UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Adam D. Nichols

v. Civil No. ll-cv-197-JD Opinion No.

Michael J. Astrue, Commissioner, Social Security Administration

O R D E R

Adam D. Nichols seeks judicial review, pursuant to

(g), of the decision of the Commissioner of the Social Security Administration, denying his application for social

security disability insurance benefits under Title II and

supplemental security income under Title XVI. Nichols contends

that the Administrative Law Judge ("ALJ") erred in failing to

find that Nichols met or equaled Listing 1.04A under 20 C.F.R. Part 404, Subpart P, Appendix 1. The Commissioner moves to

affirm the decision.

Background

Nichols applied for social security benefits on December 18,

2008, alleging a disability since September 5, 2007, due to a

ruptured disc with nerve impingement and atrophy of his left

calf. Nichols reported that he injured his back by lifting a heavy object at work. After that incident, he had low back pain

that radiated to his left leg and that was made worse by bending or lifting.

Nichols had an MRI done at Exeter Hospital that was reviewed on September 25, 2007, by Dr. Manuel Sanchez, a pain specialist

at Interventional Spine Medicine. Dr. Sanchez recorded that the

MRI showed "degenerative changes at L4-5, L5-S1 with disc protrusion to the left, resulting in compression of the nerve

root of the lateral recess and annular tears at the 4-5 and 5-

Sl." On physical examination, Dr. Sanchez found that Nichols had positive signs for pain limitation with straight raising of his

left leg and sensory changes in his left thigh and calf. At an appointment with Dr. Stefan Kim in October of 2007,

Nichols reported that he continued to have back pain and had

tried physical therapy and five epidural steroid injections.

Through a physical examination, Dr. Kim found that Nichols was

not in acute distress, had full motor strength, and showed no

evidence of sensory deficits. An MRI of Nichols's back showed

degenerative disc disease at L4-5 and L5-S1. Dr. Kim concluded

that Nichols's symptoms were consistent with mechanical back pain

and recommended physical therapy. On December 14, 2007, Dr. Peter J. Dirksmeier, an orthopedic

surgeon, examined Nichols and noted his obvious discomfort, very

2 limited ability to walk and change positions, and extraordinarily stiff range of motion in the lumbar region. Dr.

Dirksmeier also noted that straight leg raising caused back pain

and exacerbated Nichols's left leg pain and that he had decreased sensory reaction to pin prick in the left L4, L5, and SI areas.

In March of 2008, Dr. Dirksmeier reported the same examination

results, noted that Nichols's gait was slow and shuffling, and

gave his opinion that Nichols probably suffered from an acute annular tear in at least one of his lower lumbar discs.

Nichols was treated at the Pain Care Center from January of

2008 through October of 2008. During that time, his symptoms

improved. Nichols was also treated at Access Sports Medicine and Orthopedics beginning in March of 2008. Dr. Gary Fleischer found

that Nichols was in no acute distress and retained full motor

strength in his legs and recommended physical therapy. From March to May of 2008, Nichols was also treated at

Massachusetts General Hospital. He was diagnosed with

lumbosacral disc disease. An MRI of Nichols's lumbar spine done

on May 6, 2008, showed mild disc space narrowing at L4/5 and

L5/S1 with spine alignment maintained. The radiologist wrote

that Nichols had degenerative changes with disc protrusion at L4-

5 and L5-S1, abutting the nerve roots. Dr. Kirkham Wood, an

orthopedic surgeon, evaluated Nichols on May 6, 2009, and noted

3 that Nichols was able to do only twenty degrees of lumbar flexion

and extension, with significant pain, could do heel to toe

walking but gingerly, and had positive result on straight left leg raising. In the discharge note, Dr. Elizabeth Temin wrote

that the MRI showed a normal spinal cord but also showed discs

bulging at L4-5 and L5-S1 with impingement on the nerve root.

On July 7, 2009, Nichols was evaluated by Dr. Sandra K.

Vallery, a state agency psychiatric consultant. Nichols told Dr.

Vallery that after he hurt his back he began to experience panic

attacks. Dr. Vallery did a mental status examination and found

that Nichols was able to interact normally, understand and

remember instructions, tolerate work stress, but had some difficulty with task completion. Dr. Vallery diagnosed back

problems, panic disorder without agoraphobia, and an adjustment

disorder. She noted that Nichols was taking Ativan for anxiety

and that his prognosis was good.

On July 17, 2009, Dr. Burton Nault, a state agency

physician, reviewed Nichols's medical records and completed a

physical residual functional capacity assessment. Dr. Nault

found that Nichols could occasionally lift and/or carry ten

pounds, could frequently lift and/or carry less than ten pounds, could stand or walk for at least two hours in an eight-hour work

day, could sit for six hours, and was not limited in his ability

4 to push or pull. He also found that Nichols was limited to doing

postural activities only occasionally but had no limitations in

manipulative and communicative activities. Dr. Nault found no

environmental limitations.

On September 30, 2009, Dr. Fleischer examined Nichols and

found slight abnormalities and some weakness but full strength in his legs. Following an examination on January 11, 2010, Dr.

Fleischer made the same physical findings and also concluded that

Nichols could return to work but was restricted from lifting more

than twenty pounds, could do only limited bending and twisting,

could not drive, and could stand up to forty-five minutes in an hour. In February, Dr. Fleischer found that Nichols's straight

leg raising test was negative. Dr. Fleischer's examination notes

through 2010 show that Nichols's back was normal and do not

include any significant symptoms. On October 31, 2010, Dr. Dennis Rork, a physician with

Londonderry Family Practice, completed a lumbar spine residual functional capacity assessment for Nichols. Dr. Rork diagnosed degeneration of lumbar discs with radiculopathy and wrote that

Nichols was totally disabled by back and leg pain. He assessed that Nichols could only sit, stand, or walk for less than two

hours in a work day and could rarely lift even less than ten pounds.

5 A hearing before an ALJ was held on November 3, 2010.

Nichols, who was represented by counsel, testified, and a

vocational expert also testified. Nichols testified that he was

disabled because of pain and that he was unable to bend, twist,

lean, lift, or sit for long periods of time. He said that during

the day he watched television with his children and prepared snacks for them or did internet research.

The ALJ asked the vocational expert if jobs existed that a

person could do who was limited to lifting ten pounds

occasionally, five pounds frequently, standing or walking for three hours in an eight-hour day, and sitting for six hours but

could use his hands and feet to operate controls and push and

pull and could occasionally do postural activities. The

vocational expert testified that with those limitations the

person could not do Nichols's past work but could work as a film touch-up inspector, an assembler, an escort vehicle driver, and a

telephone solicitor. The ALJ issued a decision on November 12, 2010, in which he

found that Nichols retained the functional capacity to do sedentary work, with an ability to stand or walk for three hours

and to sit for six hours in an eight-hour work day. He found that Nichols had a severe impairment due to degenerative disc

disease of the lumbar spine but did not meet the criteria of

6 Listing 1.04. Based on the residual functional capacity

assessment, the ALJ found that Nichols could not return to his

past work but could do the jobs identified by the vocational

expert. As a result, the ALJ concluded that Nichols was not

disabled. When the Decision Review Board did not complete its

review within the time allowed, the ALJ's decision became the final decision of the Commissioner.

Standard of Review In reviewing the final decision of the 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. Chafer.

(1st Cir. 1999). The court defers to the ALJ's

factual findings as long as they are supported by substantial

evidence. § 405(g). "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.,

(1st Cir. 2010) .

7 Discussion

Nichols contends that the ALJ erred in finding that

Nichols's back condition does not meet or equal the impairment at

Listing 1.04A. Nichols also faults the ALJ's reliance on the

opinions of the nontreating consultative physician, Dr. Nault.

The Commissioner points to evidence supporting the ALJ's finding.

The ALJ follows a five-step sequential analysis for

determining whether a claimant is disabled.

& § 416.920.1 At Step Three of the sequential analysis, the ALJ

compares the medical evidence of the claimant's impairment "to a

list of impairments presumed severe enough to preclude any

gainful work." Sullivan v. Zebley.

(1990).

"If the claimant's impairment matches or is 'equal' to one of the

listed impairments, he qualifies for benefits without further

inquiry." Id.; § 404.1520(a) (4) (iii) .

To match a listed impairment, the claimant's medically

determinable impairment must satisfy all of the listed criteria.

§ 404.1525(e). An impairment equals a listed impairment if the

impairment "is at least equal in severity and duration to the

criteria of any listed impairment." § 404.1526(a). The claimant

1The applicable regulations for Title II and Title XVI in this case are the same. See, e.g., Sullivan.

n .3 .

8 bears the burden of showing that he has an impairment or

combination of impairments that meets or equals a listed

impairment. Torres v. Sec'y of Health & Human Servs..

(1st Cir. 1989).

The ALJ found that Nichols had a severe impairment due to

degenerative disc disease of the lumbar spine. Listing 1.04

pertains to certain listed disorders of the spine, including

degenerative disc disease, that results in compromise of the

nerve root or the spinal cord. In addition, the impairment must

meet one of three parts: A, B, or C. Nichols contends that his

impairment meets the criteria for Listing 1.04A, which provides

as follows:

Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).

Nichols challenges the ALJ's finding at Step Three, arguing that

the ALJ improperly relied on Dr. Nault's opinion and should have given more weight to the opinion of Nichols's treating physician,

Dr. Dennis G. Rork.

In support of his finding at Step Three, the ALJ merely

stated that "[t]here is no evidence" of the criteria necessary

for Listing 104. The ALJ did not cite record evidence to support

9 his conclusion. As Nichols points out in his motion to reverse

and remand, the ALJ's bare statement is incorrect because the

record does include evidence of each of the criteria of Listing

1.04A. Therefore, as stated, the ALJ's finding is wrong.

In response, the Commissioner argues that the record

includes substantial evidence to support the ALJ's finding.

Specifically, the Commissioner relies on Dr. Nault's statement

that Nichols's degenerative disc disease was not severe enough to

meet the criteria of a listed impairment and Dr. Nault's

assessment that Nichols retained the capacity for sedentary work.

The Commissioner also cites evidence that post dates Dr. Nault's

opinion to support the ALJ's finding and contradicts the opinion of Dr. Rork, including the opinion of Dr. Fleischer, Nichols's

treating orthopedic surgeon.

Ordinarily, the Commissioner cannot provide a post hoc rationale for the ALJ's erroneous findings. Van Blarcom v.

Astrue.

, at *4 (D.N.H. May 25, 2011); Larlee v.

Astrue,

(D. Mass. 2010). In some cases,

however, remand is not necessary "if it will amount to no more

than an empty exercise." Ward v. Comm'r of Social Security,

(1st Cir. 2000). Because the record does contain

substantial evidence to support the ALJ's finding, despite his

insufficient analysis at Step Three, remand is not required here.

10 See. e.g.. Stratton v. Astrue.

, at *10 (D.N.H.

May 11, 2012); Phelps v. Astrue.

, at *5 (D.N.H.

July 7, 2011) . Conclusion

For the foregoing reasons, the claimant's motion to reverse

and remand (document no. 8) is denied. The Commissioner's motion

to affirm (document no. 12) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

'Joseph A. DiClerico, Jr\ United States District Judge June 14, 2012

cc: Robert J. Rabuck, Esquire D. Lance Tillinghast, Esquire

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