Levesque v. US Social Security Administration, Acting Commissioner

Filing 12

///ORDER granting 8 Motion to Reverse Decision of Commissioner; denying 9 Motion to Affirm Decision of Commissioner. The case is remanded for further consideration of Levesque's RFC in accordance with this order. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James Samuel Levesque
v.

Civil No. 13-cv-298-JL
Opinion No. 2014 DNH 191

Carolyn Colvin, Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
James Levesque appeals the Social Security Administration’s
(“SSA”) denial of his applications for disability insurance
benefits and supplemental security income.

An administrative law

judge (“ALJ”) at the SSA ruled that, despite severe impairments
including degenerative disc disease, osteoarthritis, and obesity,
Levesque retains the residual functional capacity (“RFC”) to
perform jobs that exist in significant numbers in the national
economy, and is thus not disabled.
416.905(a).

See 20 C.F.R. §§ 404.1505(a),

The Appeals Council later denied Levesque’s request

for review of the ALJ’s decision, see id. §§ 404.967, 416.1467,
with the result that the ALJ’s decision became the SSA’s final
decision on Levesque’s applications, see id. §§ 404.981,
416.1481.

Levesque appealed the decision to this court, which

has jurisdiction under 42 U.S.C. § 405(g) (Social Security).
Levesque has filed a motion to reverse the decision, see
L.R. 9.1(b)(1), which contends that the ALJ erred in assessing
his RFC.

The Commissioner of the SSA has cross-moved for an

order affirming the ALJ’s decision.

See L.R. 9.1(d).

As

explained below, the court agrees with Levesque that the ALJ
erred in his evaluation of the medical evidence of record, and
accordingly grants his motion to reverse (and denies the
Commissioner’s motion to affirm) the ALJ’s decision.
The ALJ, in determining that Levesque is able to perform
jobs that exist in significant numbers in the national economy,
concluded that Levesque has the RFC “to perform the full range of
sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and
416.967(a).”

If correct, that conclusion precludes a finding

that Levesque is disabled under Rule 201.21 of the MedicalVocational Guidelines at 20 C.F.R. Part 404, Subpart P, Appendix
2.

Levesque’s sole argument on appeal is that the ALJ lacked a

sufficient factual basis in the record to reach this conclusion.
The parties agree that the only opinion in the record as to
Levesque’s RFC was rendered by a “single decisionmaker,” see 20
C.F.R. §§ 404.906(a), 416.1406(a), and, as the ALJ recognized, is
therefore entitled to no weight in the RFC analysis, see, e.g.,
Stratton v. Astrue, 987 F. Supp. 2d 135, 150-51 (D.N.H. 2012)
(Barbadoro, J.).

Where, as here, the medical evidence does not

contain an RFC assessment by a medical expert, an ALJ ordinarily
cannot assess the claimant’s RFC himself, “since bare medical
findings are unintelligible to a lay person in terms of [RFC].”

2

Gordils v. Sec’y of HHS, 921 F.2d 327, 329 (1st Cir. 1990).

But

the absence of such an assessment does not always doom an ALJ’s
decision denying benefits:

“where the medical evidence shows

relatively little physical impairment, an ALJ permissibly can
render a commonsense judgment about functional capacity even
without a physician’s assessment.”

Manso-Pizarro v. Sec’y of

HHS, 76 F.3d 15, 17 (1st Cir. 1996).

So whether the ALJ erred in

assessing Levesque’s RFC “depends upon a qualitative assessment
of the medical evidence that was before the ALJ.

If that

evidence suggests a relatively mild physical impairment posing,
to the layperson’s eye, no significant exertional restrictions,
then [the court] must uphold the ALJ’s finding; elsewise, [it]
cannot (in the absence of an expert’s opinion).”

Id. at 17-18.

Here, the medical evidence of record suggests that Levesque
suffers from more than “a relatively mild physical impairment”
that poses “no significant exertional restrictions.”

To the

contrary, the evidence indicates that Levesque reported pain in
both knees, later diagnosed as degenerative joint disease and
osteoarthritis, that, in his primary care physician’s opinion–rendered at around the time of Levesque’s alleged onset of
disability--precluded him from performing “physical” or “heavy
manual” labor.

App’x at 436, 444–46.

And, after arthroscopic

surgery on Levesque’s right knee, his orthopedic surgeon opined

3

that the “next step” for him “would be total knee replacement,”
and wrote that “I do believe that he is disabled.”
92.

Id. at 491-

This is several degrees removed from the record in Gordils–-

the only published opinion in which the Court of Appeals has
upheld an ALJ’s lay assessment of a claimant’s RFC–-where the ALJ
had before him the opinion of a non-examining, non-testifying
physician that the claimant was capable of performing light work,
as well as the opinion of an examining physician that the
claimant likely had nothing more than a “weaker back.”
This evidence, of course, is not enough to conclusively show
that Levesque is incapable of performing sedentary work.

That

Levesque cannot perform “physical” or “heavy manual” labor does
not mean that he also cannot perform sedentary work, which the
SSA’s regulations define as involving “lifting no more than 10
pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools,” and occasional
“walking and standing.”

20 C.F.R. §§ 404.1567(a), 416.967(a);

see Herrera v. Barnhart, 69 Fed. Appx. 438, 441 (10th Cir. 2003)
(conclusion that claimant could perform sedentary work was not
inconsistent with treating physician’s opinion that claimant
could not perform “physical labor in a competitive environment”).
And whether Levesque is “disabled,” as his surgeon suggested, is

4

a matter reserved to the Commissioner, 20 C.F.R. §§ 404.1527(d),
416.927(d)(1), so the ALJ was not required to adopt that opinion.
This evidence does, however, indicate that Levesque’s
impairments are not so mild as to make it obvious to a layperson
exercising common sense that his ability to perform sedentary
work is not affected.

So, absent further evaluation by an

expert, the ALJ could not permissibly conclude that Levesque
retained the RFC to perform work at that exertional level.

Under

these 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.1
See 20 C.F.R. §§ 404.1519 et seq., 416.919 et seq.

1

The court is aware that Levesque’s sensory and motor
examinations, during his visits with his treating physician, were
consistently normal. While those results may cast doubt on the
opinions of Levesque’s physician and surgeon as to his abilities,
they do not render the medical evidence of record so unambiguous
as to permit a layperson such as the ALJ to assess his RFC. Nor
does Levesque’s testimony before the ALJ, in which he speculated
that he could (with some accommodations) perform work activities
consistent with sedentary work, do so. The Court of Appeals’
opinions in Manso-Pizarro and Gordils do not permit a claimant’s
optimistic conjecture about the extent of his abilities to
substitute for medical opinion in this regard.
5

Based on the foregoing, Levesque’s motion to reverse the
Commissioner’s decision2 is GRANTED, and the Commissioner’s
motion to affirm that decision3 is DENIED.

The case is remanded

for further consideration of Levesque’s RFC in accordance with
this order.

See 42 U.S.C. § 405(g).

The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated: September 11, 2014
cc:

D. Lance Tillinghast, Esq.
Robert J. Rabuck, Esq.

2

Document no. 8.

3

Document no. 9.
6