UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ronald Desilets

v. Civil No. 15-cv-303-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Ronald Desilets moves to

reverse the Acting Commissioner’s decision to deny his

application for Social Security disability insurance benefits

(or “DIB”) under Title II of the Social Security Act,

. 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”), is 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 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 . . . .

(g). However, the court “must uphold a denial of

social security disability benefits unless ‘the [Acting

Commissioner] has committed a legal or factual error in

evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,

(1st Cir. 1996) (per curiam) (quoting Sullivan v.

Hudson,

(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,

(S.D.N.Y. 1991) (citing Levine v. Gardner,

(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,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

[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,

(1st Cir. 1991) (per curiam) (citations

omitted). Moreover, the court “must uphold the [Acting

2 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,

(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,

(quoting

Rodriguez v. Sec’y of HHS,

(1st Cir. 1981)).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement, document no. 11, is part of the court’s

record and will be summarized here, rather than repeated in

full.

Desilets applied for DIB in December of 2012, alleging that

he became disabled on December 15, 2011. He later amended his

alleged onset date to June 12, 2012. In his Disability Report,

he listed the following medical conditions as limiting his

ability to work: degenerative disk disease, mitral valve

prolapse,1 diabetes, rotator cuff tears, knee problems,

depression, and Tourette’s syndrome. He did not list obesity,

and he has never been diagnosed with obesity or treated for that

1 Desilets’ Disability Report actually lists “matril valve prolapse,” but the court presumes that the person who completed the form intended to use the word “mitral” rather than “matril.”

3 condition. He has occasionally received something called “BMI

[body mass index] management,” Administrative Transcript

(hereinafter “Tr.”) 760, 763, 811, and has received counseling

on diet and exercise, but only in the context of preventative

care, never as a treatment.

In February of 2013, Dr. Burton Nault, a state agency

consultant who did not examine Desilets, performed an assessment

of Desilets’ residual functional capacity (“RFC”),2 based upon a

review of Desilets’ medical records. The Disability

Determination Explanation form that reports Dr. Nault’s RFC

assessment lists diagnoses of degenerative disc disease,

diabetes mellitus, and obesity, which indicates that Dr. Nault

considered all three of those conditions, including obesity,

when he assessed Desilets’ RFC. In his assessment, Dr. Nault

opined that Desilets could lift and/or carry 20 pounds

occasionally and 10 pounds frequently, and could stand and/or

walk, and could sit, both with normal breaks, for about six

hours in an eight-hour workday. Dr. Nault also opined that

Desilets had no postural, manipulative, visual, communicative,

or environmental limitations.

2 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [his] limitations.”

(a)(1).

4 In March of 2013, after Dr. Nault had assessed his RFC,

Desilets complained about pain in his right shoulder to his

primary care provider, Dr. John Ford. Dr. Ford referred

Desilets to Dr. Paul Kamins. Dr. Kamins initially diagnosed

Desilets with rotator cuff syndrome, not otherwise specified.

He operated on Desilets’ right shoulder in October of 2013, and

his operative report included a postoperative diagnosis of

adhesive capsulitis.3 After the operation, Desilets was treated

with pain medication, injections, home exercise, and

occupational therapy.

In March of 2014, Dr. Kamins completed a Medical Source

Statement on Desilets. That statement lists a diagnosis of low

back pain and notes an “MRI showing disc degeneration & bulging

with some foraminal stenosis.” Tr. 924. Dr. Kamins identified

exertional, postural, and manipulative limitations that were

greater than those identified by Dr. Nault, but he also opined

that Desilets had “no problems” reaching with his arms. Tr.

927.

In March of 2014, Dr. Ford completed a Physical Impairment

Medical Source Statement on Desilets. Like Dr. Kamins, Dr. Ford

Adhesive capsulitis is “a condition in which joint motion 3

becomes restricted because of inflammatory thickening of the capsule [and is] a common cause of shoulder stiffness.” Stedman’s Medical Dictionary 303 (28th ed. 2006). “Adhesive capsulitis” is synonymous with “frozen shoulder.”

5 identified greater exertional, postural, and manipulative

limitation than Dr. Nault did. But, unlike Dr. Kamins, who

found that Desilets had no problems reaching with his arms, Dr.

Ford opined that Desilets could reach with his left arm for only

10 percent of an eight-hour workday and reach with his right arm

for less than 10 percent of an eight-hour workday.

After the Social Security Administration denied Desilets’

application for DIB, he received a hearing before an ALJ. At

that hearing, Desilets testified that he weighed 264 pounds, and

that his weight was down a little from what it had been several

years earlier. He gave no further testimony on his weight or

its effect on his ability to perform work-related activities.

Later in the hearing, the ALJ posed a question to a

vocational expert (“VE”) that described a hypothetical worker

with various physical limitations, including this: “overhead

reaching and reaching behind the back would be limited to

occasional with the right dominant upper extremity.”4 Tr. 134.

In response, the VE testified that a person with the RFC the ALJ

described would be able to perform light-duty unskilled jobs

such as cashier, price marker, and collator operator. When

Desilets’ counsel asked the VE to consider a person with the RFC

4For the purpose of assessing the RFC of a social security claimant, “occasionally” means up to one third of an eight-hour day. See Tr. 144, 754, 925.

6 described by the ALJ but for whom “use of the dominant arm for

reaching would be less than 10 percent of an eight-hour

workday,” Tr. 137, the VE testified that such a person would not

be able to perform the three jobs he had previously identified,

and could not perform any other light-duty work.

After the hearing, the ALJ issued a decision that includes

the following assessment of Desilets’ RFC:

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) in that he can lift and carry twenty pounds occasionally and ten pounds frequently; stand or walk for six hours in an eight-hour day with normal breaks and sit for six hours in an eight-hour day with normal breaks; and push and pull with the lower extremities within the weight limitation above. He can never climb ladders, ropes, or scaffold[s]; never be exposed to hazards; and only occasionally reach overhead with the right upper extremity. Due to symptoms and reported pain, he would be limited to uncomplicated tasks, meaning tasks that can typically be learned in thirty days or less and he could sustain concentration, persistence, or pace for two-hour blocks of time throughout an eight-hour day consistent with regularly scheduled breaks and lunch.

Tr. 87. In discussing her RFC assessment, the ALJ indicated

that she gave “greater weight” to Dr. Nault’s opinion, Tr. 91,

“lesser weight” to Dr. Kamins’ opinion,

and “limited

weight” to Dr. Ford’s opinion, Tr. 92. However, she also stated

that she “allowed additional limitations in the residual

functional capacity [beyond those determined by Dr. Nault] . . .

limiting the claimant to only occasional overhead reaching with

7 the right upper extremity in light of his more recent shoulder

surgery.” Tr. 91.

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.

(a)(1)(A)-(D). The only question

in this case is whether Desilets was under a disability from

June 12, 2012, through March 29, 2014.

To decide whether a claimant is disabled for the purpose of

determining eligibility for DIB, an ALJ is required to employ a

five-step process. See

.

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,

(1st Cir. 2001) (citing

, which outlines the same five-step process as

the one prescribed in

).

8 The claimant bears the burden of proving that he is

disabled. See Bowen v. Yuckert,

(1987). He

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). However,

[o]nce the [claimant] has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the [claimant] can still perform. Arocho v. Sec’y of Health & Human Servs.,

(1st Cir. 1982).

Seavey,

(parallel citations omitted). Finally,

[i]n assessing a disability claim, the [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,

(citing Avery v. Sec’y of HHS,

(1st Cir. 1986); Goodermote v. Sec’y of HHS,

(1st Cir. 1982)).

B. Desilets’ Claims

Desilets claims that the ALJ erred in assessing both his

RFC and his credibility. Neither claim is meritorious.

9 1. RFC

Desilets claims that the ALJ erred in assessing his RFC by

interpreting raw medical data and by failing to consider his

obesity. The court considers each claim in turn.

a. Raw Medical Evidence

Without specifically identifying the particular functional

capacities at issue, Desilets claims that the ALJ erred by

basing her RFC assessment on the interpretation of raw medical

data, which is impermissible. His argument goes like this: (1)

the treatment he received after Dr. Nault assessed his RFC

generated medical records that Dr. Nault was unable to consider

and factor into his RFC assessment; (2) the existence of those

new medical records stripped Dr. Nault’s opinion of its status

as substantial evidence supporting the ALJ’s RFC assessment; and

(3) without Dr. Nault’s opinion to rely upon, and given the

limited weight she afforded the opinions of Drs. Kamins and

Ford, the ALJ necessarily based her RFC assessment on her own

lay interpretation of the medical records generated after Dr.

Nault rendered his opinion.

The Acting Commissioner acknowledges that “[a]n ALJ, as a

lay person, cannot interpret a claimant’s medical records to

determine his RFC.” Resp’t’s Mem. of Law (doc. no. 10-1) 3

(citing Manso-Pizarro,

). But she contends that

this is a case in which the ALJ permissibly “render[ed] common-

10 sense judgments about functional capacity based on medical

findings [that did] not overstep the bounds of a lay person’s

competence.” Gordils v. Sec’y of HHS,

(1st

Cir. 1990).

The ALJ’s RFC assessment withstands judicial scrutiny

because it is supported by substantial evidence. As the court

has noted, Desilets claims that the ALJ erred in assessing his

RFC, but does not specify the particular functional capacity the

ALJ erroneously ascribed to him. Given Desilets’ focus on the

fact that Dr. Nault’s opinion did not consider the condition of

his right shoulder, and the question that Desilets’ counsel

posed to the VE concerning a person who could reach with his

dominant arm for less than 10 percent of a workday, the court

understands Desilets to be claiming that the ALJ erred by

determining that his RFC included the ability to “occasionally

reach overhead with the right upper extremity.” Tr. 87. That

finding, however, is supported by substantial evidence.

The record includes two medical opinions on Desilets’

capacity for lifting that postdate his shoulder surgery. Dr.

Ford opined that Desilets could reach with his left arm for 10

percent of an eight-hour workday, and could reach with his right

arm for less than 10 percent of an eight-hour workday. But Dr.

Kamins, the surgeon who performed the operation on Desilets’

right shoulder, opined that Desilets had an unlimited capacity

11 for reaching with either arm. Dr. Kamins’ opinion, in turn, is

substantial evidence that supports the ALJ’s finding that

Desilets had the capacity to reach overhead with his right arm

for up to one third of an eight-hour workday.

Claimant, however, argues that by determining that he had

the RFC to occasionally reach overhead with his right arm, “the

ALJ chose an improper ‘middle path’ between the State Agency

opinion and the treating source opinions.” Cl.’s Mem. of Law

(doc. no. 9-1) 9. That argument, however, rests on the premise

that both treating source opinions assigned Desilets the same

capacity for reaching with his arms, but they did not. Dr.

Kamins opined that Desilets had an unlimited capacity for

reaching. So, if anything, the ALJ charted a middle path

between Dr. Kamins’ opinion (unlimited reaching) and Dr. Ford’s

opinion (reaching for no more than 10 percent of an eight-hour

workday). Because the ALJ did not need to interpret any raw

medical evidence to make a choice between those two opinions,

this case does not involve the situation presented in a typical

“split-the-difference” case. See, e.g., Kaylor v. Astrue, No.

2:10-cv-33-GZS,

(D. Me. Dec. 30, 2010), R. & R.

adopted by

(Feb. 7, 2011) (vacating ALJ’s

decision and remanding where ALJ rejected state agency

consultant’s RFC because it did not account for subsequent

12 medical evidence and then interpreted that evidence herself to

fashion RFC).

In sum, the ALJ’s assessment of Desilets’ capacity for

reaching is supported by substantial evidence. Accordingly,

remand for a further assessment of that functional capacity is

not warranted.

b. Obesity

Desilets also claims that this case should be remanded

because “[t]he ALJ did not mention [his] obesity and therefore

failed to consider it.” Cl.’s Mem. of Law (doc. no. 9-1) 11.

The thrust of his argument is that “[t]he ALJ should have

considered how [his] obesity affected his sustained functioning

when combined with his spinal and shoulder injury.” Id. at 12.

The court is not persuaded.

“[A]n ALJ is required to make an assessment ‘of the effect

obesity has upon the individual’s ability to perform routine

movement and necessary physical activity within the work

environment.’” Newell v. Colvin, No. 12-CV-480-S,

, at *5 (D.N.H. Feb. 10, 2014), at *5 (quoting Social

Security Ruling 02-1p,

, at *6 (S.S.A. Sept. 12,

2002)). However, an ALJ can satisfy her obligation to assess

the effect of obesity without specifically discussing obesity,

so long as she “relies upon the opinions of medical experts who

have taken the claimant’s obesity into consideration.”

at

13 *6 (emphasis in the original) (citing Drake v. Astrue,

(2d Cir. 2011); Skarbek v. Barnhart,

(7th Cir. 2004)).

Desilets concedes that Dr. Nault considered his obesity

when performing his RFC assessment, and the ALJ relied upon Dr.

Nault’s opinion. But Desilets contends that Dr. Nault’s

consideration of his obesity is irrelevant because his claim is

based upon conditions that developed after Dr. Nault assessed

his RFC. Indeed, “[a] state agency consultant’s opinion that is

based on an incomplete record, when later evidence supports the

claimant’s limitations, cannot provide substantial evidence to

support the ALJ’s decision to deny benefits.” Bell v. Astrue,

No. 11-cv-45-PB,

, at *8 (D.N.H. Jan. 17, 2010)

(citing Alcantara v. Astrue,

(1st Cir.

2007); Padilla v. Barnhart,

(1st Cir. 2006);

Russell v. Astrue,

(N.D. Ga.

2010); L.B.M. ex rel. Motley v. Astrue, No. 1:08-cv-1354-WTL-

DML,

, at *13 (S.D. Ind. Mar. 23, 2010)). At the

same time, however, “[i]t [is] up to [the claimant] to

specifically allege how his obesity affected his ability to work

during the period in question.” O’Dell v. Astrue,

(D.N.H. 2010). Given the circumstances of this

case, Bell does not aid Desilets, and O’Dell eviscerates his

14 claim that the ALJ committed reversible error by failing to

mention his obesity.

Bell does not deprive the Acting Commissioner of the

benefit of the rule that an ALJ adequately considers obesity by

relying upon the opinion of a medical expert who has considered

obesity. That is because Desilets identifies no medical

evidence that came into existence after Dr. Nault gave his

opinion that might support obesity-based limitations beyond

those incorporated into the ALJ’s RFC. After Dr. Nault rendered

his opinion in February of 2013, Desilets received medical

treatment for a number of conditions, but he was never diagnosed

with obesity or treated for it. No medical record even

describes Desilets as being obese or overweight. On several

occasions, he was given counseling on diet and exercise, but

always in the context of preventative medicine, not treatment.

In short, there is nothing in the medical record developed after

Dr. Nault gave his opinion that is related to obesity, either

alone or in combination with other impairments, that could

possibly have supported greater functional limitations than

those Dr. Nault identified. For his part, Desilets does not

even attempt to identify any such evidence.

Turning from Bell to O’Dell, Desilets criticizes the ALJ

for failing to consider his obesity, but he did not identify

obesity as a disabling impairment in his application for

15 benefits, and he offered no testimony about the effects of

obesity at his hearing. Moreover, neither of the two treating

sources who offered opinions on Desilets’ RFC listed obesity as

a diagnosis. Thus, as with the claimant in O’Dell, “it was up

to [Desilets] to specifically allege how his obesity affected

his ability to work during the period in question, and he failed

to meet that burden.”

. Accordingly, the

manner in which the ALJ handled Desilets’ obesity gives the

court no reason to remand this case.

2. Credibility

In her decision, the ALJ noted Desilets’ allegation “that

his combination of impairments render[ed] him totally disabled.”

Tr. 88. But, she went on to determine that while “claimant’s

medically determinable impairments could reasonably be expected

to cause the alleged symptoms [i.e., disabling pain and

fatigue]; . . . the claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms

are not entirely credible.”

Desilets argues that the ALJ’s

credibility assessment was not supported by substantial evidence

because the ALJ “fail[ed] to cite specific findings from the

relevant time period.” Cl.’s Mem. of Law (doc. no. 9-1) 10.

That argument is factually incorrect and, consequently,

unavailing.

16 Claimant bases his argument on the revision of his alleged

onset date from December 15, 2011, to June 12, 2012, and the

ALJ’s citation of evidence concerning events prior to June 12 in

support of her credibility assessment. Claimant is correct in

pointing out that the ALJ’s decision refers to his statements

about stopping work in December of 2011 for reasons other than

his physical impairments. While claimant now alleges that he

did not become disabled until six months after he stopped

working, it is far from clear that statements about why he

stopped working in December of 2011 have no probative value for

assessing the credibility of statements claimant made about his

ability to work in June of 2012. Be that as it may, the ALJ

supports her credibility assessment with all manner of relevant

evidence from after June 12, 2012, such as: (1) an X-ray from

April 2013; (2) an MRI from June 2013; (3) reports claimant made

of his daily activities in June or July of 2012; and (4)

observations made by physicians in September 2012, March 2013,

June 2013, and February 2014. Thus, claimant’s argument fails

as a factual matter; even if the ALJ did cite some evidence

concerning events that took place before his alleged onset date,

she also relied upon a considerable amount of evidence from

after that date to support her credibility assessment. Because

the ALJ’s credibility assessment is supported by substantial

evidence, her citation of some arguably irrelevant evidence

17 gives the court no cause to remand this case for a new

credibility assessment.

IV. Conclusion

Because the ALJ committed neither a legal nor a factual

error in evaluating Desilets’ claim, see Manso-Pizarro,

, his motion for an order reversing the Acting

Commissioner’s decision, document no. 9, is denied, and the

Acting Commissioner’s motion for an order affirming her

decision, document no. 10, is granted. The clerk of the court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

April 1, 2016

cc: Laurie Smith Young, Esq. Michael T. McCormack, Esq.

18