UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Victor R. Thibodeau

v. Civil No. 08-cv-308-JD

Opinion No. 2009 DNH 041

Michael J. Astrue, Commissioner,

Social Security Administration

O R D E R

Victor R. Thibodeau seeks review, pursuant to 42 U.S.C. §

405(g), of the Commissioner’s decision denying his application

for Social Security Disability Benefits. Thibodeau seeks

reversal of the Commissioner’s decision, contending that the

Appeals Council erred in denying his request for review and that

the Administrative Law Judge (“ALJ”) erred in his assessment of

Thibodeau’s limitations and his ability to work. The

Commissioner moves for an order affirming the decision.

Background

Victor Thibodeau was working at a construction site on

November 16, 2004, when he fell through a hole on the second

floor of the commercial building where he was working. He was

admitted to Elliot Hospital for treatment of a compression

fracture of the spine and fractures on his right pelvis, hip, and

Case 1:08-cv-00308-JD Document 11 Filed 03/31/09 Page 1 of 21
1Thibodeau failed to provide a definition of kyphoplasty. 

LR 9.1(b)(2). Kyphoplasty appears to be a surgical procedure to

address pain and instability caused by a spinal fracture.

2

leg. He also injured his right thumb. Three days later, he was

discharged from the hospital to a nursing facility to receive

physical therapy. 

On December 7, 2004, Thibodeau was discharged from the

nursing facility and began physical therapy at home. Thibodeau

began to walk with assistance and could walk short distances

without assistance. X-rays in January of 2005 showed that the

fractures were healing but that the spinal compression had

increased. Thibodeau reported that he was still experiencing

significant discomfort. Thibodeau continued to report constant

back pain after eight physical therapy sessions. 

Thibodeau obtained a second opinion on March 1, 2005, from

Dr. Uri M. Ahn. On examination, Dr. Ahn found full motor

strength in Thibodeau’s legs with symmetric reflexes. Because of

the constant back pain, however, Dr. Ahn noted that conservative

treatment had failed and recommended kyphoplasty.1 Thibodeau

underwent the kyphoplasty procedure on March 30, 2005. In

subsequent appointments, Thibodeau reported continuing

improvement.

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2The factual statement includes other findings expressed in

medical terminology, which is not explained. See LR 9.1(b)(2).

3

On May 18, 2005, Thibodeau began physical therapy with

Michael Michaud. During his initial evaluation, Thibodeau

complained of constant lower back pain that increased during the

day and if he did any lifting. The pain also disturbed his

sleep. Despite the back pain, Thibodeau said that overall he

felt better since the kyphoplasty procedure. Michaud found

Thibodeau’s range of motion in the lumbar spine to be at 75%.2

Michaud concluded that Thibodeau’s back pain was consistent with

his diagnosis and was due to muscle weakness that could be

improved with exercises. Michaud discharged Thibodeau from

physical therapy in December of 2005, with a home exercise

program and modified daily activities.

Dr. Ahn cleared Thibodeau for light-duty work on June 23,

2005. A functional capacity evaluation on September 13, 2005,

found that Thibodeau could do full-time light-duty work with

restrictions on standing, walking, bending, reaching, squatting,

kneeling, climbing, and crawling. The evaluation found that

Thibodeau could sit for up to sixty minutes, stand or walk for up

to thirty minutes, and drive for thirty to sixty minutes. 

On July 24, 2006, a state agency medical consultant, Dr.

Jonathan Jaffe, assessed Thibodeau’s residual functional capacity

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4

based on his medical records. Dr. Jaffe concluded that Thibodeau

could lift and carry twenty pounds occasionally and ten pounds

frequently. He could stand, walk, and sit for six hours in an

eight-hour day. He could occasionally climb, balance, stoop,

kneel, crouch, and crawl. Dr. Jaffe found no manipulative,

communicative, visual, or environmental restrictions. He also

stated that in his opinion the objective medical evidence did not

support the limitations Thibodeau claimed.

For purposes of workers’ compensation, Dr. Isadore G. Yablon

examined Thibodeau on October 19, 2006, for an independent

medical evaluation. Dr. Yablon noted that Thibodeau complained

of back pain and pain in his right hip and pelvis. He concluded

that Thibodeau could not return to his prior work as an iron

worker but that he could do sedentary work or moderate work that

did not require lifting more than twenty-five pounds or repeated

bending, lifting, stooping, or climbing. In an addendum to his

report to the workers’ compensation insurance carrier dated

December 12, 2006, Dr. Yablon also stated that Thibodeau could

stand, walk, and sit for eight hours per day but that he should

not drive because of the danger of further injury to his spine

from road bumps.

Dr. Barbara O’Dea examined Thibodeau on January 22, 2007. 

She found that Thibodeau should avoid lifting more than twenty

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3Again, Thibodeau failed to provide definitions for these

medical terms.

4A TENS unit appears to address pain by sending electrical

impulses to certain areas of the body where pain originates.

5

pounds and no more than ten pounds frequently. She also found

that Thibodeau should avoid staying in one position for more than

an hour. She believed, contrary to Dr. Yablon’s opinion, that

the spinal compression fracture was the reason that Thibodeau

continued to experience significant back pain that would limit

his functional capacities. Dr. O’Dea concluded that Thibodeau

needed a job that would let him change positions as needed, that

would avoid repetitive bending, twisting, and climbing.

On January 12, 2007, Thibodeau began treating with Dr.

Robert F. Spencer for pain management. Thibodeau described pain

at a level of 7 on a 0 to 10 scale and drowsiness, fatigue, sleep

disturbance, poor concentration, and depression due to pain. Dr.

Spencer diagnosed pain in the thoracic spine and low back, and

lumbar disc displacement. He also noted possible myofascial pain

and facet joint pain.3 Dr. Spencer prescribed a Transcutaneous

Electrical Nerve Stimulation (“TENS”) unit to address the pain

issues.4

On a return visit to Dr. Spencer two weeks later, Thibodeau

rated his pain at two out of ten, with a range of high intensity

Case 1:08-cv-00308-JD Document 11 Filed 03/31/09 Page 5 of 21
5Thibodeau describes the procedure as a “drastic attempt to

destroy six nerves” in his spine and refers the court to

webmd.com for more information. The plaintiff, however, bears

the burden of researching medical terminology and providing

definitions. LR 9.1(b)(2). The court does not do internet

research to glean information about undefined medical

terminology.

6

at eight and low pain at one. Thibodeau reported 40% relief from

pain while using the TENS unit and a four-hour residual effect. 

Dr. Spencer recommended continued use of the TENS unit and an

epidural steroid injection. 

Thibodeau received a steroid injection on February 1, 2007. 

At his follow-up visit with Dr. Spencer, Thibodeau rated his pain

at 5. Dr. Spencer recommended another injection, which was done

on March 8, and additional injections, which were done on March

29. Thibodeau had a follow-up appointment on April 11 but no

records from that visit were provided.

The administrative medical record concludes with the

injection treatment in March of 2007. On August 16, 2007, after

the administrative hearing, Dr. Spencer performed a radio

frequency heat lesioning procedure on six nerves in Thibodeau’s

back. The parties provide no explanation of the procedure other

than an excerpt from Dr. Spencer’s medical report.5 Dr. Spencer

reported that Thibodeau tolerated the procedure well and that a

follow-up was scheduled for September 5, 2007.

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7

Thibodeau applied for disability insurance benefits on March

21, 2006, alleging disability beginning on the day of his fall,

November 16, 2004. After his application was denied initially,

Thibodeau sought a hearing before an ALJ, which was held on

August 10, 2007. Thibodeau, who was represented by a paralegal

from his attorney’s office, and a vocational expert testified at

the hearing.

Thibodeau explained his accident, his injury, and the

treatment that followed. He testified that he continued to

experience pain that ranged from two to eight on a zero to ten

scale and that most of his days were at the higher range. On bad

days, Thibodeau said, he needed to constantly change position

from sitting, to walking, to lying down. He said that he could

walk on a level surface for fifteen to twenty minutes before his

hip and back would begin to hurt. He also testified that he

spent more than half of every day lying in bed. He answered that

he could not work a full forty-hour week because his lack of

sleep and back pain made it impossible for him to get out of bed. 

He testified that the activity of the residual functional

capacity evaluation caused him excruciating pain the next day.

Despite his pain, Thibodeau testified that he did not take

medication. He explained that medication had not helped the

pain. While some medications worked for a while, they would lose

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8

effectiveness and other medication upset his stomach. When his

doctor told him he was taking too much Ibuprofen, Thibodeau

stopped taking it altogether.

The ALJ posed a hypothetical question to the vocational

expert of a person who was limited to work between sedentary and

light levels, who could sit or stand for four hours but needed to

change positions every fifteen minutes, who could only

occasionally do things such as stooping or balancing, and who

needed indoor work. The vocational expert answered that those

criteria would allow work as an order clerk and a credit analyzer

at the sedentary and unskilled level. When the ALJ added a

limitation that the person would need to lie down frequently

while working, the vocational expert said that limitation would

eliminate the job base.

The ALJ issued his decision on August 21, 2007. He found

that despite his limitations, Thibodeau retained the capacity to

do light work with restrictions on weight, movement, and other

activities. Based on the vocational expert’s testimony, the ALJ

found that there were jobs in the national economy that Thibodeau

could do and concluded that he was not disabled. 

Thibodeau sought review by the Appeals Council. With the

request for review, Thibodeau submitted new evidence consisting

of a letter dated February 6, 2008, from his physical therapist

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9

to his physician, a report dated September 24, 2007, of extended

disability from the New Hampshire Department of Labor, and Dr.

Spencer’s report of the radio frequency heat lesioning procedure

performed on August 16, 2007. The Appeals Council considered the

evidence of Thibodeau’s treatment in August of 2007 but found the

additional evidence did not provide a basis for changing the

ALJ’s decision and denied review.

Discussion

In support of his motion to reverse the Commissioner’s

decision, Thibodeau contends that the Appeals Council erred in

denying review, in light of the new evidence presented. 

Thibodeau also contends that the ALJ erred in his residual

functional capacity assessment, in failing to consider the

vocational expert’s opinion about elimination of the job base if

frequent periods of lying down were needed, and in failing to ask

the vocation expert about conflicts between his testimony and the

Dictionary of Occupational Titles. The Commissioner supports the

decision.

A five-step process is used to evaluate an application for

social security benefits. 20 C.F.R. § 404.1520(a). The

applicant bears the burden through the first four steps to show

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10

that he is disabled. Freeman v. Barnhart, 274 F.3d 606, 608 (1st

Cir. 2001). At the fifth step, the Commissioner bears the burden

of showing that jobs exist in the national economy that the

applicant can perform. Id.

 The court’s review under § 405(g) 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 31, 35 (1st Cir. 1999). If the ALJ’s factual

findings are supported by substantial evidence in the record,

they are conclusive, even if other evidence would support a

contrary conclusion. Id.; Tsarelka v. Sec’y of Health & Human

Servs., 842 F.2d 529, 535 (1st Cir. 1988). 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).

A. Appeal Council’s Denial of Review

Thibodeau contends that the Appeals Council erred by denying

his request for review, which was supported by new medical

evidence, including Dr. Spencer’s report of the radio frequency

heat lesioning procedure performed on August 16, 2007. In its

decision the Appeals Council stated: “In looking at your case,

we considered the additional evidence listed on the enclosed

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11

Order of Appeals Council.” The Appeals Council concluded,

however: “We found that this information does not provide a

basis for changing the Administrative Law Judge’s decision.”

For purposes of judicial review, decisions of the Appeals

Council are entitled to great deference. Mills v. Apfel, 244

F.3d 1, 6 (1st Cir. 2001). Therefore, a challenged decision is

reviewable only if the decision “rests on an explicit mistake of

law or other egregious error.” Id. at 5.

In support of his motion, Thibodeau contends the Appeals

Council erred because the social security regulations require it

to review a case when new evidence is submitted. The cited

regulation, however, states that the Appeals Council will review

a decision if there appears to be an abuse of discretion by the

ALJ, if there is an error of law, if the decision is not

supported by substantial evidence, or if the decision implicates

a broad policy or procedural issue. 20 C.F.R. § 404.970(a). 

With respect to new evidence, the regulation states:

If new and material evidence is submitted, the Appeals

Council shall consider the additional evidence only

where it relates to the period on or before the date of

the [ALJ] hearing decision. The Appeals Council shall

evaluate the entire record including the new and

material evidence submitted if it relates to the period

on or before the date of the [ALJ] hearing decision. 

It will then review the case if it finds that the

[ALJ’s] action, findings, or conclusion is contrary to

the weight of the evidence currently of record.

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6Although the Appeals Council used boilerplate language in

denying review, its reasoning is sufficiently articulated to

apply the Mills standard. Cf. Rosado v. Barnhart, 340 F. Supp.

2d 63, 68 (D. Mass. 2004) (remanding boilerplate decision).

12

§ 404.970(b). In this case, the Appeals Council found that the

new evidence Thibodeau submitted “does not provide a basis for

changing the [ALJ’s] decision.” Therefore, the Appeals Council

complied with the requirements of § 404.970.6

Thibodeau also contends that the ALJ had a mistaken

impression that he had not received treatment for back pain since

April of 2007, which contributed to his finding that Thibodeau’s

description of the intensity, frequency, and limiting effects of

his pain was not entirely credible. He argues that Dr. Spencer’s

record of the radio frequency heat lesioning procedure supports

his testimony about the degree of his continuing back pain both

by showing that he continued to be treated for pain and because

the procedure was “a drastic attempt” to find relief. 

Although the new evidence provides evidence of ongoing pain

and possibly of the degree of pain, which contradicts the ALJ’s

conclusion that Thibodeau did not require treatment for pain

after April of 2007, that was not the sole reason for discounting

the degree of pain Thibodeau claimed. The ALJ also considered

that Thibodeau did not take medication for pain, that he had not

reported that he needed to spend half of each day in bed to his

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7Thibodeau does not seek a remand under sentence six of §

405(g). See Seavey v. Barnhart, 276 F.3d 1, 12-13 (1st Cir.

2001)

13

treating or examining physicians, and that his treating and

examining physicians all found that he was able to work. In the

context of the record as a whole, the Appeals Council’s reason

for not reviewing the ALJ’s decision was not an egregious error.7

B. Residual Functional Capacity

The ALJ found that Thibodeau retained the ability to do work

that did not require lifting more than twenty pounds occasionally

and ten pounds frequently. He also found that Thibodeau would

need to be able to change positions from sitting to standing or

walking every fifteen minutes, that he could not kneel, crouch,

crawl, bend, or stoop more than occasionally, and that he would

need to work indoors and avoid temperature extremes. Thibodeau

faults the ALJ’s residual functional capacity finding, arguing

that the ALJ erred in failing to include limitations that

Thibodeau would need to lie down to relieve back pain on an as

needed basis and would have to avoid driving.

 If the residual functional capacity finding is supported by

substantial evidence in the record, it is conclusive. Nguyen v.

Chater, 172 F.3d 31, 35 (1st Cir. 1999). Findings are not

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14

conclusive “when derived by ignoring evidence, misapplying the

law, or judging matters entrusted to experts.” Id. In general,

an ALJ, as a lay person, cannot interpret a claimant’s medical

records to determine his residual functional capacity. MansoPizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 17 (1st

Cir. 1996). Instead, an ALJ must rely on residual functional

capacity evaluations done by a physician or another expert. Id.

at 17-18.

The ALJ’s residual functional capacity finding is based on

record evidence, which Thibodeau concedes. Thibodeau argues,

however, that the ALJ ignored his own findings and other record

evidence that supported limitations for lying down and driving.

1. Lying down.

Thibodeau states that the ALJ found that his reported

symptoms, including unrelenting pain which required him to lie

down, could be expected to result from his medically determinable

impairments. He contends that based on that finding, the ALJ

erred by failing to include the lying down limitation in his

hypothetical to the vocational expert and in his residual

functional capacity finding. Thibodeau misunderstands the ALJ’s

analysis.

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15

While the ALJ found that Thibodeau’s impairments generally

could be expected to cause his symptoms, meaning pain, the ALJ

then explained that “the claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms are

not entirely credible.” The ALJ then discussed the evidence that

undermined the credibility of Thibodeau’s description of the

limitations caused by his pain. Therefore, the ALJ did not find

that Thibodeau’s impairments required him to be able to lie down

as needed to relieve his back pain.

Thibodeau also asserts that medical evidence supports his

testimony that he needed to lie down more than half of each day

to relieve his back pain. He points to a printed form titled

“Activities of Daily Living with Osteoporosis,” that apparently

was provided to him by his physical therapist. The form gives 

advice for avoiding discomfort and further injury due to

osteoporosis and also provides strengthening exercises. The form

states that lying on the back is the best position for sleeping

and advises patients to lie in that position several times a day

especially for back ache. 

The form does not have a date or indicate under what

circumstances it was provided to Thibodeau. The last physical

therapy record, however, is a letter, dated December 30, 2005,

from Thibodeau’s physical therapist to his treating physician

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16

that says Thibodeau’s last physical therapy appointment was in

August of 2005 and recommending that Thibodeau be discharged from

physical therapy. Therefore, to the extent the form indicates

that lying down was a recommended therapy for back pain, it

appears to relate to Thibodeau’s condition and treatment at least

two years before the social security hearing. Therefore, the

form does not show that a treating source advised Thibodeau to

lie down on a daily basis any time after August of 2005 at the

latest. None of doctors who treated or examined Thibodeau

suggested that he would need to be able to lie down during the

day on an as needed basis. Therefore, the ALJ did not err in

omitting the lying down limitation.

2. Driving.

Thibodeau relies on Dr. Yablon’s report to his workers’

compensation carrier to support his theory that the ALJ should

have included a driving limitation in his residual functional

capacity assessment. Dr. Yablon wrote on December 12, 2006, that

Thibodeau should avoid driving because going over bumps could

cause compression of the spinal cord resulting in a neurological

deficit. As the Commissioner points out, however, Thibodeau does

not contend that Dr. Yablon advised him not to drive or included

driving as a limitation as part of his functional capacity

Case 1:08-cv-00308-JD Document 11 Filed 03/31/09 Page 16 of 21
8The DOT assigns skill levels to particular jobs. Skill

levels 1 and 2 are unskilled; skill levels 3 -4 are semi-skilled,

and skill levels 5 -9 are skilled work. See Social Security

Ruling (“SSR”) 00-4p, 2000 WL 1898704, at *3.

17

assessment. Indeed, Thibodeau stated in his undated function

report that he did drive and has not indicated that he stopped

driving at any time before the hearing. Therefore, the ALJ did

not ignore record evidence by omitting a driving restriction. 

C. Effect of Lying Down Limitation

Thibodeau contends that the ALJ improperly ignored the

vocational expert’s opinion that if he needed frequent periods of

lying down to relieve pain the job base would be eliminated. As

is discussed above, the record does not support a limitation for

frequent periods of lying down. Therefore, the ALJ properly did

not consider that part of the vocational expert’s opinion.

D. Failure to Inquire About Possible Conflicts Between the 

Vocational Expert’s Testimony and the Dictionary of 

Occupational Titles (“DOT”)

The vocational expert testified that the two jobs he

recommended, order clerk and credit authorizer, were both

unskilled. Thibodeau represents that the DOT lists both jobs as

semi-skilled.8 Relying on Social Security Ruling 00-4p,

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Thibodeau contends that the ALJ erred by not inquiring into the

conflict between the vocational expert’s testimony and the DOT.

“Social Security Rulings are agency rulings ‘published under

the authority of the Commissioner of Social Security and are

binding on all components of the Administration.’” Sullivan v.

Zebley, 493 U.S. 521, 531 n.9 (1990) (quoting 20 C.F.R. §

422.408). In general, a vocational expert’s occupational

evidence should be consistent with the DOT. SSR 00-4p at *2. “At

the hearings level, as part of the adjudicator’s duty to fully

develop the record, the adjudicator will inquire, on the record,

as to whether or not there is such consistency.” Id. “When

there is an apparent unresolved conflict between VE or VS

[vocational expert or vocational specialist] evidence and the

DOT, the adjudicator must elicit a reasonable explanation for the

conflict before relying on the VE or VS evidence to support a

determination or decision about whether the claimant is

disabled.” Id.

In this case, the vocational expert did not mention the DOT,

and the ALJ failed to inquire as to whether his opinions were

consistent with the DOT. Thibodeau contends that an

inconsistency existed, because the order clerk and credit

authorizer positions, identified by the vocational expert, are

both semi-skilled in the DOT not unskilled as the vocational

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9The vocational expert did not provide the DOT listing for

the jobs he recommended. Thibodeau and the Commissioner rely on

different listings for order clerk, which explains the different

skill level requirements.

19

expert reported. The Commissioner argues that the inconsistency

exists only as to one of the positions and that, in any case, the

inconsistency is immaterial.

The Commissioner represents that an order clerk is an

unskilled position, as the vocational expert testified.9 Because

the vocational expert properly identified that job category, the

Commissioner contends, that evidence satisfies the burden at step

five to show that jobs exist that Thibodeau could do. See

Seavey, 276 F.3d at 5; Johnson v. Barnhart, 2004 WL 1529296, at

*5 n.7 (D. Me. June 24, 2004). It appears, however, that only

one of the several “order clerk” positions in the DOT is

unskilled. The vocational expert did not identify which of the

DOT positions he was relying on to support the number of jobs

identified in the national and local economies. Therefore, the

vocational expert’s opinion as to how many such jobs existed in

the national and local economies is unsupported.

The Commissioner also contends that whether the jobs are

semiskilled or unskilled is irrelevant because Thibodeau has a

high school education and no limitations on his mental faculties,

which qualifies him for semiskilled work. Claimants with a high

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10Because not all such errors will be harmless, it would be

advisable for ALJs to routinely ask each vocational expert

whether his or her opinion is consistent with the DOT, as SSR 00-

4p requires, and to resolve any conflicts that are identified. 

See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1233 (9th

Cir. 2009); Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008).

20

school education are presumed to be capable of semi-skilled

through skilled work. See 20 C.F.R. § 404.1564(b)(4). Thibodeau

provides no evidence to rebut the presumption that he is capable

of doing semi-skilled work. 

Therefore, in this case, the ALJ’s error is harmless.10 The

vocational expert’s testimony about jobs provides substantial

evidence to support the ALJ’s decision. 

Conclusion

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

the Commissioner’s decision (document no. 8) is denied. The

Commissioner’s motion to affirm (document no. 9) is granted.

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21

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 31, 2009

cc: Seth R. Aframe, Esquire

Maureen Raiche Manning, Esquire

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