Keene v. US Social Security Administration, Acting Commissioner

Filing 14

///ORDER denying 8 Motion to Reverse Decision of Commissioner; granting 10 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by District Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Dennis R. Keene
v.

Civil No. 14-cv-142-LM
Opinion No. 2014 DNH 226

Carolyn W. Colvin, Acting
Commissioner, Social Security
Administration

O R D E R
Pursuant to 42 U.S.C. § 405(g), Dennis Keene moves for
reversal of the Acting Commissioner’s decision to deny his
application for Social Security disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §
423.

The Acting Commissioner, in turn, moves for an order

affirming her decision.

For the reasons that follow, the

decision of the Acting Commissioner, as announced by the
Administrative Law Judge (“ALJ”), is affirmed.
Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
[Acting] Commissioner of Social Security, with or
without remanding the cause for a rehearing. The
findings of the Commissioner of Social Security as to

any fact, if supported by substantial evidence, shall
be conclusive . . . .
42 U.S.C. § 405(g).

However, the court “must uphold a denial of

social security disability benefits unless ‘the [Acting
Commissioner] has committed a legal or factual error in
evaluating a particular claim.’”

Manso-Pizarro v. Sec’y of HHS,

76 F.3d 15, 16 (1st Cir. 1996) (quoting Sullivan v. Hudson, 490
U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.”

Alexandrou v. Sullivan, 764

F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)).

In turn, “[s]ubstantial

evidence is ‘more than [a] mere scintilla.

It means such

relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’”

Currier v. Sec’y of HEW, 612 F.2d

594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).

But, “[i]t is the responsibility of the

[Acting Commissioner] to determine issues of credibility and to
draw inferences from the record evidence.

Indeed, the

resolution of conflicts in the evidence is for the [Acting
Commissioner], not the courts.”

Irlanda Ortiz v. Sec’y of HHS,

2

955 F.2d 765, 769 (1st Cir. 1991) (citations omitted).
Moreover, the court “must uphold the [Acting Commissioner’s]
conclusion, even if the record arguably could justify a
different conclusion, so long as it is supported by substantial
evidence.”
Cir. 1988).

Tsarelka v. Sec’y of HHS, 842 F.2d 529, 535 (1st
Finally, when determining whether a decision of the

Acting Commissioner is supported by substantial evidence, the
court must “review[] the evidence in the record as a whole.”
Irlanda Ortiz, 955 F.2d at 769 (quoting Rodriguez v. Sec’y of
HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
Background
The parties have submitted a Joint Statement of Material
Facts, document no. 11.

That statement is part of the court’s

record and will be summarized here, rather than repeated in
full.
In 1997, when he was 30 years old, Keene had a heart
attack, and subsequently returned to work.

In 2007, he suffered

another heart attack, which also caused a stroke.

His heart

attack and stroke put him out of work for about a year.

Then,

in May of 2011, he retired from his job as a glass evaporator
machine operator, due to: (1) numbness in his leg, which
prevented him from making his daily commute to Massachusetts;
and (2) back pain.

3

In his initial application for DIB benefits, filed on
August 10, 2011, Keene identified the following illnesses or
conditions as the basis for his claim: stroke, heart attack,
diabetes, anxiety, obesity, multilevel spinal lumber stenosis,
degenerative disc disease, panic attacks, depression, and
arthritis in his back.
(hereinafter “Tr.”) 86.

See Administrative Transcript
The record includes diagnoses of

diabetes; several lower-back conditions; generalized anxiety
disorder; and major depressive disorder, mild, recurrent.
Treatment for Keene’s back conditions has included
medication, epidural injections, facet blocks, facet joint
injections, physical therapy, and home exercise.

Doctors have

also recommended weight loss, and determined that Keene was a
poor candidate for surgery because of his obesity.

Treatment

for his diabetes has included medication.
On December 29, 2011, a state-agency consultant, Dr. Jaffe,
offered various opinions regarding Keene’s physical residual
functional capacity (“RFC”).1

With regard to exertional

limitations, Dr. Jaffe opined that Keene could: (1) occasionally
lift and/or carry 20 pounds; (2) frequently lift and/or carry 10
pounds; (3) stand and/or walk for a total of two hours, with
normal breaks, in an eight-hour workday; (4) sit for about six

Residual functional capacity is “the most a [claimant] can
do despite his limitations.” 20 C.F.R. § 404.1545.
1

4

hours, with normal breaks, in an eight-hour workday; (5) push
and or pull 20 pounds occasionally and 10 pounds frequently.

He

also stated that Keene needed to stand up hourly and walk around
for five to ten minutes to alleviate back pain.

With regard to

postural limitations, Dr. Jaffe opined that Keene could
occasionally climb ramps and stairs; climb ladders, ropes, and
scaffolds; balance; kneel; crouch; and crawl.

Finally, Dr.

Jaffe identified no manipulative, visual, communicative, or
environmental limitations.
In early 2012, Dr. James Fitzgerald, who has treated Keene
since 2005, submitted a letter that states, in pertinent part:
He [Keene] is currently unable to work in any capacity
due to multiple medical illnesses.
Mr. Keene has already suffered a stroke and a
relatively large myocardial infarction . . . . He
will need lifelong anti-coagulation with coumadin. In
addition, he is treated for severe spinal stenosis
which is ongoing and not amenable to surgical
correction at this time. This causes chronic, daily
pain for which he is being treated.
He is under the care of several specialists including
cardiology, orthopedic surgery, pain management, and
anesthesia.
Because of these conditions, he is unable to work in
any capacity.
Tr. at 459.
After conducting a hearing on January 31, 2013, the ALJ
issued a decision that includes the following relevant findings
of fact and conclusions of law:

5

5. After careful consideration of the entire record,
I find that the claimant has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) except he could occasionally lift up to 20
pounds and frequently ten pounds. Standing and
walking would be limited to two hours each with
sitting up to six hours. He could occasionally climb
ramps and stairs, with no climbing of ladders, ropes,
or scaffolds. He could occasionally stoop, kneel,
crouch, crawl, and balance. The claimant would have
to change positions hourly during the workday, for
approximately 5-10 minutes. He could engage and
interact with others, but he would have limited
ability to engage in sustained, regular, ongoing
frequent speech. He should a avoid temperature
extremes, as well as exposure to concentrated levels
of fumes, dusts, gases, and other respiratory
irritants. The claimant could understand, remember,
and carry out simple, 1-3 step tasks. He should avoid
more complicated 4-5 step tasks, or greater. He has
the ability to maintain [concentration, persistence,
and pace] for 2-hour periods of time. He can make
simple decisions and he can perform at a consistent
pace, but not at a high production rate. The
complainant requires the ability to use the restroom
as many as 3-4 times.
. . . .
10. Considering the claimant’s age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569 and
404.1569(a)).
Tr. at 22, 27.

Based upon the testimony of a vocational expert

(“VE”), the ALJ determined that Keene could perform the jobs of
bench worker, assembly, and inserter.

Moreover, while the ALJ

determined that Keene had the RFC for light work, he also posed
a hypothetical question to the VE based upon a modification of

6

that RFC, and all three of the jobs the VE (and, thereafter, the
ALJ) said Keene could perform are classified as sedentary.
Sedentary work, in turn, “involves lifting no more than 10
pounds at a time,” 20 C.F.R. §1567(a), involves sitting, and may
involve occasional walking and standing, see id.
Discussion
According to Keene, the ALJ’s decision should be reversed,
and the case remanded, because the ALJ: (1) made a credibility
assessment that was not supported by substantial evidence; (2)
failed to fulfill his duty to develop the record; and (3) made a
faulty determination of his RFC, which also infected his
determination that there are jobs that exist in significant
numbers in the national economy that he can perform.
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability.

42 U.S.C. §§ 423(a)(1)(A)-(D).

The only question

in this case is whether Keene was under a disability.
For the purpose of determining eligibility for disability
insurance benefits,
[t]he term “disability” means . . . inability to
engage in any substantial gainful activity by reason
of any medically determinable physical or mental

7

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.
42 U.S.C. § 423(d)(1)(A).

Moreover,

[a]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work. For purposes of the preceding
sentence (with respect to any individual), “work which
exists in the national economy” means work which
exists in significant numbers either in the region
where such individual lives or in several regions of
the country.
42 U.S.C. § 423(d)(2)(A).
To decide whether a claimant is disabled for the purpose of
determining eligibility for disability insurance benefits, an
ALJ is required to employ a five-step process.

See 20 C.F.R. §

404.1520.
The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform
past relevant work, then the application is denied; 5)
if the [claimant], given his or her residual
functional capacity, education, work experience, and

8

age, is unable to do any other work, the application
is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920, which outlines the same five-step process as
the one prescribed in 20 C.F.R. § 404.1520).
The claimant bears the burden of proving that he is
disabled.

See Bowen v. Yuckert, 482 U.S. 137, 146 (1987).

must do so by a preponderance of the evidence.

He

See Mandziej v.

Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11) (D. Mass. 1982)).

However,

[o]nce the [claimant] has met his or her burden at
Step 4 to show that he or she is unable to do past
work due to the significant limitation, the [Acting]
Commissioner then has the burden at Step 5 of coming
forward with evidence of specific jobs in the national
economy that the [claimant] can still perform. Arocho
v. Sec’y of Health & Human Servs., 670 F.2d 374, 375
(1st Cir. 1982).
Seavey, 276 F.3d at 5 (parallel citations omitted).

Finally,

[i]n assessing a disability claim, the [Acting
Commissioner] considers objective and subjective
factors, including: (1) objective medical facts; (2)
[claimant]’s subjective claims of pain and disability
as supported by the testimony of the claimant or other
witness; and (3) the [claimant]’s educational
background, age, and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS, 797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS, 690
F.2d 5, 6 (1st Cir. 1982)).

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B. Keene’s Arguments
Keene takes issue with the ALJ’s credibility finding, his
failure to develop the record, and his RFC determination.
1. Credibility
The first step in a court’s credibility analysis is to
identify the statements at issue.

See Kalloch v. Astrue, No.

11-cv-522-JL, 2012 WL 4930986, at *8 (D.N.H. Sept. 18, 2012)
report & recommendation adopted by 2012 WL 4930983 (D.N.H. Oct.
15, 2012).

In his decision, the ALJ described the statements he

evaluated this way:
At the hearing, [Keene] testified that he has altered
speech and poor memory. He alleged poor ability to
engage in physical exertion, shortness of breath,
difficulty bending, and an inability to lift anything
over 25 pounds. He noted that he uses the restroom
about 5 times per day. The claimant alleged that he
has frequent heartburn, he now takes medications for
anxiety, and he can remain in one position for up to
15 minutes at a time. The claimant testified that his
heart attack caused muscle damage and his stroke left
him without the ability to speak for one year, as well
as right-sided weakness. He complained of continued
stuttering.
Tr. at 23-24.

In addition, while the ALJ did not mention pain

in his overview of Keene’s hearing testimony, he did report the
following pain-related statements that Keene made to providers
of rehabilitation services:
Treatment notes document complaints of increased pain
with prolonged sitting and standing. He complained of
being unable to perform heavy household activities.
He complained of increased pain with standing greater
than 30 minutes and with sitting more than 1 hour; he

10

complained of being unable to walk greater than a
quarter-mile at a time.
Tr. at 24 (citations to the record omitted).

At the hearing,

Keene offered relatively little testimony about pain, and
virtually no testimony about how pain affected his ability to
perform work-related activities.
In his decision, the ALJ found that “the claimant’s
statements concerning the intensity, persistence and limiting
effects of [his] symptoms are not entirely credible.”
24.

Tr. at

Keene criticizes various aspects of the ALJ’s credibility

assessment.

The court, however, need not wade into this part of

the parties’ dispute because it does not appear that the ALJ
needed to address the credibility of Keene’s statements in the
first place.

Even if the ALJ had found Keene’s statements to be

fully credible, his determination that Keene was not disabled
would still be supported by substantial evidence.

That is

because the ALJ incorporated into either his RFC or his
hypothetical questions to the VE virtually every impairmentrelated limitation Keene identified in his hearing testimony and
his statements to those who provided him with rehabilitation
services.
For example, regardless of the credibility of Keene’s
statement that he cannot lift any more than 25 pounds, the ALJ’s
RFC included a capacity to lift no more than 20 pounds.

11

Likewise, Keene’s statement that he needed to use the bathroom
about five times per day as a side effect of medication is
accounted for in the ALJ’s RFC, which includes a need to use the
restroom three or four times in an eight-hour workday.

And

altered speech, stuttering, and poor memory are accounted for by
the RFC’s restrictions to: (1) limited sustained, regular,
ongoing frequent speech; and (2) simple one-to-three-step tasks
and simple decisions.

Keene’s need to change positions is also

accounted for in the ALJ’s hypothetical question to the VE, in
which the ALJ posited “a need to have [a] sit/stand option as
often as every 10 or 15 minutes,” Tr. at 79.

Finally, because

all three of the jobs the ALJ said Keene could perform are
classified as sedentary, Keene’s statements about his inability
to sustain physical exertion was also factored into the ALJ’s
decision.
The same holds true for Keene’s statements about pain.
Keene told his providers of rehabilitation services that his
pain: (1) was exacerbated by standing for more than 30 minutes
or sitting for more than 60 minutes; and (2) precluded him from
performing heavy household activities and walking more than a
quarter of a mile at a time.

None of the jobs that the ALJ said

Keene could perform required any of those activities.

So, even

if the ALJ had credited all of Keene’s statements about pain,
that would not undermine his ultimate decision.

12

Accordingly,

the ALJ’s credibility assessment was not necessary for his
decision, and the court need not address it any further.
That said, the court notes that in the portion of Keene’s
memorandum devoted to credibility, and in particular the seventh
Avery factor, he argues that the ALJ erred by giving limited
weight to Dr. Fitzgerald’s opinion that he “was unable to work
in any capacity because of his multiple medical illnesses.”
at 458.

Tr.

With regard to that opinion, which was an opinion on an

issue that is reserved to the commissioner, see 20 C.F.R.
404.1527(d)(1), the ALJ’s obligation was limited to “review[ing]
all of the medical findings and other evidence that support[ed]
[Dr. Fitzgerald’s] statement that [Keene was] disabled,” id.
Apart from not reviewing some treatment records that Keene did
not submit to the ALJ, discussed below, the ALJ did all that he
was required to do when considering Dr. Fitzgerald’s opinion.
2. Failure to Develop the Record
Keene’s next argument is that the ALJ erred by failing to
fulfill his responsibility to adequately develop the record.
Specifically, Keene contends that the ALJ had a duty to obtain
records of the medical treatment he received during the year
prior to his hearing.
In a recent memorandum order, Judge Laplante outlined the
relevant law:

13

As the Court of Appeals has explained, “[b]ecause
Social Security proceedings are not adversarial in
nature, the [SSA has] a duty to develop an adequate
record from which a reasonable conclusion can be
drawn.” Heggarty v. Sullivan, 947 F.2d 990, 997 (1st
Cir. 1991) (internal citation and quotation marks
omitted). “This duty to develop the record is
heightened where the claimant is not represented by
counsel, but applies in all cases.” Brunel v.
Barnhart, No. 00–cv–402, 2002 WL 24311, *8 (D.N.H.
Jan. 7, 2002) (citing 20 C.F.R. § 404.1512(d)). The
duty is also heightened “if there is a gap in the
record and the ALJ could have filled in that gap
without undue effort.” Price v. Astrue, [No. 07-cv166-PB, 2008 WL 4148943, at *4 (D.N.H. Sept. 2, 2008)]
(citing Currier v. Sec’y of Health, Educ. & Welfare,
612 F.2d 594, 598 (1st Cir. 1980)). “If the ALJ fails
to fill those evidentiary gaps, and if they prejudice
plaintiff’s claim, remand is appropriate.” Mandziej
v. Chater, 944 F. Supp. 121, 130 (D.N.H. 1996).
Morris v. Astrue, No. 11-cv-248-JL, 2012 WL 4499348, at *9
(D.N.H. Sept. 28, 2012) (emphasis added).

“Prejudice is

demonstrated by showing that the additional evidence might have
led to a different decision.”

Id. at *10 (quoting Alker v.

Astrue, No. 10-CV-291-SM, 2011 WL 1770473, at *4 (D.N.H. May 10,
2011)).
Having set out the relevant law, the court turns to the
relevant facts.

At the start of Keene’s hearing, the following

exchange took place between the ALJ and Keene’s attorney:
ALJ: . . . Attorney Clickner, at this point we
just did have a conversation about submitting just a
record of the treatment that’s occurred over the last
. . . year or so. And if you could submit that
electronically . . . we’ll include that in the F

14

section as one of the medical records. At this point,
any other records that are outstanding?
ATTY:
Tr. at 38-39.

No, Your Honor.

There is nothing in the record to indicate that

Attorney Clickner ever submitted Keene’s more recent treatment
records.2
Keene argues that the ALJ was obligated to obtain the
records of the treatment he received during the year leading up
to his hearing.

At the same time, however, Keene admits that

“[i]t’s not known what these treatment records might show with
regard to the nature and severity of [his] impairments.”
Mem. of Law (doc. no. 8-1) 22.

Cl.’s

Were that the last word on the

effect of the ALJ’s failure to obtain the records at issue,
Keene’s argument would fail.

See Faria v. Comm’r of Soc. Sec.,

With regard to the whereabouts of the medical records at
issue, Keene says this in his memorandum of law:
2

The undersigned counsel did not represent the
plaintiff at his administrative hearing. It is
unknown if the records were never obtained or whether
they were submitted but not made part of the
administrative record. The plaintiff’s wife wrote a
letter in May 2013 complaining that all the medical
records were not obtained by the attorney who
represented the plaintiff at his administrative
hearing (Tr. 284-284).
Cl.’s Mem. of Law (doc. no. 8-1) 21 n.13. Moreover, Keene’s
current attorney does not say whether he has obtained the
missing records but, in any event, those records are neither
attached to nor referred to in either Keene’s memorandum of law
or his reply brief.
15

187 F.3d 621, 1998 WL 1085810, at *1 (1st Cir. 1998) (per curiam
table opinion) (holding that mere speculation about what medical
records might show is insufficient to establish prejudice
warranting remand).

Keene also contends, in his memorandum of

law, that the ALJ’s failure to obtain the records at issue was
facially prejudicial, see doc. no. 8-1, at 22, but given the
definition of prejudice set out in Morris, the concept of facial
prejudice would appear to be legally untenable, and Keene
provides no authority for it.
In his reply brief, Keene backs up a step, arguing that his
most recent treatment records “were quite pertinent to an
assessment of his credibility, an assessment of his residual
functional capacity, and an assessment of the weight to give to
the opinion of his treating physician.”
12) 2.

Cl.’s Reply (doc. no.

However, Keene also states that “it’s not known what

these treatment records might show,” Cl.’s Mem. of Law (doc. no.
8-1), 22, which indicates that he not seen them.

Thus, it is

difficult to see how he can argue that they are pertinent.
Rather, as in Morris and Albrecht v. Astrue, 793 F. Supp. 2d 473
(D. Mass. 2011), a case on which Keene places substantial
reliance, the issue is not whether Keene was prejudiced by the
absence of particular evidence from the record before the ALJ;
the issue is whether he was prejudiced by any negative inference
the ALJ may have drawn from a lack of evidence that could have

16

been placed on the record.

With that in mind, the court turns

to each of the three areas in which Keene claims prejudice from
the ALJ’s failure to develop the record.3
a. Credibility
Keene argues that the missing records “were quite
pertinent to an assessment of his credibility.”
(doc. no. 12) 2.

Cl.’s Reply

However, rather than pointing out how the ALJ

relied upon the lack of medical records to impugn his
credibility, he merely asserts “that the lack of contemporary
medical evidence impacted upon his credibility,” id. at 3, and
directs the court to the decision in Albrecht, which he
characterizes as strongly analogous to this case.4

Albrecht is

readily distinguishable.

The following analysis presumes that the ALJ committed a
legal error by not obtaining Keene’s more recent medical
records, a proposition that is not necessarily warranted. See
Devlin v. Sec’y of HHS, 981 F.2d 1245, 1992 WL 385319, at *4
(1st Cir. 1992) (per curiam table opinion) (holding that ALJ did
not err by failing to develop the record where, among other
things, claimant declined ALJ’s invitation to supplement the
record to provide evidence he failed to produce at the hearing);
but see Albrecht, 793 F. Supp. 2d at 475, 478 (remanding based
upon missing medical records even though claimant was given time
to supplement the record but did not do so).
3

Keene first cited Albrecht in his reply brief. In his
initial memorandum of law, he cited Cox v. Apfel, 160 F.3d 1203
(8th Cir. 1998), Vaile v. Chater, 916 F. Supp. 821 (N.D. Ill.
1996), and Williams v. Callahan, 30 F. Supp. 2d 588 (E.D.N.Y.
1998), for the general proposition that the ALJ has an
obligation to develop the record. But all of those cases
involved pro se claimants, and Keene makes no attempt to
analogize them to the circumstances of this case.
4

17

In Albrecht, Magistrate Judge Collings remanded for further
proceedings due to the ALJ’s failure to adequately develop the
record by requesting missing medical records.
2d at 477, 478.

See 793 F. Supp.

In so ruling, he explained that “Albrecht has

unquestionably been prejudiced by the absence of his treating
physician’s records [because] [t]he lack of medical records was
a strike against the plaintiff’s credibility vis-à-vis his
claimed pain.”

Id. at 477.

The ALJ in Albrecht took the lack

of medical records to indicate a lack of treatment, despite the
claimant’s testimony that he had received treatment during the
relevant time period.

See id. at 476.

Here, by contrast, the ALJ did not use the lack of medical
records to discredit Keene’s statements about his symptoms.

To

be sure, the ALJ did discount the credibility of those
statements because Keene had “received little in the way of
treatment.”

Tr. at 26.

But, the ALJ also: (1) found that Dr.

Fitzgerald had treated Keene continuously since 2005; (2) heard
testimony from Keene concerning the scope of the treatment he
had received in 2012, see Tr. at 67; and (3) did not use the
lack of medical records to make any findings that ran counter to
Keene’s testimony concerning the treatment he had received in
2012.

Because the ALJ in this case did not base his credibility

assessment on a lack of medical records from 2012, Albrecht is
inapposite, and Keene cannot demonstrate, as to the ALJ’s

18

credibility determination, that he was prejudiced by the lack of
medical records.
b. Residual Functional Capacity
Keene next argues that the missing medical records “were
quite pertinent to . . . an assessment of his residual
functional capacity.”

Cl.’s Reply (doc. no. 12) 2.

does not develop that argument.

However, he

In any event, his argument is

unavailing because Keene does not assert that the records he
seeks consist of anything other than raw medical evidence, and
an ALJ may not “formulate an RFC from raw medical evidence,”
Widlind v. Astrue, No. 11-cv-371-JL, 2012 WL 1676990, at *16
(D.N.H. Apr. 16, 2012), report & recommendation adopted by 2012
WL 1676984 (D.N.H. May 14, 2012)).

Thus, as to the ALJ’s

determination of Keene’s RFC, Keene was not prejudiced by the
lack of medical records.
c. Weight Given to Dr. Fitzgerald’s Opinion
Finally, Keene argues that the missing medical records
“were quite pertinent to . . . an assessment of the weight to
give the opinion of his treating physician.”
no. 12) 2.

Cl.’s Reply (doc.

However, rather than pointing out how the ALJ relied

upon the lack of medical records to discount Dr. Fitzgerald’s
opinion, he merely asserts that lack of medical evidence
“impacted on the weight given to the opinion of his treating
physician, whose opinion was given ‘little weight’ by the ALJ,”

19

id. at 3.

And, again, Keene directs the court to the decision

in Albrecht.

The problem with Keene’s argument is that Albrecht

is distinguishable in this respect: the ALJ in that case
discounted the treating physician’s opinion based upon a finding
that he had not treated the clamiant during a particular time
period.

Here, the ALJ did not make any such finding.

Furthermore, unlike the ALJ in Albrecht, the ALJ in this case
did not cite a lack of medical records authored by the treating
physician as a basis for discounting his opinion.

Accordingly,

Keene cannot demonstrate, as to the ALJ’s handling of Dr.
Fitzgerald’s opinion, that he was prejudiced by the lack of
medical records.
3. RFC & Step Five
Finally, Keene argues that the ALJ’s RFC was flawed because
of the errors he made in his credibility assessment, his
weighing of Dr. Fitzgerald’s opinion, and the absence medical
records from 2012.

Because the court has ruled that the ALJ

committed no errors in those areas, it must also reject Keene’s
RFC argument.

Moreover, as the court has identified no error in

the ALJ’s determination of Keene’s RFC, it must also reject
Keene’s argument that the ALJ’s step-five determination was not
supported by substantial evidence.

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Conclusion
Because the ALJ has committed neither a legal nor a factual
error in evaluating Keene’s claim, see Manso-Pizarro, 76 F.3d at
16, his motion for an order reversing the Acting Commissioner’s
decision, document no. 8, is denied, and the Acting
Commissioner’s motion for an order affirming her decision,
document no. 10, is granted.

The clerk of the court shall enter

judgment in accordance with this order and close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge

October 27, 2014
cc:

Raymond J. Kelly, Esq.
T. David Plourde, Esq.

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