UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark A. Giandomenico

v. Civil No. 16-cv-506-PB Opinion No.

U.S. Social Security Administration, Acting Commissioner

MEMORANDUM AND ORDER

Mark Giandomenico challenges the Social Security

Administration’s denial of his claim for Supplemental Security

Income (“SSI”) benefits, pursuant to

(g). He

contends that the Administrative Law Judge (“ALJ”) erred in

assessing his residual functional capacity (“RFC”) by improperly

relying upon the opinion of a consultative physician who

allegedly relied on an outdated medical record. The Acting

Commissioner, in turn, moves for an order affirming the ALJ’s

decision. For the reasons that follow, I grant Giandomenico’s

motion to reverse and remand the Commissioner’s decision.

I. BACKGROUND

Giandomenico is a 48 year-old man who has worked as a bell

ringer for the Salvation Army, a concession-stand clerk, and a

cook. See Administrative Transcript (hereinafter “Tr.”) 213,

229 (Doc. No. 4). He applied for SSI in October 2013, alleging disability as of July 23, 2012, due to heart disease, stroke,

asthma, and high blood pressure, among other ailments. See Tr.

12, 211.1 At the forefront of Giandomenico’s claim,

symptomatically speaking, are his severe breathing difficulties

and the residual effects of an October 2013 stroke, which caused

numbness, a tingling sensation, and diminished strength in the

right side of his body. See Tr. 34-35. Furthermore, beginning

as late as March 2015 and occurring as recently as July 2015,

Giandomencio has experienced presynocopal episodes, or fainting

spells. See Tr. 623, 785. The cause of these episodes has not

been determined, although altered blood flow of the cerebral and

extracranial vessels, or stenosis of the prostatic aortic valve

have both been suspected. See Tr. 779, 785, 794.

Giandomenico now appeals from a September 21, 2016 decision

of the SSA Appeals Council denying his request to review the

ALJ’s determination that he was “not disabled.” See Tr. 20.

II. THE ALJ’S DECISION

The ALJ’s conclusion followed from his application of the

five-step, sequential analysis required by

In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts, (Doc. No. 9). See LR 9.1. Because that joint statement is part of the court’s record, I only briefly recount it here. I discuss facts relevant to the disposition of this matter as necessary below. 2 416.920(a). See Tr. 12-21. At step one, the ALJ found that

Giandomenico had not worked since October 1, 2013, the date of

his application. See Tr. 14. At step two, the ALJ found that

Giandomenico had severe impairments of obesity, asthma, sleep

apnea, hypertension, status post cardiovascular accident with

residual right-sided weakness, status post aortic valve

replacement, and psoriasis.

The ALJ further found that

Giandomenico’s only medically-determinable mental impairments,

depression and memory impairment, were nonsevere. See Tr. 14-

15. At step three, the ALJ found that none of Giandomenico’s

impairments, individually nor in combination, qualified for any

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

Id.; see

(d), 416.925-26. Specifically, the

ALJ considered Giandomenico’s pulmonary and cardiac impairments

under the pertinent listings, along with the potential

contributive effects of obesity to those impairments, but

concluded that the evidence of record did not demonstrate the

requisite severity under either listing. See Tr. 16.

At step four, the ALJ determined that Giandomenico had the

RFC to perform light exertional work, as defined in

(b), with several postural, manipulative, and

environmental limitations.2 See Tr. 16-19. In so doing, the ALJ

2 Specifically, the ALJ found that Giandomenico: (i) could “no more than frequently push or pull, handle, feel or finger with 3 found that although there was a reasonable nexus between

Giandomenico’s impairments and his alleged symptoms, his

statements regarding the “intensity, persistence and limiting

effects” of those symptoms were not “entirely credible.” Tr.

17-18. Moreover, the ALJ found that “the nature, duration and

frequency of [Giandomenico’s] pain resulted in only a minimal

actual functional limitation based on his own description of his

daily activities and the treatment notes of examining

physicians.” Tr. 19. Although, the ALJ determined that

Giandomenico was unable to perform his past relevant work, he

concluded that Giandomenico “can perform a wide range of light

exertional work activities despite his physical impairments.”

Tr. 19.

In reaching his conclusion, the ALJ essentially adopted the

findings of Burton Nault, M.D, a physician employed by the State

Disability Determination Services (“DDS”), who reviewed

Giandomenico’s medical records as of February 6, 2014 and

offered an opinion regarding his RFC.

The ALJ reasoned

that nothing had been admitted into the record indicating that

Giandomenico’s condition had worsened from the time of Dr.

the right upper extremity”; (ii) could only occasionally climb ramps or stairs, or crawl; (iii) could “never climb ladders, ropes, or scaffolds” ; and (iv) “must avoid concentrated exposure to extreme temperatures, humidity, pulmonary irritants, hazardous machinery, and unprotected heights.” Tr. 16. 4 Nault’s review, and no treating source had opined that

Giandomenico had incurred additional limitations as of that

time.

Finally, at step five, the ALJ determined that despite his

limitations, Giandomenico could work in a significant number of

“light exertional” jobs available in both the regional and

national economy.3 Consequently, the ALJ found that Giandomenico

was “not disabled” under the appropriate framework, and denied

his claim for SSI. Tr. 20-21.

III. STANDARD OF REVIEW

I am authorized to review the pleadings submitted by the

parties and the administrative record and enter a judgment

affirming, modifying, or reversing the “final decision” of the

Commissioner. See

(g). That review is limited,

however, “to determining whether the ALJ used the proper legal

standards and found facts [based] upon the proper quantum of

evidence.” Ward v. Comm’r of Soc. Sec.,

(1st

Cir. 2000). I defer to the ALJ’s findings of fact, so long as

those findings are supported by substantial evidence.

3 Specifically,the representative, light-exertional occupations considered by the ALJ included usher, ticket taker, and photo copy machine operator. See Tr. 20. A vocational expert opined that those positions would be suitable for a hypothetical person of Giandomenico’s age, education, work experience, and RFC.

5 Substantial evidence exists “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) (per curiam)

(quoting Rodriguez v. Sec’y of Health & Human Servs.,

(1st Cir. 1981)).

If the ALJ’s factual findings are supported by substantial

evidence, they are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. If,

however, the ALJ derived her findings by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts,”

they are not conclusive. Nguyen v. Chater,

(1st

Cir. 1999) (per curiam). The ALJ is responsible for determining

issues of credibility and for drawing inferences from evidence

in the record. Irlanda Ortiz,

. Furthermore,

resolving conflicts in the evidence is the exclusive role of the

ALJ.

III. ANALYSIS

Giandomenico asks me to reverse and remand the

Commissioner’s decision because the ALJ committed multiple

errors in assessing his RFC and improperly relied upon certain

vocational expert testimony at step five. Among his other

arguments, Giandomenico contends that the ALJ erred in his RFC

6 assessment by improperly relying upon the opinion of the state-

agency consultative physician, Dr. Nault, which he claims was

made without review of his full medical record. See Doc. No. 6

at 5-10. Specifically, he cites multiple doctor’s appointments

and tests that did not take place until months after Dr. Nault

rendered his opinion, which he claims indicate a decline in his

condition. In response, the Commissioner argues that the ALJ’s

consideration of Dr. Nault’s opinion was appropriate because

none of the medical evidence postdating Dr. Nault’s review tends

to contradict his RFC opinion, require a finding of additional

functional limitations, or show a worsening in Giandomenico’s

condition. See Doc. No. 7-1 at 7-8. Alternatively, the

Commissioner argues that even if such evidence does evince a

regression in Giandomenico’s condition, “the ALJ accounted for

this change by imposing greater [functional] limitations than

Dr. Nault.” Id. at 9. Because I determine that the ALJ

committed reversible error in adopting Dr. Nault’s opinion, I

need not address Giandomenico’s remaining claims.

A. Dr. Nault

On February 6, 2014, Dr. Nault offered an opinion regarding

Giandomenico’s physical RFC as part of the SSA’s initial

disability determination. Tr. 19, 74, 77. Dr. Nault concluded

that Giandomenico could perform light exertional work, could

stand and/or walk for a total of six hours out of an eight hour

7 work day, and could sit for up to six hours as well. Id. He

did not find any postural, manipulative, or environmental

limitations necessary. Id. In reaching his conclusion, Dr.

Nault considered Giandomenico’s heart disease, stroke, asthma,

high blood pressure, and aortic disease. Tr. 73.

In his explanation, Dr. Nault first noted Giandomenico’s

“history of aortic valve replacement with adequate recovery.”

Tr. 73. He found that as of October 24, 2013, an “EKG supported

a right bundle block only,” and an “[e]chocardiogram was

satisfactory.” Tr. 73. Second, he noted that on October 2,

2013, Giandomenico had “developed some numbness and tingling on

the right side with a subacute left thalamic infarct with good

recovery,” but as of December 4, 2013, his treating neurologist

found “only mild tingling left in the face.” Id. Third, he

noted that pulmonary function studies conducted on October 30,

2013 “supported an FEV1 of 2.25 liters at 66” pre-bronchodilator

study only,” and that a pulmonary study conducted on November

18, 2013 “supported no significant breathing problems.” Id.

Lastly, Dr. Nault noted Giandomenico’s “mild psoriasis history”

and that “[h]e used Vistaril occasionally for asthma.” Id.

On November 2, 2015, the ALJ “essentially adopted” the

findings of Dr. Nault in reaching his conclusion that

Giandomenico retained the RFC to perform a wide range of light

exertional work with certain additional limitations, as

8 discussed supra note 2. Tr. 19. In support, the ALJ simply

stated that “nothing [had] been admitted into the record to

indicate that [Giandomenico’s] condition [had] worsened since

[Dr. Nault] conducted his review [or] to indicate that [he] had

additional limitations during the period at issue.” Id. He

further noted that “no treating source has opined that

[Giandomenico] has additional limitations.” Id. Although the

ALJ did discuss some of the medical evidence postdating Dr.

Nault’s review in conducting his own RFC assessment, the quoted

passage was the full extent of his explanation for giving Dr.

Nault’s opinion “substantial weight.” Id. at 18-19. No other

medical opinions were explicitly discussed.

Giandomenico now contends that Dr. Nault’s opinion is based

on an incomplete review of his medical records, alleging that

some of his impairments had not yet been diagnosed at the time

of Dr. Nault’s review, and that some then-existing impairments

had worsened by the time of the ALJ’s decision. See Doc. No. 6

at 9. Giandomenico specifically cites 11 records postdating Dr.

Nault’s review that he claims generally evince additional

diagnoses and worsening conditions. Id. at 9-10. The records

cited consist mostly of treatment notes4 between April 14, 2014,

and May 5, 2015, and also include the results of a pulmonary

4 See Doc. No. 6 at 9-10 (citing Tr. 589-92, 727-30, 625-27, 584- 87, 612, 620-24, 747-48, 580-83, 763-64, 631, 743). 9 function test5, dated December 16, 2014, and a CT angiography of

Giandomenico’s neck6, dated April 24, 2015.

B. Reviewing-Physician’s Opinion Based on Incomplete Record

The opinion of a reviewing consultant based on a

“significantly incomplete record” cannot provide substantial

evidence to support an ALJ’s RFC finding, and therefore cannot

bear “any significant weight.” See, e.g., Alcantara v. Astrue,

(1st Cir. 2007); Padilla v. Barnhart,

(1st Cir. 2006); Meldrem v. Colvin,

; Bell v. Astrue,

. A record is not

“significantly incomplete,” however, based merely on the fact

that time has passed since the consultant’s review and an

incidental update in the claimant’s condition has since

occurred. Diggett v. Berryhill, No. 16-233-M,

,

at *1 (D. R.I. Aug. 25, 2017). “Rather, the change must be

material.”

Thus, an ALJ may rely on a consultant’s

outdated opinion if he determines that the evidence postdating

the opinion did not materially change the record on which it was

based. See Alcantara,

; Bell,

. The record remains materially unchanged where the

new evidence either reveals no greater limitations or is

5 See Tr. 612

6 See Tr. 763-64 10 arguably consistent with the consultant’s assessment. See

Ferland v. Astrue,

(internal citations

omitted). The burden is on the ALJ, however, to make that

determination and he must make it adequately clear. See

Alcantara,

(ALJ erred in simply stating

that “the record underwent no material change” without

explaining his analysis); Snead v. Barnhart,

(8th Cir. 2004); Meldrem,

; see also Heggarty v.

Sullivan,

(1st Cir. 1991) (internal quotations

and citations omitted) (“Because Social Security proceedings are

not adversarial in nature, the Secretary had a duty to develop

an adequate record from which a reasonable conclusion can be

drawn.”),

Here, Dr. Nault’s February 2014 RFC opinion was not based

on a review of Giandomenico’s full medical record, as his

medical conditions are documented through July 2015. See Tr.

73, 784-93. Nonetheless, the ALJ gave Dr. Nault’s opinion

substantial weight, finding that nothing in the postdated

medical records indicated a worsening of conditions warranting

additional limitations. Tr. 19. In this case, however,

reaching that conclusion would have necessarily required the ALJ

to interpret raw medical data contained in Dr. Nault’s review.

See, e.g., Tr. 612, 763-64.

11 “An ALJ, as a lay person, is not qualified to interpret raw

data in a medical record.” Manso-Pizarro v. Sec’y of Health &

Hum. Servs.,

(1st Cir. 1996); Berrios Lopez v.

Sec’y of Health & Hum. Servs.,

(1st Cir.

1991)(“Since bare medical findings are unintelligible to a lay

person in terms of [RFC], the ALJ is not qualified to assess

claimant's [RFC] based on the bare medical record.”).

Consequently, an ALJ ordinarily cannot consider raw medical data

in an RFC assessment until its functional significance is

assessed by a medical expert. See McGowen v. Colvin,

. Although an ALJ may “render[] commonsense judgments

about functional capacity based on medical findings,” he may

only do so within “the bounds of a lay person’s competence.”

Gordils v. Sec’y of Health & Hum. Sevs.,

(1st

Cir. 1990). Therefore, “unless the extent of functional loss,

and its effect on job performance, would be apparent even to a

lay person,” Manso-Pizarro,

(quoting Santiago v.

Sec’y of Health & Hum. Servs.,

(1st Cir. 1991)),

“an expert is needed to assess the extent of functional loss.”

Roberts v. Barnhart,

(1st Cir. 2003).

Thus, an ALJ can only make the required RFC assessment without

supportive expert opinion where the evidence shows a “relatively

mild physical impairment posing, to the layperson’s eye, no

12 significant restrictions.”

(internal quotations and

citations omitted).

Here, the evidence postdating Dr. Nault’s review includes

raw medical data, e.g. the results of a pulmonary function test

(“PFT”) performed in December 2014, and a CT angiography of

Giandomenico’s neck in April 2015.7 See Tr. 612, 763-64.

Because Giandomenico’s disability claim is based, in part, on

pulmonary issues, the results of a PFT and a CT angiography of

his neck clearly have a bearing upon his claim. Thus, for the

ALJ to rely on Dr. Nault’s opinion, he would have had to

independently determine that the results of those two tests did

not materially change the record since the time of Dr. Nault’s

review, February 2014. See Bell,

(citing

Alcantara,

).

As a lay person, however, the ALJ was not qualified to

decide whether the subsequent tests materially changed the

record, because their content is beyond the competence of a

layperson. See Gordils,

; Nguyen,

; Bell,

. For example, the PFT, dated

December 16, 2014, indicates a “[m]oderate obstructive defect

7 The two records cited are problematic examples requiring remand, and not necessarily an exhaustive list of subsequent records that would have required expert review to interpret the subsequent medical evidence into functional capacity terms.

13 without significant bronchodilator response,” among other

findings8, and contains several raw data points, such as “FEV1 is

2.37 liters or 66% predicted.” Tr. 612. Similarly, the CT

angiography, conducted on April 24, 2015, apparently reveals

“[m]arked tortuosity of the internal carotid arteries resulting

in flow defects at the bends in the vessels,” among other

impressions.9 Tr. 763-64. Without the assistance of an expert,

such language and figures are unintelligible to a layperson.

See Berrios Lopez,

; see also, Vega v. Colvin,

(D. Mass. 2016) (rheumatological

symptoms); Thao v. Colvin, No. 15-cv-2327,

, at

8 The “conclusion” contained in the PFT report notes: “Moderate obstructive defect without a significant bronchodilator response. Lung volumes show mild air trapping and diffusion capacity is normal.” Tr. 612. The rest of the report provides raw data points, such as “FEV1 ratio is 68,” “FEV1 is 2.37 liters or 66% predicted,” “Total lung capacity 90% predicted,” and similar notations.

The “reason for testing” was apparently “sarcoidosis.”

Although treating sources noted features of sarcoidosis in Giandomenico as early as October 2013, see Tr. 536-37, he was not diagnosed with “likely sarcoidosis” until April 2015, see Tr. 582; Doc. No. 9 at 18, well after Dr. Nault’s review. The ALJ makes no mention of Giandomenico’s likely sarcoidosis. 9 The “impression” from the diagnostic imaging report of Giandomenico’s neck lists a number of other findings using technical terminology, such as “[b]ilateral maxillary sinus disease,” “right upper lobe consolidation of unknown signifigance.” Tr. 763-64. The report intimates that the scan was conducted in relation to Giandomenico’s fainting episodes. See Tr. 763-64. Again, nothing in the record appears to offer a medical opinion as to the functional significance of these results. 14 *5 (N.D. Cal. Sept. 8, 2016) (antibody testing); Bell,

(MRI results).

Because the record does not appear to contain any expert

medical opinions as to the functional significance of these

results, we cannot know what they actually mean and whether they

reflect a material change in Giandomenico’s record. See

Roberts,

(“[A]n expert's RFC evaluation is

required where “the record ... is sufficiently ramified that

understanding it requires more than a layperson's effort at a

commonsense functional capacity assessment.” (quoting Manso–

Pizarro,

)). Cf Torres-Tricoche v. Astrue, No. 09-

1241,

, at *8 (D. P.R. Feb. 18, 2010). Moreover,

the accompanying notes do not appear to contain any lay

terminology that clearly tends to “displace the materiality” of

the results. See Diggett,

, *2 ; see also

Pelletier v. Colvin, No. 13-651,

, at *16 (D. R.I.

Jan. 20, 2015). Nor does it appear in the ALJ’s written

decision that he made any attempt to articulate a common-sense

inference from any of the subsequent findings, which would have

been permissible had he made the effort. See Douglas v. Colvin,

(ALJ’s reasoning that “the ability to

exercise regularly at a gym is generally consistent with an

ability to perform at least light work” was a fair inference to

reconcile consultant’s RFC opinion of claimant’s ability to

15 perform light exertional work with subsequent treatment

recommendation to exercise). Thus, “[a]bsent a medical

advisor’s or consultant’s assessment of the full record, the ALJ

effectively substituted his own judgment for medical opinion.”

Alcantara,

. His RFC determination,

therefore, was not supported by substantial evidence.

In sum, because the medical evidence postdating Dr. Nault’s

review contained raw medical data pertaining to Giandomenico’s

claimed disabilities, the ALJ was unqualified to fully assess

whether or not that evidence reflected a material change in

Giandomenico’s condition. Because the ALJ failed to identify or

otherwise obtain medical opinion on the issue, he could not have

determined that Dr. Nault’s opinion was based on a sufficiently

complete record. Therefore, Dr. Nault’s opinion could not

equate to substantial evidence and the ALJ erred in adopting it

in his RFC assessment.10

The government argues that even if the subsequent records do 10

indicate a worsening of Giandomenico’s condition, the ALJ accounted for it by finding a more limiting RFC than Dr. Nault. See Doc. No. 7-1 at 9. Although it may be true that where an ALJ purportedly errs in finding a more restrictive RFC it will typically be considered harmless error, as it is generally favorable to the claimant, that proposition is inapposite here. Here, the ALJ erred not in finding further restrictions, but rather in relying on Dr. Nault’s opinion. Moreover, in the absence of a reviewing or treating expert’s opinion, this determination is beyond the competence of a lay person for the same reasons discussed above. See, e.g., Duffany v. Berryhill, No. 16-11888,

, at *9 (D. Mass. Sept. 15, 2017). 16 IV. CONCLUSION

For the reasons set forth above, I grant Giandomenico’s

motion to remand (Doc. No. 6) and deny the Acting Commissioner’s

motion to affirm (Doc. No. 7). Pursuant to sentence four of

(g), the clerk is directed to enter judgment

accordingly and close the case, which I remand to the Acting

Commissioner for further administrative proceedings consistent

with this Memorandum and Order.

SO ORDERED. /s/Paul Barbadoro Paul Barbadoro United States District Judge

November 15, 2017

cc: Christine Woodman Casa, Esq. T. David Plourde, Esq.

17