UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
John A. Ledoux, Jr.
v. Civil No. 17-cv-707-JD Opinion No. 2018 DNH 120 Acting Commissioner, Social Security Administration
O R D E R
John A. Ledoux, Jr. seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the Acting Commissioner’s most recent
decision, denying his application for disability insurance
benefits.1 Ledoux contends that the Administrative Law Judge
(“ALJ”) erred in weighing the medical opinion evidence and in
reviewing other record evidence, erred in assessing his residual
functional capacity, and lacked substantial evidence to support
his decision because of an incomplete hypothetical posed to the
vocational expert. Ledoux also asks the court to remand for an
award of benefits only. The Acting Commissioner moves to
affirm, and, in the alternative, opposes the request to remand
for an award of benefits.
1 As explained in more detail below, this is the fourth time Ledoux has sought judicial review following unfavorable decisions. Following each prior review, the case was remanded for further proceedings. Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.” Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ’s
factual findings as long as they are supported by substantial
evidence. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34
(1st Cir. 2016). Substantial evidence is “more than a scintilla
of evidence” but less than a preponderance of the evidence.
Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (internal
quotation marks omitted). When the record could support
differing conclusions, the court must 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) (internal quotation marks omitted); accord
Purdy, 887 F.3d at 13.
Background
Ledoux applied for disability insurance benefits and
supplemental security income in April of 2007. After the
applications were denied and an ALJ found that Ledoux was not
2 disabled, he sought judicial review. In January of 2011, the
Commissioner and Ledoux submitted a joint assented-to motion to
remand the case for further proceedings.
The same ALJ held a second video hearing and issued a
decision on March 1, 2012, that Ledoux was not disabled. Ledoux
again sought judicial review. Because the administrative files
were not available, the decision was vacated and the case was
remanded.
On remand, a different ALJ held another video hearing, and
issued a decision on April 24, 2015, finding that Ledoux was not
disabled through his last insured date of March 31, 2011, but
had become disabled after October 24, 2012, based on the
Medical-Vocational Guidelines because his age category changed
to advanced age. He was awarded supplemental security income
beginning on February 1, 2013. Ledoux sought judicial review of
the unfavorable part of that decision, which was reversed and
remanded in July of 2016.
In response, the Appeals Council directed the ALJ to
consider whether Ledoux had transferable skills from his past
work and to reevaluate the opinion evidence from the
Occupational Therapist Lynn Chauvette and from the state agency
consultant, Dr. Louis Rosenthall. The ALJ held a fourth video
hearing with testimony from Ledoux and a vocational expert. In
September of 2017, the ALJ again found that Ledoux was not
3 disabled from his alleged onset date of June 6, 2017, through
October 23, 2012, when his age category changed. Ledoux again
sought judicial review.
Most of the medical evidence was summarized in the court’s
prior decision, Ledoux v. Acting Commissioner, 13-cv-530-JD
(D.N.H. July 6, 2016) (doc. no. 17), and will not be repeated
here. In summary, Ledoux had back pain in 2006 that led to
surgery with L3-L5 disc fusion in July of 2007. After surgery,
Ledoux’s back pain and associated limitations improved. He had
a heart attack in October of 2008, and underwent a surgical
procedure to place a stent in his coronary artery.
Physical Therapist Ernest Roy did a functional capacity
evaluation of Ledoux in August of 2007, right after his surgery.
Roy could not do several tests because the surgery was so
recent. Roy found that Ledoux could do light work on a full-
time basis but was severely restricted in his mobility for
stooping, bending, and crouching. State agency consultant Dr.
Akbar N. Sadri reviewed Ledoux’s records in March of 2008 and
concluded that Ledoux could do light work on a full-time basis
but was limited to occasionally doing postural activities.
Ledoux fell in January of 2009 and continued to report
increased back pain after the fall. Testing revealed new
degenerative disc disease issues, and his subsequent medical
treatment notes document pain.
4 In September of 2009, Ledoux saw Dr. Umashankar, a
neurologist, for an evaluation of his lower back pain. Ledoux’s
physical examination showed normal results except for some
diminished reflexes in his arm and sensory deficits in his
knees. Dr. Umashankar wrote in his treatment notes that he
assessed Ledoux with failed low back syndrome and that Ledoux
could have mild peripheral neuropathy. He noted that Ledoux
could not lift more than twenty pounds and could not bend
forward or sideways. Dr. Umashankar also wrote that Ledoux
would not be able to return to his former work as a carpenter.
Ledoux’s primary care physician, Dr. Hazard, referred him
to occupational therapist Lynn Chauvette for a functional
capacity evaluation, which was done in January of 2010.
Chauvette found that Ledoux could work at a sedentary exertional
level but could not maintain even part-time work because he
would need to change position so frequently due to pain. She
also found that Ledoux could never do postural activities such
as balancing, bending, stooping, crawling, or kneeling and that
he was limited to occasionally doing activities that require
dexterity such as fingering, grasping, pinching and reaching
forward. In April of 2010, Chauvette provided a letter that
clarified Ledoux could not work at the sedentary level because
of pain, that he would need medical supervision if he returned
5 to work, and that a treating source had cleared Ledoux to lift
more than was included at the sedentary capacity.
The medical records through 2010 continue to document back
pain. In August of 2010, Dr. Hazard ordered an MRI of Ledoux’s
neck because of pain in his neck and numbness in his left arm.
The MRI showed mild foraminal narrowing at C3-4 and C4-5; disc
extrusion, canal narrowing, and moderate to severe foraminal
narrowing at C5-6; and posterior disc-osteophyte complex with
posterior bony ridge, moderate stenosis, and moderate foraminal
narrowing at C6-7. On September 2, Dr. Hazard found that the
cervical disc pathology shown on the MRI was the reason for
Ledoux’s neck and arm symptoms. Dr. Hazard also reviewed
Occupational Therapist Chauvette’s functional capacity
assessment and wrote that her report “seems credible.”
Dr. Louis Rosenthall reviewed the record in November of
2010 and found that Ledoux could do sedentary work with
occasional postural activities. Treatment notes after his last
insured date in March of 2011 show continued back pain and
radiating pain.
In November of 2012, state agency consultant Dr. Burton
Nault reviewed the medical records from August of 2012 through
October of 2013 for a supplemental security income application
that Ledoux had filed. Dr. Nault found that Ledoux had the
ability to stand and or walk for three hours and sit for about
6 six hours, to lift and carry twenty pounds occasionally and ten
pounds frequently, and to do postural activities occasionally.
The ALJ issued a decision on September 22, 2017, and again
concluded that Ledoux was not disabled between April of 2007 and
his date last insured, March 31, 2011. The ALJ found that
Ledoux had severe impairments due to degenerative disc disease
of the lumbar and cervical spine and coronary artery disease.
He assessed a residual functional capacity to do sedentary work
with the ability to alternate between sitting and standing at
will, occasionally do postural activities, and a need to avoid
climbing and workplace hazards. Based on the vocational
expert’s testimony, the ALJ found that Ledoux could not return
to his former work but that other work existed that he could do.
Discussion
Ledoux contends that the Acting Commissioner’s decision
must be reversed because it is the result of the following
errors:
(1) the ALJ erred in failing to adopt Occupational Therapist Chauvette’s opinion that he was disabled by January of 2010, (2) the ALJ again improperly relied on opinions of state agency consultants, (3) the treating physician opinions do not support the ALJ’s functional capacity assessment, (4) the medical record supports a finding that Ledoux’s symptoms worsened after 2009, (5) the ALJ incorrectly assessed Ledoux’s postural limitations,
7 (6) the ALJ failed to consider his headaches, (7) the record does not support a finding that Ledoux could work full time, and (8) the hypothetical posed to the vocational expert was incomplete.
Ledoux asks that the court to award benefits rather than
remanding the case for further administrative proceedings. The
Acting Commissioner moves to affirm, and, alternatively, in the
event the decision were reversed, moves to remand for further
proceedings but not an award of benefits.
In this case, as in most cases in which claimants seek
social security benefits, “[t]he key question before the ALJ was
whether [the claimant] was disabled.” Coskery v. Berryhill, ---
F.3d ---, 2018 WL 2474171, at *1 (1st Cir. June 4, 2018). To
determine whether a claimant is disabled, the ALJ engages in a
five-step inquiry. Id. (quoting 20 C.F.R. §§ 404.1520(a)(4)(i)-
(v)). The claimant bears the burden through the first four
steps to show that he is disabled, while the Acting Commissioner
bears the burden at the fifth step to provide evidence of
specific jobs that the claimant can perform. Purdy, 887 F.3d at
9 -10. For purposes of the fourth and fifth steps of the
inquiry, the ALJ must assess the claimant’s residual functional
capacity to work. §§ 404.1520(a)(4)(iv) & (v).
8 A. Residual Functional Capacity
All eight of Ledoux’s claims for review challenge the ALJ’s
residual functional capacity assessment in which the ALJ found
that Ledoux retained the capacity to do sedentary work with the
option of changing positions at will and certain other
restrictions. The residual functional capacity assessment is a
finding of the most a claimant can do in a work setting despite
his limitations caused by impairments. 20 C.F.R. §
404.1545(a)(1). The residual functional capacity measures the
maximum amount a claimant can do “in an ordinary work setting on
a regular and continuing basis . . . [meaning] 8 hours a day,
for 5 days a week, or an equivalent work schedule.” Assessing
Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996
WL 374184, at *2 (July 2, 1996). On appeal, the residual
functional capacity assessment is reviewed to determine whether
it is based on proper legal standards and is supported by
substantial evidence. Nguyen v. Chater, 172 F.3d 31, 35-36 (1st
Cir. 1999).
Ledoux contends that the ALJ’s residual functional capacity
assessment lacks substantial evidence in support because the ALJ
erred in considering the medical opinion evidence, incorrectly
evaluated his impairments and limitations, lacked evidence of an
ability to work full time, and, as a result, proposed an
incomplete hypothetical to the vocational expert. The Acting
9 Commissioner argues that the ALJ properly determined Ledoux’s
residual functional capacity and that substantial evidence
supports the determination that Ledoux was not disabled during
the relevant period.
B. Opinion Evidence
The first three errors assigned by Ledoux challenge the
ALJ’s review and assessment of the opinion evidence in the
record. Ledoux argues that Occupational Therapist Chauvette’s
opinion was the best supported in the record so that the ALJ
erred in not giving it controlling weight. Ledoux also argues
that the opinions from treating physicians do not support the
ALJ’s functional capacity assessment and that the ALJ erred in
relying on the opinions of state agency consultants. As a
result, Ledoux contends, the record lacks substantial evidence
to support the ALJ’s residual functional capacity finding.
An ALJ is required to consider opinions along with all
other relevant evidence in a claimant’s record. 20 C.F.R. §
404.1527(b).2 “Medical opinions are statements from acceptable
medical sources that reflect judgments about the nature and
2 As the Acting Commissioner notes, the Commission has amended the applicable rule and other guidance on medical opinion evidence, but the changes do not apply here. See 20 C.F.R. § 404.1520c; Purdy, 2018 WL 1601791, at *4, n.8 (discussing § 416.920c under Title XVI); see also Doc. no. 12 at *6, n.6. Ledoux does not argue otherwise.
10 severity of [the claimant’s] impairment(s), including [the
claimant’s] symptoms, diagnosis and prognosis, what [the
claimant] can still do despite impairment(s), and [the
claimant’s] physical or mental restrictions.” § 404.1527(a)(1).
Medical opinions are evaluated based on the nature of the
medical source’s relationship with the claimant, the consistency
of the opinion with the other record evidence, the medical
source’s specialty, and other factors that support or detract
from the opinion. § 404.1527(c). Acceptable medical sources
include licensed physicians and certain other licensed medical
providers, but occupational therapists are not acceptable
medical sources. 20 C.F.R. § 404.1513; Considering Opinions and
Other Evidence from Sources Who Are Not “Acceptable Medical
Sources” in Disability Claims, SSR 06-3p, 2006 WL 2329939
(rescission eff. Mar. 27, 2017)3; Regalado v. Colvin, 2016 WL
4775525, at *6 (D.N.H. Sept. 14, 2016).
The ALJ may rely on opinions of state agency consultant
physicians under the same analysis as that applied to opinions
of treating or examining medical sources. § 404.1527(e); Ormon
3 “The commissioner rescinded SSR 06-03p effective for claims filed on or after March 27, 2017. See Rescission of Social Security Rulings 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15263, 15263 (Mar. 27, 2017).” Jessica B. v. Berryhill Performing the Duties & Functions Not Reserved to the Comm'r of Soc. Sec., Defendant, No. 1:17-CV-00294-NT, 2018 WL 2552162, at *6 (D. Me. June 3, 2018).
11 v. Astrue, 497 Fed. Appx. 81, 84 (1st Cir. 2012); Smallidge v.
Colvin, 2014 WL 799537, at *5 (D.N.H. Feb. 28, 2014); see also
Consideration of Administrative Findings of Fact by State Agency
Medical and Psychological Consultants and Other Program
Physicians, SSR 96-6p, 1996 WL 374180 (July 2, 1996). The
opinions of state agency consultant physicians, however, must be
supported by the record to provide substantial evidence for an
ALJ’s findings. SSR 96-69, at *2. If the state agency
consultant reviewed only part of the record, the opinion cannot
provide substantial evidence to support the ALJ’s residual
functional capacity assessment if later evidence supports the
claimant’s limitations. See McGowen v. Colvin, 2016 WL 1029480,
at *6 (D.N.H. Mar. 15, 2016) (citing cases); see also Avery v.
Acting Comm’r, Social Security Admin., 2018 WL 2376507, at *4
(D.N.H. May 24, 2018).
1. Occupational Therapist Chauvette
Although an occupational therapist is not an acceptable
medical source and cannot provide a medical opinion to diagnose
an impairment, information, including an opinion, from an
occupational therapist may provide evidence “to show the
severity of the [claimant’s] impairment(s) and how it affects
the [claimant’s] ability to function.” SSR 06-3p, at *2 & *3;
see also Couitt v. Astrue, 2012 WL 1114295, at *5 (D.N.H. Apr.
12 3, 2012). Opinions from sources, who are not acceptable medical
sources, are evaluated using the same criteria that apply to
acceptable medical source opinions. Id. at *4-*5. An ALJ must
consider those opinions and explain the reasons for the weight
given to them so that the court, on review, can follow the ALJ’s
reasoning. SSR 06-3p, at *6.
Based on her examination, Chauvette determined that Ledoux
could do work at the sedentary exertional level with certain
limitations in his ability to do postural and manipulative
activities. She also found, however, that Ledoux could not
sustain work on even a part-time basis. Chauvette found that
Ledoux was limited to less than part-time work because of his
need to change positions due to pain.
The ALJ considered Chauvette’s opinion and stated that he
gave less than great weight to her finding of Ledoux’s
exertional capacity at the sedentary level and some weight to
her objective findings about his limitations. Nevertheless, the
ALJ ultimately assessed Ledoux at the sedentary work capacity.
The differences in their assessments are whether Ledoux was
capable of full-time work, whether he had manipulative
limitations, and whether he was able to occasionally do postural
activities.
13 a. Ability to Work
Ledoux correctly notes that the ALJ misstated Chauvette’s
opinion by ascribing the limitation to less than part-time work
to both pain and manipulative limitations. Chauvette did not
find that manipulative limitations would limit Ledoux to less
than part-time work. Instead, she found based on her
examination and observations that back pain would limit Ledoux
to less than part-time work.
The ALJ discounted Chauvette’s finding that Ledoux could
not sustain even part-time work as being beyond Chauvette’s
expertise. Opinions even from medical sources that a claimant
is unable to work are not entitled to any particular
significance because that issue is reserved to the Commissioner.
20 C.F.R. § 404.1527(d); Gillen v. Colvin, 2017 WL 775785, at *8
(D.N.H. Feb. 28, 2017) (opinion about inability to do full time
work not entitled to special significance); Bailey v. Berryhill,
2017 WL 6590546, at *9 (D. Me. Dec. 26, 2017) (opinions about
claimant’s ability to work less than full time not entitled to
special significance); Lemire v. Colvin, 2016 WL 3166836, at *10
(D.R.I. May 4, 2016) (treating physician’s opinion that claimant
was unable to engage in full-time employment was not entitled to
any significance); Greenlief v. Colvin, 2015 WL 4663593, at *10
(D.R.I. Aug. 6, 2015) (claimant acknowledging that treating
physician’s opinion that she could not work full time because of
14 pain was correctly discounted). Therefore, the ALJ supportably
decided that Chauvette’s opinion that Ledoux could not sustain
even part-time work was not binding.
Nevertheless, her opinion does provide evidence of the
severity of Ledoux’s pain. The ALJ’s reasons for discounting
that aspect of the opinion were that her opinion was based on
only one examination in contrast to Ledoux’s treating
physicians’ opinions and because neurological examinations
during the same time period were normal. The ALJ also asserts
that Chauvette’s opinion is inconsistent with Dr. Umashankar’s
note from September of 2009.
Dr. Umashankar, who the ALJ identified as Ledoux’s treating
physician, is a neurologist who did a neurological examination
in September of 2009 and included a brief functional capacity
assessment.4 Dr. Umashankar’s notes include some normal test
results and strength findings but also diminished sensation in
4 Two years earlier in August of 2007, Ledoux’s treating neurosurgeon, Dr. Yogish Kamath, provided a short opinion about Ledoux’s functional capacity. That was just a month after Ledoux’s spinal surgery and before Ledoux’s symptoms increased in early 2009. The ALJ interpreted Dr. Kamath’s statement to allow Ledoux to work at the light to sedentary exertional level with some postural limitations. The ALJ gave the opinion weight to the extent it did not limit Ledoux to less than part-time work but also noted that the opinion lacked a function-by- function analysis, which entitled it to less weight. Again, the opinion did not address an ability to do full time work, and Dr. Kamath lacked the benefit of subsequent medical evidence, including Occupational Therapist Chauvette’s evaluation.
15 the legs. He found that Ledoux had failed lower back syndrome,
was capable of lifting up to twenty pounds, and could not bend
forwards or sideways. Dr. Umashankar provided no opinion about
Ledoux’s ability to work. Over all, Dr. Umashankar’s note is
not inconsistent with Chauvette’s opinion.
The cited evidence from Dr. Hazard, Ledoux’s treating
physician, is dated October 6, 2009, and is from a consultation
appointment requested by Dr. Umashankar. Dr. Hazard found that
Ledoux’s flexion from the waist was very limited due to pain, at
less than 5%. Leg lifting while seated was not restricted, and
his “power screen” was done well. Dr. Hazard reviewed the
results of a previously done MRI that showed the three-level
fusion in his back and “a large meningocele in the posterior
aspect of his decompressed levels.” Admin. Rec. at 1062.
Dr. Hazard further wrote that Ledoux had a “long-standing
pattern of back and bilateral leg pain and numbness” and that
the pattern had been “complicated particularly over the last
year by a sense of mounting pressure in his lower back and he
does have this meningocele.” Id. He recommended a
neurosurgical review, “particularly regarding pros and cons of
correcting this meningocele.” Id. If surgery was not advised,
then Dr. Hazard thought Ledoux should have a functional
assessment followed by rehabilitation. Occupational Therapist
Chauvette did the functional assessment in January of 2010, on
16 referral from Dr. Hazard, and Dr. Hazard reviewed her report and
found it reasonable in September of 2010. Dr. Hazard’s notes
are not inconsistent with Chauvette’s opinion.
The ALJ also stated that in January of 2010, when Chauvette
did the functional testing, Ledoux reported being “relatively
active, playing with his children, driving, and running
errands.” He did not give a record citation for that evidence.
The ALJ stated that “one would not expect” that level of
activity from someone who could not work even part-time. The
ALJ did not provide a sufficient explanation based on daily
activities to allow review. See also Rucker v. Colvin, 2014 WL
1870731, at *7 (D. Me. May 8, 2014) (noting that daily
activities may be considered to assess the severity,
persistence, and effects of pain and other symptoms, daily
activities do not establish the ability to do full time work).
b. Manipulative and Postural Limitations
Chauvette found restrictions in Ledoux’s functional
capacity to do manipulative and postural activities, which the
ALJ did not credit. The ALJ did not specifically explain why he
did not give weight to the postural limitations that Chauvette
found. To the extent he was relying on Dr. Umashankar’s note in
September of 2009, he seems to have misinterpreted the note.
Dr. Umashankar wrote that Ledoux should not bend forward or
17 sideways, which supports Chauvette’s opinion. To the extent Dr.
Umashankar would have allowed weight up to twenty pounds, the
ALJ agreed with Chauvette that Ledoux was limited to ten pounds.
Dr. Hazard also found back pain and limited flexion.
With respect to manipulative limitations, the ALJ stated:
“There is no evidence in the record until approximately 2016 of
any upper extremity impairments, and certainly nothing to
reflect difficulty using his arms and hands in 2010, including
all of the other medical opinions in the record.” Admin. Rec.
at 3. Contrary to the ALJ’s view and as is discussed further
below, Dr. Hazard documented in his treatment notes in August of
2010 that Ledoux had been experiencing left arm pain and
numbness. Dr. Hazard ascribed that to a cervical spine
condition that was shown in an MRI done in August of 2010.
Further, as noted above, Dr. Hazard found Chauvette’s assessment
to be reasonable. Therefore, the record does include evidence
from 2010 that would support Chauvette’s assessment.
The ALJ did not adequately explain the weight he gave to
Chauvette’s functional capacity assessment. Nevetheless, the
ALJ’s functional capacity assessment might be affirmed if it is
supported by other substantial evidence in the record.
18 2. Dr. Sadri and Dr. Masewic
The ALJ again gave great weight to the opinions of state
agency consultants, Dr. Sadri and Dr. Masewic. The Acting
Commissioner contends that those opinions provide substantial
evidence to support the ALJ’s residual functional capacity
assessment and argues that the ALJ properly chose to follow
those opinions. Ledoux contends that because the court
previously found that neither opinion provided substantial
assessment, they cannot do so now.5
In the Acting Commissioner’s prior decision, the ALJ
mistakenly identified Dr. Sadri as Ledoux’s treating orthopedic
surgeon and gave the opinion great weight without mentioning the
subsequent medical evidence. In the current decision, the ALJ
corrected his mistake about Dr. Sadri’s status but did not
address the subsequent medical evidence. As a result, Dr.
Sadri’s opinion cannot serve as substantial evidence to support
5 Ledoux’s reliance on the court’s previous order might have been based on the rule of mandate and/or the law of the case doctrine. Sullivan v. Hudson, 490 U.S. 877, 885-86 (1989); Figueroa v. Berryhill, 2018 WL 2176386, at *2-*3 (C.D. Calif. May 10, 2018); Shered v. Berryhill, 2018 WL 1993393, at *3 (N.D. Ill. Apr. 27, 2018); Smith v. Berryhill, 2018 WL 1633822, at *2 (W.D. Wash. Apr. 5, 2018); Ruiz v. Berryhill, 2018 WL 1517077, at *5-*7 (N.D. Ind. Mar. 28, 2018); Porter v. Berryhill, 2018 WL 1183400, at *10 (W.D. Mo. Mar. 7, 2018); Simpson v. Colvin, 2 F. Supp. 81, 91 (D. Mass. 2014). Because Ledoux raises neither theory, however, the court will not conduct that analysis sua sponte.
19 the ALJ’s decision. See Giandomenico v. U.S. Soc. Sec. Admin.,
Acting Comm’r, 2017 WL 5484657, at *4 (D.N.H. Nov. 15, 2017).
In discussing Dr. Masewic’s opinion in the current
decision, the ALJ acknowledged that additional medical records
were generated after that opinion in July of 2007. The ALJ
stated, without explanation, that “later submitted records
continued to show similar limitations of the claimant, without
significant worsening until after the relevant time period.”
Admin. Rec. at 28. Given evidence that Ledoux’s back symptoms
worsened in January of 2009 and that he developed cervical spine
issues by August of 2010, that statement, standing alone, does
not provide a sufficient explanation to carry the burden of
clearly showing that the later records show no greater
limitations. Id.
Therefore, the Acting Commissioner has not shown that
either Dr. Sadri’s opinion or Dr. Masewic’s opinion provides
substantial evidence to support the ALJ’s residual functional
capacity assessment.
3. Dr. Louis Rosenthall
The ALJ also relied on the opinion of Dr. Rosenthall, a
state agency consultant, who reviewed Ledoux’s records in
November of 2010. Dr. Rosenthall found by checking boxes on a
form that Ledoux was capable of working at the sedentary
20 exertional level with the additional restriction of only
occasionally doing certain postural activities. The Acting
Commissioner contends that Dr. Rosenthall’s opinion provides
substantial evidence to support the ALJ’s residual functional
capacity assessment. Ledoux contends that the opinion is
precluded by the court’s prior order and is wrong.
a. Prior Order
In the prior order, 13-cv-530-JD (document no. 17), the
court found that Dr. Rosenthall’s opinion did not provide
substantial evidence to support the Acting Commissioner’s
decision because the ALJ had not relied on or even discussed the
opinion. Id. at 18 (citing High v. Astrue, 2011 WL 941572, at
*6 (D.N.H. Mar. 17, 2011)). Ledoux misunderstands the prior
order, arguing that the court previously held that Dr.
Rosenthall’s opinion could not provide substantial evidence
because of “mistakes and omissions in his evaluation of the
record.” Instead, the court held that the Acting Commissioner
had not shown that the general rule for administrative review
did not apply to preclude consideration of Dr. Rosenthall’s
opinion. The court also noted that Ledoux pointed to mistakes
and omissions in Dr. Rosenthall’s opinion.
Now, in the most recent decision, the ALJ did discuss and
rely on Dr. Rosenthall’s opinion, giving it great weight.
21 Therefore, the Acting Commissioner appropriately addresses the
opinion here.
b. Opinion
On the evaluation form, Dr. Rosenthall checked boxes to
indicate that Ledoux could lift up to ten pounds occasionally
and frequently, could stand and/or walk for six hours in an
eight hour day, could sit for six hours in an eight hour day,
and had no limits in his ability to push and pull. Dr.
Rosenthall also indicated that Ledoux could occasionally do all
postural activities and had no manipulative limitations. Ledoux
contends that Dr. Rosenthall’s opinion was not entitled to the
great weight given by the ALJ.
Dr. Rosenthall checked a box to show that there was no
medical source statement in the file regarding Ledoux’s physical
capacity. Instead, Dr. Rosenthall relied on the residual
functional capacity assessment done by state agency physician
Dr. Masewic in July of 2007 and the ALJ’s decision, denying
benefits, issued in April of 2010. Dr. Rosenthall also cited
medical records from Ledoux’s treating physician, Dr. Hazard,
and records from “f/n/u (Ratliffe 8/2/10).”6 Ledoux contends
6 Dr. Hazard’s treatment notes from August 10, 2010, cited by Dr. Rosenthall, document left arm pain and numbness, which caused Dr. Hazard to order an MRI done on August 13. The MRI showed narrowing and disc extrusion in the cervical spine. Dr. Rosenthall noted those results but nevertheless found no
22 that Dr. Rosenthall’s opinion does not provide substantial
assessment because it was based on an incomplete record and
because he improperly assessed Ledoux’s postural limitations.
The Acting Commissioner contends that the ALJ properly gave Dr.
Rosenthall’s opinion great weight “because of his expertise in
Social Security regulations” and because his opinion was
consistent with other evidence.
i. Masewic Opinion
As is discussed above, the court previously found that Dr.
Masewic’s July 2007 opinion could not provide substantial
evidence to support the ALJ’s decision because it was based on
Ledoux’s condition before he had back surgery. Dr. Masewic did
not review the years of medical records that were generated
after surgery and during the relevant period. For the same
reason, Dr. Rosenthall’s reliance on Dr. Masewic’s opinion
undermines his opinion because it is not based on a complete
record.
manipulative limitations and no limitation in Ledoux’s ability to push and pull hand controls, apparently based on some normal examination results recorded by Dr. Hazard. Dr. Rosenthall’s assessment does not appear to be supported by Dr. Hazard’s treatment notes, particularly Dr. Hazard’s notes from his meeting with Ledoux on September 2, 2010.
23 ii. Prior ALJ Decision
Dr. Rosenthall’s reliance on an ALJ’s prior decision, dated
April 6, 2010, further undermines his opinion because that
decision was vacated on January 24, 2011. On remand, the
Decision Review Board directed the ALJ to obtain additional
evidence and to conduct a hearing. As a result, the ALJ’s
decision does not provide evidence to support Dr. Rosenthall’s
evaluation.
iii. Other Supporting Explanation
The form completed by Dr. Rosenthall required him to check
boxes to indicate his assessment of functional capacity. The
form also asked for explanations in places, notably for the
postural assessments, which were left empty. The section for
discussing the claimant’s symptoms was also left blank.
Opinions expressed by checking boxes on a form without
accompanying explanations “are entitled to relatively little
weight.” Berrios Lopez v. Sec’y of Health & Human Servs., 951
F.2d 427, 431 (1st Cir. 1991); see also 20 C.F.R. §
404.1527(c)(3) (“[B]ecause nonexamining sources have no
examining or treating relationship with [the claimant], the
weight we will give their medical opinions will depend on the
degree to which they provide supporting explanations for their
medical opinions.”).
24 At the end of the form, in the section titled “additional
comments,” Dr. Rosenthall noted that Ledoux had had persistent
lower back pain since surgery in 2007. He cited Dr. Hazard’s
treatment notes from August 10, 2010, which document left arm
pain and numbness. Dr. Hazard ordered an MRI done on August 13,
which showed narrowing and disc extrusion in the cervical spine,
and Dr. Rosenthall acknowledged disc herniation and the need for
further treatment. He also noted a record pertaining to
Ledoux’s heart condition.
After the cited records, Dr. Rosenthall provided a summary
of Ledoux’s activities of daily living with the date of
September 29, 2010. He noted that Ledoux lives alone, has
custody of his three children every other week, does personal
care, prepares meals, shops, and can leave home alone. He
further noted that Ledoux does not need a device to walk. Dr.
Rosenthall provided no analysis of the import of Ledoux’s
activities or any conclusion drawn from them.
Despite the cited medical records, Dr. Rosenthall found no
manipulative limitations or restrictions in Ledoux’s ability to
push and pull hand controls, and allowed occasional postural
activities without a clear explanation for those results. Dr.
Rosenthall’s assessment does not appear to be supported by Dr.
Hazard’s record, particularly Dr. Hazard’s notes from his
meeting with Ledoux on September 2, 2010. In addition, Dr.
25 Rosenthall does not mention Occupational Therapist Chauvette’s
assessment done in January of 2010.
4. Dr. Nault
Dr. Nault reviewed records and provided an opinion about
Ledoux’s residual functional capacity for the period from August
of 2012 through October of 2013. That period is after Ledoux’s
date last insured and, therefore, is not relevant to the
disability issue here. The ALJ, nevertheless, relied on Dr.
Nault’s opinion based on the ALJ’s mistaken understanding that
Dr. Nault had reviewed Ledoux’s records beginning in 2007.
Dr. Nault did not review any records from the relevant
period and did not review Chauvette’s opinion. He was not asked
to and did not give an opinion about Ledoux’s functional
capacity during the relevant period. The ALJ states that Dr.
Nault’s opinion is consistent with “the medical opinions of
record throughout the entire relevant period,” but only
references Dr. Umashankar’s treatment notes from September 11,
2009. As a result, Dr. Nault’s opinion does not provide
substantial evidence to support the ALJ’s residual functional
C. Summary
The ALJ failed to explain adequately or accurately the
weight he gave to Chauvette’s residual functional capacity
26 assessment. The other opinions the ALJ relied on to assess
Ledoux’s residual functional capacity do not provide substantial
evidence with respect to Ledoux’s ability to do postural and
manipulative activities. There may also be a question about the
effect of Ledoux’s back pain on his ability to sustain full-time
work, even with an option to change position at will. Because
the ALJ’s assessment of the opinion evidence, as discussed,
requires remand, the court does not address the remaining issues
raised by Ledoux in support of his motion to reverse and remand.
D. Remand
The long history of this case through four judicial reviews
and remand proceedings raises serious concerns about the
efficacy of the administrative process. Despite that path, this
case does not present the rare circumstance when a district
court may remand a case for an award of benefits.
In the First Circuit, a direction to the Acting
Commissioner to award benefits is rarely appropriate.
“[O]rdinarily[,] the court can order the agency to provide the
relief it denied only in the unusual case in which the
underlying facts and law are such that the agency has no
discretion to act in any manner other than to award or to deny
benefits.” Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001).
That is, a court may order the agency to award benefits only
27 “where the proof of disability is overwhelming or where the
proof is very strong and there is no contrary evidence.” Id.
Otherwise, “when the agency has not considered all relevant
factors in taking action, or has provided insufficient
explanation for its action, the reviewing court ordinarily
should remand the case to the agency.” Id.
Here, it remains unclear whether Ledoux should have been
assessed with manipulative limitations and greater restriction
in his ability to do postural activities than the ALJ found. It
is also unclear whether the level of pain Chauvette found during
her examination would preclude work or could be accommodated by
the option to change positions at will. Ledoux’s attorney’s
questions to the vocational expert at the hearing demonstrate
that bending and dexterity could be required in the jobs that
were identified so that significant limitations in those areas
might preclude the identified jobs. As a result, based on the
current record, the Acting Commissioner has not carried her
burden at Step Five to show that there are jobs that Ledoux
could do.
The court recommends that on remand the case be assigned to
a different ALJ who can bring a fresh perspective to the
extensive administrative record and who might enlist the help of
an independent medical expert to review the record, with a
particular focus on Ledoux’s residual functional capacity in
28 light of the effects of pain and his ability to do postural and
manipulative activities during the relevant period.
Conclusion
For the foregoing reasons, the claimant’s motion to reverse
and remand (document no. 8) is granted to the extent the case is
remanded for further administrative proceedings, as discussed in
this order, and is otherwise denied. The Acting Commissioner’s
motion to affirm (document no. 12) is denied. This is a remand
under sentence four of § 405(g).
SO ORDERED.
__________________________ Joseph A. DiClerico, Jr. United States District Judge
June 12, 2018
cc: Ruth Dorothea Heintz, Esq. Robert J. Rabuck, Esq.