UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
David Ulitsch
v. Civil No. 18-cv-694-JL Opinion No. 2019 DNH 167 Commissioner of the U.S. Social Security Administration
ORDER ON APPEAL
David Ulitsch has filed two motions1 to reverse and remand
the Social Security Administration’s (“SSA”) decision to deny
his application for a period of disability and disability
insurance benefits. An administrative law judge (“ALJ”) at SSA
found that Ulitsch, despite severe impairments, retains the
residual functional capacity (“RFC”) to perform light exertional
work, subject to certain limitations, and thus is not disabled
under Social Security regulations. See 20 C.F.R. § 404.1505(a).
This decision was affirmed by the Appeals Council and thus
became the final decision on his application. See id.
§ 404.981. Ulitsch then appealed the decision to this court,
see LR 9.1(b), which has jurisdiction under 42 U.S.C. § 405(g)
(Social Security).
After careful consideration, the court finds that remand is
warranted to ensure that substantial evidence supported the
1 Pl.’s Mot. for Order Reversing Decision (doc. no 8); Pl.’s Mot. to Remand (doc. no. 15). ALJ’s RFC and step 5 determinations. In the proceeding below,
the ALJ found that Ulitsch had an RFC falling between the light
work and sedentary work ranges, but did not adequately assess
the impact of Ulitsch’s standing/walking limitation on the
occupational base. Although the ALJ consulted with a vocational
expert, the expert’s testimony did not specifically explain the
impact of Ulitsch’s two-hour standing/walking limitation on
potential jobs existing in the national economy. Further, the
administrative record does not clearly state what methodology
the expert used, if any, to account for Ulitsch’s RFC and his
limitations. As such, the court grants Ulitsch’s first motion
and denies the SSA Commissioner’s cross-motion2 for an order
affirming the SSA’s final decision, see LR 9.1(e). Finally, the
court denies as moot Ulitsch’s second motion challenging the
authority of the ALJ under the Appointments Clause, see U.S.
Const., Art. II, § 2, cl. 2, given the order of remand on his
first motion.
Background
In September 2017, an ALJ followed the established five-
step sequential evaluation process, see 20 C.F.R. § 404.1520,
and found that Ulitsch is not disabled under section 216(i) and
223(d) of the Social Security Act. At step 1, he found that
2 Doc. no. 11.
2 Ulitsch had not engaged in substantial gainful activity since
December 15, 2015.3 At step 2, he found that Ulitsch has two
severe impairments that significantly limit the ability to
perform basic work activities – (i) degenerative disc disease of
the lumbar spine and (ii) obesity.4 At step 3, he found that
Ulitsch’s physical impairments, considered both individually and
in combination, did not meet or medically equal the severity
criteria of an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1.5 Nevertheless, the ALJ stated he would consider
the effects of obesity at later steps in the five-step process,
including when assessing Ulitsch’s RFC.6
The ALJ ultimately found that Ulitsch retained “the
residual functional capacity to perform light work as defined in
20 C.F.R. 404.1567(b) and 416.967(b) except he can stand and
walk for 2 hours in an 8 hour workday; he cannot climb ladders,
ropes, or scaffolds; he can occasionally climb ramps and stairs;
3 Admin. R. at 14. 4 Id. In doing so, the ALJ declined to find that Ulitsch’s evaluated hypertension and gastroesophageal reflux disease (“GERD”) constituted severe impairments because they were “being managed medically, and amenable to proper control by adherence to recommended medical management and medication compliance.” Id. at 15. Further, the ALJ noted that “[t]here were no significant problems or limitations notes in the objective record.” Id. 5 Id. 6 Id.
3 and he can occasionally balance, stoop, kneel, crouch, and
crawl.”7 In doing so, the ALJ found that Ulitsch’s medically
determinable impairments could reasonably be expected to cause
Ulitsch’s alleged symptoms – in particular, pain and movement
limitations. Nevertheless, he found that Ulitsch’s statements
“concerning the intensity, persistence and limiting effects of
these symptoms [were] not entirely consistent with the medical
evidence and other evidence in the record,”8 which showed “only
mild degenerative disc disease and only some abnormalities on
objective examination.”9 Further, the ALJ noted that “no
treating or examining medical professional persuasively opined
limitations beyond the residual functional capacity.”10
At step 4, the ALJ found that Ulitsch is unable to perform
any past relevant work.11 Finally, at step 5, the ALJ found,
based on the testimony of a vocational expert, that Ulitsch,
given his age, education, work experience, and residual
functional capacity, was capable of making a successful
adjustment to work that exists in significant numbers in the
7 Id. 8 Id. at 16. 9 Id. at 20. 10 Id. 11 Id. at 21-22.
4 national economy, including price marker, laundry classifier,
and ticket seller.12 Under this framework, the ALJ concluded
that a finding of “not disabled” was appropriate.
Applicable legal standard
In reviewing a challenge of a final determination by the
SSA, the court limits its review “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., 211 F.3d
652, 655 (1st Cir. 2000). In doing so, the court “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,” id., that 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) (quotations
omitted). Though the evidence in the record may support
multiple conclusions, the court must still uphold an 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.,
955 F.2d 765, 769 (1st Cir. 1991). The court therefore “must
uphold a denial of social security . . . benefits unless ‘the
[Commissioner] has committed a legal or factual error in
12 Id. at 22-23.
5 evaluating a particular claim.’” Manso-Pizarro v. Sec'y of
Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per
curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
Analysis
On appeal, Ulitsch raises five issues that he contends
warrant remand. In his first motion, he contends that the ALJ
erred by failing to properly assess, and ultimately base his RFC
on, the medical opinions in the record; classifying Ulitsch as
limited to light, rather than sedentary work; relying on
vocational testimony that was inconsistent with the regulatory
definition for light work; and relying on vocational expert
testimony based on a flawed RFC assessment resulting from the
errors above.13 Additionally, he asserts for the first time in a
second motion that the ALJ was not properly appointed as an
“Officer” of the United States when he ruled on Ulitsch’s
application. After reviewing each issue, the court finds that
only the third argument warrants remand.
At step 5, the Commissioner bears the burden of
establishing that there are jobs existing in significant numbers
in the national economy that a claimant can perform, given his
or her age, education, work experience, and residual functional
capacity. See 20 C.F.R. §§ 404.1520(a)(4)(v), (g)(1),
13 See Pl.’s Reply (doc. no. 12) at 1.
6 416.920(a)(4)(v), (g)(1); Goodermote v. Sec’y of HHS, 690 F.2d
5, 7 (1st Cir. 1982). Under some circumstances, the
Commissioner can meet [this] burden through the use of a chart
contained in the Social Security regulations.” Seavey v.
Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20 C.F.R.
§ 416.969; Medical–Vocational Guidelines, 20 C.F.R. pt. 404,
subpt. P, App. 2, tables 1–3 (2001), cited in 20 C.F.R.
§ 416.969; Heckler v. Campbell, 461 U.S. 458 (1983)). But if
“an individual’s exertional RFC does not coincide with the
exertional criteria of any one of the [exertional] ranges, i.e.
sedentary, light, and medium, as defined in sections 404.1567
and 416.967 of the regulations,” then the ALJ must “consider the
extent of any erosion of the occupational base and access [sic]
its significance,” advisably with the aid of a vocational
expert. Social Security Ruling (“SSR”) 83-12, 1983 WL 31253, at
*1 (S.S.A. 1983); see also Spalke v. Berryhill, No. 16-10856,
2016 WL 10720160, at *10 (D. Mass. Sept. 20, 2017) (Hillman, J.)
(citing SSR 83–12) (“Where a claimant is not capable of
performing the full range of a category of work, a vocational
expert should be consulted to clarify the implications of the
claimant’s RFC for the occupational base.”); Gross v. Colvin,
213 F. Supp. 3d 229, 234 (D. Mass. 2016) (Talwani, J.) (where
claimant’s RFC fell between light and sedentary, in part due to
a two-hour limitation on standing/walking, “SSR 83–12 advise[d] 7 the ALJ [to] use a vocational expert to determine the impact the
reduced exertional capacity has on the occupational base”).
Here, both parties acknowledge that the ALJ’s RFC
assessment – specifically, that Ulitsch retained the residual
functional capacity to perform light work, but could only “stand
or walk for 2 hours in an 8-hour work day” – does not neatly
coincide with the criteria for light or sedentary work.14 Social
Security regulations define “light work” as having the strength
to lift up to “20 pounds at a time with frequent lifting or
carrying of up to 10 pounds.” 20 C.F.R. §§ 404.1567(b),
416.967(b)(6). Even if a job does not involve significant
lifting, it is still light work if it “requires a good deal of
walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls.” Id.
“As for what qualifies as ‘a good deal of walking or standing,’
the SSA has explained that ‘the full range of light work
requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday.’” Baillargeon v.
Berryhill, 359 F. Supp. 3d 172, 180 (D.N.H. 2019) (quoting
Trudnak v. Berryhill, No. 17-cv-195, 2018 WL 2058103, at *4
(D.N.H. May 3, 2018) (McCafferty, J.); see also SSR 83-10, 1983
14Admin. R. at 15; see Pl.’s Mot. to Reverse (doc. no. 8) at 9- 10; Def.’s Mot. to Affirm Mem. (doc. no. 11-1) at 7.
8 WL 31251, at *6. Sedentary work, in contrast, is defined as
“work performed primarily in a seated position,” and which
entails sitting for “approximately 6 hours of an 8-hour
workday,” SSR 83-10, 1983 WL 31251, at *5; see also 20 C.F.R.
§ 404.1567(a).
SSR 83-12 provides that in a case like Ulitsch’s, where
“the exertional level falls between two rules which direct
opposite conclusions, i.e., “not disabled” at the higher
exertional level and “disabled” at the lower exertional level,”
the ALJ must examine the degree the exertional capacity is
reduced, advisably with the aid of vocational expert testimony.
SSR 83-12, 1983 WL 31253. Several district court cases from
within the First Circuit illustrate what constitutes an adequate
assessment of whether a claimant has a slightly or significantly
reduced capacity for light work. In Saeed v. Berryhill, for
example, Judge Burroughs remanded a social security appeal for
further consideration where it was uncertain whether an ALJ had
sufficiently considered the impact of a two-hour
standing/walking limitation on the claimant’s occupational base.
No. 16-cv-11928, 2018 WL 1243953, at *11 (D. Mass. Mar. 19,
2018). The ALJ had adopted a light-work RFC similar to
Ulitsch’s that incorporated a two-hour standing/walking
limitation, but did not specifically address this limitation in
his questions to the vocational expert. Judge Burroughs found 9 that this limitation “appear[ed] to contradict a finding that a
claimant can lift or carry at a light work level.” Id. at *10.
Additionally, she found that the vocational expert had not
specifically addressed the impact of this limitation on
potential jobs for the claimant in the national economy. Id.
Even though Judge Burroughs found that the apparent
contradiction did not necessitate a remand, she found remand to
be “the better course” to ensure that substantial evidence
supported the ALJ’s RFC and step 5 determinations. Id. at *11.
Likewise, in Beede v. Colvin, this court remanded a denial
of benefits because the ALJ failed to “‘elicit a reasonable
explanation for [a] conflict [between the vocational expert’s
testimony and the Dictionary of Occupational Titles] before
relying on the [expert’s] evidence to support’ his determination
that Beede was [not] disabled.” No. 16-cv-010-JL, 2017 WL
414059, at *4 (D.N.H. Jan. 31, 2017) (quoting SSR 00-4p, 2000 WL
1898704 at *2). The ALJ had determined that the claimant had
the residual functional capacity to perform light work, except
that he could “stand and walk up to 1-hour per work day [and
was] unlimited with respect to sitting but require[d] the
ability to alternate position periodically as needed 30 minutes
at a time.” Id. at *2. In response to the ALJ’s hypotheticals,
the vocational expert testified that “three [light-duty] jobs
met those requirements: price marker, furniture rental 10 consultant, and laundry classifier.” Id. at *4 (footnote
omitted). When the ALJ recognized an inconsistency between the
expert’s testimony and the DOT, he attempted to resolve it by
asking whether these jobs would tolerate the claimant’s needs
for sitting and standing. In response:
The expert testified that “the Dictionary of Occupational Titles [did] not categorize the sit/stand option” that the ALJ included in Beede’s RFC, but that “[t]he jobs provided today as examples do provide a sit/stand option for the individual as in the hypothetical.” She drew this conclusion from her “experience in working with employers, human resource representatives, corporation[s], when writing job analyses, when observing individuals in the work place, also asking questions for research and labor market surveys.”
Id. The court found that this was not a reasonable explanation
for the inconsistency:
Though the vocational expert outlined her experience, she offered no explanation for how or why (1) jobs listed as “light work” would be “primarily a seated- type position,” or (2) these jobs in particular “would tolerate [the] mix of sitting and standing” described in the RFC. Absent such evidence, the ALJ has not satisfied his obligation to “elicit a reasonable explanation for the conflict before relying on the [vocational expert] evidence to support” his determination that Beede was disabled.
Id. (citing SSR 00-4p, 2000 WL 1898704, at *2; Colby v.
Barnhart, No. Civ.03-189, 2004 WL 1683142, at *6 (D.N.H. July
27, 2004)).
In light of these decisions, the court similarly finds that
the ALJ in this case failed to elicit adequate testimony from
11 the vocational expert to explain how a person with Ulitsch’s
light-work RFC and limitations could perform the jobs identified
by the vocational expert. In his hypotheticals, the ALJ began
by asking the vocational expert whether jobs existed in the
national economy for individuals of the same age, education, and
work experience as Ulitsch and that were limited to light
exertional work. In response, the vocational expert identified
three jobs: price marker, housekeeper, and laundry classifier.15
The ALJ then asked whether jobs existed in the national economy
for such an individual that was also limited “to standing and
walking for two hours in an eight-hour workday.” The expert
answered that:
The price marker would continue to fit with the hypothetical as well as the laundry classifier. The housekeeper would not. However, a ticket seller would fit, DOT Code 211.467-030, SVP 2, light, 20,000 jobs. Now, the important – the definition was given for – to be standing or walking for two hours is different than the definition presented by SSA. So, based on my own personal experience, in writing job analyses or labor market surveys or when observing jobs in a worksite, the ticket seller and laundry classifier and price marker have the seating apparatus available for the person. So, this would allow continued work in a light-duty work capacity and sitting, or standing as necessary. So, these jobs meet this.16
Like the expert in Beede, the vocational expert here
offered no explanation for how or why the “light work” jobs she
15 Admin. R. at 51. 16 Admin. R. at 53.
12 previously identified for Ulitsch could still be performed by a
person who cannot stand or walk for more than two-hours in a
workday, for example, by explaining the amount of walking,
standing, or sitting required to perform each job. See also
Baillargeon, 359 F. Supp. 3d at 183. In addition, she did not
elaborate on (and the ALJ did not inquire about) how the two-
hour standing/walking limitation deviated from the definition
presented by SSA or the DOT.17 Finally, at no point did the ALJ
acknowledge in his questions to the vocational expert that the
RFC fell between two work levels, including one that would
require a finding of disability.18
The court does not hold “that a two-hour standing/walking
limitation necessitates a RFC of sedentary work, or that the
mere inconsistency between such a standing/walking limitation”
and the definition presented by SSA or the DOT requires a
17Admin. R. at 53. As his last question, the ALJ asked the vocational expert: “And other than the difference you’ve already explained with respect to definitions in the DOT and your past experiences, your testimony (sic) consistent with the DOT?” Admin. R. at 55. The expert responded, “Yes, your Honor.” The administrative record, however, does not reflect any direct questioning or answers about the differences. 18The court observes that the ALJ’s decision does introduce the Medical Vocational Guidelines and discusses how certain findings would lead to a conclusion of “disabled” or “not disabled.” See Admin. R. at 21. But this language appears to be a boilerplate standard rather than language specifically analyzing Ulitsch’s case.
13 remand. See Saeed, 2018 WL 1243953, at *11. Under these
circumstances, however, the court finds, just as Judge Burroughs
did in Saeed, that remand is warranted to ensure that these
potential conflicts were addressed or, put differently, that
there is substantial evidence addressing the impact of Ulitsch’s
two-hour standing/walking limitation on the occupational base.
See Saeed, 2018 WL 1243953, at *11; see also Gross, 213 F. Supp.
3d at 233-34 (remanding where claimant’s RFC had two-hour
standing/walking limitation, but it was not clear “what
methodology [vocational expert] used to account for the reduced
exertional capacity of [claimant]”). Accordingly, the court
does not find that substantial evidence supports the ALJ’s RFC
and step 5 determinations, and thus grants Ulitsch’s first
motion.
Because the court grants Ulitsch’s first motion, it does
not reach the issue raised by Ulitsch’s second motion concerning
whether the ALJ was properly appointed under the Constitution.
In June 2018 (after Ulitsch’s 2017 hearing before the ALJ), the
Supreme Court held that ALJs are “officers” under the
Appointments Clause, U.S. Const., Art. II, § 2, cl. 2. Lucia v.
Securities and Exchange Commission, 138 S. Ct. 2044 (2018). The
next month, the Social Security Commissioner ratified the
appointments of all then-existing ALJs. See Social Security EM-
18003 REV 2. On remand, any ALJ reviewing Ulitsch’s application 14 for benefits will have the benefit of this appointment. Any
review by an appointed ALJ will therefore render Ulitsch’s
current Appointments-Clause challenge moot.
Conclusion
In sum, the court grants Ulitsch’s first motion to
reverse,19 denies his second motion to reverse20 as moot, and
denies the Commission’s motion for an order affirming its
disability insurance benefits decision.21 This matter is
remanded for further proceedings consistent with this order.
The clerk shall enter judgment accordingly and close the case.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: September 26, 2019
cc: Alexandra M. Jackson, Esq. Rami M. Vanegas, Esq.
19 Doc. no. 8. 20 Doc. no. 15. 21 Doc. no. 11.