United States District Court, D. New Hampshire
McCafferty United States. District Judge
Bourque seeks judicial review, pursuant to 42 U.S.C.
§§ 405(g) & 1383(c)(3), of the decision of the
Acting Commissioner of the Social Security Administration,
denying his application for disability insurance and
Supplemental Security Income benefits. Bourque moves to
reverse the Acting Commissioner's decision, and the
Acting Commissioner moves to affirm. For the reasons
discussed below, the decision of the Acting Commissioner is
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. 42 U.S.C. § 405(g); see also Fischer v.
Colvin, 831 F.3d 31, 34 (1st Cir. 2016).
"Substantial evidence is more than a scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Astralis Condo.
Ass'n v. Sec'y Dep't of Housing & Urban
Dev., 620 F.3d 62, 66 (1st Cir. 2010).
determining whether a claimant is disabled, the ALJ follows a
five-step sequential analysis. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The claimant "has the burden
of production and proof at the first four steps of the
process." Freeman v. Barnhart, 274 F.3d 606,
608 (1st Cir. 2001). The first three steps are (1)
determining whether the claimant is engaged in substantial
gainful activity; (2) determining whether he has a severe
impairment; and (3) determining whether the impairment meets
or equals a listed impairment. 20 C.F.R. § 404.1520 (a)
(4) (i)- (iii) .
fourth step of the sequential analysis, the ALJ assesses the
claimant's residual functional capacity
("RFC"), which is a determination of the most a
person can do in a work setting despite his limitations
caused by impairments, id. § 404.1545(a)(1),
and his past relevant work, id. §
404.1520(a)(4)(iv). If the claimant can perform his past
relevant work, the ALJ will find that the claimant is not
disabled. See id. § 404.1520(a)(4)(iv). If the
claimant cannot perform his past relevant work, the ALJ
proceeds to Step Five, in which the ALJ has the burden of
showing that jobs exist in the economy which the claimant can
do in light of the RFC assessment. See id. §
404.1520(a) (4) (v) .
November 7, 2014, Bourque filed an application for disability
insurance and Supplemental Security Income ("SSI")
benefits. He alleged impairments of back problems, lung
problems, and Post-Traumatic Stress Disorder. He initially
alleged an onset date of February 28, 2011, but he later
amended it to November 23, 2014. Bourque was forty-four years
old in November 2014. He has a limited education, having
failed to complete eighth grade, and his past relevant work
includes a boiler house mechanic, fuel house attendant, and
chronologically, the court summarizes the relevant evidence
in the record. On July 15, 2010, Bourque received an MRI, the
results of which showed degenerative disc disease.
mid-November 2014, Bourque allegedly injured his lower back
while lifting an appliance. A few days later, on November 25,
2014, Bourque visited an emergency room, complaining of lower
back pain that radiated down his left leg to above the knee.
On examination, Bourque's reflexes and strength were
normal, but he had a limited range of motion due to the back
pain. Bourque had left sciatic notch discomfort on palpation
and a positive leg raise test. Bourque received Toradol,
which dulled the pain.
December 12, 2014, Bourque again visited the emergency room,
complaining of back pain that radiated down his left leg. The
treating physician observed that Bourque walked with a
"little bit of antalgic gait," that he was in no
distress, and that he exhibited discomfort in his lumbosacral
junction on the left and tenderness on the left sacral notch.
Bourque exhibited normal strength, normal reflexes, and had a
negative straight leg raise test.
days later, Bourque returned to the emergency room,
complaining of lower back pain radiating down his left leg.
Bourque stated that he had not obtained any relief from the
pain medication he received at the previous visit. Bourque
exhibited tenderness in the lumbosacral region and in the
left SI joint, which had decreased range of motion. Bourque
stated that he had problems sitting because of the pain.
Bourque exhibited normal strength with no muscle wasting.
January 9, 2015, Bourque visited Amanda Dustin, APRN, his
primary care provider. Dustin observed that Bourque appeared
distressed, sat in his chair sideways and hunched over, and
readjusted his position continually. Bourque exhibited
reduced mobility in his back, flank tenderness, and he was
unable to flex, extend, bend, or rotate his trunk. Bourque
exhibited normal station and gait, and Dustin noted intact
motor and sensation. Dustin prescribed Bourque new
medications. But Bourque returned to Dustin a few days later,
stating that his back pain remained unchanged and that the
pain woke him up at night. Bourque noted that he was only
able to assist his brother-in-law build a gate for thirty
minutes because the activity aggravated his back pain.
Bourque stated that one of his medications, trazodone,
"made him shaky" and so he stopped taking it.
Admin. Rec. at 47 6. Bourque did note that one of the other
medications, prednisore, helped "for as long as he is on
it." Id. Dustin observed that Bourque was in no
acute distress, though Bourque had limited range of motion in
his spine. Dustin noted intact motor and sensation, with
normal station and gait. Dustin observed that Bourque was
slow to get up.
January 22, 2015, Bourque visited Dr. Jay Solorio, M.D., who
worked at an orthopedic clinic. Complaining of low back and
left-leg pain, Bourque told Dr. Solorio of the November 2014
incident, in which he began experiencing pain after lifting
an appliance. Bourque reported that it was painful to rise
from a chair and drive, that the pain was worse in mornings
and evenings, and that the pain was getting progressively
worse. Dr. Solorio examined Bourque, noting a muscular spasm
in the lumbar spine and tenderness in the lumbar spine and
left sciatic notch. A straight leg raise test was positive on
the left and negative on the right. Bourque exhibited
diminished sensation in his left toes and plantar foot, but
normal muscle strength and tone. Dr. Solorio ordered an MRI.
January 30, before Bourque obtained a second MRI, Dr. Peter
Loeser, M.D., conducted a consultative examination. Dr.
Loeser observed that Bourque looked well-nourished and
well-developed, and was in no apparent distress. Bourque had
grossly normal alignment, curvature, and range of motion in
the lumbar spine, except that he had a mildly decreased range
of motion in all directions because of pain. Dr. Loeser
indicated no tenderness, muscle spasms, or atrophy in the
area. The supine straight leg raise was intact, but Bourque
showed pain in the lower back at the extreme range in his
right leg. Overall, Dr. Loeser found the lumbar spine
examination to be "unremarkable" without
"tenderness to palpation." Admin. Rec. at 444.
Bourque did exhibit a mild decrease in fine-touch sensation
in his left lower extremities, but he showed a normal ability
to sit and stand, step up and down, get on and off the
examination table, and remove and put on socks. On the other
hand, Bourque had a severe limp in his left leg from pain,
and, as a result, was unable to walk on his left toe or heel,
or perform more than a shallow squat.
relevant here, Dr. Loeser diagnosed Bourque with low back
pain of uncertain etiology with left leg radiculopathy, and
stated that "these symptoms might improve with further
evaluation and management, possibly involving physical
therapy and/or localized treatments." Id.
February 5, 2015, Bourque received the second MRI of his
spine, which showed degenerative changes in the lumbar spine.
February 14, 2015, Dr. Trina Jackson, Psy. D, conducted a
psychological consultative examination. Bourque reported that
he completed seventh grade, after which he dropped out due in
part to his learning difficulties. Dr. Jackson noted that
Bourque had intact short- and long-term memory, with no
difficulty in concentration. Based on a few tests that she
conducted, Dr. Jackson estimated that Bourque's
intellectual functioning was in the low-average to
below-average range. Based on this examination, Dr. Jackson
concluded that Bourque was able to remember and manage
activities of daily living, as well as act appropriately and
effectively in the social functioning domain. Dr. Jackson
highlighted one functional capacity of concern: Bourque's
ability to understand and remember. She opined that, while
Bourque demonstrated no serious difficulties in memory, his
cognitive abilities, "which may be below average,"
may make it more difficult for Bourque to complete complex
tasks. Admin Rec. at 450. Dr. Jackson stated that Bourque
"is able to function appropriately and
effectively in this domain, but will need accommodations and
may have difficulty with consistency due to possible
cognitive difficulties." Id. Dr. Jackson
diagnosed Bourque with mild alcohol use disorder (in full
remission), and "Possible Borderline Intellectual
Functioning." Id. She recommended that Bourque
"may benefit from intellectual testing to determine his
level of cognitive functioning." Id. at 451.
February 16, Bourque met with APRN Dustin. Bourque continued
to complain of back pain and radiculopathy. Dustin noted that
Bourque had reduced mobility in his spine and found it
painful to stand. Bourque's straight leg raise was
positive, but he had intact sensation and motor, and normal
station and gait.
February 24, Dr. Edward Martin, a non-examining agency
consultant, completed a psychiatric evaluation for purposes
of the initial review of Bourque's application. Dr.
Martin gave Dr. Jackson's opinion great weight. He
construed her opinion as diagnosing Bourque with no
psychiatric diagnosis except an alcohol use disorder, for
which Bourque was in full remission. Based on the absence of
any other diagnosis, Dr. Martin concluded that Bourque had no
medically determinable mental impairments.
February 25, Bourque had a second visit with Dr. Solorio.
Bourque complained of back and left leg pain. Dr. Solorio
noticed tenderness in Bourque's lower lumbar spine and
left sciatic notch, and Bourque's straight leg raise test
was positive on the left. Dr. Solorio noted that
Bourque's eversion strength was grade 5- over 5, and
otherwise normal in both legs. Dr. Solorio provided Bourque
with a one-time prescription for Lortab, discharged Bourque
from his care, and instructed Bourque to follow up with Dr.
Thomas Kleeman, a neurosurgeon.
March 5, Dr. Hugh Fairley, a non-examining agency consultant
and medical doctor, completed an RFC assessment on initial
review of Bourque's application. Dr. Fairley opined that
Bourque could lift 20 pounds occasionally and 10 pounds
frequently, could sit for about six hours in a workday, and
could stand or walk for about six hours in a workday. Dr.
Fairley opined that Bourque was limited to occasional
balancing, stooping, kneeling, crouching, crawling, and
climbing ramps and stairs, but should never climb ladders,
ropes, or scaffolds.
met with Dr. Kleeman on March 9. Bourque told Dr. Kleeman
that he had constant leg symptoms on the left, which was
aggravated by all positions and relieved by laying down with
a pillow under the knees. Bourque estimated that his pain
was, on a ten-point scale, usually a seven or eight, at worst
a ten, and at least a five. Dr. Kleeman examined Bourque,
finding that Bourque had equal and symmetric reflexes, a
negative straight leg raise test, with a normal motor exam
and intact sensation. Dr. Kleeman opined that
"neurologically [Bourque] is still intact," which
created "no urgency" for surgery. Id. at
2015, Bourque met with Dr. Robert Soucy, D.O., while Bourque
was incarcerated at the Coos County House of Corrections.
Bourque reported back complaints and rising anxiety, ...