UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Deborah Lefebvre

v. Civil No. 18-cv-4-JL Opinion No.

U.S. Social Security Administration, Commissioner

ORDER ON APPEAL

Deborah Lefebvre has appealed the Social Security

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

of disability and disability insurance benefits. An

administrative law judge (“ALJ”) at the SSA ruled that, despite

severe impairments, Lefebvre retains the residual functional

capacity (“RFC”) to perform past relevant work, and thus is not

disabled. See

(a). The Appeals Council

granted Lefebvre’s request for review, see

§ 404.967,

vacated the ALJ’s decision, and remanded for further

proceedings. On remand, the ALJ reached the same conclusions as

in his first decision. The Appeals Council denied Lefebvre’s

second request for review, with the result that the ALJ’s second

decision became the final decision on her application, see id.

§ 404.981. Lefebvre then appealed the decision to this court,

which has jurisdiction under

(g) (Social

Security). Lefebvre has moved to reverse the decision. See LR 9.1(b).

The Acting Commissioner of the SSA has cross-moved for an order

affirming the ALJ’s decision. See LR 9.1(e). After careful

consideration, the court denies the Acting Commissioner’s motion

and grants Lefebvre’s motion to the extent that it remands the

case to the Acting Commissioner for further proceedings.

Applicable legal standard

The court limits its review of a final decision of the SSA

“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). It

“review[s] questions of law de novo, but defer[s] to the

Commissioner’s findings of fact, so long as they are supported

by substantial evidence,”

that is, “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion,” Richardson v. Perales,

(1971)

(quotations omitted). Though the evidence in the record may

support multiple conclusions, the court will still uphold the

ALJ’s findings “if a reasonable mind, reviewing the evidence in

the record as a whole, could accept it as adequate to support

his conclusion.” Irlanda Ortiz v. Sec’y of Health & Human

Servs.,

(1st Cir. 1991). The court therefore

“must uphold a denial of social security . . . benefits unless

2 ‘the [Acting Commissioner] has committed a legal or factual

error in evaluating a particular claim.’” Manso-Pizarro v.

Sec'y of Health and Human Servs.,

(1st Cir. 1996)

(per curiam) (quoting Sullivan v. Hudson,

(1989)).

Background1

The ALJ invoked the requisite five-step sequential

evaluation process in assessing Lefebvre’s request for

disability and disability insurance benefits. See

. The ALJ found that Lefebvre was insured under the

Social Security Act through September 30, 2019. Although

Lefebvre had engaged in substantial gainful activity between

April 2016 and early January 2017, the ALJ determined that there

had been a continuous 12-month period during which Lefebvre did

not engage in substantial gainful activity between the alleged

onset of her disability on February 11, 2011 and the date of the

first hearing decision on September 16, 2015.2 The ALJ next

analyzed the severity of Lefebvre’s impairments. At this second

step, the ALJ concluded that Lefebvre had two severe

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 (doc. no. 11) is incorporated by reference. 2 Admin. R. at 24-25.

3 impairments: degenerative disc disease and left shoulder

tendonitis.3

At the third step, the ALJ found that Lefebvre’s severe

impairments did not meet or “medically equal” the severity of

one of the impairments listed in the Social Security

regulations.4 See

(d), 404.1525, 404.1526.

After reviewing the medical evidence of record, medical

opinions, and Lefebvre’s own statements, the ALJ concluded that

Lefebvre retained the RFC to perform sedentary work, see

(a), including:

the ability to lift ten pounds occasionally and five pounds frequently; stand and/or walk two hours in an eight-hour day and sit for six hours in an eight-hour day. She has unlimited use of the hands and feet to push, pull, and operate controls, can occasionally preform all postural activities and she can occasionally reach overhead with the left upper extremity. Otherwise, the claimant has an unlimited capacity for handling, fingering, feeling and reaching.5

Finding that, even limited in this manner, Lefebvre was able to

perform several types of past relevant work, see

, the ALJ concluded his analysis and found that

3 Id. at 25. 4 Id. at 26. 5 Admin. R. at 27.

4 Lefebvre was not disabled within the meaning of the Social

Security Act.6

Analysis

Lefebvre challenges both the ALJ’s step three and step four

determinations. At step three, she argues that the ALJ erred in

analyzing whether her condition meets or medically equals

listing 1.04A. See

, Subpart P, App. 1. At step

four, she contends that the ALJ failed to conduct an adequate

function by function analysis in determining RFC by inadequately

considering evidence of her difficulty with prolonged sitting.

In support of both arguments, Lefebvre cites the results of the

her most recent lumbar MRI. The court does not directly resolve

these arguments, because it finds that the ALJ made factual

errors in interpreting the record that may have impacted his

assessment of these MRI results, and therefore remands the case

to the Acting Commissioner. The court explains Lefebvre’s

arguments to show the relevance of the MRI results.

A. Step three – listing 1.04 analysis

The ALJ began his step three analysis by explaining that

the claimant bears the burden of showing that an impairment

meets or medically equals the requirements of a listed

6 Admin. R. at 36-39.

5 impairment, by means of medical proof that the impairment

satisfies all medical criteria for the listing and has lasted or

can be expected to last for at least 12 months.7 He held that

Lefebvre had not alleged or shown that her impairments were

severe enough to meet or medically equal a listed impairments,

noting that there was no acceptable medical opinion evidence

finding her that her impairments reached listing level.8 The ALJ

specifically considered listings 1.02 and 1.04, but found that

the severity of Lefebvre’s impairments did not meet or medically

equal those listings.9

Lefebvre challenges only the ALJ’s listing 1.04 analysis.

The ALJ found that Lefebvre’s degenerative disc disease did not

meet or medically equal the criteria of any impairment in

listing 1.04 because “[t]he clinical evidence presented does not

establish compromise of a nerve root or the spinal cord.”10

Lefebvre argues that the results of her January 2015 cervical

MRI show pressure upon a nerve root, and that her October 2016

lumbar MRI noted nerve “impingement” of the LR nerve root and

bilateral SI nerve root. The listings suggest that

7 Admin. R. at 26-27 8 Id. at 27. 9 Id. 10 Id.

6 “impingement” and “compromise” are equivalent. Compare

, Subpart P, App. 1, 1.00(K) (“Disorders of the

spine, listed in 1.04, result in limitations because of

distortion of the bony and ligamentous architecture of the spine

and associated impingement on nerve roots (including the cauda

equina) or spinal cord.”), with

, Subpart P, App.

1, 1.04 (“Disorders of the spine . . . resulting in compromise

of a nerve root (including the cauda equina) or the spinal

cord.”). Lefebvre also contends that the record shows she meets

the other requirements of listing 1.04A, which the ALJ did not

reach.

The Acting Commissioner argues that the nerve “abutment”

found by the cervical MRI is not nerve “compromise,” and that

any error in finding no “compromise” does not require remand,

because of evidence in the record that Lefebvre does not meet

the other requirements of listing 1.04A and the lack of medical

opinion evidence supporting equivalence with a listing.

B. Step four – RFC analysis

The ALJ supported his RFC finding with a detailed

discussion of the evidence in the record. He found Lefebvre’s

“symptom complaints not consistent to the extent alleged,”

because “the objective medical testimony of record does not

fully support” her testimony of “an extremely limited range of

7 functional abilities.”11 He evaluated the medical opinion

evidence, giving little weight to statements by an occupational

therapist, Lefebvre’s treating physician, and Lefebvre’s mother,

and substantial weight to the opinion of Dr. Burton Nault, the

state agency medical consultant.

Lefebvre argues that the ALJ failed to sufficiently conduct

a function by function analysis of her ability to sit for long

periods during a workday. She argues that significant evidence

in the record supports her position that she could not sit for

extended periods, and that the ALJ improperly relied on general

credibility assessments in concluding otherwise. Among other

evidence, she highlights the results of her October 2016 lumbar

MRI, which Dr. Timothy Sievers, one of Lefebvre’s pain

management physicians, described in treatment notes as “showing

some significant findings which correlate with her current

symptoms.”12

The Acting Commissioner argues that the ALJ adequately

explained his finding that Lefebvre could “sit for six hours in

an eight-hour day” through the objective medical evidence and

reliance on the opinion of Dr. Nault. The Acting Commissioner

admits that the October 2016 MRI shows some progression of

11 Admin. R. at 28-29. 12 Id. at 948.

8 symptoms, but contends that in the absence of any evidence of

altered treatment or provider opinions supporting new functional

limitations, the ALJ could still reasonably rely on Dr. Nault’s

2013 opinion.

The ALJ devoted adequate attention to Lefebvre’s ability to

sit for long periods. Along with a detailed discussion

comparing Lefebvre’s alleged symptoms to the medical evidence,

the ALJ specifically found that she could sit for six hours in

an eight-hour day in his RFC finding, a conclusion matching Dr.

Nault’s report.13 Adequately explained reliance on the function-

by-function analysis of an adopted medical opinion meets SSA

requirements. See Gallagher v. Astrue, No. 08-cv-163-PB,

, at *8 (D.N.H. April 3, 2009) (Barbadoro, J.)

(“[B]ecause he relied on the opinion and functional assessment

of Dr. Cylus in the body of his decision, the ALJ met the

requirements of SSR 96–8p when determining Gallagher's RFC.”).

Cf. Trudnak v. Berryhill, No. 17-cv-195-LM,

(D.N.H. May 3, 2018) (McCafferty, J.) (RFC finding on ability to

walk and stand not supported by substantial evidence where ALJ

found less limitation than any expert evaluation in the record).

The ALJ analyzed of Lefebvre’s ability to sit with

sufficient process, but the substance of the analysis must also

13 See id. at 27, 122.

9 be supported by substantial evidence. Although Lefebvre has not

directly challenged the ALJ’s reliance on Dr. Nault’s opinion,

she does argue that the ALJ failed to adequately account for the

findings of the 2016 MRI.

C. October 2016 lumbar MRI

The ALJ addressed the results of MRIs of Lefebvre’s spine,

but misinterpreted the record and classified restatements of old

MRI results as new MRIs. These errors potentially affected the

ALJ’s step-three and step-four analyses. Because of these

factual inaccuracies, his decision is not supported by

substantial evidence.

In a section of the step-four analysis found in both the

decision prior to remand and the current decision, the ALJ noted

that despite Lefebvre’s reports of severe symptoms,

“radiological imaging reports describe only mild to moderate

degeneration and foraminal narrowing in the lumbar spine

(Exhibits 6F/4, 9F, & 20F/7).”14 The cited exhibits are July 8,

2013 and June 26, 2014 MRI of Lefebvre’s lumbar spine, and

treatment notes by Dr. Sievers interpreting a January 20, 2015

MRI of Lefebvre’s cervical spine.15

14 Admin. R. at 30, 137. 15Id. at 610, 660-664, and 795. Exhibit 9F is missing a page from the report on the June 2014 MRI. The full report is

10 In a later section addressing medical evidence submitted

after remand, the ALJ explains that Lefebvre presented to Dr.

Xiao-Qing Wang in August 2015 complaining of lumbar back pain

and bilateral lower extremity pain.16 But, the ALJ reports,

“[l]umbar spine MRI showed no evident foraminal compromise

(Exhibit 22F; duplicate at Exhibit 26F/2-10).”17 The exhibits

cited to support this statement are merely reprintings, within

Dr. Wang’s treatment notes, of the the full report from the

January 2015 cervical MRI and the “impressions” portion of the

report on the June 2014 lumbar MRI, along with a note of “agree

with read,” apparently from Dr. Wang.18

The ALJ also found that:

MRI done in May 2016 showed multilevel degenerative disc disease of the cervical spine, with broad-based bulge at the C3-4 level that abutted the left-sided nerve roots. The spinal canal was patent at all other levels. There was no canal or right neuroforamenal narrowing from the bulge at the C6-7 level, with only mild to moderate left neuroforamenal narrowing. The findings on the lumbar MRI were improved, showing that a left-sided compromise seen on a prior study was no longer evident (Exhibit 26F/62-63). A lumbar MRI done on October 15, 2016 showed progress since June 6, 2014 (Exhibit 25F). There was no comparison to the May 2016 lumbar MRI. There is no provider opinion that

present in exhibit 10F. Id. at 670-71. The imaging report for the January 2015 cervical MRI is in exhibit 27F. Id. at 956-57. 16 Id. at 31. 17 Id. at 32. 18Compare id. at 805-08 and 861-63 with id. at 670-71 and 956- 57.

11 these MRI findings imposed any further functional limitation then that set forth within the residual functional capacity above.19

The May 2016 results the ALJ refers to are in fact another

duplicate copy of the January 2015 cervical MRI and June 2014

lumbar MRI results.20 They are repeated within treatment notes

for a May 2016 examination by Dr. Wang. It appears that Dr.

Wang’s examination records include, as a matter of course, the

most recent imaging records of the patient.21

The court finds no evidence in the record that Lefebvre

underwent a lumbar MRI between June 26, 2014 and October 15,

2016, or a cervical MRI after January 20, 2015. The parties’

joint statement of material facts refers the MRIs on those

dates, but not to any intervening ones.22 The ALJ’s misreading

of Dr. Wang’s treatment notes led him to understand,

incorrectly, that MRIs were conducted in or around August 2015

and May 2016. The ALJ’s misunderstanding clearly affected his

assessment of the October 2016 lumbar MRI results and related

treatment notes.

19 Id. at 33.

20 Compare id. at 916-18 with id. at 670-71 and 956-57. 21See also id. at 870-72 (October 2015 examination), 888-90 (January 2016 examination), 940-42 (September 2016 examination) 22 See Joint Statement of Material Facts (doc. no. 11) at 7-16.

12 While Lefebvre did not highlight this misunderstanding, she

argues that the ALJ did not properly account for the October

2016 lumbar MRI results in his step three and step four

analysis. She is not entitled to reversal. Substantial

evidence may well still support the ALJ’s ultimate conclusions,

and the court will not step into the ALJ’s role and re-weigh the

evidence with a corrected understanding of the record.

But the ALJ’s error is not harmless. Substantial evidence

does not exist to support the factually inaccurate decision

rendered by the ALJ, even if the ultimate conclusions may be

supported by the record. This is not a case where the ALJ has

only inadequately explained or insufficiently analyzed, and the

record still contains substantial evidence to support the ALJ’s

finding. See Nichols v. Astrue, No. 11-cv-197-JD,

at *4 (D.N.H. June 14, 2012) (DiClerico, J.). When the

ALJ has made factual findings unsupported by the record, remand

is required.

Conclusion

For these reasons, the Acting Commissioner’s motion to

affirm23 is DENIED and Lefebvre’s motion to reverse the Acting

Commissioner’s decision24 is GRANTED to the extent that the case

23 Doc. no. 12. 24 Doc. no. 8.

13 is remanded to the Acting Commissioner for further proceedings,

pursuant to sentence four of

(g). The Clerk of

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: March 12, 2019

cc: D. Lance Tillinghast, Esq. Amy C. Bland, Esq.

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