United States District Court, D. Rhode Island
DEREK L. DIGGETT, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY,  Defendant.
J. McConnell, Jr. United States District Judge.
L. Diggett is 33 years old. He had previously worked as
crewmember at McDonalds. Mr. Diggett suffers from obesity,
COPD, anxiety, depression, and learning disorder. The
Administrative Law Judge ("ALT') found these to be
severe impairments. At the time of his Social Security
Disability hearing, Mr. Diggett weighed 434 pounds. In urging
this Court to reverse the ALJ's decision denying
disability, Mr. Diggett takes fault with the ALJ's
decision to provide substantial weight to the residual
functional capacity (RFC) determinations of the reviewing
state physicians and providing minimal weight to Mr.
Diggett's treating physician.
social security appeal, this Court reviews "questions of
law de novo, but defer[s] to the Commissioner's findings
of fact, as long as they are supported by substantial
evidence." Ward v. Commissioner of Social
Security, 211 F.3d 652, 655 (1st Cir. 2000). The
resolution of conflicts in the record is left to the ALJ;
therefore, this Court must affirm the ALJ's decision,
"even if the record arguably could justify a different
conclusion." Evangelista v. Sec'y of Health
& Human Servs., 826 F.2d 136, 144 (1st Cir. 1987).
Diggett assigns error with the ALJ's decision to provide
substantial weight to the RFC determinations of the reviewing
state physicians. In doing so, the ALJ provided minimal
weight to Mr. Diggett's treating physician.
examining consultant's opinion, taken together with a
non-examining physician's opinion, may constitute
substantial evidence. See Gordils v. Sec'y of Health
& Human Servs., 921 F.2d 327, 329 (1st Cir. 1990)
(per curiam). Here, both are present and support the
ALJ's RFC determination. A wrinkle exists, however, in
this rule application: Mr. Diggett gained thirty-four pounds
and received approval for gastric-bypass surgery after the
physicians' opinions. A non-examining physician's
opinion may not equate to substantial evidence if the
physician reviewed a "significantly incomplete
record" and when "it was not well justified."
Alcantara v. Astrue, 257 F.App'x 333, 334 (1st
Cir. 2007) (per curiam). Indeed, additional medical
examinations that occur after the opinion of a non-examining
physician is "one factor counseling against assigning
controlling weight" to that physician's opinion.
Gordils, 921 F.2d at 330. The weight gain and
approval for weight-loss surgery represent, Mr. Diggett
claims, changes in his condition such that the record
reviewed by the state physicians in now incomplete.
fact that some time has passed since the non-examining
physician formed his opinion, and that some update in Mr.
Diggett's condition occurred, cannot, standing alone,
render the opinion useless, as this would "defy logic
and be a formula for paralysis." Sanford v.
Astrue, No. CA 07-183 M, 2009 WL 866845, at *8 (D.R.I.
Mar. 30, 2009) (quoting Kendrick v. ShaJaJa, 998
F.2d 455, 456-57 (7th Cir. 1993)). Rather, the change must be
material. Bianco v. Astrue, No. CA 09-021A, 2010 WL
2382855, at *10 (D.R.I. April 20, 2010); cf.
Alcantara, 257 F.App'x at 334 (noting that the ALJ
found no material change in the record). So when the
post-review medical evidence, such as post-surgery progress
notes, does not indicate worsening conditions, then original
RFC determination retains validity. Nazario v. Health
& Human Servs., Comr of Soc. Sec, 129 F.3d 1252, at
*1 (1st Cir. 1997) (per curiam) (unpublished table decision).
Furthermore, the decision to not utilize a medical expert
does create independent grounds for reversal. Rodriguez
Pagan v. Sec'y of Health & Human Servs., 819
F.2d 1, 5 (1st Cir. 1987). Instead, the inquiry remains
"whether the ALJ's RFC finding is supported by
substantial evidence in the absence of medical expert
testimony." Jones v. Astrue, CA No. 09-206S,
2010 WL 2326261, at *10 (D.R.I. Feb. 19, 2010).
in the present case, unlike the one in Alcantara,
recognized the change in Mr. Diggett's condition and made
a finding that none of the changes "establish[ ] that
[Mr. Diggett's] condition ha[d] worsened." This
determination accords with the ALJ's duty to "piece
together the relevant medical facts." Jones v.
Astrue, CA. No. 09-206S, 2010 WL 2326263, at *3 (D.R.I.
June 2, 2010) (quoting Evangelista, 826 F.2d at
144). Mr. Diggett's assignment of error, therefore, lies
with the ALJ's factual determination, so this Court must
apply employ deferential review.
Diggett has identified his thirty-four-pound weight gain and
approval for weight-loss surgery, following the non-examining
physicians' opinions, as evidence of a material change in
his condition. Weight-loss surgery is characterized as a
"last resort with individuals for whom other forms of
treatment have failed, " but it is not necessarily
associated with a worsening of one's condition. SSR
02-IP. As for Mr. Diggett's weight gain, that
self-evidently established a worsening of his obesity,
because he weighs more and is thus more obese. A close to
ten-percent weight gain for a man already at the highest
obesity level can certainly create an inference, or at least
a question, of associate functional loss. Cf. Riley v.
Astrue, No. CA 10-445S, 2011WL 5041216, at*ll (D.R.I.
Sept. 30, 2011) (discussing the impact of a claimant's
100-pound weight gain). The significant weight gain amounts
to a serious deterioration in Mr. Diggett's condition.
See, e.g., Alcantara, 257 F.App'x at 334
(describing records of a claimant's condition
deteriorating upon her parent's death as material). The
ALJ stood in no position, as a non-expert, to understand the
effects of the weight gain on Mr. Diggett's functional
abilities. Cf. Roberts v. Barnhart, 67 F.App'x
621, 623 (1st Cir. 2003) ("[A]n expert's RFC
evaluation is required where 'the record ... is
sufficiently ramified that understanding it requires more
than a layperson's effort at a commonsense functional
capacity assessment.'" (quoting Manso-Pizarro v.
Sec'y of Health & Human Servs., 76 F.3d 15, 19
(1st Cir. 1996))).
the doctor's reports that followed the weight gain did
not displace the materiality of Mr. Diggett's weight
gain. In Nazario, a claimant who suffered kidney
failure underwent surgery and had a biopsy report generated
after the non-examining physician formed his opinion. 129
F.3d 1252, at *1. The First Circuit reasoned that, because
the pre-operation and post-operation diagnoses and progress
notes stayed the same, the non-examining physician's RFC
determination "retained validity." Id.
Unlike in Nazario, the doctor's reports here did
not include an evaluation of Mr. Diggett's condition
following his changed circumstance. Instead, the doctor's
visits were for unrelated reasons, such as asthma, and were
not very elucidating as to Mr. Diggett's functional
ability, aside from some boilerplate notes under the physical
examination section. Certainly, a report from an optometrist
following a visit regarding astigmatism would not displace
the significance of Mr. Diggett's weight gain, and
neither do these reports.
while the ALJ in Nazahohad medical records that
demonstrated no change in the claimant's condition, the
ALJ in the present case had records indicating a change in
condition-namely, significant weight gain. And the
doctor's visits that followed did nothing to displace the
significance of the weight gain. In short, the ALJ was faced
with additional records that indicated a substantial weight
gain, which on its face is material, with no medical evidence
to refute the significance of the weight gain. For this
reason, the non-examining physicians' opinions were based
on an incomplete record and could not, therefore, equate to
the Court GRANTS Plaintiffs Motion to Reverse and Remand (ECF
No. 10), DENIES Defendant's Motion to Affirm (ECF No. 17)
and remands this matter to the Commission for further
proceedings consistent with this opinion.