UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Marianne Marino

v. Civil No. 17-cv-179-JL Opinion No.

U.S. Social Security Administration, Commissioner

ORDER ON APPEAL

Marianne Marino has appealed the Social Security

Administration’s (“SSA”) denial of her application for a period

of disability and disability insurance benefits. An

administrative law judge (“ALJ”) at the SSA ruled that, despite

severe impairments, Marino retains the residual functional

capacity (“RFC”) to perform past relevant work, and thus is not

disabled. See

(a). The Appeals Council

later denied Marino’s request for review, see

§ 404.967,

with the result that the ALJ’s decision became the final

decision on her application, see id. § 404.981. Marino then

appealed the decision to this court, which has jurisdiction

under

(g) (Social Security).

Marino has moved to reverse the decision. See LR 9.1(b).

The Acting Commissioner of the SSA has cross-moved for an order

affirming the ALJ’s decision. See LR 9.1(e). After careful

consideration, the court denies Marino’s motion and grants the

Acting Commissioner’s motion. Applicable legal standard

The court limits its review of a final decision of the SSA

“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.,

(1st Cir. 2000). It

“review[s] questions of law de novo, but defer[s] to the

Commissioner's findings of fact, so long as they are supported

by substantial evidence,”

that is, “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion,” Richardson v. Perales,

(1971)

(quotations omitted). Though the evidence in the record may

support multiple conclusions, the court will still uphold the

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

Servs.,

(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 and Human Servs.,

(1st Cir. 1996)

(per curiam) (quoting Sullivan v. Hudson,

(1989)).

2 Background1

The ALJ held a hearing on Marino’s application. After the

hearing, and more than a month after the deadline for the

submission of evidence, Marino submitted a medical opinion form

completed by her primary care physician, Dr. Rachael Hamilton.

The ALJ found that Marino had not met the requirements of

(c) and did not admit this evidence into the

record.

Next, the ALJ invoked the requisite five-step sequential

evaluation process in assessing Marino’s request for disability

and disability insurance benefits. See

.

After determining that Marino had not engaged in substantial

gainful activity after the alleged onset of her disability on

December 1, 2013, the ALJ analyzed the severity of her

impairments. At this second step, the ALJ concluded that Marino

had two severe impairments: osteoarthritis of the knees and

degenerative disc disease of the lumbar spine, mild.2

At the third step, the ALJ found that Marino’s severe

impairments did not meet or “medically equal” the severity of

1 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. 15) is incorporated by reference.

2 Admin. R. at 22.

3 one of the impairments listed in the Social Security

regulations.3 See

(d), 404.1525, 404.1526.

After reviewing the medical evidence of record, admitted medical

opinions, and Marino’s own statements, the ALJ concluded that

Marino retained the RFC to perform sedentary work, see

, except that she:

can lift ten pounds occasionally and frequently; can frequently stand and walk for two hours and sit for six hours total in an eight-hour workday; has unlimited use of hands and feet to operate controls or push and pull; [can] occasionally balance, stoop, kneel, crouch and crawl and should avoid all exposure to unprotected heights.4

In doing so, the ALJ adopted the opinions of non-examining

medical expert Dr. Hugh Fairley.5

Finding that, even limited in this manner, Marino was able

to perform her past relevant work as a branch manager and

medical case manager, see

, the ALJ

concluded his analysis and found that Marino was not disabled

within the meaning of the Social Security Act.

Analysis

Marino challenges the ALJ’s decision on three grounds,

arguing that the ALJ erred by: (1) not admitting her post-

3 Id. at 26. 4 Admin. R. at 27. 5 Id. at 31.

4 hearing submission of evidence into the record; (2) relying on

the opinion of Dr. Hugh Fairley despite material changes in the

medical evidence of record post-dating that opinion; and (3)

failing to consider all of Marino’s impairments in the RFC. The

court addresses each argument in turn.

A. Admission of late-submitted evidence

Marino submitted additional written evidence to the ALJ on

September 1, 2016, more than a month after the July 27, 2016,

hearing.6 The evidence consisted of a “Physical Impairment

Medical Source Statement” form completed by Dr. Hamilton and

dated July 26, 2016.7 In the accompanying cover letter, Marino’s

counsel explained that he had initially asked Dr Hamilton to

complete the form in March 2016.8 She responded later the same

month, providing a letter instead of completing the form. The

letter, which was admitted into the record, included a statement

that “we are in the process of getting [Marino] evaluated by

physical therapy to see if she requires any physical

modifications to working.”9

6 Admin. R. at 77. 7 Id. at 79-83. 8 Id. at 78. 9 Id. at 917.

5 On July 12, 2016, Marino’s counsel asked Dr. Hamilton to

reconsider completing the form without a functional capacity

evaluation because Marino had informed him that “the only

facility in her area that does these and takes her insurance is

unable to provide this service to her until the fall.”10 Dr.

Hamilton returned a completed form, dated July 26, 2016, to

Marino’s counsel on August 31, 2016, and counsel submitted it to

the ALJ the following day.11

The ALJ declined to admit the late-filed report of Dr.

Hamilton pursuant to

. This regulation

requires that written evidence be submitted “no later than 5

business days before the date of the scheduled hearing.” If

evidence is submitted after the hearing but before a decision is

issued, the ALJ “may decline to consider the evidence” unless

the claimant shows that:

there is a reasonable possibility that the evidence, alone or when considered with the other evidence of record, would affect the outcome of your claim, and:

(1) Our action misled you;

(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the evidence earlier; or

(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control

10 Id. at 78. 11 Id. at 77, 79-83.

6 prevented you from submitting the evidence earlier.

(c).12

The ALJ found that these requirements of paragraph (c) were

not satisfied, as “there was ample time to have obtained the

completed form and filed it timely for hearing,” and Marino had

not shown that the report had a reasonable possibility of

affecting the outcome.13 He then exercised his discretion to

decline to consider the report.14

Marino argues that the ALJ erred both by: (1) failing to

find that an unusual, unexpected, or unavoidable circumstance

beyond Marino’s control prevented earlier submission; and (2)

finding no showing of a reasonable possibility of affecting the

outcome. One the first point, the court disagrees. Marino has

not shown that unusual, unexpected, or unavoidable circumstances

beyond her control prevented earlier submission of this

evidence. The ALJ was thus not obligated to admit the evidence

and the court need not consider whether the report may have

affected the outcome of Marino’s claim.

12The SSA revised the regulations concerning the submission of evidence to ALJs effective January 17, 2017. Because Marino submitted her additional evidence and the ALJ issued his decision before that date, the previous regulation applies to Marino’s submission. 13 Admin. R. at 19-20. 14

7 Marino urges that the exceptions to the deadline for

evidence submission should be read expansively. As Judge

McAuliffe has noted:

[T]he district courts in this circuit seem to disagree as to the precise nature of the burden imposed upon claimants by section 405.331. As noted above, those in Maine have described the claimant's burden as “rather rigorous,” while those in Rhode Island have held it is less demanding and analogized it to “excusable neglect.” Compare Raymond v. Astrue, No. 1:12–CV–92–DBH,

, at *2 (D. Me. Dec. 31, 2012) with Howe v. Colvin,

(D.R.I. 2015).

Simard v. Colvin,

. See Jones v. Berryhill,

No. 16-cv-11011-DJC,

, at *11 (D. Mass. Aug. 29,

2017) (Casper, J.) (applying “rather rigorous standard” and

citing Raymond). Here, as in Simard, “[t]his court need not

weigh in on that issue since, even giving claimant the benefit

of the lighter burden, it is plain [s]he failed to meet it.”

.

Marino has not shown she submitted Dr. Hamilton’s report

late because of circumstances beyond her control, rather than

her own lack of diligence. She argues that her counsel’s

initial request in March demonstrates diligence and that Dr.

Hamilton’s response requesting a functional capacity evaluation

was unexpected. While Marino and her counsel may have been

surprised by Dr. Hamilton’s reluctance to complete the provided

form, there is no evidence in the record that her counsel

8 renewed the request until July 12, approximately a week before

the deadline for the submission of written evidence.15 Marino

attributes this delay, at least in part, to attempting to

schedule a functional capacity evaluation and the unexpected

unavailability of such, but makes no showing regarding these

efforts. Marino was informed of Dr. Hamilton’s desire to

schedule an evaluation by at least March 14, 2016, when Dr.

Hamilton responded to counsel. And Marino was informed of the

July 20, 2016, deadline to submit evidence by the SSA’s

scheduling letter on April 26, 2016. This insufficiently

explained delay between knowledge of the evidentiary deadline

and the renewed request to Dr. Hamilton, especially given

knowledge of Dr. Hamilton’s previous response, is dispositive.

Marino did not meet the deadline to submit evidence primarily

because of this delay, which was within her control.

A doctor’s failure to promptly respond to a request issued

just one week before the evidentiary deadline not is an unusual,

unexpected, or unavoidable circumstance beyond the claimant’s

control when the doctor has previously indicated reluctance to

complete the requested form absent further information. While

15Marino suggests that her counsel made “numerous requests” to Dr. Hamilton to complete the form, but the July 12 letter to Dr. Hamilton mentions no interim requests, and the submission letter to the ALJ only describes requests after the July 12 letter. Admin. R. at 77-78.

9 Dr. Hamilton’s failure to return the form to Marino’s counsel

for more than a month after she apparently completed it might

represent an unusual circumstance, it was not this delay that

caused Marino to miss the deadline for the submission of

evidence. There is also no record that Marino made any attempt

to inform the ALJ, at the hearing or in separate communication,

that she was still seeking to gather additional written

evidence. This was not the kind of discrete and promptly

rectified error at issue in Howe v. Colvin, where claimant’s

counsel inadvertently failed to submit a medical record because

it was accidentally attached to another file and then submitted

the document one day after the evidentiary deadline. 147 F.3d

at 6-7. Marino has not shown that the April to July delay was

equivalent to “an attorney’s clerical error” and thus excusable

even under Howe’s more permissive view of the standard. See id.

at 8. Accordingly, the ALJ did not err in finding that Marino’s

submission did not meet the requirements of

(c).

B. Dr. Fairley’s opinion

Marino next alleges that the ALJ erred by adopting the

January 2015 opinion of Dr. Hugh Fairley, a non-examining state

agency medical expert, despite subsequent material changes to

the medical evidence of record.

10 “It can indeed be reversible error for an administrative

law judge to rely on an RFC opinion of a non-examining

consultant when the consultant has not examined the full medical

record.” Meldrem v. Colvin,

(internal

quotations and citations omitted). But “the fact that an

opinion was rendered without the benefit of the entire medical

record does not, in and of itself, preclude an ALJ from giving

significant weight to that opinion.” Coppola v. Colvin,

, 23–24. “An ALJ may yet rely on such an opinion ‘where

the medical evidence postdating the reviewer's assessment does

not establish any greater limitations, or where the medical

reports of claimant's treating providers are arguably consistent

with, or at least not ‘clearly inconsistent’ with, the

reviewer's assessment.’” Meldrem,

(quoting

Ferland v. Astrue,

(McAuliffe, J.)).

The ALJ bears the burden of showing, subject to the

substantial evidence standard, that either of these conditions

are present, and must make that determination “adequately

clear.” Giandomenico v. U.S. Soc. Sec. Admin., Acting Comm’r,

(Barbadoro, J.). In doing so, an ALJ may not

rely on “raw medical data . . . until its functional

significance is assessed by a medical expert.” Id. at 12;

Manso-Pizzaro v. Sec’y of Health & Human Servs.,

(1st Cir. 1996) (“[A]n ALJ, as a lay person, is not qualified to

11 interpret raw data in a medical record.”) But he may make

“common-sense judgments about functional capacity based on

medical findings,” within “the bounds of a lay-person’s

competence.” Gordils v. Sec’y of Health & Human Servs.,

(1st Cir. 1990). Such judgements are possible

“where the evidence shows a ‘relatively mild physical impairment

posing, to the layperson’s eye, no significant restrictions.’”

Giandomenico,

(quoting Roberts v. Barnhart,

(1st Cir. 2003)).

The ALJ adopted Dr. Fairley’s opinion as to Marino’s RFC.

He acknowledged that “additional treatment notes were admitted

to the record after” Dr. Fairley’s opinion was rendered, but

found that “these additional treatment notes do not document any

meaningful change or deterioration in the claimant’s

presentation,” and the opinion “remained consistent with the

evidence of record in its entirety.”16 The ALJ also specifically

addressed Marino’s procedures and diagnoses, and noted the

absence of provider opinion of less than sedentary work

capacity.17 Having done so, the ALJ determined that the record

did not reflect meaningful deterioration in Marino’s condition

after Dr. Fairley rendered his opinion. The decisive question is

16 Admin. R. at 31. 17 Id. at 28-31.

12 whether substantial evidence supports this determination,

without reliance on improper interpretation of raw medical data.

Marino identifies numerous subsequent examinations,

procedures, and diagnoses that allegedly render Dr. Fairley’s

opinion obsolete. First, she points to her total right knee

replacement surgery. The ALJ acknowledged this surgery and

reviewed treatment notes from Marino’s recovery process. These

include that by six months after the surgery, Marino reported

that she was “doing exceptionally well” and was considering

repeating the procedure on her other knee.18 The ALJ concluded

that “[w]hile the claimant can be expected to be unable to

perform sedentary work during recovery from [total knee

replacement], such period of recovery has not lasted the

requisite 12 month duration.”19 The ALJ also found that Marino’s

complaints of possibly related pain in her left knee “did not

diminish observations of normal gait through June 2016.”20

Based on complaints of worsening cognitive functions,

Marino underwent an MRI of her brain in July of 2015.21 Marino

18 Id. at 29, 857. 19 Id. at 31. 20 Id. at 30. 21The ALJ wrongly stated that Marino had a further brain MRI in October 2015. Id. at 29. The cited October treatment notes only reflect Dr. Hamilton noting the July MRI in her records from an

13 next argues that this procedure identified “moderate global

atrophy and multifocal old post ischemic encephalomalacia.”22

But the ALJ considered this result and noted that it also found

“no acute intracranial findings to account for the patient’s

presenting symptoms.”23

After complaining of thumb pain, Marino underwent x-rays of

both thumbs in September 2015 and was diagnosed with “bilateral

first CMC osteoarthritis, mild.”24 The accompanying notes

indicate that activity modification and splints were discussed

as treatment options, but do not describe the extent or duration

of any limitations.25 The ALJ’s explicit discussion of Marino’s

thumb pain is limited to a statement that “Dr. Hamilton did not

note an abnormal gait on September 30, 2015. The focus [of] her

examination was on the claimant’s reported bilateral thumb

October examination. Id. at 1028. But the ALJ does cite the results of the July MRI. Id. at 1039. 22 Id. at 1039. 23Id. at 29, 1039. The October treatment notes cited by the ALJ and other evidence in the record further suggest that the MRI showed no significant changes from 2010 results. Id. at 1028, 1039, 1199. 24 Id. at 1033. 25 Id.

14 pain.”26 While the ALJ’s treatment of this diagnosis is minimal,

there is little evidence of resulting limitations in the record,

and Marino did not emphasize such limitations before the ALJ.

Marino also underwent imagings of her lumbar spine. A set

of x-rays in July 2015 found “mild discogenic disease . . . and

facet arthrosis.”27 An MRI in April 2016 was performed at the

request of specialist Dr. Paul Wang, who found “mild discogenic

disease” and “mild endplate changes,” but “no significant

spondylosis.”28 The ALJ discussed the results of both tests,

noting also Dr. Wang’s observation of normal gait, station,

strength, lower extremity tone and bulk, and leg raise testing.

He also highlighted that Dr. Wang found “that the April 2016 MRI

did ‘not find a lesion amendable to surgery’ and recommended

conservative management.”29 The ALJ concluded that “[t]he

claimant’s lumbar spine condition is mild. The residual

26Id. at 29. While both the ALJ and Marino attribute this examination to Dr. Hamilton, the record indicates it was Dr. John Idoine. Id. at 1034, 1036. 27Id. at 1048. The Joint Statement of Material Facts refers to this test as an MRI, but the record better supports the ALJ’s characterization of it as x-rays. Id. at 30. 28 Id. at 1088. 29 Id. at 30.

15 functional capacity set forth above includes consideration of

the claimant’s mild lumbar spine degenerative dis[c] disease.”30

In May 2016, Marino underwent a cervical MRI ordered by

another specialist, Dr. Copalan Umashankar. The ALJ

acknowledged Dr. Umashankar’s treatment notes indicating that

Marino presented with mild foot drop and slightly reduced arm

swing, but noted that these observations were not made elsewhere

in the record. On the MRI itself, the ALJ explained that:

The results included chronic proliferation changes resulting in multilevel foraminal narrowing, but with “no cord compression, cord signal abnormality or pathologic enhancement identified to correlate with the [claimant’s] myelopathic symptoms.” There [are] no prior complaints of neck pain within this record. The undersigned finds this new condition to be not severe.

Admin. R. at 30. In addition to these procedures, Marino notes that she

underwent a transesophageal echocardiogram and a cardiac stress

test in 2016. But she does not provide any argument that the

results of these exams, in combination with surrounding

treatment notes, suggest a material change in her condition.

She also points to various examinations with Dr. Hamilton in

2015 and 2016, but the related treatment notes do not clearly

30 Id.

16 show reductions in Marino’s capacity, and the ALJ could

permissibly interpret them in light of the broader record.31

Finally, Marino argues that Dr. Fairley’s opinion is

deficient because it did not have the benefit of Dr. Hamilton’s

March 2016 letter and July 2016 report. The ALJ separately

discounted of both of those opinions and, as discussed supra

Part III-A, permissibly excluded the July 2016 report.32

While Marino underwent numerous procedures after Dr.

Fairley’s January 2015 review, substantial evidence supports the

ALJ’s conclusion that the subsequent record does not show a

functionally meaningful deterioration in her presentation. And

the ALJ did not improperly rely on raw medical data in reaching

that conclusion, but instead focused on treatment notes

interpreting raw diagnostic results and symptom comparisons

across the record. On substantial evidence review, there was

adequate support in the record for the ALJ to find that Marino

was not suffering material lasting effects from her total knee

replacement, that the MRIs of her brain and spine did not show

more than mild conditions, and that the diagnosis of mild first

CMC osteoarthritis did not evidence a material change in

limitations. The ALJ’s adoption of Dr. Fairley’s opinion

31 Admin. R. at 1018-23, 1028-32, 1099-1103. 32 Admin. R. at 19-20, 30-31.

17 despite the subsequent record was adequately explained and does

not require remand.

C. Consideration of impairments in RFC

Finally, Marino argues that the ALJ erred in failing to

consider her bilateral hand osteoarthritis and cervical spine

impairments in formulating the RFC. She notes that 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.’”

(a)(2). The ALJ cited this regulation in his

decision and stated that he “reviewed and considered all

‘severe’ and ‘non-severe’ impairments in formulating the

following residual functional capacity below.”33

Marino asserts that the ALJ erred by ignoring the fact that

she was diagnosed with “bilateral first CMC osteoarthritis,

mild.”34 As discussed above, the ALJ’s explicit discussion of

this condition was limited to a characterization of the visit

where it was diagnosed. But this does show that the ALJ was

aware of the thumb pain complaint. Elsewhere, the ALJ made

33 Admin. R. at 26. 34 Id. at 1033.

18 “note that other diagnoses appear in the record” that Marino had

not shown to be severe.35

Although the ALJ was obligated to consider even non-severe

impairments in determining the RFC, the record shows that the

ALJ was aware of Marino’s thumb pain and did not ignore the

diagnosis. An ALJ is “given considerable latitude in how he or

she chooses” to consider non-severe impairments. Chabot v. U.S.

Soc. Sec. Admin., Acting Comm’r,

(Barbadoro,

J.). And he “is not obliged to expressly address each of a

claimant’s diagnoses, but rather must consider the limiting

effects of all the claimant’s impairments.” McDonough v. U.S.

Soc. Sec. Admin., Acting Comm’r,

(Barbadoro,

J.) (internal quotation marks and citations omitted). The

treatment plan notes accompanying the diagnosis suggest the need

for activity modifications, but do not clearly outline limiting

effects.36 The ALJ explicitly considered Dr. Hamilton’s March

2016 letter, which discussed Marino’s arthritis.37 Marino has

not shown that the ALJ ignored evidence of limiting effects.

Marino also argues that the ALJ ignored evidence of her

cervical spine impairment, pointing to the results of the

35 Id. at 22. 36 Admin. R. at 1033-34. 37 Id. at 30-31, 917.

19 cervical MRI. The ALJ directly discussed this procedure and its

results, and determined in light of the record that Marino’s

neck pain was non-severe.38 The ALJ did not ignore this

evidence.

Conclusion

For these reasons, the Acting Commissioner’s motion to

affirm39 is GRANTED and Marino’s motion to reverse and remand the

Acting Commissioner’s decision40 is DENIED. The Clerk of Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: September 19 2018

cc: T. David Plourde, Esq. D. Lance Tillinghast, Esq.

38 Id. at 30. 39 Document no. 13. 40 Document no. 11.

20