UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Daniel Lamy

v. Case No. 21-cv-174-PB Opinion No.

Kilolo Kijakazi, Commissioner Social Security Administration

MEMORANDUM AND ORDER

Daniel Lamy challenges the denial of his applications for

disability insurance benefits pursuant to

(g).

He argues that the Administrative Law Judge (“ALJ”) who found

him not disabled failed to properly evaluate the medical opinion

evidence supporting his applications. The Commissioner, in

turn, moves for an order affirming the ALJ’s decision. For the

following reasons, I grant Lamy’s motion and deny the

Commissioner’s motion.

I. BACKGROUND

A. Procedural Facts

Lamy originally applied for disability insurance benefits

on January 26, 2015, alleging disability as of September 18,

2013, when he was forty-nine years old. Tr. 156-57. He worked

for more than twenty-five years as a torch blazer and brazing

machine operator in a General Electric aircraft manufacturing

facility in Hooksett, New Hampshire. Tr. 597-98. After he

stopped working due to back pain and leg weakness in 2011, Lamy received General Electric disability retirement benefits. Tr.

599-600. He was insured for Social Security disability

insurance benefits through September 30, 2017.

Lamy’s application was initially denied in July 2015. In

August 2016, he testified at a hearing before ALJ Elizabeth

Tafe, who ultimately denied his application. See Tr. 23-35.

After the Appeals Council denied his request for review, Lamy

sought review in this court. See Tr. 2-7, 649-51.

The court (Judge McAuliffe) vacated ALJ Tafe’s unfavorable

decision and remanded the case for further proceedings. Remand

was warranted, the court reasoned, because the ALJ had failed to

give sufficient reasons for affording only limited weight to the

opinions of Lamy’s treating providers. See Lamy v. Berryhill,

,

, at *4-6 (D.N.H. June 22, 2018).

The court also noted that the opinion of non-examining state

agency physician Dr. William Backlund, to which the ALJ had

assigned “great weight,” was “cursory to the point of lacking

any meaningful discussion of the medical record” and “without

adequate explanation, entirely inconsistent with the opinions of

claimant’s three treating sources.”

at *6 n.2.

In the meantime, Lamy filed a subsequent application for

disability insurance benefits in January 2018, with an alleged

disability onset date of November 3, 2016 (the day after the

date of ALJ Tafe’s unfavorable decision). That application was

2 denied at the initial level in March 2018. Tr. 652-65. Lamy’s

appeal of the denial was consolidated with his original

application when the Appeals Council remanded the case for a new

hearing. Tr. 707-10.

On January 7, 2020, a hearing was held before ALJ Matthew

Levin on the consolidated claims. The ALJ noted that he had

requested that an impartial medical expert testify at the

hearing, but this was not scheduled due to an administrative

oversight. Tr. 595, 570. The ALJ issued an unfavorable

decision later that month, finding that Lamy had not been

disabled from his alleged disability onset date of September 18,

2013, through his date last insured of September 30, 2017. Tr.

566-84. In his decision, the ALJ noted “that an impartial

medical expert is not necessary to a determination of

disability” in Lamy’s case. Tr. 570.

B. Medical Opinion Evidence

At the agency’s request, Lamy underwent a consultative

examination with Dr. Peter Loeser in May 2015. He told Dr.

Loeser that he suffered from chronic low-back pain that started

after a motorcycle accident about twenty-nine years earlier and

had progressively worsened. Tr. 384. During the examination,

Lamy was able to move his arms and legs without restriction, his

gait, strength, and sensation were normal, and he “move[d] with

ease around the examination room without any apparent deficits

3 or impairments.” Tr. 385-86. Dr. Loeser noted “findings of

mildly limited range of motion on physical examination relate[d]

to the low back” but indicated that he could not properly

evaluate Lamy’s low-back pain because no imaging studies,

specialist reports, or treatment records beyond one office visit

note were available for him to review. Tr. 386.

In July 2015, Dr. Backlund, the state agency’s physician,

reviewed: (1) Dr. Loeser’s examination report; (2) treatment

records from Dr. Powen Hsu from July 2013 to May 2014; (3)

treatment records from Granite State Internal Medicine, where

Dr. Thomas Synan worked, from August 2013 to January 2015; and

(4) an imaging study of Lamy’s left knee from April 2015. See

Tr. 89-90, 244-387. Based on his review, Dr. Backlund opined

that Lamy could stand or walk for a total of six hours in an

eight-hour workday and sit for about six hours. Tr. 95. Dr.

Backlund acknowledged that Lamy had degenerative disc disease in

the lumbosacral spine but noted that “no spinal or foraminal

stenosis [was] identified” and that his pain was controlled with

medication. Tr. 93, 95.

In July 2016, following a trip to the emergency room for

severe back pain, Lamy had a surgical consult with Dr. Uri Ahn

at the New Hampshire NeuroSpine Institute. Tr. 524-26. Dr. Ahn

noted that lumbosacral spine x-rays showed “significant

degeneration lateral osteophytes loss of disc space height at

4 L3-4” and that an MRI from 2014 “demonstrates similar findings

with loss of disc space height at L3-4 but no evidence of

significant foraminal or central canal stenosis.” Tr. 525. Dr.

Ahn also noted that Lamy had been off prescribed pain medication

for the past eight months because they had caused him liver

damage. Tr. 524. Based on the imaging and the consultation,

Dr. Ahn diagnosed Lamy with degenerative disc disease at L3-4

and spinal stenosis of the lumbar region. Tr. 525-26. Dr. Ahn,

however, did not recommend surgery because of its low success

rate, the possibility of infection and nerve damage, Lamy’s

cigarette smoking, and the fact that he was not suffering from

constant severe pain. Tr. 525-26. Because Lamy’s pain was

episodic, surgery was not recommended, “no matter how severe”

his pain was. Tr. 526.

Four of Lamy’s treating physicians subsequently filled out

disability paperwork on his behalf. Dr. Powen Hsu, a pain

specialist who had treated Lamy since at least 2009 for low-back

pain, filled out a medical source statement on July 21, 2016.

He indicated that Lamy had been diagnosed with lumbar

spondylosis, cervical spondylosis, and fibromyalgia, which had

caused him pain and fatigue since September 2013. Dr. Hsu

opined that Lamy would need to take unscheduled breaks, shift

positions at will, have periods of walking, sit for only two

hours, stand or walk for less than two hours, and miss more than

5 four days of work per month due to his symptoms. He also

indicated that Lamy’s symptoms would constantly interfere with

his attention and concentration and that he was incapable of

even low-stress jobs. Tr. 389-93.

Later that month, Dr. Thomas Synan filled out the same form

on Lamy’s behalf. Dr. Synan was Lamy’s primary care provider

for more than twenty years, until Dr. Synan left the area in

2014. He wrote that he had treated Lamy several times per year

during that period and based his opinion on his recollection.

According to Dr. Synan, Lamy suffered from degenerative discs

and arthritis in the lumbar spine, which caused him low-back

pain, leg pain, and leg weakness. He opined that those symptoms

would frequently interfere with Lamy’s attention and

concentration. Dr. Synan also indicated that Lamy could sit for

less than two hours, could stand or walk for less than two

hours, and would need periods of walking, the ability to shift

positions at will, and unscheduled breaks during the workday.

In addition, Dr. Synan opined that Lamy would likely be absent

from work more than four days every month due to his

impairments. Tr. 448-52.

The following month, Dr. Alan Stein, who became Lamy’s

primary care provider after Dr. Synan left, also submitted a

medical source statement. He indicated that Lamy suffered from

chronic back pain and degenerative disc disease that was

6 unlikely to improve. According to Dr. Stein, Lamy’s pain was

moderate to severe and occurred “every day all the time” but

would rarely interfere with his attention and concentration.

Tr. 527-28. Dr. Stein opined that Lamy could sit for about four

hours in an eight-hour workday, could stand for twenty minutes

at a time, and would need unscheduled breaks, periods of

walking, and the ability to shift positions at will. Dr. Stein

also indicated that Lamy would need a cane to ambulate and was

likely to be absent from work more than four days per month due

to his symptoms. Tr. 527-31.

On March 18, 2019, Dr. Peter Moran, who became Lamy’s

primary care provider about a year before, also submitted a

medical source statement on his behalf. He indicated that,

since 2013, Lamy had been unable to sit for more than two hours,

stand or walk for more than two hours, and would miss more than

four days of work per month due to his chronic back pain.

According to Dr. Moran, Lamy would need to take unscheduled

breaks, shift positions at will, have periods of walking, and

elevate his legs with prolonged sitting. See Tr. 1720-24. The

same day he signed this form, Dr. Moran saw Lamy during an

office visit and wrote in his treatment notes:

I do not think he has enough objective evidence to support his appeal for disability. I have only seen him in the last year for his diverticulitis. We do not have supporting evidence in his chart. He is asked to bring records from previous providers . . . .

7 He has been out of work a long time because of his back but is not taking any pain medication.

Tr. 1718. On examination, Lamy’s lumbar and lumbosacral spine

exhibited some abnormalities, with Dr. Moran noting that he was

sitting “slightly slouched” and needed to “push with hands on

chair to get up” after squatting. Tr. 1718. The following

month, Lamy returned to Dr. Moran for an evaluation and brought

medical records with him. Dr. Moran again noted that his lumbar

and lumbosacral spine exhibited abnormalities. Tr. 1726. In

December 2019, Dr. Moran signed a new medical source statement

indicating that he agreed with the restrictions he had assessed

in March 2019. See Tr. 1911-15.

C. The ALJ’s Decision

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

sequential analysis required by

. At step

one, he found that Lamy had not engaged in substantial gainful

activity since September 18, 2013, his alleged disability onset

date. Tr. 572. At step two, the ALJ found that Lamy had severe

impairments of degenerative disc disease of the lumbar and

thoracic spine, degenerative joint disease, osteoarthritis of

the knee, and hypertension. Tr. 572. At step three, the ALJ

determined that none of Lamy’s impairments, considered

individually or in combination, qualified for any impairment

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 573.

8 The ALJ then found that Lamy had the residual functional

capacity (“RFC”) to perform light work as defined in

(b), with some postural limitations. Tr. 574. The

ALJ concluded that this RFC found support in the opinions of

Drs. Backlund and Loeser, the objective medical evidence, and

Lamy’s activities of daily living. Tr. 582. In his assessment

of the opinion evidence, the ALJ gave “great weight” to Dr.

Backlund’s opinion, “slightly less than great weight” to Dr.

Loeser’s opinion, “less than great weight” to the treating

source opinions of Drs. Hsu, Stein, and Moran, and little weight

to Dr. Synan’s opinion. See Tr. 578-81.

Relying on the testimony of a vocational expert, the ALJ

then found at step four that Lamy could not perform his past

relevant work. Tr. 582. But the ALJ found at step five that

other jobs existed in the national economy that Lamy could

perform, including a hand packer, a marker, and a small products

bench assembler. Tr. 583. Accordingly, the ALJ concluded that

Lamy had not been disabled from the alleged disability onset

date through the date last insured. Tr. 583.

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,

9 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 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 Commissioner’s findings are supported by substantial

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

could support a different conclusion.” Id. at 770. But her

findings are not conclusive “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) (cleaned up).

10 III. ANALYSIS

Lamy challenges the ALJ’s weighing of the medical opinion

evidence in his record. Four of his treating providers assessed

restrictions that would render Lamy unable to work. The ALJ

discounted the functional limitations assessed in those opinions

and instead credited the state agency physician’s non-examining

opinion that Lamy could perform light work and Dr. Loeser’s

findings on examination. Lamy argues that the agency doctor’s

opinion was based on a significantly incomplete record and that

his own doctors’ opinions were entitled to more weight. I need

not decide whether the ALJ properly discounted the treating

source opinions. Assuming he did, a remand is nonetheless

necessary because the remaining opinions in the record cannot

provide substantial evidence to support the ALJ’s findings.

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

opinion of a non-examining consultant that was rendered without

the benefit of the full medical record. Byron v. Saul,

,

, at *6 (D.N.H. Aug. 14, 2019); Brown v.

Colvin,

,

, at *3 (D.N.H. July 17,

2015); Ferland v. Astrue,

,

, at *4

(D.N.H. Oct. 31, 2011). An ALJ may rely on such an opinion only

“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

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

reviewer’s assessment.” Meldrem v. Colvin,

,

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

, at *4). An ALJ bears the burden of showing that

either of these conditions is present and must make that

determination “adequately clear.” Giandomenico v. U.S. Soc.

Sec. Admin.,

,

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

15, 2017). In doing so, an ALJ may not interpret “raw medical

data . . . until its functional significance is assessed by a

medical expert.” Id. at *5; see Manso-Pizzaro v. Sec’y of

Health & Human Servs.,

(1st Cir. 1996). But he

may make “common-sense judgments about functional capacity based

on medical findings” that are within “the bounds of a lay

person’s competence.” Gordils v. Sec’y of Health & Human

Servs.,

(1st Cir. 1990). Such judgments are

possible “where the evidence shows a ‘relatively mild physical

impairment posing, to the layperson’s eye, no significant

restrictions.’” Giandomenico,

, at *4 (quoting

Roberts v. Barnhart,

(1st Cir. 2003)).

Dr. Backlund’s opinion was based on a significantly

incomplete medical record. He rendered his opinion in July

2015, more than two years before the date last insured. As

relevant to Lamy’s back pain, Dr. Backlund reviewed less than a

year’s worth of treatment records from Dr. Hsu (who treated Lamy

12 for at least seven years), about a year and a half of records

from the practice of Dr. Synan (who was Lamy’s primary care

provider for more than twenty years), and Dr. Loeser’s

examination report. As Judge McAuliffe stated in the prior

remand order, Dr. Backlund’s opinion was “cursory to the point

of lacking any meaningful discussion of the medical record” and

“without adequate explanation, entirely inconsistent with the

opinions of claimant’s three treating sources.” Lamy,

, at *6 n.2. Indeed, Dr. Backlund reviewed the record a

year before any of Lamy’s treating physicians rendered their

opinions. Additional material evidence that postdated Dr.

Backlund’s review includes Lamy’s emergency room treatment for

an episode of severe back pain in June 2016 and his subsequent

surgical consultation with Dr. Ahn that resulted in a new

diagnosis.

The ALJ’s conclusion that Dr. Backlund’s opinion was

consistent with subsequent medical evidence does not withstand

scrutiny. As part of his sparse discussion of the medical

evidence, Dr. Backlund indicated that Lamy had not been

diagnosed with spinal or foraminal stenosis. But a year later,

Dr. Ahn, in fact, diagnosed Lamy with spinal stenosis of the

lumbar region, based in part on x-rays of his lumbar spine that

were unavailable to Dr. Backlund. Without the benefit of a

medical expert opinion addressing the functional significance of

13 this apparent change, the ALJ could not rely on Dr. Backlund’s

outdated opinion to support his findings.

Further, Dr. Backlund supported his opinion with reference

to treatment notes indicating that Lamy’s back pain was well

controlled on prescription pain medication. At that time, Lamy

was taking prescription opioids. But, as Dr. Ahn noted during

his surgical consultation a year later, Lamy was forced to stop

taking opioids because they were damaging his liver. According

to Lamy’s testimony, he was subsequently limited to taking

Ibuprofen or medicinal marijuana, laying back in his recliner,

heat therapy, and soaking in the tub to manage his pain. Tr.

58-60, 607-08. This material change in pain management also

undercuts Dr. Backlund’s opinion.

Neither of those shortcomings could be cured by the ALJ’s

reliance on Dr. Loeser’s examination report. Both developments

postdate that examination. In addition, as Dr. Loeser

acknowledged, he had no access to Lamy’s longitudinal treatment

record to evaluate his back pain. His one-time examination at a

time when Lamy was still taking opioids for pain management is

of limited use and cannot, either standing alone or with Dr.

Backlund’s obsolete opinion, provide substantial evidence in

support of the RFC finding.

In short, the Commissioner has not shown that substantial

evidence supports the ALJ’s finding that Lamy was able to do

14 light work during the relevant period. The ALJ should have

obtained a medical expert opinion that was based on the complete

medical record before him in 2020, rather than relying on Dr.

Backlund’s review of a substantially incomplete record in 2015.

IV. CONCLUSION

For the foregoing reasons, the Commissioner’s motion to

affirm (Doc. No. 10) is denied. Lamy’s motion to reverse (Doc.

No. 8) is granted to the extent that the ALJ’s decision is

vacated and the case is remanded to the Commissioner for further

proceedings consistent with this opinion, pursuant to sentence

four of

(g). 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

November 30, 2021

cc: Counsel of record

15