UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Tammy Levasseur

v. Civil No. 16-cv-431-JL Opinion No.

Nancy A. Berryhill, Acting Commissioner,Social Security Administration

ORDER ON APPEAL

Tammy Levasseur appeals the Social Security

Administration’s (“SSA”) denial of her application for

disability benefits. An Administrative Law Judge (“ALJ”) found

that Levasseur suffered from the following severe impairments:

degenerative disc disease of the lumbar spine, osteoarthritis,

diabetes mellitus and obesity. The ALJ ultimately found that

Levasseur was not disabled within the meaning of the Social

Security Act because she could return to her past work as an

audit clerk. Alternatively, the ALJ found that Levasseur was

not disabled because she has sufficient residual functional

capacity (“RFC”) to work at jobs that exist in significant

numbers in the national economy. See

(d)(2)(A).

The SSA Appeals Council subsequently denied Levasseur’s

request for review of the ALJ’s decision, rendering the ALJ’s decision final. Levasseur timely appealed to this court,

pursuant to

(g). In due course, Levasseur moved

to reverse the SSA’s decision and the SSA’s Acting Commissioner

moved to affirm the denial of benefits.

Levasseur argues on appeal that the ALJ erred by

improperly assessing medical evidence and thus failing to

consider the limitations created by her pain, migraines,

depression and medication side effects. As a result, she

argues, the ALJ improperly determined her RFC, incorrectly found

that she could return to her former job, and erred in making an

alternative finding that Levasseur had transferable skills

sufficient to perform certain specific jobs.

After consideration of the parties’ arguments and the

administrative record, the court finds that the ALJ failed to

give sufficient weight to the opinions of Levasseur's treating

neurologist with respect to her migraines, their effect on her

ability to work, and the side effects of medications taken to

relieve migraine symptoms. The ALJ also failed to properly

consider a functional capacity report prepared by Levasseur’s

physical therapist. Moreover, this information was not reviewed

by the state agency consultant whose opinions the ALJ relied on

and the ALJ failed to adequately account for them. These

2 failures amount to reversible error. Levasseur’s motion is

therefore granted. The Assistant Commissioner’s motion is

denied and the matter is remanded for further consideration.

I. Standard of Review

The court’s review of SSA’s final decision “is limited to

determining whether the ALJ used the proper legal standards and

found facts upon the proper quantum of evidence.” Ward v.

Comm’r of Soc. Sec.,

(1st Cir. 2000). The

ALJ’s decision will be upheld if it is supported by substantial

evidence, that is, “such evidence as a reasonable mind might

accept as adequate to support a conclusion.” Richardson v.

Perales,

(1971) (quotations omitted). This is

less evidence than a preponderance but “more than a mere

scintilla.” Id.; Consolo v. Fed. Mar. Comm’n,

(1966). The possibility of drawing two inconsistent conclusions

from the evidence does not preclude a finding of substantial

evidence. Consolo,

. Accordingly, the ALJ’s

resolution of evidentiary conflicts must be upheld if supported

by substantial evidence, even if contrary results are

supportable. Rodriguez Pagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1987). The court next turns to the

ALJ’s decision.

3 II. Background1

In analyzing Levasseur’s benefit application, the ALJ

invoked the required five-step process. See

. First, he concluded that Levasseur had not engaged in

substantial work activity after the alleged onset of her

disability on July 2, 2013.2 Next, the ALJ determined that

Levasseur suffered from several severe impairments:

degenerative disc disease of the lumbar spine, osteoarthritis,

diabetes mellitus and obesity.3 See

(c). At

the third step, the ALJ concluded that Levasseur’s impairments –

– either individually or collectively -- did not meet or

“medically equal” one of the listed impairments in the Social

Security regulations.4 See

(d), 404.1525,

404.1526. The ALJ next found that Levasseur had the RFC to

perform sedentary work, with the modification that she can not

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts is incorporated by reference. See L.R. 9.1(d). 2 Admin. Rec. at 11-12. 3 Id. at 12. 4 Id.

4 climb ladders, ropes or scaffolds, and is unable to use her

hands or feet for pushing or pulling. In addition, the ALJ

found that Levasseur is able to engage in all other postural

maneuvers on an occasional basis and should avoid all exposure

to unprotected heights, hazards and dangerous machinery.5 See

(a) and 416.967(a). The ALJ then concluded,

at step four of the process, that Levasseur could perform her

past relevant work as an audit clerk, despite the limitations in

her RFC.6 See

.

In the alternative, the ALJ proceeded to step five, at

which the SSA bears the burden of showing that a claimant can

perform other work that exists in the national economy. Freeman

v. Barnhart,

(1st Cir. 2001). Here, the ALJ,

considering Levasseur’s age, education and work experience,

using the Grid as a framework, concluded Levasseur could perform

jobs which exist in the regional and national economy, such as

telephone solicitor, appointment clerk, and food checker.7

Accordingly, the ALJ found Levasseur not disabled within the

meaning of the Social Security Act.

5 Id. at 13. 6 Id. at 17. 7 Id. at 18-19.

5 III. Analysis

Levasseur first argues that the ALJ improperly assessed her

pain, the side effects of pain medication and her migraines and

depression.8 She specifically alleges that the ALJ improperly

weighed the opinion of her treating neurologist, Dr. John

Pettinato, treating nurse Kim Keaton, and physical therapist

Rachel Heath. The court agrees with respect to Pettinato and

Keaton, and, as explained below, remands on that basis.

In April 2015, Dr. Pettinato completed a headache

questionnaire diagnosing migraine headaches without aura.9 He

opined that she suffered severe pain with phonophobia and

photophobia (the need to avoid light and sound).10 He further

indicated that Levasseur typically has 1-2 or fewer headaches

per week, lasting 24-48 hours.11 Dr. Pettinato concluded that

when claimant had such a headache she might miss an entire day

8 Pltff. Mot., doc. no. 8, at 3. 9 Admin. Rec. at 424-29. 10 Id. at 424. 11 Id. at 425.

6 of work, and that, as a result, she would probably be absent

from work three times per month.12

The ALJ significantly discounted the probative value of Dr.

Pettinato’s opinion, giving it “very little weight, as it is not

supported by any objective medical evidence.”13 The court finds

that in so doing, the ALJ erred.

When weighing medical opinions, the Commissioner will

“[g]enerally . . . give more weight to opinions from . . .

treating sources, since these sources are likely to be the

medical professionals most able to provide a detailed,

longitudinal picture of [a claimant’s] medical impairment(s) and

may bring a unique perspective to the medical evidence . . . .”

(c)(2). If the Commissioner finds that “a

treating source’s opinion on the issue(s) of the nature and

severity of [a claimant’s] impairment(s) is well-supported by

medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [a claimant’s] case record,” it is given controlling

weight.

12 Id. at 428. 13 Id. at 18.

7 When an ALJ does not give controlling weight to the opinion

of a treating source, he must determine how much weight to give

it by applying the following factors: (1) the length of the

claimant’s treatment relationship and the frequency of

examination; (2) the nature and the extent of the treatment

relationship; (3) the supportability of the opinion; (4) the

consistency of the opinion with the record as a whole; (5) the

specialization of the source who gave the opinion; and (6) other

factors. See

(c)(2)-(6). Moreover, “[i]n

many cases, a treating source’s opinion will be entitled to the

greatest weight and should be adopted, even if it does not meet

the test for controlling weight.” Social Security Ruling 96–2p,

, at *4 (S.S.A. July 2, 1996). Ultimately, the

ALJ must “always give good reasons . . . for the weight [he]

give[s] [a claimant’s] treating source's opinion.”

(c)(2). Those reasons must be “supported by evidence in

the case record and must be sufficiently specific to make clear

to any subsequent reviewers the weight the adjudicator gave to

the treating source’s medical opinion and the reasons for that

weight.” SSR 96-2p, at 5.

Here, while the ALJ mentioned Dr. Pettinato’s opinion, he

did not indicate what that opinion was, or, more importantly,

8 how other medical evidence demonstrated inconsistency with his

opinion that Levasseur had 1-2 or fewer headaches per week which

could cause her to miss an entire day of work, or three days of

work per month. Put another way, the ALJ’s consideration of Dr.

Pettinato’s opinion lacked the specificity required by SSR 96-

2p. See Larocque v. Colvin,

(conclusory

statement that opinion was inconsistent with medical record did

not amount to rationale supported by substantial evidence).

Remand is required for the ALJ to properly evaluate Dr.

Pettinato’s opinion.

Relatedly, in formulating Levasseur’s RFC, the ALJ gave

“great evidentiary weight” to the opinion of non-examining state

agency medical consultant Jonathan Jaffe, M.D., despite the fact

that Jaffe did not review Dr. Pettinato’s opinion or records or

the functional capacity assessment of physical therapist Heath,

who limited Levasseur to working 2-4 hours per day, a limitation

that was never presented to the testifying vocational expert or

made a part of the final RFC. See Admin. Rec. at 66-73; 369-

375. An ALJ may rely on an RFC opinion of a non-examining

consultant when the consultant has not examined the full medical

record where the medical evidence postdating the reviewer’s

assessment does not establish any greater limitations, see

9 Strout v. Astrue, Civil No. 08–181–B–W,

, at *8-9

(D. Me. Jan. 28, 2009) (citing Rose v. Shalala,

, 18

(1st Cir. 1994)), or where the medical reports of claimant’s

treating providers are arguably consistent with, or at least not

“clearly inconsistent” with, the reviewer’s assessment; see

Torres v. Comm’r of Social Security, Civil No. 04–2309,

, at *1 (D.P.R. Sept. 6, 2005) (upholding ALJ’s reliance

on RFC assessment of non-examining reviewer where medical

records of treating providers were not “in stark disaccord” with

the RFC assessment). Here, the reports of both Dr. Pettinato

and physical therapist Heath contradict Dr. Jaffe’s RFC

determination. Moreover, the ALJ failed to even note the hourly

limitation in his opinion or why the limitation did not detract

from Dr. Jaffe’s assessment. Cf. Nelson v. Colvin,

(upholding ALJ’s review of subsequent evidence where they

established no “greater limitations” than those assessed by the

state agency consultant).

10 IV. Conclusion

Claimant’s motion to reverse14 is GRANTED. The Assistant

Commissioner’s motion to affirm15 is DENIED.16 This matter is

remanded for further proceedings. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: March 20, 2018

cc: Karen B. Fitzmaurice, Esq. Terry L. Ollila, AUSA

14 Doc. no. 8. 15 Doc. no. 12. 16The court does not reach claimant’s arguments regarding her back pain and depression because the ALJ’s error in weighing the opinion evidence described above, standing alone, necessitates remand.

11