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Bourque v. Berryhill

United States District Court, D. New Hampshire

July 23, 2018

Alexander Bourque
Nancy A. Berryhill, Acting Commissioner of Social Security


          Landya McCafferty United States. District Judge

         Alexander 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 affirmed.


         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. 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).

         In 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).[1] 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) .

         At the 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) .


         On 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 salvage laborer.

         I. Medical Record

         Proceeding 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.

         In 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.

         On 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.

         Two 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.

         On 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.

         On 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.

         On 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.

         As is 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.

         On February 5, 2015, Bourque received the second MRI of his spine, which showed degenerative changes in the lumbar spine.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         Bourque 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 586.

         In July 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, ...

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