UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Rosemarie Wall

v. Case No. 18-cv-277-PB Opinion No.

Nancy A. Berryhill, Acting Commissioner Social Security Administration

MEMORANDUM AND ORDER

Rosemarie Wall challenges the denial of her application for

disability insurance benefits pursuant to

(g).

She contends that the Administrative Law Judge (“ALJ”)

improperly weighed medical opinions in the record and

impermissibly interpreted raw medical data. The Acting

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

decision. I deny Wall’s motion and affirm the Commissioner’s

decision.

I. BACKGROUND

A. Procedural Facts

Wall is a 62-year-old woman with a college degree. She

previously worked as a human resources assistant in the payroll

department of the IRS for 23 years. She alleges disability as

of January 31, 2014, due to back and hip pain, knee pain,

diabetes, and glaucoma. Wall’s application was initially denied in November 2015.

On March 28, 2017, she testified at a hearing before ALJ Lisa

Groeneveld-Meijer, who ultimately denied Wall’s claim. See

Administrative Transcript (“Tr.”) 11-20. The Appeals Council

denied her request for review in February 2018, rendering the

ALJ’s decision the final decision of the Acting Commissioner.

See Tr. 1-7. Wall now appeals.

B. Medical Evidence

Wall is 5’6” tall and weighed 328 pounds at the time of the

hearing. Tr. 47. When she applied for disability insurance

benefits, she alleged that she was disabled based on scoliosis,

back and hip pain, degeneration of her spine, spinal stenosis,

diabetes, glaucoma, high blood pressure, a thyroid condition,

and eczema. Tr. 149.

In November 2013, Wall complained to her primary care

provider, Rebecca Krasnof, M.D., of lower-back pain radiating

into her thighs and knees, and Dr. Krasnof noted that she could

not use non-steroidal anti-inflammatory drugs due to kidney

issues. Tr. 406. Dr. Krasnof reported in April 2014 that Wall

suffered bilateral knee pain in particular and that she had been

complaining of lower-leg pain in general “for many years.” Tr.

384. In December 2015, Wall again complained of knee pain and

told Dr. Krasnof that she left her job in 2012 due to back and

knee pain, which caused her difficulty getting in and out of her

2 desk chair. Tr. 311. An X-ray from December 2015 showed

osteoarthritic changes in Wall’s knees that were similar to

results seen in a March 2012 X-ray. Tr. 313.

Throughout the pertinent period, Wall’s providers reported

that she felt well; was not in acute or apparent distress;

denied muscle pain, fatigue, and weakness; had good energy; that

her posture, gait, coordination, sensation, and physical

examinations in general were all normal; and that her lower

extremities had normal strength, tone, and range of motion, with

no pain, tenderness, or instability. See Tr. 271, 274-75, 279,

312, 322, 324-25, 360-61, 364-65, 368-69, 374, 379, 383, 385,

456, 466-67, 480. Her providers recommended over-the-counter

medication and physical therapy for her back and knee pain. Tr.

465, 468, 480-81.

In November 2015, a state agency physician, Marie Turner,

M.D., reviewed the evidence of record and provided an opinion

about Wall’s abilities. See Tr. 68-74. According to Dr.

Turner, Wall could perform light work, lift 20 pounds

occasionally and 10 pounds frequently, stand or walk five hours

a day, sit for six hours a day, climb ramps and stairs

frequently, and balance, stoop, kneel and crawl occasionally.

Tr. 73-74. Dr. Turner cited Wall’s treatment records dated

September 2013, April 2014, and May 2015, as well as results

from two MRIs done in 2011 and 2013, in support of her findings.

3 See Tr. 71, 74. Those treatment records showed that Wall felt

well, had good energy, and had a normal gait. See Tr. 71, 74

(referring to Tr. 219, 360-61). The MRI results showed a mild

spinal canal stenosis. See Tr. 71.

A month later, in December 2015, Wall’s chiropractor, John

Avard, D.C., completed a form about Wall’s abilities. See Tr.

236-41. Dr. Avard opined that Wall could sit for 2 hours, stand

for 5 minutes, stand or walk less than 2 hours a day, and could

never lift any weight. Tr. 238-39. He also indicated that Wall

would need to lie down at unpredictable intervals daily, and

that she would need to be absent from work more than three times

per month due to chronic pain. Tr. 239, 241.

In January 2016, Dr. Krasnof, Wall’s primary care provider,

also provided a statement concerning Wall’s functionality. See

Tr. 242-47. Dr. Krasnof’s opinion mirrors Dr. Avard’s, with the

exception that Dr. Krasnof reported that Wall could occasionally

lift less than 10 pounds and would need to lie down every 1-2

hours. See Tr. 244-47.

C. The ALJ’s Decision

The ALJ assessed Wall’s claim under the five-step,

sequential analysis required by

. At step

one, she found that Wall had not engaged in substantial gainful

activity since January 31, 2014, her alleged disability onset

date. Tr. 13. At step two, the ALJ found that Wall’s morbid

4 obesity, lumbar spinal stenosis, diabetes mellitus, scoliosis,

medial joint space narrowing of the bilateral knees,

degenerative changes of the first metatarsophalangeal joint on

the right, and pes planus bilaterally qualified as severe

impairments. Tr. 13. The ALJ also found that her chronic

kidney disease, open angle glaucoma, and hyperthyroidism were

not severe impairments. Tr. 14. At step three, the ALJ

determined that none of Wall’s impairments, considered

individually or in combination, qualified for any impairment

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 14;

see

(d).

The ALJ then found that Wall had the residual functional

capacity (“RFC”) to perform sedentary work, with the following

exceptions:

she could never climb ladders, ropes, or scaffolds. She could occasionally climb ramps and stairs, and occasionally stoop and balance. She should never kneel or crawl. She may need to use a cane to ambulate. [She] requires the option to shift positions from sitting to standing every hour.

Tr. 15.

The ALJ found that the clinical findings and physical

examinations showed that Wall was capable of the level of work

activity described in the RFC finding. Tr. 16. For example,

the ALJ noted that Wall’s providers repeatedly documented normal

physical examinations in general, normal gait, and normal

5 strength, tone, and range of motion in her lower extremities.

See Tr. 17-19. The ALJ also pointed to Wall’s daily activities,

noting that she exercised three times per week, went out by

herself to appointments, drove, shopped for groceries at the

market (albeit with a scooter), and prepared meals while seated

at the stove. Tr. 16. In rejecting Wall’s subjective

complaints of limitations beyond those described in the RFC

finding, the ALJ stressed that Wall’s providers had recommended

conservative treatment of over-the-counter medication and

physical therapy. Tr. 16, 18-19. In addition, the ALJ

referenced Wall’s admissions that taking two ibuprofen brought

relief and Tylenol took “the edge off” to the point where she

could “manage.” Tr. 16, 19; see Tr. 44.

In evaluating the opinion evidence, the ALJ gave “great

weight” to the opinion of state agency physician Dr. Turner,

because she was a highly qualified expert whose opinion was

supported by and generally consistent with the medical evidence.

Tr. 19. The ALJ assigned “lesser weight” to Dr. Krasnof’s

opinion, because she was not a specialist in the area about

which she opined; she saw Wall infrequently; her opinion was

unsupported by and inconsistent with clinical examinations; and

she expressed much of her opinion by checking off items on a

pre-printed form. Tr. 16-17. Finally, the ALJ discounted Dr.

Avard’s opinion, giving it “little weight,” on the grounds that

6 he was not an acceptable medical source, his statement was

inconsistent with and unsupported by the record, and he

expressed many of his views by checking off items on a pre-

printed form. Tr. 16-17.

Relying on the testimony of a vocational expert, the ALJ

then found at step four that Wall could performing her past

relevant work as a human resources assistant. Tr. 20.

Accordingly, the ALJ concluded that Wall had not been disabled

from the alleged disability onset date through the date of her

decision. Tr. 20.

II. 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 [Commissioner] 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 Commissioner’s

findings of fact, so 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 [her] conclusion.”

Irlanda Ortiz v. Sec’y of Health & Human Servs.,

,

7 769 (1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of

Health & Human Servs.,

(1st Cir. 1981)).

If the Commissioner’s factual findings are supported by

substantial evidence, they are conclusive, even where the record

“arguably could support a different conclusion.” Id. at 770.

The Commissioner’s findings are not conclusive, however, “when

derived by ignoring evidence, misapplying the law, or judging

matters entrusted to experts.” Nguyen v. Chater,

(1st Cir. 1999) (per curiam). “Issues of credibility and the

drawing of permissible inference from evidentiary facts are the

prime responsibility of the Commissioner, and the resolution of

conflicts in the evidence and the determination of the ultimate

question of disability is for her, not for the doctors or for

the courts.” Purdy v. Berryhill,

(1st Cir. 2018)

(internal quotation marks and brackets omitted).

III. ANALYSIS

Wall alleges that two errors in the ALJ’s decision warrant

remand. She first argues that the ALJ improperly evaluated the

medical opinions of Drs. Turner, Krasnof, and Avard. She then

contends that the ALJ impermissibly interpreted raw medical data

in crafting Wall’s RFC. I address each argument in turn and

conclude that neither has merit.

8 A. Medical Opinion Evidence

An ALJ must consider both “medical opinions,” defined as

opinions provided by “acceptable medical sources,” and

“[o]pinions from medical sources who are not acceptable medical

sources,” along with other relevant evidence. See

; Social Security Ruling (“SSR”) 96-8p,

, at *7 (July 2, 1996). The ALJ is instructed to consider

the same factors when evaluating opinions from both acceptable

and non-acceptable medical sources. See

(c),(f). Those factors include the nature of the

relationship between the medical source and the claimant, the

supportability of the opinion, the consistency of the opinion

with the record as a whole, and whether the source of the

opinion is a specialist. See

A medical opinion from a treating provider is entitled to

“controlling weight” if that opinion is well-supported and

consistent with substantial evidence.

(c)(2); see Nichols v. US Soc. Sec. Admin., Acting

Comm’r,

,

, at *9 (D.N.H. Mar. 13,

2018). Even if a treating provider’s opinion is not entitled to

controlling weight, “it may be entitled to deference, insofar as

it is well-supported.” Nichols,

, at *9

(internal quotation marks and citations omitted). Otherwise,

the ALJ may discount a treating source’s opinion only if she

9 gives “good reasons” for doing so, which must be “both specific

and supportable.” Jenness v. Colvin,

,

, at *6 (D.N.H. Aug. 27, 2015) (citations omitted); see

(c)(2); SSR 96–2p,

, at *5.

Although opinions from non-acceptable medical sources are

not entitled to deference, the ALJ generally should explain the

weight given to them or otherwise ensure that the discussion of

evidence makes her reasoning apparent. Korfiatis v. Berryhill,

,

, at *4 (D.N.H. Mar. 8, 2019); see

(f)(2). Further, the ALJ is generally

required to “give more weight to the medical opinion of a source

who has examined [a claimant] than to the medical opinion of a

medical source who has not examined [her].”

(c)(1). “However, just as an ALJ may properly decline

to give controlling weight to the opinion of a treating source,

an ALJ may also discount the weight given to the opinion of an

examining source in favor of the opinion of a nonexamining

source.” Freddette v. Berryhill,

,

,

at *5 (D.N.H. Jan. 7, 2019) (quoting Downs v. Colvin,

,

, at *8 (D.N.H. June 8, 2015)).

Here, the ALJ gave “great weight” to the medical opinion of

Dr. Turner, a nonexamining state agency physician, “lesser

weight” to the medical opinion of Dr. Krasnof, a treating

provider, and “little weight” to the opinion of Dr. Avard, a

10 treating chiropractor who is not an acceptable medical source.

I address Wall’s challenges with respect to each below.

1. Dr. Turner’s Opinion

Dr. Turner reviewed the medical record at the

Commissioner’s request and opined that Wall could perform light

work, with some restrictions. See Tr. 71-74. Wall contends

that Dr. Turner’s opinion was based on a significantly

incomplete record and therefore cannot bear “great weight” that

the ALJ attributed to it. I disagree.

It can be reversible error for an ALJ to rely on an opinion

of a non-examining consultant who has not reviewed the full

medical record. Brown v. Colvin,

,

,

at *3 (D.N.H. July 17, 2015); Ferland v. Astrue,

,

, at *4 (D.N.H. Oct. 31, 2011). But “the fact

that an opinion was rendered without the benefit of the entire

medical record does not, in and of itself, preclude an ALJ from

giving significant weight to that opinion.” Meldrem v. Colvin,

,

, at *2 (D.N.H. May 23, 2017)

(quoting Coppola v. Colvin,

,

, *8

(D.N.H. Feb. 21, 2014)). An ALJ may rely on such an opinion

“where the medical evidence postdating the reviewer’s assessment

does not establish any greater limitations, or where the medical

reports of claimant’s treating providers are arguably consistent

with, or at least not ‘clearly inconsistent’ with, the

11 reviewer’s assessment.”

(quoting Ferland,

,

at *4).

Dr. Turner provided her opinion in November 2015, based on

a record that included extensive evidence from Wall’s treating

providers. Wall “has not shown what later medical evidence

undermines” that opinion. See Robar v. Astrue,

,

, at *8 (D.N.H. July 13, 2011). Although Wall

maintains that she complained of knee pain after November 2015,

the record before Dr. Turner showed a history of knee pain

complaints. Specifically, Dr. Turner noted Wall’s reported use

of a cane and a scooter for longer walks, correctly cited

treatment records showing normal reciprocating gait, and

explicitly relied on records that reported Wall’s longstanding

complaints of knee pain. See Tr. 71, 73; see also Tr. 218-20

(September 2013 record reporting complaints of “knee pain” and

“bilateral lower extremity pain since 2006”); Tr. 360-63 (May

2015 record reporting complaints of pain in both knees). Wall’s

argument that Dr. Turner did not consider her knee pain because

the opinion did not explicitly address it fails to persuade.

Given Dr. Turner’s reliance on records that reported knee pain

and her observation that Wall exhibited normal gait, it is

reasonable to infer that Dr. Turner in fact considered and

rejected Wall’s complaints. Wall’s subsequent reports of knee

pain, which were likewise accompanied by normal examinations of

12 her lower extremities, are not inconsistent with Dr. Turner’s

assessment. See Tr. 454-56, 465-67.

Nor does the fact that Dr. Turner lacked the benefit of

knee X-rays from December 2015 show that her opinion was based

on a substantially incomplete record. As Wall admits, a

comparison of those X-rays to prior imaging indicates that her

knee impairment had not changed significantly since at least

March 2012. Moreover, no doctor has opined that the 2015 X-rays

established any limitations beyond those set forth in the RFC

finding. Because the 2015 X-rays are not inconsistent with her

opinion, it is immaterial that Dr. Turner did not consider them.

2. Dr. Krasnof’s Opinion

Dr. Krasnof, Wall’s primary care provider, opined that Wall

had various limitations beyond those set forth in the ALJ’s RFC

finding. See Tr. 242-47. Wall challenges the ALJ’s decision to

give her opinion “lesser weight,” arguing that Dr. Krasnof’s

opinion is consistent with substantial evidence in the record.

The ALJ, however, provided good reasons for discounting the

opinion.

First, the ALJ properly discounted Dr. Krasnof’s opinion on

the ground that she was not a specialist in the orthopedic

issues about which she opined. Cf.

(c)(5).

Second, the ALJ supportably found that Dr. Krasnof saw Wall only

once or twice a year. Cf.

§ 404.1527(c)(2)(i). Third, the

13 ALJ correctly stated that Dr. Krasnof did not support her

opinion by citing clinical examinations, specific deficits, or

observations of Wall’s functioning. Cf. id. § 404.1527(c)(3).

When asked to identify clinical and medical findings that

supported her opinion, Dr. Krasnof merely referred to “office

notes,” “consult notes,” and “patient’s report.” Tr. 242, 245.

As discussed below, the ALJ properly found that the office and

consult notes supported the RFC finding, and supportably

discounted Wall’s subjective complaints about more stringent

limitations. Finally, the ALJ correctly stated that Dr. Krasnof

expressed much of her opinion by checking off items on a pre-

printed form, which “goes a long way toward supporting the ALJ’s

determination to accord [the] opinion little weight.” Purdy,

. Accordingly, Wall’s challenge to the ALJ’s

weighing of Dr. Krasnof’s opinion fails.

3. Dr. Avard’s Opinion

Like Dr. Krasnof, Dr. Avard, opined that Wall had numerous

limitations beyond those set forth in the RFC finding. See Tr.

236-41. The ALJ sufficiently explained her reasons for giving

“little weight” to his opinion.

First, the ALJ correctly stated that Dr. Avard is not an

acceptable medical source because he is a chiropractor, not a

physician. See

(a). “Whether a medical

source is acceptable or not is a valid consideration when

14 weighing an opinion.” Barup v. US Soc. Sec. Admin.,

,

, at *8 (D.N.H. Mar. 31, 2017); see SSR 06–

03p,

, at *5 (Aug. 9, 2006). Second, the ALJ

supportably found that the record does not support Dr. Avard’s

opinion that Wall would need to lie down at unpredictable

intervals during the day. As the ALJ correctly emphasized

elsewhere in the decision, treatment records repeatedly note

that Wall generally had “good energy” and denied fatigue. See

Tr. 274, 322, 360, 383. Finally, the ALJ correctly stated that

Dr. Avard expressed many of his views by checking off items on a

pre-printed form, which again is a valid reason to discount the

opinion. See Purdy,

.

B. RFC Assessment

A claimant’s RFC is “the most [the claimant] can still do

despite [her] limitations.”

(a)(1). It

must be crafted by an ALJ based on all relevant evidence in the

record.

In so doing, the ALJ “must consider limitations

and restrictions imposed by all of an individual’s impairments,

even those that are not ‘severe.’” Stephenson v. Halter,

,

, at *2 (D.N.H. Aug. 20, 2001) (quoting

SSR 96-8p,

, at *5). This is typically done by

“piec[ing] together the relevant medical facts from the findings

and opinions of multiple physicians,” Evangelista v. Sec’y of

Health & Human Servs.,

(1st Cir. 1987), but

15 may sometimes incorporate “common-sense judgments about

functional capacity” based upon those findings. Gordils v.

Sec’y of Health & Human Servs.,

(1st Cir.

1990). The ALJ, however, may not “interpret raw medical data in

functional terms” or substitute her own opinion on medical

issues. Nguyen,

.

Wall contends that remand is warranted because the ALJ

impermissibly interpreted raw medical data when the ALJ imposed

functional limitations that differ from the only medical opinion

supporting the RFC finding. Wall is wrong.

The ALJ adopted the limitations identified by Dr. Turner

and then set some additional restrictions: sedentary instead of

light work; climbing ramps and stairs occasionally as opposed to

frequently; no crawling and no kneeling instead of crawling and

kneeling occasionally; needing to use a cane; and requiring the

option to shift positions from sitting to standing every hour.

Compare Tr. 15, with Tr. 73-74. The ALJ explained that the

greater restrictions were due to Wall’s “continued body habitus,

her occasional use of a cane, and her allegations of difficulty

standing.” Tr. 19. Those are commonsense findings that are

largely based on the ALJ’s evaluation of Wall’s testimony, not

impermissible medical judgments. Cf. Guzman v. Colvin,

,

, at *3 (D.N.H. Apr. 1, 2016) (prohibition

16 on interpreting raw medical data applies to “inscrutable medical

terminology that require[s] an expert to interpret”). 1

To the extent Wall argues that the ALJ interpreted the

results of her 2015 knee X-rays, I am satisfied that the ALJ

“did not attempt to translate the results into functional

terms.” Martin v. Berryhill,

,

, at

*6 (D.N.H. Feb. 9, 2018). Rather, the ALJ acknowledged that

imaging studies confirmed abnormalities and stated in the same

sentence that “clinical examinations do not document related

deficits consistent with [Wall’s] allegations.” Tr. 17.

In any event, Wall does not explain how the restrictions

that went beyond those identified by Dr. Turner prejudiced her.

Given that the ALJ crafted a more restrictive RFC, any error on

the part of the ALJ is harmless. Cf. Smith v. Berryhill,

(D. Mass. 2019) (where ALJ imposed stricter

RFC limitations than state agency physicians identified,

1 In rejecting Wall’s subjective complaints about additional limitations, the ALJ supportably cited Wall’s treatment records reporting that she felt well, had good energy, was not in acute or apparent distress, and had only minor complaints. See Tr. 17-19. The ALJ also relied upon benign findings in clinical examinations, including normal gait and normal strength, tone, and range of motion in the lower extremities, with no pain, tenderness, or instability. See

Those are not even medical terms, let alone “inscrutable” ones. They are “plain” and “simple” statements about Wall’s condition that the ALJ was entitled to rely upon “to render a common-sense judgment” about Wall’s RFC. See Guzman,

, at *4 (internal quotation marks omitted).

17 including sedentary instead of light work, finding any error to

be harmless); Giandomenico v. U.S. Soc. Sec. Admin., Acting

Comm’r,

,

, at *6 n.10 (D.N.H. Nov.

15, 2017) (“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”). As the outcome

would remain the same, remand would “amount to no more than an

empty exercise.” See Ward,

.

IV. CONCLUSION

Pursuant to sentence four of

(g), I grant

the Acting Commissioner’s motion to affirm (Doc. No. 13) and

deny Wall’s motion for an order reversing the Acting

Commissioner’s decision (Doc. No. 9). The clerk is directed to

enter judgment accordingly and close the case.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

June 27, 2019

cc: Daniel W. McKenna, Esq. Hugh Dun Rappaport, Esq.

18