Levesque v . SSA CV-00-485-JD 11/28/01
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Louis Levesque
v.
Opinion N o . 2001 DNH 211
Larry Massanari,
Acting Commissioner,
Social Security Administration
O R D E R
The plaintiff, Louis Levesque, brings this action pursuant
to 42 U.S.C.A. § 405(g) seeking judicial review of the decision
by the Acting Commissioner of the Social Security Administration
denying his application under Title II for disability insurance
benefits. Levesque contends that a combination of his physical
and mental impairments rendered him disabled during the period of
his insured status. He moves to reverse the decision of the
Acting Commissioner, arguing that the Administrative Law Judge
(“ALJ”) failed to properly evaluate the evidence of his
psychiatric condition and the impairments it caused. The Acting
Commissioner moves to affirm the decision.
Standard of Review
The court must uphold a final decision of the Commissioner
denying benefits unless the decision is based on legal or factual
error. See Manso-Pizarro v . Sec’y of Health & Human Servs., 76
F.3d 1 5 , 16 (1st Cir. 1996) (citing Sullivan v . Hudson,
490 U.S.
877, 885 (1989)). The court’s “review is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.” Nguyen v . Chater,
172 F.3d 3 1 , 35 (1st Cir. 1999). The Commissioner=s factual
findings are conclusive if based on substantial evidence in the
record. See
42 U.S.C.A. § 405(g). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v . Perales,
402 U.S. 389,
401 (1971) (internal quotation omitted).
Background
Louis Levesque was injured at work in July of 1988 when he
was struck in the back by a back hoe. He was first treated for
the injury in September of 1988 when he went to the emergency
room at Elliot Hospital and was diagnosed with acute lumbar
strain. Levesque continued to seek medical attention for low
back pain and radiating pain from that time through the time of
his last application for benefits.
Levesque was evaluated for mental impairment in December of
1992 by A . M. Drukteinis, M.D. who prepared a psychological
profile. D r . Drukteinis described Levesque as psychologically
unsophisticated, with low education and low intellectual
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capacity, who was likely to be preoccupied with bodily functions
and health and to overreact to illness. Test results showed
evidence of depression, mood swings, difficulties dealing with
stress, difficulties sustaining treatment, and somatization
potential. D r . Drukteinis diagnosed adjustment disorder with
mixed emotional features.
In August of 1993, Levesque was evaluated by Roger Cawley,
M.D., as requested by the Commissioner. Dr. Cawley rated
Levesque as having a fair ability to follow rules and to relate
to co-workers, and a fair to poor ability to use judgment,
interact with supervisors, deal with work stresses, function
independently, and maintain concentration. He found that
Levesque had a good to fair ability to follow and carry out
simple instructions but only poor to no ability to follow complex
or detailed instructions. Based on his assessments, Dr. Cawley
concluded that Levesque could not manage his benefits in his own
best interest.
A Disability Determination Services (“DDS”) consultative
examination was done in November of 1994 by James Iovino, M.Ed.
Iovino noted that Levesque appeared to be in pain during the
interview and that he appeared to be tired. Levesque’s thought
processes were normal, and he demonstrated average intelligence
with learning deficits. Iovino wrote that Levesque’s social
3
interactions and task performance may have been limited. He
diagnosed post traumatic stress disorder, pain disorder
associated with psychological factors and a general medical
condition, and lower back pain.
A second DDS evaluation was done by Paul Finn, Ph.D., in
December of 1994, based on two examinations. Dr. Finn found
depression and pain behaviors. A personality assessment
inventory showed moderate elevations in depression and adjustment
disorders with mixed emotional features. D r . Finn diagnosed
Levesque with significant adjustment disorder with depression
secondary to chronic pain.
Priscilla Cusi, M.D., performed a third DDS evaluation in
November of 1995. Levesque reported chronic sleep disturbance,
lack of motivation, poor concentration, and intermittent suicidal
ideation. Dr. Cusi found that Levesque was focused on pain
relief and appeared to be cognitively limited with poor attention
span and unable to perform any calculations. Dr. Cusi reported
that the clinical picture was consistent with major depression,
personality disorder with antisocial traits, and chronic back
pain. She recommended taking Elavil as treatment for depression.
Dr. Cusi found that Levesque had moderate restrictions on his
activities of daily living and ability to maintain social
functioning and frequent deficiencies of pace, persistence, and
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concentration resulting in a failure to perform tasks in a timely
manner and repeated episodes of deterioration in work situations.
Levesque first applied for Supplemental Security Income
(“SSI”) benefits in April of 1991 and for Disability Insurance
benefits in May. His Disability Insurance (“Title II”) benefits
application was denied in August and no further appeal was taken.
The record does not include the disposition of the SSI
application. Levesque again applied for Title II benefits in
October of 1991 and that application was denied in January of
1992 without further action.
Levesque filed a third application for benefits in September
of 1992. That application was also denied initially and on
reconsideration. Levesque requested a hearing before an ALJ,
which was held in July of 1993. The ALJ issued his decision on
October 1 5 , 1993, in which he found that the psychological
assessment of Levesque indicating that he had only fair to poor
abilities in several areas was not a credible assessment. The
ALJ also noted that Levesque did not claim a disability based on
depression or a mental impairment. He concluded that the record
did not show a medically determinable mental impairment.
Levesque was determined to be not disabled. The Appeals Council
denied Levesque’s request for review, and no further action was
taken.
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Levesque filed a fourth application on October 1 8 , 1994. He
claimed a physical disability due to his back injury. The
application was denied initially and on reconsideration.
Levesque requested a hearing which was held in December of 1995.
The ALJ issued his decision in January of 1996 in which he found
that Levesque was not disabled. Levesque requested Appeals
Council review and amended his claim to include disability based
on major depression. The Appeals Council remanded his case for
further evaluation. The hearing was held in October of 1997.
The ALJ issued his decision in January of 1998 in which he
found that Levesque had been disabled for purposes of his SSI
application since November 1 3 , 1995. With respect to the Title
II application, however, the ALJ found that Levesque had insured
status only until December 3 1 , 1993. The ALJ concluded that
Levesque had not shown good cause to reopen the prior decisions
that found he was not disabled. For that reason, the applicable
period for Levesque’s Title II claim was between October 15 and
December 3 1 , 1993. The ALJ found that Levesque was not disabled
during that period. The Appeals Council declined review.
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Discussion
Levesque argues that the ALJ’s determination that he was not
disabled within the covered period is in error because the record
shows that he had psychiatric impairments that restricted
his mental functioning. He contends that the evidence shows that
his condition during the covered period was similar in severity
to his condition in November of 1995 when the ALJ concluded that
he became disabled for purposes of SSI benefits. He also
contends that the ALJ should have consulted with a medical expert
to interpret the medical evidence of his mental impairment.
Levesque’s application was denied at step five of the
sequential evaluation process set forth in 20 C.F.R. § 404.1520.1
At the fifth step, the Acting Commissioner has the burden to show
that despite the claimant’s severe impairment, he retained the
1
The ALJ is required to make the following five inquiries
when determining if a claimant is disabled:
(1) whether the claimant is engaged in substantial
gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed
impairment;
(4) whether the impairment prevents the claimant from
performing past relevant work; and
(5) whether the impairment prevents the claimant from
doing any other work.
See 20 C.F.R. § 404.1520.
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residual functional capacity to do work other than his past work
during the covered period and that work the claimant can do
exists in significant numbers in the relevant economies. See
Heggarty v . Sullivan, 947 F.2d 990, 995 (1st Cir. 1991). That
burden is met if the ALJ followed the correct legal standard and
if substantial evidence in the record supports the ALJ’s factual
findings.
Because the ALJ did not reopen Levesque’s prior application
which resulted in a determination of not disabled on October 1 5 ,
1993, that decision remains binding and establishes, by claim
preclusion, that Levesque was not disabled as of that date. See
Torres v . Sec’y of Health & Human Servs., 845 F.2d 1136, 1140
(1st Cir. 1988). To be entitled to benefits, Levesque must have
become disabled after October 1 5 , 1993, but before the expiration
of his insured status on December 3 1 , 1993. See Deblois v . Sec’y
of Health & Human Servs.,
686 F.2d 7 6 , 79 (1st Cir. 1982).
An ALJ is not qualified to interpret raw medical data for
purposes of assessing a claimant’s functioning capacity. See
Nguyen, 172 F. 3d at 3 5 . In complex cases, an ALJ may employ a
medical advisor to explain medical records in terms that are
understandable. See Perales, 402 U.S. at 408. A medical advisor
is not necessary, however, to interpret medical information
pertinent to functioning capacity if only a commonsense judgment,
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rather than a medical judgment, is required. See Gordils v .
Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir.
1990).
In this case, the evidence Levesque cites to show that he
was disabled by a combination of his physical and mental
impairments does not show disability during the relevant period.
The medical records pertaining to his condition before October
1 5 , 1993, are irrelevant, since it is established that he was not
disabled as of that date.
The only cited medical evidence during the eligible period
is a note in December of 1993 by Dr. Nagel, a physiatrist, who
was treating Levesque for complications that had resulted from
treatment of his low back pain. Dr. Nagel reported that
Levesque’s condition was about the same as it had been in
September of 1993, and that the prescribed medication, Sinequan,
continued to help. Since Levesque was not disabled in September
of 1993 and his condition remained the same in December, Dr.
Nagel’s note corroborates the ALJ’s determination.
The records cited by Levesque from January and February of
1994, just after his eligible period ended, also indicate no
change. In contrast, Dr. Cusi’s examination in November of 1995,
indicates significant changes in Levesque’s mental condition,
which supports the ALJ’s determination of disability as of that
9
time.
The pertinent evidence of record supports the ALJ’s
determination that Levesque was not disabled during the relevant
period. Therefore, the Acting Commissioner’s decision denying
Levesque’s application for Title II benefits must be affirmed.
Conclusion
For the foregoing reasons, the claimant’s motion for an
order reversing the decision of the Acting Commissioner (document
n o . 9 ) is denied. The Acting Commissioner’s motion for an order
affirming the decision (document n o . 10) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
Joseph A . DiClerico, J r .
District Judge
November 2 8 , 2001
cc: Raymond J. Kelly, Esquire
David L. Broderick, Esquire
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