UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary Ann Snow

v. Civil No. 14-cv-161-JD Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Mary Ann Snow seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of the Social

Security Administration, denying her application for supplemental

security income and disability insurance benefits. Snow moves to

reverse and remand the decision on the grounds that the

Administrative Law Judge (“ALJ”) erred by ignoring the lay

evidence of her disabilities, by relying on the opinion of a

state agency physician, by improperly assessing her credibility,

and in finding that she had the residual functional capacity to

do substantial gainful activity on a sustained basis.1 The

Acting Commissioner moves to affirm.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

1 Snow seeks only reversal of the decision of the Acting Commissioner. Except in unusual circumstances which do not exist here, this court cannot reverse and award benefits. See Seavey v. Barnhart,

(1st Cir. 2001). Therefore, Snow’s motion is construed to seek reversal and remand. whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey,

.

The court defers to the ALJ’s factual findings as long as they

are supported by substantial evidence. § 405(g). “Substantial

evidence is more than a scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion.” Astralis Condo. Ass’n v. Sec’y Dep’t of Housing &

Urban Dev.,

(1st Cir. 2010). Substantial evidence, however, “does not approach the preponderance-of-the-

evidence standard normally found in civil cases.” Truczinskas v.

Dir., Office of Workers’ Compensation Programs,

(1st Cir. 2012).

Background2

Mary Ann Snow was fifty-one years old when she applied for

social security benefits, alleging disability since April 6,

2011. Snow has a tenth-grade education and previously worked as

a construction laborer, home health care worker or nursing

assistant, a waitress, and a cashier/checker.

She was diagnosed with early stage breast cancer in March of

2011 and underwent surgery. The biopsy showed no sign of

metastatic disease. She then had a course of radiation treatment

2 The parties’ joint statement of material facts provides the full recitation of the background in this case.

2 from June to August of 2011. Snow’s follow-up examinations

showed good results.

Snow’s other medical records show that she was seen during

the relevant period for complaints of neck and back pain with

mostly normal findings on examination. She was treated with

medication and was given recommendations for weight loss and

exercise. She was also treated for breathing problems, with a

diagnosis of mild asthma, and she was strongly encouraged to stop

smoking. During the period, Snow also complained of anxiety,

difficulty sleeping, and depressed mood. She was treated with

various medications. Dr. Lorene Sipes did a consultative

psychological examination on November 30, 2012. Dr. Sipes

diagnosed major depressive disorder but concluded that Snow could

adequately perform activities of daily living, could manage the

social demands of most work situations, could understand and

remember simple instructions, could concentrate and complete

common work tasks, and could effectively manage common work

stresses. Dr. Sipes also noted that Snow would benefit from

medication management and individual therapy.

Dr. Jonathan Jaffe, a state agency physician, reviewed

Snow’s medical evidence on November 13, 2012. Based on his

review, Dr. Jaffe found that Snow could lift and carry twenty

pounds occasionally and ten pounds frequently and could stand,

walk, and/or sit for six hours in an eight hour work day. Dr.

3 Jaffe found that Snow did not have any other limitations on her

ability to work.

On December 6, 2012, Dr. Michael Schneider, a state agency

psychologist, reviewed Snow’s records to complete a Psychiatric

Review Technique form. Dr. Schneider found that Snow had mild

restrictions in her activities of daily living; no difficulties

in social functioning; mild difficulties in maintaining

concentration, persistence, and pace; and no repeated episodes of

decompensation for extended durations. In support of her application for benefits, Snow also

submitted her own function report, describing her activities and

problems, and providing her evaluation of her functional

limitations. Snow also submitted a questionnaire prepared by her

former employer, Darlene Raboin, who described Snow’s work during

the time when she was diagnosed and treated for breast cancer.

Raboin reported that Snow stopped working in October of 2011

because of health problems.

Snow’s adult daughter, Amy Tynan, provided a narrative

describing her mother’s condition. Tynan said that breast cancer

changed Snow so that she became more limited in the things she

could do because of uncontrollable pain. Tynan also reported

that glaucoma caused Snow to be partially blind in her left eye.

A hearing was held on August 29, 2013. Snow testified that

she had problems with pain in her back and legs and could not

sleep despite medication. She said that her family helped her

with all of her activities and that she has to force herself to

4 get out of bed and try to walk. She also said she was diagnosed

with glaucoma just a few weeks before the hearing.

A vocational expert testified about the Dictionary of

Occupational Titles numbers for Snow’s prior work. The ALJ did

not ask the vocational expert any other questions because he said

he wanted to see the results of a more recent MRI to determine

whether there was any progression in her orthopedic issues.

The ALJ issued the decision on October 18, 2013. He found

that Snow had impairments due to degenerative disc disease and asthma. Despite those impairments, the ALJ found that Snow

retained the functional capacity to do a full range of light work

without prolonged exposure to excessive heat, humidity, and

respiratory irritants. The ALJ also limited Snow to work outside

of a fast-paced work environment, to brief and superficial

interactions with the public, and to occasional and routine

interactions with co-workers. Based on Medical-Vocational Rule

202.10, the ALJ found that Snow was not disabled.

Discussion

Snow contends that the ALJ erred in failing to consider the

lay evidence of her disability, in relying on the state agency

physician’s opinion, in failing to properly assess her

credibility, and in the residual functional capacity finding.

The Acting Commissioner contends that substantial evidence

supports all of the ALJ’s findings.

5 One issue requires that the case be remanded for further

proceedings. The only opinion evidence in the record pertaining

to Snow’s physical residual functional capacity is Dr. Jaffe’s

evaluation of Snow’s medical records. The ALJ relied on that

opinion for the residual functional capacity finding.

An ALJ may rely on a state agency physician’s opinion as to

the claimant’s ability to perform work as long as that opinion

meets the standards for evaluating medical opinion evidence but

only to the extent the opinion is supported by evidence in the record.

(e);

(e); Ormon

v. Astrue,

(1st Cir. 2012); Titles II and

XVI: Consideration of Administrative Findings of Fact by State

Agency Medical and Psychological Consultants and Other Program

Physicians, SSR 96-6p,

(July 2, 1996). A state

agency physician’s opinion may be substantial evidence to support

the ALJ’s findings “if the physician had access to most of the

medical evidence for [] review and if the reports of multiple

physicians ‘tend somewhat to reinforce each other’s

conclusions.’” Howard v. Colvin, --- F. Supp. 3d ---,

(D. Mass. Oct. 22, 2014) (quoting Berrios Lopez v.

Sec’y of Health & Human Servs.,

(1st Cir.

1991)). Further, a state agency physician’s opinion that did not

consider the most recent medical evidence can still constitute

substantial evidence as long as the more recent evidence does not

show “a sustained (and material) worsening in Plaintiff’s

condition.” Phan v. Colvin,

, at *15 (D.R.I. Nov.

6 12, 2014) (citing Ferland v. Astrue,

, at *4

(D.N.H. Oct. 31, 2011)).

In this case, Dr. Jaffe’s opinion was issued on November 13,

2012, ten months before the hearing. Snow cites the medical

records that post date Dr. Jaffe’s opinion but makes no argument

that those records demonstrate impairments of greater severity

than were found by Dr. Jaffe. The ALJ addressed the more recent

medical evidence, noting essentially normal results.

Despite that evidence, however, at the hearing, the ALJ emphasized the importance of the August MRI results to determine

the severity of Snow’s orthopedic condition. The ALJ noted that

prior results did not show enough. The evidence of the August

MRI consists of an MRI report prepared by Dr. Tyler Zapton. The

report is raw medical data without any indication of Snow’s

functional capacity in light of those results. In the decision,

the ALJ repeated the statements in the MRI report but

appropriately did not attempt to correlate those statements to

functional capacity.3 Nguyen,

(holding that ALJ

is not qualified to interpret raw medical data in functional

terms). No medical opinion addresses the MRI report.

Although most of the more recent medical evidence does not

conflict with Dr. Jaffe’s opinion, the ALJ put particular

3 The ALJ repeated the statement from the report that at L4- L5 there was “moderate bilateral neural foraminal narrowing that is unchanged.” Admin. Rec. at 25. In the absence of a medical opinion, however, neither the ALJ nor the court can determine what that statement means relative to Snow’s functional capacity.

7 emphasis on the August MRI results. Without a medical opinion to

address the MRI results, Dr. Jaffe’s opinion is not necessarily

supported by the record evidence. For that reason, Dr. Jaffe’s

opinion does not constitute substantial evidence to support the

ALJ’s residual functional capacity assessment.

In addition, the ALJ did not ask the vocational expert for

opinions about what work Snow could do because the ALJ wanted to

have the August MRI results to assess her residual functional

capacity. The ALJ then relied on the Medical-Vocational Guidelines (“the Grid”), Rule 202.10, to find that Snow was not

disabled. In doing so, the ALJ stated that Snow had a full

capacity for light work, ignoring the nonexertional limitations

the ALJ had assigned of environmental restrictions, pace

limitations, and limitations on interaction with the public and

co-workers.

At Step Five of the sequential analysis, see

and 416.920, the Acting Commissioner bears the burden

of proving that the claimant is employable. Heggarty v.

Sullivan,

(1st Cir. 1991). That burden may be

met by reliance on the Grid as long as the claimant’s non-

exertional impairments do not significantly erode the occupation

base at the identified exertional level. Nguyen,

.

When the record shows non-exertional impairments and particularly

when an ALJ identifies non-exertional impairments, the ALJ

generally will need the assistance of a vocational expert to

determine whether those impairments significantly erode the

8 occupational base. See Candelaria v. Barnhart,

(1st Cir. 2006); Heggarty,

; Green v. Colvin,

, at *3-*4 (D.N.H. Nov. 13, 2014).

Here, the ALJ ignored the non-exertional limitations that he

imposed in the residual functional capacity assessment. Without

a properly supported finding that those limitations do not

significantly erode the occupational base for light work, the ALJ

could not rely on the Grid. Therefore, the Acting Commissioner

did not carry the burden of showing that Snow is employable and not disabled.

Conclusion

For the foregoing reasons, the claimant’s motion to reverse

and remand (document no. 9) is granted. The Acting

Commissioner’s motion to affirm (document no. 13) is denied.

The case is remanded for further administrative proceedings

pursuant to sentence four of § 405(g).

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

January 15, 2015

cc: Judith E. Gola, Esq. T. David Plourde, Esq.

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