UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John A. Ledoux, Jr.

v. Civil No. 13-cv-530-JD Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

John A. Ledoux, Jr. seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of

the Social Security Administration, denying his applications for

social security disability benefits. Ledoux contends that the

Administrative Law Judge (“ALJ”) erred in weighing the medical

opinions in the record, in failing to consider the limiting

effects of other impairments, in assessing a residual functional

capacity for full-time work, and in relying on the vocational

expert’s opinion based on an incomplete hypothetical question.

The Acting Commissioner moves to affirm the decision.

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 ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). 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).

Background1

Ledoux applied for social security disability benefits and

supplemental security income in April of 2007, alleging a

disability since January 15, 2006. His application was denied

and, after a video hearing, an ALJ issued a decision on April 6,

2010, finding that Ledoux was not disabled. On judicial review,

the court reversed and remanded the decision on January 24,

2011. The same ALJ held another video hearing and then issued a

decision on March 1, 2012, again finding that Ledoux was not

disabled. When the administrative files were not available to

allow review, the court again reversed and remanded.

1 The background information is summarized from the parties’ joint statement of material facts. See LR 9.1(c).

2 A new ALJ held a third video hearing on April 2, 2015, and

issued a decision on April 24, 2015, finding that Ledoux was not

disabled from the alleged onset date through his last insured

date of March 31, 2011. The ALJ found, however, that Ledoux was

disabled after October 24, 2012, because his age category

changed.2 When the Appeals Council informed Ledoux that the

ALJ’s decision was the final decision, he again sought judicial

review.

Ledoux was forty-three years old in 2006, when he alleges

his disability began. He had worked as a tow truck driver, a

heavy equipment driver, and motorcycle repairer. For purposes

of challenging the current decision, Ledoux is seeking social

security disability benefits and alleges disability caused by

physical impairments due to disc disease, headaches, and

coronary artery disease.

A. Medical Records

In September of 2006, Ledoux reported during an initial

healthcare assessment that he had lower back pain that caused

him to double over at times and interrupted his sleep. An x-ray

showed a collapsed disc at L4-L5 with advanced degenerative bone

changes and an “anterior and posterior marginal spur causing

The Social Security Administration found that Ledoux was 2

entitled to supplemental security benefits as of February 1, 2013.

3 some focal stenosis of the spinal canal.” Ledoux’s gait was

coordinated and smooth. The physician’s assistant prescribed

pain medication.

At appointments over the rest of 2006, Ledoux reported that

medication helped him sleep but that he still had back pain and

also had numbness in his leg and foot. In December of 2006, an

MRI showed disc herniation at L5-S1 and L4-L5 along with

“collapse and loss of disc height as well as disc dessication”

at L3 to S1. Despite worsening back pain, Ledoux continued to

be self-employed doing carpentry into 2007.

In April of 2007, Ledoux reported increased pain and right

leg weakness. He was limping, and his range of motion was

limited by low back pain. Straight leg testing was positive on

his right leg. He also reported that he had not worked since

the winter.

By mid-2007, physicians agreed that nonoperative treatment

of Ledoux’s back pain had been unsuccessful. On July 9, 2007,

Dr. Yogish Kamath operated on Ledoux, doing a lumbar laminectomy

with L3-L5 disc fusion. He was discharged from the hospital on

July 14, 2007.

In late July of 2007, Dr. Matt Masewic, a state agency

physician, reviewed Ledoux’s records and concluded that despite

Ledoux’s severe lumbar disc disease, he could work at the

sedentary exertional level and do all postural activities.

4 Another state agency physician reviewed Dr. Masewic’s opinion

and agreed.

Ledoux reported to a physician’s assistant in mid-August

that he was symptom free. His physical examination produced

normal results. Dr. Kamath cautioned that Ledoux was to avoid

bending, contact sports, and lifting weights over twenty-five to

thirty pounds. Dr. Kamath also stated that Ledoux could not

return to his work in the construction industry.

Physical therapist Ernest Roy performed a functional

capacity assessment of Ledoux on August 21, 2007. Because of

Ledoux’s recent surgery, Roy could not do some of the necessary

testing. He found that Ledoux could occasionally do postural

activities, walk, stand, and drive and was not limited in hand

movements and manipulation. Roy also found that Ledoux could

work at the light exertional level for eight hours daily.

A state agency consultant, Dr. Akbar N. Sadri, reviewed

Ledoux’s records and issued an opinion on March 21, 2008. He

found that Ledoux could do work at the sedentary exertional

level with certain other limitations.

In October of 2008, Ledoux was hospitalized for chest pain

radiating down his arms. He was diagnosed with a heart attack.

He had a surgical procedure to insert a stent in his left

circumflex coronary artery. His post-operative checks reported

that he was doing well.

5 After he fell in January of 2009, Ledoux reported to a

physician’s assistant that he had an exacerbation of back pain.

He also noted chronic neuropathy of his right leg and foot since

the surgery. An x-ray showed no acute fracture or displacement

of the surgical hardware. The physician’s assistant prescribed

pain medication.

During a physical therapy consultation in March of 2009,

Ledoux reported that although surgery had improved his pain, he

still had chronic back pain. The physical therapist issued a

TENS unit and recommended home exercise. In May, Ledoux

reported chronic back pain with a recent increase in pain. The

physical therapist noted that Ledoux was stiff when getting up

from a chair and that he walked with a limp. She ordered a home

lumbar traction unit.

At a doctor’s appointment in July of 2009, Ledoux reported

back pain radiating into his left hip. Dr. Alina Robert found

decreased sensation in his lower legs and positive results on

straight leg testing. An MRI of Ledoux’s lumbar spine showed

degenerative disc disease, a renal cyst on the left side,

bilateral tightening of spinal cord nerves at L2-L3, a post-

operative meningocele or pseudomeningocele (accumulation of

cerebrospinal fluid in the back causing pain and headaches), a

broad-based disc bulge at L2-L3 with other changes, and loss of

intervertebral disc space at L4-L5.

6 Dr. Gopalan Umashankar evaluated Ledoux in September of

2009 for back pain. Although the examination was essentially

normal, Dr. Umshankar assessed failed low back syndrome. He

stated that Ledoux should not lift weights heavier than twenty

pounds, should not bend forward or sideways, and would have

difficulty returning to his former work.

In October of 2009, Ledoux saw Dr. Rowland Hazard because

of back pain. Dr. Hazard recommended a neurological review.

Dr. Nathan Simmons did a neurosurgical evaluation in November

and found that the pseudomeningocele was not causing headaches

or pain, and that there were no surgical issues.

In January of 2010, Dr. Hazard referred Ledoux to

Occupational Therapist Lynn Chauvette for a functional capacity

evaluation. Chauvette found that Ledoux could safely do

sedentary work but that he could not sustain the work, even on a

part-time basis, because of his need to change positions

frequently. During her examination, Chauvette noted signs of

Ledoux’s competitive effort and performance and his physical

discomfort. Chauvette also noted that Ledoux had two of seven

anatomically unreasonable responses, or Waddell signs, during

the testing. Overall, Chauvette found that Ledoux provided full

physical effort and that his reports of pain were reasonable and

reliable based on the test findings and clinical observations.

7 A physician’s assistant, who had treated Ledoux over the

past few years, wrote a letter in July of 2010 stating that a

recent study showed multilevel degenerative changes in Ledoux’s

cervical spine. Dr. Hazard also noted degenerative changes in

Ledoux’s cervical spine. An MRI showed mild to moderate

narrowing in the cervical spine. In September, Dr. Hazard

reviewed Chauvette’s functional capacity report and found it

credible, noting that the evaluation system she used was well

known and authoritative. A state agency consultant, Dr. Louis

Rosenthall, reviewed Ledoux’s records in November of 2010 and

found that he could do work at the sedentary level and had no

other limitations.

In March of 2011, Ledoux reported to the physician’s

assistant that he had worsening neck pain and sleep problems.

She increased his pain medication dosage. Ledoux’s date last

insured for purposes of disability insurance benefits was March

31, 2011.

Thereafter, Ledoux continued to be treated for back and

neck pain, including injections and pain medication. In August

of 2012, an MRI showed advanced degenerative changes at the L2-

L3 level and other changes noted in the cervical spine.

8 B. Administrative Hearing and Decision

A video hearing before an Administrative Law Judge was held

on April 2, 2015. Ledoux testified that his three children

stayed with him every other week. He said that he was limited

in his activities by back pain that ranged in severity from a

four to a ten and that he also suffered from headaches. He was

taking pain medication for his back. Despite the pain, he was

able to mow his small lawn, shop with his mother and his

daughter, and occasionally bike with his children.

A vocational expert testified at the hearing. In response

to a question about an individual limited to light work with

occasional postural limitations and some other prohibited

activities, the vocational expert testified that the person

could not return to Ledoux’s former work but could do other

work. When the exertional level was reduced to the sedentary

level, the vocational expert testified that the person could

work as an answering service operator, a telephone marketer

solicitor, and a surveillance system monitor. If the person

could not sit, stand, or walk for more than four hours in a day,

no jobs would be available. In response to questions from

Ledoux’s counsel, the vocational expert testified that a person

who had to get up and lean against a wall or support himself

with his hands for five minutes every hour could still do the

9 identified jobs but a need for those activities for ten minutes

or to lie down for an hour would preclude the identified jobs.

The ALJ found that Ledoux had the residual functional

capacity to do sedentary work that would allow him to change

positions between sitting and standing at will and with a

limitation to doing postural activities only occasionally.

Based on that assessment, the ALJ found, using the e Medical-

Vocational Guidelines and the vocational expert’s testimony,

that Ledoux was not disabled before October 24, 2012. Because

of his age, the ALJ found that Ledoux was disabled after October

24, 2012. When Ledoux did not send written exceptions to the

ALJ’s decision to the Appeals Council within the time allowed,

the ALJ’s decision became the final decision in the case.

Discussion

Ledoux moves to reverse the decision and remand the case

for further proceedings on the grounds that the ALJ erred in

giving Chauvette’s functional capacity evaluation little weight,

erred in weighing the medical opinion evidence, erred in failing

to consider Ledoux’s limitations in combination, and erred in

making the disability finding based on an incomplete

hypothetical to the vocational expert. The Acting Commissioner

moves to affirm the decision.

10 In determining whether a claimant is disabled for purposes

of social security benefits, the ALJ follows a five-step

sequential analysis.

. The claimant bears

the burden through the first four steps of proving that her

impairments preclude her from working. Freeman v. Barnhart,

(1st Cir. 2001). At the fifth step, the Acting

Commissioner has the burden of showing that jobs exist which the

claimant can do. Heggarty v. Sullivan,

(1st

Cir. 1991).

A. Opinion Evidence

An ALJ is required to consider the medical opinions along

with all other relevant evidence in a claimant’s record.

(b). Medical opinions from all sources are

evaluated based on the nature of the medical source’s

relationship with the claimant, the consistency of the opinion

with the other record evidence, the medical source’s specialty,

and other factors that may be brought to the ALJ’s attention.

§ 404.1527(c); Titles II and XVI: Considering Opinions and

Other Evidence from Sources Who Are Not ‘Acceptable Medical

Sources’ in Disability Claims, SSR 06-03p, August 9, 2006,

, *4-*5.

The ALJ may rely on opinions of state agency consultant

physicians under the same analysis as that applied to opinions

11 of treating or examining medical sources. § 404.1527(e); Ormon

v. Astrue,

(1st Cir. 2012); Smallidge v.

Colvin,

, at *5 (D.N.H. Feb. 28, 2014); see also

Titles II and XVI: Consideration of Administrative Findings of

Fact by State Agency Medical and Psychological Consultants and

Other Program Physicians, SSR 96-6p,

(July 2,

1996). The opinions of state agency consultant physicians,

however, may constitute substantial evidence to support an ALJ’s

findings only if the opinions are supported by the record. SSR

96-69, at *2. If the state agency consultant reviewed only part

of the record, the opinion cannot provide substantial evidence

to support the ALJ’s residual functional capacity assessment if

later evidence supports the claimant’s limitations. See McGowen

v. Colvin,

, at *6 (D.N.H. Mar. 15, 2016) (citing

cases).

Acceptable medical sources are licensed physicians,

licensed or certified psychologists, licensed optometrists,

licensed podiatrists, qualified speech language pathologists who

may provide evidence to establish an impairment.

(a). Other sources, such as physical and occupational

therapists, may provide evidence of the severity of an

impairment and how it affects the claimant’s work.

§ 404.1513(d). Functional capacity testing by a physical

therapist or an occupational therapist is “evidence from other

12 sources” that may be considered to determine the severity of an

impairment and its functional effect. § 404.1513(d).

1. Functional Capacity Evaluations

Ledoux argues that the ALJ erred in giving little weight to

the functional capacity evaluation done by Occupational

Therapist Lynn Chauvette. He contends that because Dr. Hazard

referred Ledoux to Chauvette for the evaluation and then

reviewed the evaluation and found that it seemed credible the

evaluation should have been given greater weight. He also

faults the ALJ for giving Physical Therapist Ernest Roy’s

evaluation great weight while discounting Chauvette’s opinion as

not being from an acceptable source.

As Ledoux points out, the ALJ’s analysis of Roy’s opinion

and Chauvette’s opinion is inconsistent. Both are therapists,

and therefore, neither are acceptable medical sources.3 As such,

both opinions may be considered for purposes of determining the

severity of a claimant’s diagnosed impairments and their effect

on his ability to work. To the extent the ALJ discounted

Chauvette’s opinion, which provided a functional capacity

3 The Acting Secretary mistakenly identified Roy as “Dr.” in her memorandum in support of her motion to affirm, which may explain, in part, the confusion about Roy’s status.

13 assessment, because it was not from an acceptable medical

source, that was error.4

In addition, Ledoux correctly contends that the ALJ erred

in discounting Chauvette’s opinion as unreliable based on her

finding that Ledoux’s testing showed two out of seven Waddell

signs. “Waddell signs are behavioral responses to physical

examination that indicate the presence of nonorganic—e.g.

psychological, social or behavioral—involvement in lower back

pain, and such signs are not on their own a test of credibility

or faking.” Ormon v. Astrue,

(1st Cir.

2012) (internal quotation marks omitted). Because Waddell signs

occur in patients with organic back pain, “isolated signs should

not be considered clinically significant.” Id.; see also

Doucette v. Astrue,

, 157 n.18 (D. Mass.

2013) (“Normally, at least three Waddell signs must be present

to consider the signs relevant to credibility.” Citing Bazile

v. Apfel,

, 187 n.2 (D. Mass. 2000)).

Despite the two positive Waddell signs, Chauvette

documented during the three and half hours of testing that

Ledoux showed objective signs of pain. She also found that

Ledoux demonstrated full physical effort and that his reports of

4 On the other hand, Ledoux’s reliance on Dr. Hazard’s referral to Chauvette to bolster her opinion is misplaced. See Scott v. Colvin,

, at *2 (D.N.H. Aug. 8, 2014).

14 pain and disability were reliable and reasonable based on her

test findings. Therefore, the ALJ erred in discounting

Chauvette’s opinion based on a perceived lack of reliability.

The inconsistencies in Ledoux’s reported work record cited

by the Acting Commissioner to show a lack of credibility in

Ledoux’s claims do not undermine Chauvette’s evaluation. There

is no suggestion that Chauvette was influenced by the date when

Ledoux stopped working, which in any case was years before

Chauvette tested Ledoux. Also, Chauvette based her evaluation

on her own testing and observations, not on Ledoux’s subjective

complaints, so that Ledoux’s credibility does not significantly

affect the value of Chauvette’s evaluation.

Roy evaluated Ledoux in August of 2007, only a month after

Ledoux’s surgery. Due to the recent surgery, Roy was not able

to conduct all of the tests for the evaluation. Given the

limitations on Roy’s testing and the changes in Ledoux’s

condition over the next few years, after Roy provided his

residual functional capacity assessment, the ALJ’s decision to

give Roy’s opinion great weight was not well supported.

Therefore, the ALJ erred in giving Roy’s opinion more

weight than Chauvette’s opinion. The ALJ also gave weight to

medical opinions in the record that supported a residual

functional capacity assessment for the ability to do sedentary

work. Those are reviewed below.

15 2. Medical Opinions

Ledoux challenges the ALJ’s assessment of the medical

opinions provided by Dr. Sadri, Dr. Masewic, and Dr. Umashankar.

She also asserts that the ALJ erred by ignoring Dr. Hazard’s

opinion. As the Acting Commissioner explains, Dr. Hazard’s

referral to Chauvette and his comment that Chauvette’s

evaluation seemed credible are not medical opinions. See Scott

v. Colvin,

, at *2 (D.N.H. Aug. 8, 2014).

Therefore, Ledoux does not point to a medical opinion by Dr.

Hazard that should have been considered by the ALJ.

Dr. Masewic’s opinion is from July of 2007, just days after

Ledoux had back surgery. It is based on Dr. Masewic’s review of

medical records from before the surgery, which did not account

for changes that occurred thereafter. Ledoux’s medical record

documents substantial changes in his medical condition after

that time. Because Dr. Masewic did not review the years of

medical records after July of 2007 and did not have Chauvette’s

opinion, his evaluation does not provide substantial evidence to

support the ALJ’s residual functional capacity assessment.

Dr. Sadri reviewed the medical evidence in March of 2008

and provided his opinion that Ledoux could work on a full-time

basis at the light exertional level. Dr. Sadri found no medical

cause for Ledoux’s recent complaints of hand numbness, which Dr.

16 Hazard later found to be caused by disc pathology in Ledoux’s

cervical spine. Again, the medical record continues on for two

years after Dr. Sadri provided his evaluation.

Dr. Umashankar did not provide a separate opinion about

Ledoux’s residual functional capacity. Instead, as part of his

treatment records, Dr. Umashankar stated some weight limitations

and bending restrictions on Ledoux’s functional capacity but

provided no opinion about Ledoux’s ability to work on a full-

time basis. The ALJ properly gave great weight to the lifting

and bending limitations found by Dr. Umashankar.

B. Finding of Not Disabled

The ALJ found that Ledoux was able to work full time at the

sedentary exertional level with the ability to change positions

at will and some postural and climbing limitations. Occupa-

tional Therapist Chauvette found in January of 2010 that the

level of pain Ledoux was experiencing during her testing

precluded him from full-time work. No opinion considered by the

ALJ, which could provide substantial evidence, found that Ledoux

was capable of full time work by that time.

The Acting Commissioner points to the opinion provided in

November of 2010 by Dr. Rosenthall that Ledoux was capable of

working at the sedentary level to show substantial evidence to

support the ALJ’s assessment. The ALJ did not address Dr.

17 Rosenthall’s opinion, however. The Acting Commissioner argues,

relying on Ward v. Comm’r of Soc. Sec.,

(1st

Cir. 2000), that omission is harmless because remand would be an

empty exercise.

In general, the court cannot affirm the Acting

Commissioner’s decision based on a rationale or analysis that

the ALJ did not consider. See High v. Astrue,

,

at *6 (D.N.H. Mar. 17, 2011); accord Jenness v. Colvin,

, at *7 (D.N.H. Aug. 27, 2015). The Acting Commissioner

has not shown that the general rule should not apply here.

Further, Ledoux disputes Dr. Rosenthall’s opinion, pointing to

mistakes and omissions in his evaluation of the record.

Therefore, Dr. Rosenthall’s opinion cannot provide substantial

evidence to support the ALJ’s finding that Ledoux was capable of

full-time work at the sedentary exertional level.

In the absence of substantial evidence, the Acting

Commissioner’s decision must be reversed and remanded.

Conclusion

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

and remand (document no. 12) is granted.

The Acting Commissioner’s motion to affirm (document no.

14) is denied.

18 The decision of the Acting Commissioner is reversed and the

case is remanded pursuant to Sentence Four.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

July 6, 2016

cc: Ruth Dorothea Heintz, Esq. Robert J. Rabuck, Esq.

19