Lefebvre v. Social Security Administration

Filing 24

Judge Rya W. Zobel: Memorandum of Decision entered granting in part and denying in part 17 Motion for Order Reversing Decision of Commissioner; granting in part and denying in part 19 Motion for Order Affirming Decision of Commissioner. On rema nd, the Commissioner shall conduct a proper Step 5 analysis as to whether plaintiff was disabled prior to December 19, 2017. The Commissioner shall also consider and officially incorporate into the record the 2009 applications before making a reopening determination. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 18-10400-RWZ

HENRY LEFEBVRE
v.
ANDREW SAUL, 1
Commissioner of the Social Security Administration

MEMORANDUM OF DECISION
October 17, 2019

ZOBEL, S.D.J.
Henry Lefebvre (“plaintiff” or “claimant”) appeals from a final decision by the
Commissioner of Social Security (“the Commissioner”) upholding an administrative law
judge’s (“ALJ”) decision. The ALJ determined that plaintiff qualified for supplemental
security income (“SSI”) beginning on December 19, 2017, but did not qualify prior to that
date. He denied disability insurance benefits (“DIB”) entirely because plaintiff did not
have disability insured status on the date his disability began.
I.

Background 2

1

Pursuant to Fed. R. Civ. P. 25(d), Andrew Saul has been substituted for Nancy A. Berryhill as
Commissioner of the Social Security Administration.
2
Since 2006, plaintiff has applied unsuccessfully for SSI and DIB several times. Pertinent to this
appeal are the claims filed in February 2009 and April 2012.

1

In February 2009, plaintiff filed for SSI and DIB, but his claims were denied on
April 17, 2009 at the initial determination phase. Plaintiff did not seek reconsideration of
the denial.
In April 2012, plaintiff filed new SSI and DIB applications, in which he alleged that
he had been disabled since April 2003 after a large spring fell on his hand and broke his
right wrist. These applications were denied in an initial determination and again on
reconsideration. Plaintiff then obtained a hearing before an ALJ, who denied the claims
on December 10, 2013. The Appeals Council declined plaintiff’s request for review, and
plaintiff appealed to the United States District Court. R. 552. 3 At the Commissioner’s
request, the Court remanded the case for further proceedings. Lefebvre v. Colvin, No.
15-CV-11610-GAO, ECF No. 23 (D. Mass. Feb. 16, 2016); see also R. 555. On
remand, the ALJ held a hearing on October 24, 2017, at which plaintiff and Vocational
Expert (“VE”) 4 Marissa Howell testified.
The ALJ issued his written decision on December 28, 2017 (“2017 ALJ
decision”). As an initial matter, he declined to reopen plaintiff’s SSI and DIB claims that
had been denied on April 17, 2009, and therefore only focused on the period beginning
with April 17, 2009. He found plaintiff was not disabled from that date until December
19, 2017, when he presumptively became disabled and eligible for SSI due to the

3

“R.” refers to the Social Security administrative record, which was filed in this appeal as Docket #

13.
4

Vocational Experts are professionals contracted by the Social Security Administration to provide
testimony in agency proceedings. They must have: (1) expertise and current knowledge of working
conditions and physical demands of various’ jobs; (2) knowledge of the existence and numbers of those
jobs in the national economy; and (3) involvement in or knowledge of placing adult workers with
disabilities into jobs. Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019) (quoting SSA, Hearings, Appeals,
and Litigation Law Manual I–2–1–31.B.1 (June 16, 2016)).

2

combination of his age and limitations. However, the ALJ denied the claim for DIB
because plaintiff no longer had disability insured status on that date. 5 See 20 C.F.R. §
404.131. Plaintiff now appeals the ALJ’s SSI decision.
A.

Applicable Statutes and Regulations

To receive SSI or DIB benefits, a claimant must be unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which ... has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 6 The impairment or
impairments must be “of such severity that [a claimant] is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the national economy.” Id.
§§ 423(d)(2)(A), 1382c(a)(3)(B); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).
The ALJ analyzes whether a claimant is disabled by using an established fivestep sequential evaluation process. See 20 C.F.R. §§ 404.1520(a)(4)(i)–(v),
416.920(a)(4)(i)–(v). Under this framework, the ALJ first determines whether the
claimant is currently engaging in substantial gainful work activity. If not, then at Step 2,
the ALJ decides whether the claimant has a “severe” medical impairment or
impairments. A severe impairment “significantly limits [the claimant’s] physical or
mental ability to do basic work activities.” Id. §§ 404.1520(c), 416.920(c). If the

5
The ALJ determined that plaintiff’s insured status expired on December 31, 2008—a finding
neither party challenges on appeal.
6
Section 423 of Title 42 pertains to DIB, while Section 1382 pertains to SSI.

3

claimant has a severe impairment or impairments, the ALJ considers, third, whether the
impairment or impairments meets or equals an entry in the Listing of Impairments, 20
C.F.R. Part 404, Subpt. P, App. 1, and meets the duration requirement. If so, the
claimant is considered disabled. If not, the ALJ must next determine the claimant’s
residual functional capacity (“RFC”), which is “the most [a claimant] can still do despite
[his] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The ALJ then moves to
Step 4 and determines whether the claimant’s RFC allows him to perform his past
relevant work. If the claimant has the RFC to perform his past relevant work, he is not
disabled. If the claimant does not, “the Commissioner then has the burden, at Step 5, of
coming forward with evidence of specific jobs in the national economy that the applicant
can still perform.” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001); see also 20 C.F.R.
§§ 404.1560(c)(2), 416.960(c)(2). The ALJ consults a VE and/or the Medical-Vocational
Grid Rules (“Grid Rules”) 7 at Step 5 to determine whether the claimant can do other
work in light of his RFC, age, education, and work experience.
B.

The 2017 ALJ Decision

At the first step of the sequential evaluation process, the ALJ determined that
since April 17, 2009, plaintiff “has not engaged in substantial gainful activity.” R. 448.
At Step 2, he found that plaintiff has the following severe impairments: status post right
wrist fusion, borderline intellectual function, and alcohol abuse. The ALJ explained at
Step 3 that plaintiff “has not had an impairment or combination of impairments that

7

The Grid Rules, 20 C.F.R. Part 404, Subpt. P, App. 2, contain a matrix of exertional capacity,
age, education, and work experience. If a claimant’s limitations are exclusively exertional, the ALJ can
rely solely on the Grid Rules to meet the burden at Step 5.

4

meets or medically equals the severity of one of the listed impairments” in 20 C.F.R.
Part 404, Subpt. P, App. 1. R. 449. He assessed plaintiff’s RFC:
After careful consideration of the entire record, I find that
since April 17, 2009, the claimant has the residual functional
capacity to perform light work as defined in 20 CFR
416.967(b) except the claimant is able to lift and carry 10
pounds occasionally and less than 10 pounds frequently,
stand and walk for 6 hours and sit for 6 hours out of an 8
hour workday, can occasionally push and pull with the right
dominant upper extremity, can frequently climb ramps and
stairs, stoop, kneel, crouch, occasionally balance and never
climb ropes, scaffolds and ladders and crawl, can
occasionally finger and handle with the right dominant upper
extremity, must avoid hazards such as moving machinery,
unprotected heights, slipper[y] and uneven surfaces and is
limited to simple, routine, repetitive tasks.
R. 450.
At the fourth step, the ALJ determined that plaintiff is unable to perform his past
work as a truck mechanic. Finally, he explained that, prior to December 19, 2017,
considering plaintiff’s age, education, work experience, and RFC, there were jobs that
existed in significant numbers in the national economy that plaintiff could have
performed. R. 455. He concluded, however, that as of December 19, 2017, plaintiff’s
age category changed from “closely approaching advanced age” to “advanced age.” R.
454. As plaintiff was within “a few days to a few months” of attaining the “advanced
age” category at the time of the ALJ’s decision, the ALJ explained that use of the next
age category was supported by “the significant adverse impact of all factors on the
claimant’s ability to adjust to other work.” R. 454; see also 20 C.F.R. § 416.963(b) (age
categories need not be applied mechanically). He concluded that the Grid Rules
support a presumption that plaintiff was disabled as of December 19, 2017, see R. 456,
5

and was therefore entitled to SSI beginning on that date. However, because plaintiff’s
onset date was December 19, 2017, when plaintiff did not have disability insured status,
he was not entitled to DIB.
C.

The Appeal

Plaintiff did not file exceptions to the ALJ’s decision, and the Social Security
Administration’s Appeals Council did not assume jurisdiction within 60 days. The ALJ’s
decision thus became the final decision of the Commissioner and is properly before this
court. 20 C.F.R. § 404.984(d).
II.

Standard of Review
The Commissioner’s findings of fact are conclusive if based on the correct legal

standard and supported by substantial evidence. 42 U.S.C. § 405(g); Seavey, 276 F.3d
at 9. The substantial evidence standard is “not high” and only requires “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Biestek, 139 S. Ct. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). So long as the Commissioner’s determinations are supported by substantial
evidence, they must be affirmed, “even if the record arguably could justify a different
conclusion.” Rodriguez Pagan v. Sec’y Health & Human Servs., 819 F.2d 1, 3 (1st Cir.
1987) (per curiam). Further, resolving credibility issues “and the drawing of permissible
inference from evidentiary facts are the prime responsibility of the [Commissioner].”
Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)

6

(quoting Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir. 1965)). Questions of law
are reviewed de novo. Seavey, 276 F.3d at 9.
III.

Discussion
Plaintiff challenges the 2017 ALJ decision in five particulars: that the ALJ (1)

failed to consider plaintiff’s alleged illiteracy in assessing his RFC; (2) improperly
interpreted and weighed medical opinions in the record; (3) found jobs in significant
numbers that plaintiff could perform at Step 5; and (4) declined to reopen plaintiff’s 2009
SSI and DIB applications.
A.

Plaintiff’s Alleged Illiteracy
Plaintiff claims that he is unable to read or write and that, if the ALJ determined

that he was illiterate when assessing his RFC, the Grid Rules would have suggested at
Step 5 that he was disabled prior to December 2017. See 20 C.F.R. Pt. 404, Subpt. P,
App. 2, § 202.09.
The record contains conflicting evidence regarding plaintiff’s illiteracy. Plaintiff
testified at the October 29, 2013, and October 24, 2017, hearings that he never learned
to read and was unable to write. R. 487, 524. Moreover, the record includes a June 14,
2006, evaluation by Dr. Milton Taylor of plaintiff’s intellectual challenges, which included
a full-scale IQ score of 75, and plaintiff’s self-reported illiteracy. However, the ALJ
questioned plaintiff about his alleged illiteracy at the hearings and noted that the record
contained forms that plaintiff may have filled out himself. R. 487-88, 521. Moreover, his
2017 decision references plaintiff’s education history: between 1978 and 1982, plaintiff
7

attended and graduated from Greater Lowell Regional Vocational Technical School. He
passed all high school courses without repeating any grades and attended both regular
and special education classes. R. 432-33. As the ALJ explained, “in order to pass
exams, the claimant would have been required to read and write at a higher level than
alleged.” R. 452. The record also contains various forms for public assistance on which
plaintiff indicated he was either able to read and write English or possessed a “limited”
(rather than non-existent) ability to do so. R. 1798, 2102, 2081. Thus, “even if the
record arguably could justify a different conclusion,” the ALJ’s determination that plaintiff
is not illiterate finds substantial support in the record. Rodriguez Pagan, 819 F.2d at 3.
B.

Weighing of Physician Opinions 8
Plaintiff next challenges the ALJ’s treatment of Dr. Nurhan Kasparyan’s opinion

and the opinion of an agency physician from the Massachusetts Disability Evaluation
Service (“DES”).
Dr. Kasparyan, plaintiff’s orthopedic surgeon, indicated in a June 2015
questionnaire that plaintiff was limited to less than two and a half hours per day of
manipulative functions—including reaching, handling, fingering, and feeling. R. 1985.
The ALJ gave “partial weight” to this assessment and specifically agreed with the
identified “limitations in lifting, carrying, and fine and gross manipulation.” R. 453. Yet,
the ALJ concluded that plaintiff had the RFC to occasionally finger and handle (“fine and
gross manipulation”) with his right dominant extremity, which plaintiff contends is

8

The Commissioner’s new regulations for evaluating opinion evidence apply only to claims filed on
or after March 27, 2017, and thus are not applicable here. 20 C.F.R. § 416.920c.

8

incompatible with Dr. Kasparyan’s two-and-a-half-hour limitation that the ALJ
supposedly adopted. But “occasionally” is defined by the Social Security Administration
as “occurring from very little up to one-third of the time, and [] generally total[ing] no
more than about 2 hours of an 8-hour workday.” Social Security Ruling (“SSR”) 96-9p,
1996 WL 374185, at *3 (July 2, 1996) (emphasis added). Therefore, there is no
inconsistency or error.
Plaintiff also argues that this assessment of his fine and gross manipulation
capabilities rested on the ALJ’s improper rejection of a September 2015 state agency
physician’s report that stated that plaintiff could “never” finger or handle with his right
extremity. R. 2078-2122. The ALJ gave “partial weight” to that opinion, adopting its
description of plaintiff’s range of work and ability to lift and carry. However, as just
mentioned, the ALJ more heavily credited the 2015 opinion of Dr. Kasparyan, who
performed approximately twelve surgeries on plaintiff over the course of several years. 9
Moreover, the ALJ noted plaintiff’s more recent x-rays and test results, Dr. Kasparyan’s
reports of improvement in functioning, good passive range of motion in the right digits,
as well as plaintiff’s ability to do certain chores and household tasks. R. 452-54. There
were also several gaps in plaintiff’s treatment over the years and minimal evidence of
occupational therapy, which the ALJ indicated undermined the claimed severity of the
symptoms or, perhaps, exacerbated them. R. 452. Lastly, additional state disability

9

Plaintiff’s complaint that the ALJ relied solely on reports from 2012 by state agency physicians Dr.
Goulding and Dr. Palmeri to assess his fine and gross manipulative functions is incorrect. Docket # 17 at
13.

9

evaluations of plaintiff from May 2015 and September 2015 assessed an even less
restricted RFC than that adopted by the ALJ. R. 570-71, 581-83.
Thus, while some reports in the 2,500-page record suggest a complete lack of
fine and gross manipulation abilities, enough relevant evidence exists to adequately
support the ALJ’s determination that plaintiff could “occasionally” finger and handle with
the right dominant upper extremity. See Biestek, 139 S. Ct. at 1154.
C.

Step 5 Analysis
Plaintiff challenges the ALJ’s determination at Step 5 that, prior to December 19,

2017, jobs existed in significant numbers in the national economy that plaintiff could
have performed. Here, the ALJ relied principally on the testimony of VE Howell, who
stated that plaintiff could have performed the jobs of Surveillance System Monitor, Call
Out Operator, Fruit Distributor, and Bakery Worker. Two significant issues exist at Step
5 that persuade me that remand is appropriate.
First, VE Howell’s testimony regarding the requirements of the four identified
occupations is problematic and casts doubt on the reliability of her opinion. Every
occupation in the Dictionary of Occupational Titles (“DOT”) has General Educational
Development (“GED”) requirements for reasoning, language, and mathematical
development. VE Howell stated that the jobs of Fruit Distributor, Bakery Worker,
Surveillance System Monitor, and Call Out Operator require no reading, and that the
latter position is the only one that requires any writing. R. 494-95. But this testimony
conflicts with DOT’s GED requirements for those positions. The DOT identifies Fruit
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Distributor and Bakery Worker as requiring the ability to read “at a rate of 95-120 words
per minute” and to write “simple sentences.” DOT (U.S. Dep't of Labor, 4th ed. rev.
1991) §§ 921.685-046, 524.687–022; App. C, § III. Surveillance System Monitor and
Call Out Operator require higher reading and writing abilities, including the ability to
“read a variety of novels, magazines, atlases, and encyclopedias” and to “write reports
and essays with proper format, punctuation, spelling, and grammar.” Id. §§ 379.367010, 237.367-014; App. C, § III.
It is the responsibility of the adjudicator—here, the ALJ—to identify and obtain a
reasonable explanation for any conflicts between VE testimony and the DOT before
relying on such testimony. SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000). The
ALJ determined that plaintiff was not illiterate per se, but that the record established
plaintiff had difficulty reading and writing and was severely impaired by his borderline
intellectual function. He thus limited plaintiff’s RFC to “simple, routine, repetitive tasks.”
R. 450. The conclusion that plaintiff could nonetheless perform the four identified
occupations prior to December 19, 2017, seems to have rested on VE Howell’s
inaccurate description of the DOT and the ALJ’s consequent failure to identify and
resolve the discrepancy. See Vining v. Astrue, 720 F. Supp. 2d 126, 135 (D. Me. 2010)
(remanding when ALJ failed to detect conflict between occupations’ GED levels and
VE’s testimony that a person limited to the performance of "simple, repetitive tasks”
could perform certain occupations). 10

10
Because I find that a conflict exists between VE Howell’s testimony and the DOT’s GED levels
and remand is required, I do not separately consider plaintiff’s additional Step 5 challenge to the
application of the aptitude requirements.

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Second, there are inconsistencies and a lack of clarity in the record regarding the
job numbers on which the ALJ relied. VE Howell cited national job numbers for the four
identified occupations, which she said came from a specific version of the Job Pro
Browser Software. R. 455 (Surveillance System Monitor: 113,020; Call Out Operator:
132,000; Fruit Distributor: 101,000; Bakery Worker: 93,000). In a post-hearing brief,
plaintiff submitted an affidavit from a rebutting VE, David Meuse, with significantly lower
numbers from the same source upon which VE Howell claimed to have relied. R. 1750
(Surveillance System Monitor: 6,399; Call Out Operator: 6,003; Fruit Distributor: 1,952;
Bakery Worker: 47). The ALJ “accept[ed] the job numbers provided by Mr. Meuse and
rel[ied] on them in finding that other work existed in the national economy in significant
numbers” prior to December 19, 2017. R. 456. However, the exhibits to which Meuse
cited as the source of his job numbers do not match the figures in his affidavit or those
relied upon by the ALJ. See R. 1752-55. Moreover, on appeal to this court, the parties
point out further mistakes: Meuse’s exhibits cite to Maine, not Massachusetts, as the
relevant region, 20 C.F.R. § 404.1566 ( “work exists in the national economy when it
exists in significant numbers either in the region where [the claimant] live[s] or in several
other regions of the country”), and plaintiff identifies a specific mistake in job numbers
for Surveillance System Monitor, Docket # 23 at 12. Given the confusing state of the
record, the court is simply unable to determine the reliability of the numbers on which
the ALJ based his conclusion. Cf. Dorman v. Soc. Sec. Admin., No. 4:12-CV-40023,
2013 WL 4238315, at *9-10 (D. Mass. May 21, 2013) (remanding when record lacked
sufficient information supporting reliability of VE’s job numbers).

12

Particularly because the Commission bears the burden at Step 5, the unresolved
discrepancies between VE Howell’s testimony and the DOT, and the mistakes and lack
of clarity in the record regarding job numbers, warrant remand for further proceedings.
See Biestek, 139 S. Ct. at 1156-57 (combined shortcomings in VE’s testimony may
prevent a court from finding that a “reasonable mind” could accept the expert’s
testimony).
D.

Reopening of April 17, 2009, Denial
Finally, plaintiff urges this court to direct the reopening of his 2009 SSI and DIB

claims. When those claims were denied at the initial level on April 17, 2009, plaintiff did
not appeal and, instead, filed new claims in 2012. In the December 28, 2017, decision,
the ALJ “did not find any cause for reopening [the 2009 claims]” and thus stated that
“the relevant period addressed in [the] decision begins with April 17, 2009, the earliest
available date of onset.” R. 445.
Under 20 C.F.R. § 404.988(b), a prior claims determination can be reopened
“[w]ithin four years of the notice of the initial determination” if there is “good cause.” See
20 C.F.R. § 404.989(a)(1). Plaintiff argues that good cause exists because he furnished
new and material evidence with his 2012 claims, including “evidence from Dr.
Kasparyan and the Disability Evaluation Service.” Docket # 17 at 16.
The decision to reopen a prior claim is generally insulated from judicial review
absent a colorable constitutional challenge. Califano v. Sanders, 430 U.S. 99, 109
(1977). Here, plaintiff argues that the 2009 file was never made part of the instant
13

record and that the ALJ’s declination to reopen those claims without a basis in the
record was therefore a due process violation. Defendant responds that the ALJ merely
ignored the "formality of placing the prior file in the record” and that the reopening denial
is not reviewable. Docket # 20 at 29.
Because the ALJ’s decision merely states, without elaboration or citation, that he
did “not find any cause” to reopen, it is unclear whether the omission of the 2009 record
was a mistake or whether the ALJ entirely failed to review the 2009 initial determination
(and thus had no evidentiary basis for his conclusion that “new and material” evidence
was not presented in the subsequent application). R. 445. The latter situation may give
rise to a colorable due process claim. Accordingly, on remand, the Commissioner may
again decline to reopen the 2009 claims, but the decision must reflect consideration and
incorporation into the record of those applications.
IV.

Conclusion
Plaintiff’s Motion to Remand the Decision of the Commissioner (Docket # 17) is

ALLOWED IN PART, and Defendant’s Motion to Affirm the Commissioner’s Decision
(Docket # 19) is DENIED IN PART. On remand, the Commissioner shall conduct a
proper Step 5 analysis as to whether plaintiff was disabled prior to December 19, 2017.
The Commissioner shall also consider and officially incorporate into the record the 2009
applications before making a reopening determination.

10/17/2019

/s/ Rya W. Zobel

DATE

RYA W. ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

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