UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Tammy Levasseur
v. Civil No. 16-cv-431-JL Opinion No. 2018 DNH 061 Nancy A. Berryhill, Acting Commissioner,Social Security Administration
ORDER ON APPEAL
Tammy Levasseur appeals the Social Security
Administration’s (“SSA”) denial of her application for
disability benefits. An Administrative Law Judge (“ALJ”) found
that Levasseur suffered from the following severe impairments:
degenerative disc disease of the lumbar spine, osteoarthritis,
diabetes mellitus and obesity. The ALJ ultimately found that
Levasseur was not disabled within the meaning of the Social
Security Act because she could return to her past work as an
audit clerk. Alternatively, the ALJ found that Levasseur was
not disabled because she has sufficient residual functional
capacity (“RFC”) to work at jobs that exist in significant
numbers in the national economy. See 42 U.S.C. § 423(d)(2)(A).
The SSA Appeals Council subsequently denied Levasseur’s
request for review of the ALJ’s decision, rendering the ALJ’s decision final. Levasseur timely appealed to this court,
pursuant to 42 U.S.C. § 405(g). In due course, Levasseur moved
to reverse the SSA’s decision and the SSA’s Acting Commissioner
moved to affirm the denial of benefits.
Levasseur argues on appeal that the ALJ erred by
improperly assessing medical evidence and thus failing to
consider the limitations created by her pain, migraines,
depression and medication side effects. As a result, she
argues, the ALJ improperly determined her RFC, incorrectly found
that she could return to her former job, and erred in making an
alternative finding that Levasseur had transferable skills
sufficient to perform certain specific jobs.
After consideration of the parties’ arguments and the
administrative record, the court finds that the ALJ failed to
give sufficient weight to the opinions of Levasseur's treating
neurologist with respect to her migraines, their effect on her
ability to work, and the side effects of medications taken to
relieve migraine symptoms. The ALJ also failed to properly
consider a functional capacity report prepared by Levasseur’s
physical therapist. Moreover, this information was not reviewed
by the state agency consultant whose opinions the ALJ relied on
and the ALJ failed to adequately account for them. These
2 failures amount to reversible error. Levasseur’s motion is
therefore granted. The Assistant Commissioner’s motion is
denied and the matter is remanded for further consideration.
I. Standard of Review
The court’s review of SSA’s final decision “is limited 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). The
ALJ’s decision will be upheld if it is supported by substantial
evidence, that is, “such evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotations omitted). This is
less evidence than a preponderance but “more than a mere
scintilla.” Id.; Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966). The possibility of drawing two inconsistent conclusions
from the evidence does not preclude a finding of substantial
evidence. Consolo, 383 U.S. at 620. Accordingly, the ALJ’s
resolution of evidentiary conflicts must be upheld if supported
by substantial evidence, even if contrary results are
supportable. Rodriguez Pagan v. Sec’y of Health & Human Servs.,
819 F.2d 1, 2 (1st Cir. 1987). The court next turns to the
ALJ’s decision.
3 II. Background1
In analyzing Levasseur’s benefit application, the ALJ
invoked the required five-step process. See 20 C.F.R. §
416.920. First, he concluded that Levasseur had not engaged in
substantial work activity after the alleged onset of her
disability on July 2, 2013.2 Next, the ALJ determined that
Levasseur suffered from several severe impairments:
degenerative disc disease of the lumbar spine, osteoarthritis,
diabetes mellitus and obesity.3 See 20 C.F.R. § 416.1520(c). At
the third step, the ALJ concluded that Levasseur’s impairments –
– either individually or collectively -- did not meet or
“medically equal” one of the listed impairments in the Social
Security regulations.4 See 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526. The ALJ next found that Levasseur had the RFC to
perform sedentary work, with the modification that she can not
1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts is incorporated by reference. See L.R. 9.1(d). 2 Admin. Rec. at 11-12. 3 Id. at 12. 4 Id.
4 climb ladders, ropes or scaffolds, and is unable to use her
hands or feet for pushing or pulling. In addition, the ALJ
found that Levasseur is able to engage in all other postural
maneuvers on an occasional basis and should avoid all exposure
to unprotected heights, hazards and dangerous machinery.5 See 20
C.F.R. §§ 404.1567(a) and 416.967(a). The ALJ then concluded,
at step four of the process, that Levasseur could perform her
past relevant work as an audit clerk, despite the limitations in
her RFC.6 See 20 C.F.R. § 404.1565.
In the alternative, the ALJ proceeded to step five, at
which the SSA bears the burden of showing that a claimant can
perform other work that exists in the national economy. Freeman
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). Here, the ALJ,
considering Levasseur’s age, education and work experience,
using the Grid as a framework, concluded Levasseur could perform
jobs which exist in the regional and national economy, such as
telephone solicitor, appointment clerk, and food checker.7
Accordingly, the ALJ found Levasseur not disabled within the
meaning of the Social Security Act.
5 Id. at 13. 6 Id. at 17. 7 Id. at 18-19.
5 III. Analysis
Levasseur first argues that the ALJ improperly assessed her
pain, the side effects of pain medication and her migraines and
depression.8 She specifically alleges that the ALJ improperly
weighed the opinion of her treating neurologist, Dr. John
Pettinato, treating nurse Kim Keaton, and physical therapist
Rachel Heath. The court agrees with respect to Pettinato and
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UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Tammy Levasseur
v. Civil No. 16-cv-431-JL Opinion No. 2018 DNH 061 Nancy A. Berryhill, Acting Commissioner,Social Security Administration
ORDER ON APPEAL
Tammy Levasseur appeals the Social Security
Administration’s (“SSA”) denial of her application for
disability benefits. An Administrative Law Judge (“ALJ”) found
that Levasseur suffered from the following severe impairments:
degenerative disc disease of the lumbar spine, osteoarthritis,
diabetes mellitus and obesity. The ALJ ultimately found that
Levasseur was not disabled within the meaning of the Social
Security Act because she could return to her past work as an
audit clerk. Alternatively, the ALJ found that Levasseur was
not disabled because she has sufficient residual functional
capacity (“RFC”) to work at jobs that exist in significant
numbers in the national economy. See 42 U.S.C. § 423(d)(2)(A).
The SSA Appeals Council subsequently denied Levasseur’s
request for review of the ALJ’s decision, rendering the ALJ’s decision final. Levasseur timely appealed to this court,
pursuant to 42 U.S.C. § 405(g). In due course, Levasseur moved
to reverse the SSA’s decision and the SSA’s Acting Commissioner
moved to affirm the denial of benefits.
Levasseur argues on appeal that the ALJ erred by
improperly assessing medical evidence and thus failing to
consider the limitations created by her pain, migraines,
depression and medication side effects. As a result, she
argues, the ALJ improperly determined her RFC, incorrectly found
that she could return to her former job, and erred in making an
alternative finding that Levasseur had transferable skills
sufficient to perform certain specific jobs.
After consideration of the parties’ arguments and the
administrative record, the court finds that the ALJ failed to
give sufficient weight to the opinions of Levasseur's treating
neurologist with respect to her migraines, their effect on her
ability to work, and the side effects of medications taken to
relieve migraine symptoms. The ALJ also failed to properly
consider a functional capacity report prepared by Levasseur’s
physical therapist. Moreover, this information was not reviewed
by the state agency consultant whose opinions the ALJ relied on
and the ALJ failed to adequately account for them. These
2 failures amount to reversible error. Levasseur’s motion is
therefore granted. The Assistant Commissioner’s motion is
denied and the matter is remanded for further consideration.
I. Standard of Review
The court’s review of SSA’s final decision “is limited 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). The
ALJ’s decision will be upheld if it is supported by substantial
evidence, that is, “such evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotations omitted). This is
less evidence than a preponderance but “more than a mere
scintilla.” Id.; Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966). The possibility of drawing two inconsistent conclusions
from the evidence does not preclude a finding of substantial
evidence. Consolo, 383 U.S. at 620. Accordingly, the ALJ’s
resolution of evidentiary conflicts must be upheld if supported
by substantial evidence, even if contrary results are
supportable. Rodriguez Pagan v. Sec’y of Health & Human Servs.,
819 F.2d 1, 2 (1st Cir. 1987). The court next turns to the
ALJ’s decision.
3 II. Background1
In analyzing Levasseur’s benefit application, the ALJ
invoked the required five-step process. See 20 C.F.R. §
416.920. First, he concluded that Levasseur had not engaged in
substantial work activity after the alleged onset of her
disability on July 2, 2013.2 Next, the ALJ determined that
Levasseur suffered from several severe impairments:
degenerative disc disease of the lumbar spine, osteoarthritis,
diabetes mellitus and obesity.3 See 20 C.F.R. § 416.1520(c). At
the third step, the ALJ concluded that Levasseur’s impairments –
– either individually or collectively -- did not meet or
“medically equal” one of the listed impairments in the Social
Security regulations.4 See 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526. The ALJ next found that Levasseur had the RFC to
perform sedentary work, with the modification that she can not
1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts is incorporated by reference. See L.R. 9.1(d). 2 Admin. Rec. at 11-12. 3 Id. at 12. 4 Id.
4 climb ladders, ropes or scaffolds, and is unable to use her
hands or feet for pushing or pulling. In addition, the ALJ
found that Levasseur is able to engage in all other postural
maneuvers on an occasional basis and should avoid all exposure
to unprotected heights, hazards and dangerous machinery.5 See 20
C.F.R. §§ 404.1567(a) and 416.967(a). The ALJ then concluded,
at step four of the process, that Levasseur could perform her
past relevant work as an audit clerk, despite the limitations in
her RFC.6 See 20 C.F.R. § 404.1565.
In the alternative, the ALJ proceeded to step five, at
which the SSA bears the burden of showing that a claimant can
perform other work that exists in the national economy. Freeman
v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). Here, the ALJ,
considering Levasseur’s age, education and work experience,
using the Grid as a framework, concluded Levasseur could perform
jobs which exist in the regional and national economy, such as
telephone solicitor, appointment clerk, and food checker.7
Accordingly, the ALJ found Levasseur not disabled within the
meaning of the Social Security Act.
5 Id. at 13. 6 Id. at 17. 7 Id. at 18-19.
5 III. Analysis
Levasseur first argues that the ALJ improperly assessed her
pain, the side effects of pain medication and her migraines and
depression.8 She specifically alleges that the ALJ improperly
weighed the opinion of her treating neurologist, Dr. John
Pettinato, treating nurse Kim Keaton, and physical therapist
Rachel Heath. The court agrees with respect to Pettinato and
Keaton, and, as explained below, remands on that basis.
In April 2015, Dr. Pettinato completed a headache
questionnaire diagnosing migraine headaches without aura.9 He
opined that she suffered severe pain with phonophobia and
photophobia (the need to avoid light and sound).10 He further
indicated that Levasseur typically has 1-2 or fewer headaches
per week, lasting 24-48 hours.11 Dr. Pettinato concluded that
when claimant had such a headache she might miss an entire day
8 Pltff. Mot., doc. no. 8, at 3. 9 Admin. Rec. at 424-29. 10 Id. at 424. 11 Id. at 425.
6 of work, and that, as a result, she would probably be absent
from work three times per month.12
The ALJ significantly discounted the probative value of Dr.
Pettinato’s opinion, giving it “very little weight, as it is not
supported by any objective medical evidence.”13 The court finds
that in so doing, the ALJ erred.
When weighing medical opinions, the Commissioner will
“[g]enerally . . . give more weight to opinions from . . .
treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence . . . .”
20 C.F.R. § 404.1527(c)(2). If the Commissioner finds that “a
treating source’s opinion on the issue(s) of the nature and
severity of [a claimant’s] impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [a claimant’s] case record,” it is given controlling
weight. Id.
12 Id. at 428. 13 Id. at 18.
7 When an ALJ does not give controlling weight to the opinion
of a treating source, he must determine how much weight to give
it by applying the following factors: (1) the length of the
claimant’s treatment relationship and the frequency of
examination; (2) the nature and the extent of the treatment
relationship; (3) the supportability of the opinion; (4) the
consistency of the opinion with the record as a whole; (5) the
specialization of the source who gave the opinion; and (6) other
factors. See 20 C.F.R. §§ 404.1527(c)(2)-(6). Moreover, “[i]n
many cases, a treating source’s opinion will be entitled to the
greatest weight and should be adopted, even if it does not meet
the test for controlling weight.” Social Security Ruling 96–2p,
1996 WL 374188, at *4 (S.S.A. July 2, 1996). Ultimately, the
ALJ must “always give good reasons . . . for the weight [he]
give[s] [a claimant’s] treating source's opinion.” 20 C.F.R. §
404.1527(c)(2). Those reasons must be “supported by evidence in
the case record and must be sufficiently specific to make clear
to any subsequent reviewers the weight the adjudicator gave to
the treating source’s medical opinion and the reasons for that
weight.” SSR 96-2p, at 5.
Here, while the ALJ mentioned Dr. Pettinato’s opinion, he
did not indicate what that opinion was, or, more importantly,
8 how other medical evidence demonstrated inconsistency with his
opinion that Levasseur had 1-2 or fewer headaches per week which
could cause her to miss an entire day of work, or three days of
work per month. Put another way, the ALJ’s consideration of Dr.
Pettinato’s opinion lacked the specificity required by SSR 96-
2p. See Larocque v. Colvin, 2015 DNH 102, 11-12 (conclusory
statement that opinion was inconsistent with medical record did
not amount to rationale supported by substantial evidence).
Remand is required for the ALJ to properly evaluate Dr.
Pettinato’s opinion.
Relatedly, in formulating Levasseur’s RFC, the ALJ gave
“great evidentiary weight” to the opinion of non-examining state
agency medical consultant Jonathan Jaffe, M.D., despite the fact
that Jaffe did not review Dr. Pettinato’s opinion or records or
the functional capacity assessment of physical therapist Heath,
who limited Levasseur to working 2-4 hours per day, a limitation
that was never presented to the testifying vocational expert or
made a part of the final RFC. See Admin. Rec. at 66-73; 369-
375. An ALJ may rely on an RFC opinion of a non-examining
consultant when the consultant has not examined the full medical
record where the medical evidence postdating the reviewer’s
assessment does not establish any greater limitations, see
9 Strout v. Astrue, Civil No. 08–181–B–W, 2009 WL 214576, at *8-9
(D. Me. Jan. 28, 2009) (citing Rose v. Shalala, 34 F.3d 13, 18
(1st Cir.1994)), 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; see
Torres v. Comm’r of Social Security, Civil No. 04–2309, 2005 WL
2148321, at *1 (D.P.R. Sept. 6, 2005) (upholding ALJ’s reliance
on RFC assessment of non-examining reviewer where medical
records of treating providers were not “in stark disaccord” with
the RFC assessment). Here, the reports of both Dr. Pettinato
and physical therapist Heath contradict Dr. Jaffe’s RFC
determination. Moreover, the ALJ failed to even note the hourly
limitation in his opinion or why the limitation did not detract
from Dr. Jaffe’s assessment. Cf. Nelson v. Colvin, 2016 DNH 067
12-13 (upholding ALJ’s review of subsequent evidence where they
established no “greater limitations” than those assessed by the
state agency consultant).
10 IV. Conclusion
Claimant’s motion to reverse14 is GRANTED. The Assistant
Commissioner’s motion to affirm15 is DENIED.16 This matter is
remanded for further proceedings. The clerk shall enter
judgment accordingly and close the case.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: March 20, 2018
cc: Karen B. Fitzmaurice, Esq. Terry L. Ollila, AUSA
14 Doc. no. 8. 15 Doc. no. 12. 16The court does not reach claimant’s arguments regarding her back pain and depression because the ALJ’s error in weighing the opinion evidence described above, standing alone, necessitates remand.