UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Martin

v. Civil No. 16-cv-464-LM Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security1

O R D E R

Richard Martin seeks judicial review, pursuant to

(g) & 1383(c)(3), of the decision of the Acting

Commissioner of the Social Security Administration, denying his

application for disability insurance benefits and supplemental

security income. Martin moves to reverse the Acting

Commissioner’s decision, contending that the Administrative Law

Judge (“ALJ”) erred in improperly evaluating and weighing the

testimony of the state agency physician, by interpreting raw

medical data, and by ignoring medical evidence in the record

relating to manipulative limitations. For the reasons that

follow, the decision of the Acting Commissioner is affirmed.

1 Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017, replacing Carolyn W. Colvin. See Fed. R. Civ. P. 25(d). STANDARD OF REVIEW

In reviewing the final decision of the Acting Commissioner

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

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 v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence. § 405(g); see also Fischer v. Colvin,

(1st Cir. 2016). “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).

BACKGROUND2

On June 13, 2013, Richard Martin applied for disability

benefits and supplemental security income, claiming a disability

that began on March 15, 2013, when he was in a car accident.

Martin was 53 years old at the time of his application. He had

previously worked in landscape construction, cooking and running

2 A detailed statement of the facts can be found in the parties’ Joint Statement of Material Facts (doc. no. 13).

2 a kitchen, working for a moving company, and working as a

cashier and stocker.

On the date of Martin’s car accident, he was taken to

Dartmouth-Hitchcock Medical Center (“DHMC”) for special care by

the trauma service for spinal fractures and upper extremity

weakness. While at DHMC, it was determined that Martin had

suffered a facial fracture and a displaced fracture through his

fibula. He was also diagnosed with central disc protrusions,

degenerative disc disease, and soft tissue swelling. Martin was

discharged from DHMC on March 18, 2013, and, on March 26, 2013,

he underwent an outpatient surgical procedure to repair his

facial injury.

In the months following the accident, Martin sought

treatment for his spinal cord injury and upper extremity

weakness. Treatment notes and physical therapy evaluations

throughout 2013, 2014, and into early 2015 showed that Martin

consistently made progress in his recovery from his injuries,

although he continued to complain of pain, primarily in his

neck.

In April 2014, Martin also developed a left knee ailment,

which was eventually diagnosed as a torn meniscus.3 On July 17,

3 It appears that Martin’s knee injury, for which he first sought treatment more than a year after his accident, was unrelated to the accident.

3 2014, he underwent a left knee arthroscopy. By October 2014,

Martin reported significant improvement in his knee, and did not

seek further treatment for the injury.

On April 6, 2015, a hearing before an ALJ was held on

Martin’s application for benefits. Martin was represented by an

attorney and testified at the hearing.

On June 26, 2015, the ALJ issued an unfavorable decision.

The ALJ found that Martin had severe impairments due to central

cord syndrome, degenerative disc disease of the cervical spine,

and degenerative disc disease of the lumbar spine. The ALJ also

discussed numerous impairments that were medically determinable,

but not severe within the meaning of the Social Security Act.

He found that Martin’s impairments did not meet or equal a

listed impairment. The ALJ concluded that Martin had the

residual functional capacity to do light work under

(b) & 416.967(b),4 except that he was limited to

occasional climbing of ladders, ropes, and scaffolds, kneeling,

crouching and crawling. The ALJ also concluded that Martin

4 Because the pertinent regulations governing disability insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at 20 C.F.R. Part 416, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1989).

4 could frequently climb ramps and stairs, balance, and stoop, and

that he should avoid concentrated exposure to workplace hazards.

With that evaluation, the ALJ found that Martin could do

his past relevant work as a cashier/checker and stocker.

Therefore, the ALJ found that Martin was not disabled within the

meaning of the Act. The Appeals Council denied Martin’s request

for review, making the ALJ’s decision the Acting Commissioner’s

final decision.

DISCUSSION

In support of his motion to reverse the Acting

Commissioner’s decision, Martin contends that the ALJ erred by

1) improperly evaluating and weighing the testimony of the state

agency physician, 2) interpreting raw medical data, and 3)

ignoring medical evidence in the record relating to manipulative

limitations. The Acting Commissioner moves to affirm.

An individual seeking social security income and/or

disability insurance benefits is disabled under the Social

Security Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.”

(d)(1)(A) & 1382c(a)(3)(A). In determining whether

5 a claimant is disabled for purposes of social security benefits,

the ALJ follows a five-step sequential analysis.

. The claimant bears the burden through the first

four steps of proving that her impairments preclude him from

working. Freeman v. Barnhart,

(1st Cir.

2001).

At the fourth step of the sequential analysis, the ALJ

assesses the claimant’s residual functional capacity, which is a

determination of the most a person can do in a work setting

despite her limitations caused by impairments, see

(a)(1), and his past relevant work, see

at

§ 404.1520(a)(4)(iv)). If the claimant can perform his past

relevant work, the ALJ will find that the claimant is not

disabled. See id. at § 404.1520(a)(4)(iv). The ALJ’s residual

functional capacity assessment is reviewed to determine whether

it is supported by substantial evidence. Irlanda Ortiz v. Sec’y

of Health & Human Servs.,

(1st Cir. 1991).

I. Weight Given to State Agency Physician’s Opinion

Martin contends that the ALJ erred in giving great weight

to the opinion of the state agency physician, Dr. Hugh Fairley,

that Martin would be capable of performing light work with

certain limitations as of March 14, 2014. Specifically, Dr.

Fairley, who issued his opinion on January 24, 2014, stated that

6 Martin was “considered presently disabled” as of the date of his

opinion. Admin. Rec. at 67. Dr. Fairley opined, however, that

based on Martin’s medical records, which showed consistent

improvement in functionality since his accident, Martin would be

able to perform light work with certain limitations as of March

14, 2014.

Martin criticizes the ALJ’s reliance on Dr. Fairley’s

opinion for several reasons. He argues that 1) the ALJ failed

to adequately explain Dr. Fairley’s opinion that Martin should

be considered disabled as of January 24, 2014, but yet was still

capable of performing light work; 2) the ALJ failed to consider

medical records post-dating Dr. Fairley’s opinion showing that

Martin’s condition had not improved as Dr. Fairley expected; and

3) Martin developed new conditions after Dr. Fairley’s opinion

that supported a finding of disability.5

An ALJ is required to consider the medical opinions along

with all other relevant evidence in a claimant's record.

(b). “Medical opinions are statements from

5 Martin also notes that the ALJ gave Dr. Fairley’s opinion great weight while giving the opinion of Martin’s treating physician, Dr. Earl Freeman, little weight. The ALJ addressed Dr. Freeman’s opinion and explained that he gave it little weight because it was not supported by the objective medical evidence, Dr. Freeman’s own treatment notes, or Martin’s daily activities. Martin fails to explain how the ALJ erred in that determination, and the court need not address the issue further.

7 acceptable medical sources that reflect judgments about the

nature and severity of [the claimant’s] impairment(s), including

[the claimant’s] symptoms, diagnosis and prognosis, what [the

claimant] can still do despite impairment(s), and [the

claimant’s] physical or mental restrictions.” § 404.1527(a)(1).

Medical opinions are evaluated based on the nature of the

medical source’s relationship with the claimant, the consistency

of the opinion with the other record evidence, the medical

source's specialty, and other factors that support or detract

from the opinion. § 404.1527(c).

A. Explanation of Dr. Fairley’s Opinion

This case presents an unusual set of circumstances. A

claimant is disabled if he is unable to engage in any

substantial gainful activity because of a medically determinable

impairment “which has lasted or can be expected to last for a

continuous period of not less than 12 months.” §§ 423(d)(1)(A)

& 1382c(a)(3)(A) (emphasis added). Here, the ALJ gave great

weight to Dr. Fairley’s opinion that Martin was disabled as of

the date of the opinion, January 24, 2014, but that Martin’s

medical records and prognosis showed that he would be capable of

light work with certain limitations and would not be disabled as

of March 14, 2014, less than 12 months from the onset date of

disability.

8 Martin asserts that the “ALJ failed to articulate how he

determined [Martin] improved and failed to reconcile how he

determined [Martin] could perform light work for the time period

Dr. Fairley found [Martin] disabled.” Doc. no. 8-1 at 6. His

argument, however, appears to misconstrue Dr. Fairley’s opinion

as stating both that Martin should be considered disabled as of

January 24, 2014, but was capable of performing light work with

certain limitations as of that date. He faults the ALJ for

failing to adequately explain his reasons for giving the opinion

great weight.

Dr. Fairley, however, did not opine that Martin was capable

of performing light work with certain limitations as of January

24, 2014. Instead, Dr. Fairley opined just the opposite—that

Martin was disabled as of January 24, 2014, and therefore was

not capable of performing light work on that date. The crux of

Dr. Fairley’s opinion was that based on Martin’s medical records

as of January 24, 2014, which showed consistent progress in

Martin’s recovery since his accident, Martin would be capable of

light work with certain limitations as of March 14, 2014.

Therefore, the ALJ did not find, and therefore was not

required to explain, why Martin could perform light work for the

entirety of the 12-month period after Martin’s accident.

9 B. Medical Records Showing Lack of Improvement

Martin contends that the ALJ failed to address the

subsequent medical evidence in the record that showed that

Martin had not improved as Dr. Fairley had predicted. As a

result, he argues, Dr. Fairley’s opinion is not substantial

evidence to support the ALJ’s decision.

The opinion of a reviewing consultant based on a

“significantly incomplete record” cannot provide substantial

evidence to support an ALJ’s residual functional capacity

finding, and therefore cannot bear “any significant weight.”

Alcantara v. Astrue,

(1st Cir. 2007); see

Padilla v. Barnhart,

(1st Cir. 2006). “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.” Giandomenico v. U.S. Soc. Sec. Admin., Acting

Comm’r, No. 16-cv-506-PB,

, at *4 (D.N.H. Nov.

15, 2017); see Diggett v. Berryhill, No. 16–233–M,

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

be material.” Giandomenico,

, at *4 (internal

quotation marks and citation omitted). Thus, an ALJ may rely on

a consultant’s outdated opinion if he determines that the

evidence post-dating the opinion did not materially change the

10 record on which it was based. See Alcantara,

. “The record remains materially unchanged where the new

evidence either reveals no greater limitations or is arguably

consistent with the consultant’s assessment.” Giandomenico,

, at *4.

Martin contends that medical evidence in the record after

Dr. Fairley issued his opinion showed that Martin continued to

be disabled, and that the ALJ failed to address this evidence.

In support, Martin points to medical records relating primarily

to his left knee and his spinal injury.

1. Paincare Centers

Martin first points to April 7, 2014 treatment notes

written by Nurse Kelly DeFeo of Paincare Centers. He asserts

that the ALJ failed to address the notes, which showed that

Martin was complaining of pain in his neck and knee, as well as

depression. The ALJ, however, did address Nurse DeFeo’s April 7

treatment notes, discussing Martin’s complaints at the

appointment, the results of Nurse DeFeo’s examination, and

Martin’s follow-up care. See Admin. Rec. at 21.

The ALJ explained why this and other evidence that post-

dated Dr. Fairley’s opinion did not undermine the opinion. In

short, while the April 7th treatment notes may indicate that

Martin still experienced pain as of that date, they do not show

11 resulting functional limitations that would materially change

Dr. Fairley’s opinion. See Bowden v. Astrue, No. CA 11-84 DLM,

, at *7 (D.R.I. June 4, 2012) (discussing how

claimant’s various diagnoses and notes from providers post-

dating state agency physician’s opinion as to claimant’s

limitations did not undermine the opinion because the claimant

“has identified no functional limitations resulting therefrom”);

Carson v. Barnhart,

(D. Me. 2002) (“The

regulations require medical evidence of specific physical

limitations rather than conclusory estimates of overall

impairment of a body part.”); Musto v. Halter,

(D. Mass. 2001) (“Although the record is indeed

peppered with references to [claimant’s] depression, there is

absolutely no indication that it rises to the level of

interfering with his inability to engage in any substantial

gainful activity.” (internal quotation marks omitted)).6

6 Martin also points to an April 17 physical therapy appointment during which Martin complained of problems holding a coffee cup. As with Martin’s April 7th appointment with Nurse DeFeo and Paincare Centers, however, the ALJ did discuss the records from Martin’s April 17 physical therapy appointment. See Admin. Rec. at 20. Even if he had not, however, the ALJ is not required to discuss records from every one of Martin’s physical therapy appointments. See, e.g., Wright v. Astrue, No. CIV.A. 11-30247-KPN,

, at *4 (D. Mass. July 16, 2012) (“An administrative law judge . . . need not explicitly refer to all of the evidence in his decision.”).

12 2. Spinal Injury

Martin argues that the ALJ did not review medical evidence

in the record after Dr. Fairley’s opinion that “revealed the

long-term effects Plaintiff suffered from the trauma of the car

accident, including marked degenerative disc disease and

myelomalacia.” Doc. no. 8-1 at 8. Martin adds that he

“continually complained of pain in his cervical and lumbar

spine, and continually showed limited range of motion and

tenderness upon palpation.” Id. at 9.

Martin points to no specific medical records that the ALJ

purportedly ignored, and instead simply states that the

limitations he references are “shown in the Joint Statement of

Facts.” Id. Martin appears to be referring to the February 24,

2015 MRI of his lumbar spine, which showed degenerative disc

disease, see doc. no. 13 at 8, and the report of his MRI of his

cervical spine, taken that same day, in which the radiologist

“suspect[s]” that Martin has myelomalacia, id.

Contrary to Martin’s assertion, the ALJ did discuss the

result of Martin’s MRIs, as well as medical records after the

MRIs. For example, the ALJ noted that one of Martin’s treating

physicians, Dr. Jerry Knirk, stated in his records from a March

2015 appointment that Martin’s lumbar spine MRI did not

13 correlate with Martin’s reports of symptoms. Indeed, there are

only two treatment notes post-dating Martin’s February 2015

MRIs, including the one from his visit with Dr. Knirk. In both

appointments, Martin complained primarily of neck pain, rather

than pain in his back. See Admin. Rec. at 945 (listing “major

problem” as neck pain); id. at 947 (noting Martin’s appointment

is related to his “neck pain”).

Therefore, the ALJ did address the medical records relating

to Martin’s spine injury that post-dated Dr. Fairley’s review,

and adequately explained why they were not inconsistent with Dr.

Fairley’s opinion.

C. New Conditions

Martin argues that the ALJ erred in relying on Dr.

Fairley’s opinion because Martin developed new conditions after

Dr. Fairley’s review that supported a finding of disability.

Specifically, he points to medical records showing that he had

problems with his left knee after March 14, 2014. He again

refers to his April 7, 2014 appointment with Paincare Centers

when he complained of left knee pain. He notes that he received

treatment from various physicians for his left knee pain over

the next few months, before undergoing left knee arthroscopic

surgery in July.

14 The ALJ discussed the evidence relating to Martin’s left

knee and found that the knee impairment was non-severe.

Specifically, the ALJ discussed Martin’s April 7 appointment

with Paincare Centers and Nurse DeFeo, his treatment with Dr.

Freeman for worsening knee pain over the next month, his June

2014 MRI of his knee, and his July 2014 surgery.

The ALJ further discussed Martin’s medical records

regarding his knee after his surgery. He noted that Martin went

to physical therapy after his surgery, and that by October 2014,

Martin reported that he was walking regularly, and had decreased

pain and increased function. The ALJ further noted that Martin

did not complain of knee symptoms or receive treatment for his

knee impairment after that date.

The ALJ properly addressed the medical records regarding

Martin’s knee, which post-dated Dr. Fairley’s opinion, and found

that it was non-severe within the meaning of the Act and did not

satisfy the 12-month requirement for disability. The ALJ

permissibly found that Martin’s knee impairment did not cause

him disability, and his reliance on Dr. Fairley’s opinion was

not error on that basis. See Chabot v. U.S. Soc. Sec. Admin.,

No. 13-cv-126-PB,

, at *13-14 (D.N.H. May 20,

2014) (holding that ALJ did not err in relying on state agency

physician’s opinion that did not take into account one year of

15 medical records because the claimant’s additional impairments

did not undermine state agency’s opinion).

D. Summary

In sum, Martin has failed to show that the ALJ erred in

relying on Dr. Fairley’s opinion. See Wenzel v. Astrue, No. 11-

cv-269-PB,

, at *5 (D.N.H. July 6, 2012) (holding

that ALJ did not err in relying on Dr. Fairley’s outdated

opinion because medical records post-dating the opinion were not

inconsistent); Bianco v. Astrue, No. C.A. 09-21 S,

, at *1 (D.R.I. June 14, 2010) (holding that the ALJ did

not err in relying on state agency physician’s opinion that did

not take into account all medical evidence in the record because

claimant failed to show that there was any “material change in

his abilities after” the state agency physician issued his

opinion (internal quotation marks omitted)).

II. Raw Medical Data

Martin argues that the ALJ impermissibly used his lay

knowledge to interpret raw medical data. Specifically, he

points to an x-ray of his left knee, three x-rays of his spine,

an MRI of his left knee, two MRIs of his spine, surgical reports

related to his left knee, and an EKG showing “anteroseptal

ischemia.” Martin analogizes this case to Bell v. Astrue, No.

16 11-cv-45-PB,

(D.N.H. Jan. 17, 2012), in which the

court reversed and remanded the Commissioner’s decision denying

benefits because the ALJ had interpreted MRI reports to show

that the claimant’s condition had not changed since the state

agency physician’s opinion.

In Bell, the ALJ interpreted the results of two MRIs to

conclude that the record showed functional limitations

consistent with the state agency physician’s prior opinion. Id.

at *9. In reversing and remanding the Commissioner’s decision,

the court noted that the ALJ determined what the MRIs meant in

functional terms without the assistance of an expert, and

therefore he had improperly interpreted raw medical data. Id.

at *10.

Unlike in Bell, the ALJ in this case did not interpret raw

medical data. Although Martin lists various diagnostic tests,

he fails to point to any instances of the ALJ interpreting the

results without medical assistance. For example, the ALJ

referenced Martin’s February 24, 2015 MRIs of his lumbar spine

and his cervical spine, discussing the language noted in the MRI

reports. But unlike in Bell, the ALJ did not attempt to

translate the results into functional terms. Instead, the ALJ

discussed treatment notes from Martin’s various doctors after

the date of Martin’s MRIs, which provided functional

17 assessments. The ALJ then concluded that those assessments were

consistent with Dr. Fairley’s opinion. See Admin. Rec. at 22.

And, as stated, Dr. Knirk discussed Martin’s February 24, 2015

lumbar spine MRI and stated that the results “did not correlate

with the claimant’s reports of symptoms.” Id.

In short, the ALJ did not interpret raw medical data in

this case. Therefore, there was no error.

III. Evidence of Manipulative Limitations

Martin asserts that the ALJ ignored evidence in the record

that showed he had manipulative limitations that were not

included in the ALJ’s residual functional capacity assessment.

Specifically, Martin cites his hearing testimony that he

experienced weakness, numbness, and difficulty using his arms to

pick up and hold things. He also notes that he complained of

pain in his hands and arms and weakness in his hands and fingers

at several points in 2014 and 2015.

The ALJ addressed Martin’s subjective complaints regarding

his manipulative limitations. In addressing Martin’s

complaints, the ALJ discussed the considerations commonly known

as the Avery factors. See Avery v. Sec’y of HHS,

(1st Cir. 1986). “There are a number of such factors,

including the claimant’s daily activities, medications used, and

other treatments or measures used to relieve symptoms.” Floyd

18 v. Berryhill, No. 15-cv-456-PB,

, at *5 (D.N.H.

June 21, 2017) (citing § 416.929(c)(3)). “Although an ALJ must

consider the Avery factors, he or she need not address each

one.” Id.

Here, the ALJ discussed how Martin’s daily activities and

his treatment notes did not support his alleged limitations. In

addition, as the ALJ noted, despite two years of records, there

was no objective medical evidence to support Martin’s complaints

that he had no use of his arms to reach or no use of his fingers

to do fine manipulation. In short, although Martin points to

complaints he made about pain and weakness in his arms and

numbness in his hands, Martin’s reliance on his subjective

complaints do not show that the ALJ erred. See Frustaglia v.

Sec'y of Health & Human Servs.,

(1st Cir.

1987) (When reviewing an ALJ’s credibility determination, the

court defers to the ALJ because he “observed the claimant,

evaluated his demeanor, and considered how that testimony fit in

with the rest of the evidence.”); see also Conde v. Colvin, No.

15-cv-246-JD,

, at *5 (D.N.H. Jan. 25, 2016).

IV. Summary

The record shows that Martin continued to seek treatment

for physical ailments from March 2013 until the hearing date.

But it is the ALJ’s role, not the court’s, “to weigh and resolve

19 conflicts in the evidence,” even when the record “could arguably

justify a different conclusion.” Chabot,

, at

*14; see Soderman v. Astrue, No. CIV.A. 08-40183-FDS,

, at *9 (D. Mass. Sept. 30, 2011) (“Even if plaintiff is

correct in contending that the administrative record contains

evidence that could reasonably establish continuous disability,

it does not necessarily follow that the ALJ lacked substantial

evidence that it did not.”). Because the ALJ’s decision in

assessing the medical evidence in the record is supported by

substantial evidence, the Commissioner’s decision is affirmed.

CONCLUSION

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

and remand (doc. no. 8) is denied. The Acting Commissioner’s

motion to affirm (document no. 11) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 9, 2018

cc: Counsel of Record

20