Marino v. US Social Security Administration, Acting Commissioner

Filing 16

///ORDER denying 11 Motion to Reverse Decision of Commissioner; granting 13 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by Chief Judge Joseph N. Laplante.(gla)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Marianne Marino
v.

Civil No. 17-cv-179-JL
Opinion No. 2018 DNH 191

U.S. Social Security
Administration, Commissioner
ORDER ON APPEAL
Marianne Marino has appealed the Social Security
Administration’s (“SSA”) denial of her application for a period
of disability and disability insurance benefits.

An

administrative law judge (“ALJ”) at the SSA ruled that, despite
severe impairments, Marino retains the residual functional
capacity (“RFC”) to perform past relevant work, and thus is not
disabled.

See 20 C.F.R. § 404.1505(a).

The Appeals Council

later denied Marino’s request for review, see id. § 404.967,
with the result that the ALJ’s decision became the final
decision on her application, see id. § 404.981.

Marino then

appealed the decision to this court, which has jurisdiction
under 42 U.S.C. § 405(g) (Social Security).
Marino has moved to reverse the decision.

See LR 9.1(b).

The Acting Commissioner of the SSA has cross-moved for an order
affirming the ALJ’s decision.

See LR 9.1(e).

After careful

consideration, the court denies Marino’s motion and grants the
Acting Commissioner’s motion.

Applicable legal standard
The court limits its review of a final decision of the SSA
“to determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence.”

Ward v.

Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).

It

“review[s] questions of law de novo, but defer[s] to the
Commissioner's findings of fact, so long as they are supported
by substantial evidence,” id., that is, “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotations omitted).

Though the evidence in the record may

support multiple conclusions, the court will still uphold the
ALJ’s findings “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., 955 F.2d 765, 769 (1st Cir. 1991).

The court therefore

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

Manso-Pizarro v.

Sec'y of Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996)
(per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885
(1989)).

2

Background1
The ALJ held a hearing on Marino’s application.

After the

hearing, and more than a month after the deadline for the
submission of evidence, Marino submitted a medical opinion form
completed by her primary care physician, Dr. Rachael Hamilton.
The ALJ found that Marino had not met the requirements of 20
C.F.R. § 405.331(c) and did not admit this evidence into the
record.
Next, the ALJ invoked the requisite five-step sequential
evaluation process in assessing Marino’s request for disability
and disability insurance benefits.

See 20 C.F.R. § 404.1520.

After determining that Marino had not engaged in substantial
gainful activity after the alleged onset of her disability on
December 1, 2013, the ALJ analyzed the severity of her
impairments.

At this second step, the ALJ concluded that Marino

had two severe impairments: osteoarthritis of the knees and
degenerative disc disease of the lumbar spine, mild.2
At the third step, the ALJ found that Marino’s severe
impairments did not meet or “medically equal” the severity of

The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitation in their
Joint Statement of Material Facts (doc. no. 15) is incorporated
by reference.
1

2

Admin. R. at 22.

3

one of the impairments listed in the Social Security
regulations.3

See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526.

After reviewing the medical evidence of record, admitted medical
opinions, and Marino’s own statements, the ALJ concluded that
Marino retained the RFC to perform sedentary work, see 20 C.F.R.
§ 404.1567, except that she:
can lift ten pounds occasionally and frequently; can
frequently stand and walk for two hours and sit for
six hours total in an eight-hour workday; has
unlimited use of hands and feet to operate controls or
push and pull; [can] occasionally balance, stoop,
kneel, crouch and crawl and should avoid all exposure
to unprotected heights.4
In doing so, the ALJ adopted the opinions of non-examining
medical expert Dr. Hugh Fairley.5
Finding that, even limited in this manner, Marino was able
to perform her past relevant work as a branch manager and
medical case manager, see 20 C.F.R. § 404.1566, the ALJ
concluded his analysis and found that Marino was not disabled
within the meaning of the Social Security Act.
Analysis
Marino challenges the ALJ’s decision on three grounds,
arguing that the ALJ erred by: (1) not admitting her post-

3

Id. at 26.

4

Admin. R. at 27.

5

Id. at 31.

4

hearing submission of evidence into the record; (2) relying on
the opinion of Dr. Hugh Fairley despite material changes in the
medical evidence of record post-dating that opinion; and (3)
failing to consider all of Marino’s impairments in the RFC.

The

court addresses each argument in turn.
A.

Admission of late-submitted evidence

Marino submitted additional written evidence to the ALJ on
September 1, 2016, more than a month after the July 27, 2016,
hearing.6

The evidence consisted of a “Physical Impairment

Medical Source Statement” form completed by Dr. Hamilton and
dated July 26, 2016.7

In the accompanying cover letter, Marino’s

counsel explained that he had initially asked Dr Hamilton to
complete the form in March 2016.8

She responded later the same

month, providing a letter instead of completing the form.

The

letter, which was admitted into the record, included a statement
that “we are in the process of getting [Marino] evaluated by
physical therapy to see if she requires any physical
modifications to working.”9

6

Admin. R. at 77.

7

Id. at 79-83.

8

Id. at 78.

9

Id. at 917.

5

On July 12, 2016, Marino’s counsel asked Dr. Hamilton to
reconsider completing the form without a functional capacity
evaluation because Marino had informed him that “the only
facility in her area that does these and takes her insurance is
unable to provide this service to her until the fall.”10

Dr.

Hamilton returned a completed form, dated July 26, 2016, to
Marino’s counsel on August 31, 2016, and counsel submitted it to
the ALJ the following day.11
The ALJ declined to admit the late-filed report of Dr.
Hamilton pursuant to 20 C.F.R. § 405.331.

This regulation

requires that written evidence be submitted “no later than 5
business days before the date of the scheduled hearing.”

If

evidence is submitted after the hearing but before a decision is
issued, the ALJ “may decline to consider the evidence” unless
the claimant shows that:
there is a reasonable possibility that the evidence,
alone or when considered with the other evidence of
record, would affect the outcome of your claim, and:
(1)

Our action misled you;

(2)

You had a physical, mental, educational, or
linguistic limitation(s) that prevented you
from submitting the evidence earlier; or

(3)

Some other unusual, unexpected, or
unavoidable circumstance beyond your control

10

Id. at 78.

11

Id. at 77, 79-83.

6

prevented you from submitting the evidence
earlier.
20 C.F.R. § 405.331(c).12
The ALJ found that these requirements of paragraph (c) were
not satisfied, as “there was ample time to have obtained the
completed form and filed it timely for hearing,” and Marino had
not shown that the report had a reasonable possibility of
affecting the outcome.13

He then exercised his discretion to

decline to consider the report.14
Marino argues that the ALJ erred both by: (1) failing to
find that an unusual, unexpected, or unavoidable circumstance
beyond Marino’s control prevented earlier submission; and (2)
finding no showing of a reasonable possibility of affecting the
outcome.

One the first point, the court disagrees. Marino has

not shown that unusual, unexpected, or unavoidable circumstances
beyond her control prevented earlier submission of this
evidence.

The ALJ was thus not obligated to admit the evidence

and the court need not consider whether the report may have
affected the outcome of Marino’s claim.

The SSA revised the regulations concerning the submission of
evidence to ALJs effective January 17, 2017. Because Marino
submitted her additional evidence and the ALJ issued his
decision before that date, the previous regulation applies to
Marino’s submission.
12

13

Admin. R. at 19-20.

14

Id.

7

Marino urges that the exceptions to the deadline for
evidence submission should be read expansively.

As Judge

McAuliffe has noted:
[T]he district courts in this circuit seem to disagree
as to the precise nature of the burden imposed upon
claimants by section 405.331. As noted above, those
in Maine have described the claimant's burden as
“rather rigorous,” while those in Rhode Island have
held it is less demanding and analogized it to
“excusable neglect.” Compare Raymond v. Astrue, No.
1:12–CV–92–DBH, 2012 WL 6913437, at *2 (D. Me. Dec.
31, 2012) with Howe v. Colvin, 147 F. Supp. 3d 5, 8
(D.R.I. 2015).
Simard v. Colvin, 2016 DNH 186, 14-15.

See Jones v. Berryhill,

No. 16-cv-11011-DJC, 2017 WL 3726018, at *11 (D. Mass. Aug. 29,
2017) (Casper, J.) (applying “rather rigorous standard” and
citing Raymond).

Here, as in Simard, “[t]his court need not

weigh in on that issue since, even giving claimant the benefit
of the lighter burden, it is plain [s]he failed to meet it.”
2016 DNH at 15.
Marino has not shown she submitted Dr. Hamilton’s report
late because of circumstances beyond her control, rather than
her own lack of diligence.

She argues that her counsel’s

initial request in March demonstrates diligence and that Dr.
Hamilton’s response requesting a functional capacity evaluation
was unexpected.

While Marino and her counsel may have been

surprised by Dr. Hamilton’s reluctance to complete the provided
form, there is no evidence in the record that her counsel

8

renewed the request until July 12, approximately a week before
the deadline for the submission of written evidence.15 Marino
attributes this delay, at least in part, to attempting to
schedule a functional capacity evaluation and the unexpected
unavailability of such, but makes no showing regarding these
efforts.

Marino was informed of Dr. Hamilton’s desire to

schedule an evaluation by at least March 14, 2016, when Dr.
Hamilton responded to counsel.

And Marino was informed of the

July 20, 2016, deadline to submit evidence by the SSA’s
scheduling letter on April 26, 2016.

This insufficiently

explained delay between knowledge of the evidentiary deadline
and the renewed request to Dr. Hamilton, especially given
knowledge of Dr. Hamilton’s previous response, is dispositive.
Marino did not meet the deadline to submit evidence primarily
because of this delay, which was within her control.
A doctor’s failure to promptly respond to a request issued
just one week before the evidentiary deadline not is an unusual,
unexpected, or unavoidable circumstance beyond the claimant’s
control when the doctor has previously indicated reluctance to
complete the requested form absent further information.

While

Marino suggests that her counsel made “numerous requests” to
Dr. Hamilton to complete the form, but the July 12 letter to Dr.
Hamilton mentions no interim requests, and the submission letter
to the ALJ only describes requests after the July 12 letter.
Admin. R. at 77-78.
15

9

Dr. Hamilton’s failure to return the form to Marino’s counsel
for more than a month after she apparently completed it might
represent an unusual circumstance, it was not this delay that
caused Marino to miss the deadline for the submission of
evidence.

There is also no record that Marino made any attempt

to inform the ALJ, at the hearing or in separate communication,
that she was still seeking to gather additional written
evidence.

This was not the kind of discrete and promptly

rectified error at issue in Howe v. Colvin, where claimant’s
counsel inadvertently failed to submit a medical record because
it was accidentally attached to another file and then submitted
the document one day after the evidentiary deadline.
at 6-7.

147 F.3d

Marino has not shown that the April to July delay was

equivalent to “an attorney’s clerical error” and thus excusable
even under Howe’s more permissive view of the standard.
at 8.

See id.

Accordingly, the ALJ did not err in finding that Marino’s

submission did not meet the requirements of 20 C.F.R.
§ 405.331(c).
B.

Dr. Fairley’s opinion

Marino next alleges that the ALJ erred by adopting the
January 2015 opinion of Dr. Hugh Fairley, a non-examining state
agency medical expert, despite subsequent material changes to
the medical evidence of record.

10

“It can indeed be reversible error for an administrative
law judge to rely on an RFC opinion of a non-examining
consultant when the consultant has not examined the full medical
record.”

Meldrem v. Colvin, 2017 DNH 096, 5 (internal

quotations and citations omitted).

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.”
DNH 33, 23–24.

Coppola v. Colvin, 2014

“An ALJ may yet 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
reviewer's assessment.’”

Meldrem, 2017 DNH 096, 6 (quoting

Ferland v. Astrue, 2011 DNH 169 at 11 (McAuliffe, J.)).
The ALJ bears the burden of showing, subject to the
substantial evidence standard, that either of these conditions
are present, and must make that determination “adequately
clear.”

Giandomenico v. U.S. Soc. Sec. Admin., Acting Comm’r,

2017 DNH 237, 11 (Barbadoro, J.).

In doing so, an ALJ may not

rely on “raw medical data . . . until its functional
significance is assessed by a medical expert.”

Id. at 12;

Manso-Pizzaro v. Sec’y of Health & Human Servs., 76 F.3d 15, 17
(1st Cir. 1996) (“[A]n ALJ, as a lay person, is not qualified to

11

interpret raw data in a medical record.”)

But he may make

“common-sense judgments about functional capacity based on
medical findings,” within “the bounds of a lay-person’s
competence.”

Gordils v. Sec’y of Health & Human Servs., 921

F.2d 327, 329 (1st Cir. 1990).

Such judgements are possible

“where the evidence shows a ‘relatively mild physical impairment
posing, to the layperson’s eye, no significant restrictions.’”
Giandomenico, 2017 DNH 237, 12 (quoting Roberts v. Barnhart, 67
Fed. Appx. 621, 623 (1st Cir. 2003)).
The ALJ adopted Dr. Fairley’s opinion as to Marino’s RFC.
He acknowledged that “additional treatment notes were admitted
to the record after” Dr. Fairley’s opinion was rendered, but
found that “these additional treatment notes do not document any
meaningful change or deterioration in the claimant’s
presentation,” and the opinion “remained consistent with the
evidence of record in its entirety.”16

The ALJ also specifically

addressed Marino’s procedures and diagnoses, and noted the
absence of provider opinion of less than sedentary work
capacity.17

Having done so, the ALJ determined that the record

did not reflect meaningful deterioration in Marino’s condition
after Dr. Fairley rendered his opinion. The decisive question is

16

Admin. R. at 31.

17

Id. at 28-31.

12

whether substantial evidence supports this determination,
without reliance on improper interpretation of raw medical data.
Marino identifies numerous subsequent examinations,
procedures, and diagnoses that allegedly render Dr. Fairley’s
opinion obsolete.

First, she points to her total right knee

replacement surgery.

The ALJ acknowledged this surgery and

reviewed treatment notes from Marino’s recovery process.

These

include that by six months after the surgery, Marino reported
that she was “doing exceptionally well” and was considering
repeating the procedure on her other knee.18

The ALJ concluded

that “[w]hile the claimant can be expected to be unable to
perform sedentary work during recovery from [total knee
replacement], such period of recovery has not lasted the
requisite 12 month duration.”19

The ALJ also found that Marino’s

complaints of possibly related pain in her left knee “did not
diminish observations of normal gait through June 2016.”20
Based on complaints of worsening cognitive functions,
Marino underwent an MRI of her brain in July of 2015.21

18

Id. at 29, 857.

19

Id. at 31.

20

Marino

Id. at 30.

The ALJ wrongly stated that Marino had a further brain MRI in
October 2015. Id. at 29. The cited October treatment notes only
reflect Dr. Hamilton noting the July MRI in her records from an
21

13

next argues that this procedure identified “moderate global
atrophy and multifocal old post ischemic encephalomalacia.”22
But the ALJ considered this result and noted that it also found
“no acute intracranial findings to account for the patient’s
presenting symptoms.”23
After complaining of thumb pain, Marino underwent x-rays of
both thumbs in September 2015 and was diagnosed with “bilateral
first CMC osteoarthritis, mild.”24

The accompanying notes

indicate that activity modification and splints were discussed
as treatment options, but do not describe the extent or duration
of any limitations.25

The ALJ’s explicit discussion of Marino’s

thumb pain is limited to a statement that “Dr. Hamilton did not
note an abnormal gait on September 30, 2015.

The focus [of] her

examination was on the claimant’s reported bilateral thumb

October examination. Id. at 1028. But the ALJ does cite the
results of the July MRI. Id. at 1039.
22

Id. at 1039.

Id. at 29, 1039. The October treatment notes cited by the ALJ
and other evidence in the record further suggest that the MRI
showed no significant changes from 2010 results. Id. at 1028,
1039, 1199.
23

24

Id. at 1033.

25

Id.

14

pain.”26

While the ALJ’s treatment of this diagnosis is minimal,

there is little evidence of resulting limitations in the record,
and Marino did not emphasize such limitations before the ALJ.
Marino also underwent imagings of her lumbar spine.

A set

of x-rays in July 2015 found “mild discogenic disease . . . and
facet arthrosis.”27

An MRI in April 2016 was performed at the

request of specialist Dr. Paul Wang, who found “mild discogenic
disease” and “mild endplate changes,” but “no significant
spondylosis.”28

The ALJ discussed the results of both tests,

noting also Dr. Wang’s observation of normal gait, station,
strength, lower extremity tone and bulk, and leg raise testing.
He also highlighted that Dr. Wang found “that the April 2016 MRI
did ‘not find a lesion amendable to surgery’ and recommended
conservative management.”29

The ALJ concluded that “[t]he

claimant’s lumbar spine condition is mild.

The residual

Id. at 29. While both the ALJ and Marino attribute this
examination to Dr. Hamilton, the record indicates it was Dr.
John Idoine. Id. at 1034, 1036.
26

Id. at 1048. The Joint Statement of Material Facts refers to
this test as an MRI, but the record better supports the ALJ’s
characterization of it as x-rays. Id. at 30.
27

28

Id. at 1088.

29

Id. at 30.

15

functional capacity set forth above includes consideration of
the claimant’s mild lumbar spine degenerative dis[c] disease.”30
In May 2016, Marino underwent a cervical MRI ordered by
another specialist, Dr. Copalan Umashankar.

The ALJ

acknowledged Dr. Umashankar’s treatment notes indicating that
Marino presented with mild foot drop and slightly reduced arm
swing, but noted that these observations were not made elsewhere
in the record.

On the MRI itself, the ALJ explained that:

The results included chronic proliferation changes
resulting in multilevel foraminal narrowing, but with
“no cord compression, cord signal abnormality or
pathologic enhancement identified to correlate with
the [claimant’s] myelopathic symptoms.” There [are] no
prior complaints of neck pain within this record. The
undersigned finds this new condition to be not severe.
Admin. R. at 30.
In addition to these procedures, Marino notes that she
underwent a transesophageal echocardiogram and a cardiac stress
test in 2016.

But she does not provide any argument that the

results of these exams, in combination with surrounding
treatment notes, suggest a material change in her condition.
She also points to various examinations with Dr. Hamilton in
2015 and 2016, but the related treatment notes do not clearly

30

Id.

16

show reductions in Marino’s capacity, and the ALJ could
permissibly interpret them in light of the broader record.31
Finally, Marino argues that Dr. Fairley’s opinion is
deficient because it did not have the benefit of Dr. Hamilton’s
March 2016 letter and July 2016 report.

The ALJ separately

discounted of both of those opinions and, as discussed supra
Part III-A, permissibly excluded the July 2016 report.32
While Marino underwent numerous procedures after Dr.
Fairley’s January 2015 review, substantial evidence supports the
ALJ’s conclusion that the subsequent record does not show a
functionally meaningful deterioration in her presentation.

And

the ALJ did not improperly rely on raw medical data in reaching
that conclusion, but instead focused on treatment notes
interpreting raw diagnostic results and symptom comparisons
across the record.

On substantial evidence review, there was

adequate support in the record for the ALJ to find that Marino
was not suffering material lasting effects from her total knee
replacement, that the MRIs of her brain and spine did not show
more than mild conditions, and that the diagnosis of mild first
CMC osteoarthritis did not evidence a material change in
limitations.

The ALJ’s adoption of Dr. Fairley’s opinion

31

Admin. R. at 1018-23, 1028-32, 1099-1103.

32

Admin. R. at 19-20, 30-31.

17

despite the subsequent record was adequately explained and does
not require remand.
C.

Consideration of impairments in RFC

Finally, Marino argues that the ALJ erred in failing to
consider her bilateral hand osteoarthritis and cervical spine
impairments in formulating the RFC.

She notes that an ALJ must

“consider all of [a claimant’s] medically determinable
impairments of which [he is] aware, including . . . medically
determinable impairments that are not ‘severe.’”
§§ 404.1545(a)(2).

20 C.F.R.

The ALJ cited this regulation in his

decision and stated that he “reviewed and considered all
‘severe’ and ‘non-severe’ impairments in formulating the
following residual functional capacity below.”33
Marino asserts that the ALJ erred by ignoring the fact that
she was diagnosed with “bilateral first CMC osteoarthritis,
mild.”34

As discussed above, the ALJ’s explicit discussion of

this condition was limited to a characterization of the visit
where it was diagnosed.

But this does show that the ALJ was

aware of the thumb pain complaint.

33

Admin. R. at 26.

34

Id. at 1033.

18

Elsewhere, the ALJ made

“note that other diagnoses appear in the record” that Marino had
not shown to be severe.35
Although the ALJ was obligated to consider even non-severe
impairments in determining the RFC, the record shows that the
ALJ was aware of Marino’s thumb pain and did not ignore the
diagnosis.

An ALJ is “given considerable latitude in how he or

she chooses” to consider non-severe impairments.

Chabot v. U.S.

Soc. Sec. Admin., Acting Comm’r, 2014 DNH 067, at 25 (Barbadoro,
J.).

And he “is not obliged to expressly address each of a

claimant’s diagnoses, but rather must consider the limiting
effects of all the claimant’s impairments.”

McDonough v. U.S.

Soc. Sec. Admin., Acting Comm’r, 2014 DNH 142 at 30 (Barbadoro,
J.) (internal quotation marks and citations omitted).

The

treatment plan notes accompanying the diagnosis suggest the need
for activity modifications, but do not clearly outline limiting
effects.36

The ALJ explicitly considered Dr. Hamilton’s March

2016 letter, which discussed Marino’s arthritis.37

Marino has

not shown that the ALJ ignored evidence of limiting effects.
Marino also argues that the ALJ ignored evidence of her
cervical spine impairment, pointing to the results of the

35

Id. at 22.

36

Admin. R. at 1033-34.

37

Id. at 30-31, 917.

19

cervical MRI.

The ALJ directly discussed this procedure and its

results, and determined in light of the record that Marino’s
neck pain was non-severe.38

The ALJ did not ignore this

evidence.
Conclusion
For these reasons, the Acting Commissioner’s motion to
affirm39 is GRANTED and Marino’s motion to reverse and remand the
Acting Commissioner’s decision40 is DENIED.

The Clerk of Court

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

Joseph N. Laplante
United States District Judge
Dated: September 19 2018
cc:

T. David Plourde, Esq.
D. Lance Tillinghast, Esq.

38

Id. at 30.

39

Document no. 13.

40

Document no. 11.

20