Jayne-Chandler had “[n]o somatic limitations.” Id. at 65.
48 Id. at 16 (citing id. at 399-400); see also id. at 48.
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commonsense functional capacity assessment.” 76 F.3d at 19.
Further, there are no indications that the ALJ “played doctor”
by reasoning that Jayne-Chandler “exaggerat[ed] her back pain.”
See Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015). Rather,
the ALJ appears to have taken Jayne-Chandler’s testimony at face
value and also gave her (and her counsel) several opportunities
to clarify any physical limitations imposed by her “non-severe”
conditions.
Accordingly, the administrative record sufficiently
supports the ALJ’s decision not to include physical limitations
in the RFC assessment. Remand is therefore unwarranted.
E. Vocational expert testimony
Fifth, Jayne-Chandler argues that the vocational testimony
does not provide substantial evidence for the ALJ’s decision
because it was based on an RFC rendered erroneous by the issues
Jayne-Chandler raised above.49 The ALJ was required to include
in his RFC finding and consequent hypothetical questions only
those limitations he found credible. See Perez v. Sec’y of
Health & Human Servs., 958 F.2d 445, 447-48 (1st Cir. 1991). As
discussed above, the court finds no flaws with the ALJ’s RFC
49 Pl. Mot. Order to Reverse Decision (doc. no. 8) at 12-13.
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determination. The ALJ was therefore entitled to rely on
vocational expert testimony based on the ALJ’s RFC.
Jayne-Chandler also takes issue with the limitation that
she have “no more than frequent interaction with supervisors,
coworkers, and the general public,”50 as the Dictionary of
Occupational Titles (“DOT”) does not address the frequency of
interactions between supervisors and employers. Jayne-Chandler
waived this argument by not raising it at her administrative
hearing. See Montore, 2012 WL 3583346 at *7 (holding that an
attorney on appeal is not permitted to scan record looking for
conflicts to raise for first time on appeal, as SSR 00-4p only
requires resolution of conflict if it was identified). But even
if she did not waive this argument, the vocational expert
directly testified that his answer — that an individual that was
limited to simple routine tasks and that could have no more than
frequent social interactions could find work — was consistent
with the DOT. Absent any apparent or actual conflict between
the vocational expert’s answer and the DOT, the ALJ was under no
obligation to inquire further. Furthermore, any failure to do
so, in the absence of an actual inconsistency between the expert
testimony and the DOT, would be entirely harmless. See Baker v.
50 Admin. R. at 21.
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Astrue, No. 10-454-SM, 2011 WL 6937505, at *15 (D.N.H. Nov. 15,
2011) (McCafferty, J.).
Conclusion
In sum, the court denies Jayne-Chandler’s motion to
reverse51 and grants the Commission’s motion for an order
affirming its disability insurance benefits decision.52 The
clerk shall enter judgment accordingly and close the case.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: August 5, 2019
cc: Alexandra M. Jackson, Esq.
Hugh Dan Rappaport, Esq.
Luis A. Pere, Esq.
51 Doc. no. 8.
52 Doc. no. 11.
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