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Levesque v. U.S. Social Security Commission

United States District Court, D. New Hampshire

May 7, 2019

James Levesque
v.
U.S. Social Security Commission, Acting Commissioner

          ORDER

          Landya McCafferty United States District Judge

         James Levesque seeks judicial review of the decision of the Acting Commissioner of the Social Security Administration, denying in part his application for disability insurance benefits and supplemental social security income. Levesque moves to reverse the Acting Commissioner's decision, and the Acting Commissioner moves to affirm. For the reasons discussed below, the court denies the Acting Commissioner's motion to affirm and grants Levesque's motion to reverse.

         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 [Administrative Law Judge] 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 review is more deferential than it might sound to the lay ear: though certainly ‘more than a scintilla' of evidence is required to meet the benchmark, a preponderance of evidence is not. Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (internal citation omitted). “Rather, the court must uphold the Commissioner's findings if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support her conclusion.” Id.

         In determining whether a claimant is disabled, the Administrative Law Judge (“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, where 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).

         BACKGROUND

         A detailed factual background can be found in Levesque's statement of facts (doc. no. 10-1) and the Acting Commissioner's statement of facts (doc. no. 12). The court provides a brief summary of the case here.

         I. Procedural Background

         On November 29, 2010, Levesque filed an application for disability insurance benefits and supplemental social security income (“SSI”), alleging a disability onset date of November 15, 2010, when he was 47 years old. After Levesque's claims were denied at the initial level, he requested a hearing in front of an ALJ. On March 13, 2012, the ALJ held a video hearing, and he denied Levesque's claims for benefits in a written decision dated April 11, 2012. On May 24, 2013, the Appeals Council denied Levesque's request for review, making the ALJ's decision the Acting Commissioner's final decision. Levesque brought an action in federal court challenging that decision (“federal court action”). See Levesque v. U.S. Soc. Sec. Admin., Acting Comm'r, 13-cv-298-JL (D.N.H. June 28, 2013).

         On March 19, 2014, while the federal court action was pending, Levesque filed another claim for SSI benefits. Levesque's second claim was approved at the initial level and affirmed by the Appeals Council. Levesque was awarded SSI benefits effective March 19, 2014, the date of his second application.

         On September 11, 2014, the district court remanded the federal court action, which pertained to Levesque's first claim for benefits, to the Acting Commissioner for further administrative proceedings. See Levesque v. Colvin, No. 13-CV-298-JL, 2014 WL 4531743 (D.N.H. Sept. 11, 2014). The district court held that the ALJ's decision was not supported by substantial evidence because there was no RFC assessment by a medical expert in the record. Id. at *1-2. The court stated that in light of those circumstances, “the ALJ should have either (1) recontacted Levesque's treating sources for additional information concerning the limitations imposed by his impairments; or (2) ordered him to undergo a consultative evaluation with a medical professional.” Id. at *2.

         On June 18, 2015, a different ALJ held a hearing on Levesque's first claim for benefits that had been remanded by the district court. Before the hearing, Levesque amended his alleged disability onset date to December 31, 2010. On July 10, 2015, the ALJ issued a partially favorable decision. He found that Levesque became disabled on May 14, 2013, the day after his 50th birthday, and was entitled to benefits as of that date. The ALJ found that Levesque was not disabled prior to that date.

         The Appeals Council remanded the portion of the July 10, 2015 decision that denied Levesque benefits prior to May 14, 2013. The Appeals Council stated:

The hearing decision does not adequately evaluate the treating source opinions of Joseph Lowne, M.D., Jeffrey Wiley, M.D., and John Grohman, M.D. Both treating source opinions of Dr. Lowne and Dr. Wiley (Exhibits 27F and 29F) are identified in the hearing decision (Decision, pages 8-9), but are given only some weight to the extent that they find the claimant is limited in his ability to work following the established onset date and that their opinions reflect limitations after the established onset date. However, this reasoning does not adequately explain why Dr. Lowne's opinion that the claimant's limitations have existed since November 15, 2010, was not accepted (Exhibit 27F, page I). A March 7, 2011 opinion from Dr. Grohman (Exhibit I IF, page 4) that the claimant was disabled from his knee and heart impairments is neither cited nor addressed in the hearing decision. Further evaluation of the treating source opinions in accordance with 20 CFR 404.1527, 416.927 and Social Security Rulings 96-2p, 96-5p and 06-3p is necessary.

Admin. Rec. at 700. The Appeals Council directed the ALJ, upon remand, to: (1) recontact Levesque's treating sources and/or obtain evidence from a medical expert to clarify the nature, severity, and limiting effects of Levesque's impairments; (2) give further consideration to the opinions of Drs. Lowne, Wiley, and Grobman and explain the reasons for the weight given to their opinions; (3) give further consideration to Levesque's maximum RFC during the relevant period prior to March 14, 2013, and provide appropriate rationale with specific references to the evidence of record to support the assessed limitations; and (4) obtain supplemental evidence from a vocational expert if necessary.

         On July 13, 2017, the ALJ held another hearing on Levesque's first claim for benefits. Levesque, who was represented by an attorney, appeared and testified. A non-examining impartial medical expert, Dr. John Kwock, [2] and a vocational expert, Elizabeth Laflamme, also appeared and testified.

         II. The ALJ's Decision

         On August 8, 2017, the ALJ issued an unfavorable decision. He found that Levesque had the following severe impairments: degenerative disc disease, osteoarthritis of the knees and hips, obesity, and coronary artery disease. The ALJ found that from December 31, 2010 through May 13, 2013, Levesque had the residual functional capacity to perform

sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he could stand and walk for 2 hours and sit for 8 hours. He should have been able to extend his legs on a small footstool, should have avoided all ladders, ropes and scaffolds and he could occasionally climb stairs. He could frequently balance, occasionally stoop and kneel, but should have avoided all crouching and crawling.

Admin. Rec. at 546.

         As directed by the Appeals Council, the ALJ obtained medical opinion evidence regarding the nature, severity, and limiting effects of Levesque's impairments from a medical expert, Dr. Kwock. The ALJ also gave further consideration to the opinions of Drs. Lowne, Wiley, and Grobman.

         The ALJ gave the opinions of Drs. Lowne, Wiley, and Grobman little weight. He gave Dr. Kwock's opinion the ...


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