UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary Ann Rice

v. Case No. 17-cv-169-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Mary Ann Rice challenges the denial of her claim for Social

Security disability insurance (SSDI) benefits and supplemental

security income (SSI) under Title II and Title XVI of the Social

Security Act.

; 42 U.S.C. § 1381a. Rice argues

that the administrative law judge’s (ALJ) residual functional

capacity (RFC) determination was not supported by substantial

evidence because it was based on her lay interpretation of raw

medical data and failed to properly consider Rice’s subjective

pain complaints. The Acting Commissioner moves for an order

affirming the decision. For the following reasons, I affirm.

I. BACKGROUND

A. Facts

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts. Doc. 12. Because that joint statement is part of the court’s record, I

only briefly discuss the facts here. I discuss further facts

relevant to the disposition of this matter as necessary below.

Rice was a 57 year-old woman on January 24, 2014, her

alleged onset date. Administrative Record (AR) 73. She

formerly worked as a “coding/billing clerk,” a “data entry

clerk,” and a fast food “crew member.”

Rice spent the majority of her career working at the

Dartmouth Hitchcock Medical Center as a billing clerk, data

entry clerk, and medical coding clerk. AR 56. She left that

job voluntarily and, after a period of unemployment, ended up as

a McDonald’s crew member. AR 46, 56. She stopped working at

McDonald’s in January 2014 because of weakness in her back and

knees that made it impossible to stand for her entire shift and

lift the heavy weight required. AR 46. Worsening back and knee

problems reduced her ability to remain physically active to the

point where she gained a significant amount of weight and became

obese. AR 43, 46-47.

B. Procedural History

Rice filed claims for both SSDI and SSI on February 4,

2014. AR 73, 84. The Social Security Administration denied her

claims on July 16, 2014. AR 96, 97, 101, 104. On July 22,

2 2014, she requested a hearing before an ALJ. AR 107.

The ALJ conducted the hearing on September 1, 2015. AR 39.

The ALJ denied Rice’s claims for SSDI and SSI in a written

decision on January 21, 2016. AR 32. In doing so, she applied

the five-step analysis required by

(for

SSDI claims) and

(for SSI claims). At step

one, the ALJ determined that Rice had not engaged in substantial

gainful activity since her alleged onset date of January 24,

2014. AR 23. At step two, the ALJ determined that Rice had the

following severe impairments: “degenerative disc disease,

degenerative joint disease, and obesity.” AR 23. At step

three, the ALJ determined that Rice did not have any of the

impairments listed in 20 C.F.R., Subpart P, Appendix 1, which

would render her disabled per se. AR 25. At step four, the ALJ

determined that Rice’s RFC allowed her to:

lift and carry less than ten pounds occasionally and frequently[;]

stand and walk for two hours and sit six hours of an eight- hour day[;]

never climb ladders, ropes[,] or scaffolds[;]

occasionally climb stairs and ramps, balance, stoop, kneel, crouch, and crawl[;]

avoid concentrated exposure to extreme heat and cold, vibrations, fumes, odors, dusts, gases[,] and pulmonary irritants[;]

3 never work with hazards, such as moving mechanical parts and unprotected heights[;]

requires a sit/stand option that permits her to change positions at will, but any time off task would not exceed normal break times[; and] . . .

only occasionally reach overhead with both arms.

AR 25-26. The ALJ determined that, in light of this RFC, Rice

could return to her past relevant work as a “data entry clerk

and coding/billing clerk.” AR 31. Therefore, the ALJ found

that Rice was not disabled and denied her claims for both SSDI

and SSI. AR 31-32.

Rice petitioned the Appeals Council to review the ALJ’s

decision, but she filed after the deadline, and the Appeals

Council denied her request for review. AR 6. Rice filed a

complaint for judicial review on June 26, 2017. 1 Doc. 1.

II. STANDARD OF REVIEW

I am authorized under

(g) to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or reversing the

1 Rice’s complaint only specifically requests “disability benefits” under

(g), the statute for SSDI. But, because Rice seeks review of the ALJ’s decision, which also denied her SSI benefits, I construe the complaint as also addressing the denial of SSI, under

(c)(3).

4 “final decision” of the Commissioner. 2 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, as long as

those findings are supported by substantial evidence.

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.” Irlanda Ortiz,

. If, however, the ALJ “ignor[ed] evidence, misappl[ied]

the law, or judg[ed] matters entrusted to experts,” her findings

are not conclusive. Nguyen v. Chater,

(1st Cir.

1999) (per curiam). The ALJ determines issues of credibility

and draws inferences from evidence in the record. Irlanda

2 Title

(c)(3) authorizes me to review the denial of SSI under the same standard as

(g).

5 Ortiz,

. The ALJ, and not the court, must

resolve conflicts in the evidence.

III. ANALYSIS

Rice argues that the ALJ erred by interpreting raw medical

data without the aid of expert medical opinions and ignoring

Rice’s subjective pain complaints when determining her RFC.

Doc. 10-1 at 4, 8.

A. Lay Interpretation of Raw Medical Data

On June 3, 2014, Dr. Hugh Fairley evaluated Rice’s medical

records, but did not perform an examination of Rice herself. AR

73. He noted that she had “severe, bilateral degenerative

arthritis [in her] knees”, as well as “sciatica, diabetes,

asthma,” and “obesity.” AR 80-81. He opined that her RFC

permitted her to sit for up to six hours of an eight-hour

workday and occasionally stoop, among other things. AR 80.

On November 14, 2014, Dr. Robert Bassett evaluated Rice.

AR 237-242. He stated that Rice had pain, stiffness, and

weakness in her knees because osteoarthritis had worn away the

cartilage in both knees. AR 237. He noted, however, that she

had received cortisone injections in her knees, which caused her

pain to “markedly improve[].” AR 237. He listed her symptoms

6 as “pain and stiffness [in her] knees, weakness, [and] easy

fatigue.” AR 237. Dr. Bassett opined that Rice could sit for

only four hours a day, see AR 239, and could not stoop or crouch

at all. AR 241.

On July 6, 2015, Physician Assistant Patrick Evans

evaluated Rice. AR 561. He wrote that she has back pain,

osteoarthritis, knee pain, and an injury to her rotator cuff,

but that these issues have been somewhat successfully treated

with physical therapy and injections. AR 561. He opined that

she could only sit for 30 minutes at a time and stand for ten

minutes at a time, and both sit and stand for less than two

hours in a workday. AR 558. He also noted that she could only

reach for five percent of the day with her right arm and 20

percent of the day with her left arm. AR 560. He noted that

she could crouch for five percent of the day and never stoop.

AR 560.

The ALJ considered all of these opinions, as well as Rice’s

medical records, when determining her RFC. AR 29-30. The ALJ,

however, stated that “the more restrictive limitations assessed

by Dr. Bassett and Mr. Evans are not supported by the evidence

of record and therefore, overall, I have given these opinions

less weight than [Dr. Fairley].” AR 30. The ALJ specifically

7 noted several pieces of evidence that contradicted Bassett’s and

Evans’ opinions. This included “abnormal imaging studies of

claimant’s shoulder and lumbar spine” and “physical therapy and

office notes.” AR 29. The ALJ also supported her RFC

determination by noting that Rice’s “treatment, including

injections and physical therapy,” significantly improved her

symptoms and functions. AR 29.

Thus, even though Dr. Bassett and Physician Assistant Evans

opined that Rice could only sit for 2 hours a day, never stoop,

and reach overhead only 5 percent of the time with her right arm

and 20 percent of the time with her left, the ALJ rejected these

limitations and adopted Dr. Fairley’s opinion, finding that she

could sit for six hours a day, occasionally stoop, and

occasionally (30 percent of the time) reach overhead. 3 AR 25-

26.

Rice argues the ALJ’s RFC is not supported by substantial

evidence because the ALJ evaluated “raw medical data” without

the aid of medical expert opinion, Doc. 10-1 at 4, and because

3 These differences between the ALJ’s RFC and Dr. Bassett’s and Mr. Evans’ opinions are significant. See Nguyen,

(“The inability to remain seated may constitute an exertional impairment which significantly erodes the occupational base for sedentary work and requires use of additional vocational resources.” (citing Rose v. Shalala,

(1st Cir. 1994)).

8 the ALJ ignored the opinions of her treating sources, Dr.

Bassett and Physician Assistant Evans, Id. at 7.

1. Raw Medical Data

Although the ALJ relied on Dr. Fairley’s expert medical

opinion to interpret the medical evidence submitted up to that

point, the record also includes raw medical evidence that was

submitted after Dr. Fairley evaluated Rice. Because the ALJ

rejected the opinions of the other medical experts who reviewed

Rice’s records after Dr. Fairley, Rice argues, the ALJ must have

relied on her own interpretation of the raw medical data that

was added to the record after Dr. Fairley completed his review.

I reject this argument because the ALJ was entitled to rely on

Dr. Fairley’s evaluation, given that the subsequent medical

evidence did not reveal a significant change in her condition.

An ALJ must evaluate all of the medical evidence in the

record when determining a claimant’s RFC. Nguyen,

(a hearing officer cannot “ignore medical evidence”).

Furthermore, an ALJ is a lay person when it comes to medical

evidence, and so cannot translate “raw medical data” into a

functional limitation without the aid of a medical expert.

. Where a medical expert issues an opinion after having

examined some, but not all, of the medical records, “[a]n ALJ is

9 entitled to accord substantial weight to [the] RFC opinion if

the treatment notes postdating the medical source’s assessment

are available to the ALJ and document the same complaints of

pain and clinical findings.” Chabot v. Social Security

Administration,

. Furthermore, the ALJ is not

“precluded from rendering common-sense judgments about

functional capacity based on medical findings, as long as the

[ALJ] does not overstep the bounds of a lay person’s competence

and render a medical judgment.” Gordils v. Sec’y of Health &

Human Servs.,

(1st Cir. 1990).

Here, the ALJ stated that she based her RFC determination

on the opinion of Dr. Fairley, the medical records submitted

after his evaluation, and the opinions of Dr. Bassett and

Physician Assistant Evans, insofar as they were consistent with

Dr. Fairley’s opinion. AR 29-30. While Dr. Fairley did not

evaluate Rice’s full medical records, his opinion was supported

by the evidence available to him when he conducted his review,

and the subsequent medical evidence in the record contains

evidence of the same conditions. See Chabot,

.

Therefore, I decline to reverse the decision of the ALJ on the

basis of an improper evaluation of raw medical data.

10 2. Treating Source

An ALJ cannot reject the opinion of a “treating source”

unless she gives “good reasons” that are “both specific . . .

and supportable.” Jenness v. Colvin,

(citing

Soto-Cedeno v. Astrue,

(1st Cir. 2010)).

These “good reasons” are outlined in

(c)

(for SSDI) and

(c) (for SSI), which state

that an ALJ may reject the opinion of a treating source if it is

not “well-supported by medically acceptable clinical and

laboratory diagnostic techniques . . . [or] inconsistent with

the other substantial evidence in [the claimant’s] case record.”

(c)(2); see

(c).

Furthermore, “[w]hen a treating physician’s opinion is

inconsistent with other medical evidence, the ALJ’s task is to

examine the other physicians’ reports to see if they outweigh

the treating physician’s report, not the other way around.”

Goatcher v. U.S. Dept. of Health & Hum. Servs.,

(10th Cir. 1995) (quotations and citations omitted).

Dr. Bassett and Physician Assistant Evans were both

“treating sources,” entitling their opinions to special

deference. See Benton ex rel. Benton v. Barnhart,

(9th Cir. 2003). The ALJ rejected only the portions

11 of the opinions of Dr. Basset and Physician Assistant Evans that

were not consistent with the opinion of Dr. Fairley and were not

supported by the medical evidence in the record. AR 30. The

medical records, Dr. Fairley’s opinions, and Dr. Bassett’s and

Physician Assistant Evans’ opinions all support a finding that

Rice had significant knee, back, and shoulder problems, caused

by osteoarthritis and exacerbated by obesity. The opinions only

differ as to how this finding affects Rice’s RFC: Dr. Fairley

and the ALJ stated that she can sit for six hours, occasionally

stoop and occasionally reach overhead, whereas Dr. Bassett and

Physician Assistant Evans stated she could only sit for two

hours a day, never stoop, and reach overhead only five percent

of the time with her right arm and 20 percent of the time with

her left. The ALJ’s adoption of Dr. Fairley’s less restrictive

RFC is supported by the subsequent medical records, which state

that Rice reported an improvement in her symptoms with

treatment, AR 27, 267, 615. Therefore, the ALJ’s RFC was

supported by substantial evidence.

B. Subjective Pain Complaints

Rice next argues that the ALJ erred by ignoring her

subjective pain complaints. Rice claims she reported that her

ability to work is limited by significant pain and that the ALJ

12 formed her RFC without mentioning any of the “Avery factors” for

evaluating pain. Doc. 10-1 at 8.

The ALJ must consider the claimant’s assertion of physical

pain when considering the claimant’s RFC.

.

However, the ALJ is not required to accept the claimant’s

assertion of pain wholesale. Shaw v. Sec’y of Health & Human

Servs.,

,

, *2 (finding claimant’s

assertion of pain was unsupported by the other medical

evidence). When evaluating the claimant’s assertions of pain,

the ALJ must consider certain factors, known as the “Avery

factors.” Avery v. Secretary of Health & Human Servs.,

(1st Cir. 1986) (when evaluating the level of

disability brought on by a physical injury, the ALJ should

consider, (i) the nature/location of the pain, (ii) the

precipitating and aggravating factors, (iii) any medicine that

the claimant is taking to combat the pain, (iv) any pain

treatment other than medication, (v) any functional

restrictions, and (vi) the claimant’s daily activities). The

Avery factors require consideration of: the subjective symptoms

of the claimant’s pain, whether the claimant’s daily activities

are limited by the pain, whether there are factors that make the

pain worse or better, whether the claimant is receiving

13 treatment for the pain, and whether the pain is consistent with

the claimant’s other objective medical evidence.

(c); see Avery,

.

Here, the ALJ did consider the Avery factors when

determining how much weight to give to Rice’s subjective pain

complaints. The ALJ noted that, initially, Rice reported that

her pain made it difficult to stand, walk, and lift even light

objects. AR 26. But, her pain had improved with medical

treatment, specifically cortisone injections. AR 27. By 2015,

her physical therapist noted that her shoulder was improving and

that she was exercising without pain or fatigue. AR 27; 267;

615. The ALJ also noted that the degree of pain that Rice

reported was inconsistent with her objective medical records.

AR 27 (“the intensity of [her] pain and degree of incapacity . .

. are inconsistent with the medical evidence of record.”).

Therefore, the ALJ considered the relevant Avery factors, and

her RFC determination is supported by substantial evidence.

IV. CONCLUSION

For the aforementioned reasons, I grant the Acting

Commissioner’s motion to affirm, Doc. 11, and deny Rice’s motion

to reverse, Doc. 10. The clerk is directed to enter judgment

14 accordingly and close the case.

SO ORDERED.

/s/ Paul Barbadoro ________ Paul Barbadoro United States District Judge

July 25, 2018

cc: Robert J. Rabuck, Esq. D. Lance Tillinghast, Esq.

15