UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary Moore
Case No. 16-cv-365-PB Opinion No. 2017 DNH 099 US Social Security Administration, Acting Commissioner, Nancy A. Berryhill
MEMORANDUM AND ORDER
Mary Moore challenges the Social Security Administration’s
decision to deny her claim for supplemental security income
(SSI) benefits. She argues, among other things, that the
Administrative Law Judge (“ALJ”) improperly determined that she
had the lifting capacity required for light work. The Acting
Commissioner moves for an order affirming the ALJ’s decision.
I. BACKGROUND
In accordance with Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts (Doc. No. 12).
Because that joint statement is part of the court’s record, I do
not recount it here. I discuss facts relevant to the
disposition of this matter as necessary below. II. STANDARD OF REVIEW
I am authorized to review the pleadings submitted by the
parties and the administrative record and enter a judgment
affirming, modifying, or reversing the “final decision” of the
Commissioner. See 42 U.S.C. § 405(g). That review is limited,
however, “to determining whether the ALJ used the proper legal
standards and found facts [based] upon the proper quantum of
evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st
Cir. 2000). I defer to the ALJ’s findings of fact, so long as
those findings are supported by substantial evidence. Id.
Substantial evidence exists “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) (per curiam)
(quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d
218, 222 (1st Cir. 1981)).
If the substantial evidence standard is met, the ALJ’s
factual findings are conclusive, even where the record “arguably
could support a different conclusion.” Id. at 770. Findings
are not conclusive, however, if the ALJ derived his findings by
“ignoring evidence, misapplying the law, or judging matters
entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999) (per curiam). The ALJ is responsible for determining
issues of credibility and for drawing inferences from evidence
2 in the record. Irlanda Ortiz, 955 F.2d at 769. It is the role
of the ALJ, not the court, to resolve conflicts in the evidence.
Id. But the ALJ’s decision must enable the reviewing court to
determine whether the ALJ engaged with conflicts, rather than
failing to consider them. See Dube v. Astrue, 781 F. Supp. 2d
27, 35 (D.N.H. 2011); Lord v. Apfel, 114 F. Supp. 2d 3, 13–14
(D.N.H. 2000); see also Garfield v. Schweiker, 732 F.2d 605, 610
(7th Cir. 1984).
III. ANALYSIS
Moore is a fifty-five-year-old woman with a scattered work
history who alleges disability as of November 15, 2007. See Tr.
at 322; Doc. No. 12 at 1 n.1. She alleges disabling impairments
of fibromyalgia, lupus, lobectomy, degenerative joint disease,
vertigo, chronic obstructive pulmonary disease, vocal cord
dysfunction, panic disorder, anxiety disorder, and post-
traumatic stress disorder. She alleges that these impairments
impose both exertional and non-exertional limitations on her
ability to work. The ALJ found that Moore was not disabled
because she could perform the light work job of price marker.
On appeal, Moore argues that the ALJ improperly determined
that she had the lifting capacity required for light work even
though no medical opinion supported that determination. In
response, the Acting Commissioner argues that Moore waived her
3 challenge by not raising it before the ALJ and, in the
alternative, the ALJ reasonably interpreted the medical opinion
evidence to arrive at his lifting-capacity determination.
I begin by explaining why Moore has not waived her
challenge. Turning to the merits, I conclude that the ALJ did
not support his determination with substantial evidence because
he misstated a critical finding and failed to adequately address
conflicts in the evidence.
A. Waiver
The Acting Commissioner argues that Moore waived her
challenge to the lifting determination because she “did not
raise it before the ALJ.” See Doc. No. 11–1 at 5. Because
Moore’s lifting restriction was presented to the ALJ, a
subsequent remand hearing was limited to a different issue, and
she squarely raised her argument in this court, I do not find
waiver.
1. Procedural History
There were two hearings before the ALJ. In the first,
Moore testified that “her symptoms greatly restrict her ability
to . . . lift . . . .” Tr. at 70 (ALJ’s characterization of
testimony). She explained, “I can’t lift — sometimes I can’t
lift my grandchildren.” Tr. at 153. She further explained,
“[t]he most I can do for physical activity right now is to
basically do like leg lifts and that’s really hard to do.” Tr.
4 at 156. She testified that she had difficulty holding even very
light items like dustpans and knives, and could not pursue
favorite activities such as knitting and painting due to pain or
shaking hands. See Tr. at 157–59. In addition, Moore’s
attorney highlighted therapist Benjamin Otis’ functional
capacity assessment, which found significant lifting
restrictions. Her attorney cited the corresponding exhibit and
stated, “[s]o, I mean, that’s in evidence, so I really don’t
have to go through that.” Tr. at 166. Her attorney also
specifically asked the vocational expert about the impact of a
lifting restriction on her ability to transition to the jobs
identified, including price marker, inquiring whether, “if she
were unable to lift two pounds on a frequent basis, would that
eliminate being able to perform any of those positions?” Tr. at
172–73. The expert answered that the restriction would indeed
eliminate those jobs. Tr. at 173.
Soon after the hearing, the ALJ issued a decision
concluding, at step five of the sequential process for
evaluating disability claims, that Moore was not disabled
because she could perform available light work jobs. See 42
U.S.C. § 1382c(a)(3)(A); 20 C.F.R. 416.920. In assessing her
residual functional capacity (“RFC”), the ALJ did not recognize
a lifting restriction. Moore appealed to the Appeals Council,
which vacated the ALJ’s decision. The Appeals Council remanded
5 for a new hearing to specifically address a discrepancy in
testimony by the vocational expert, who had failed to explain
his conclusion that Moore could perform light work jobs that
generally require standing/walking for six hours despite Moore’s
restriction to four hours. Tr. at 207. The Appeals Council
remanded the case to resolve this discrepancy and directed the
ALJ to ask the vocational expert particular questions about it.
Tr. at 207–08. The Appeals Council did not opine on other
aspects of the ALJ’s decision. See Tr. at 207–08.
The remand hearing lasted only eighteen minutes, and Moore
did not attend. See Tr. at 124, 134. At the hearing, the ALJ
explained that the Appeals Council remanded the case to resolve
the discrepancy in the vocational expert’s testimony pertaining
to the standing/walking restriction and stated, “[s]o, at this
point, we will be going to the [vocational expert].” Tr. at
124–25. After briefly discussing new evidence submitted after
the first hearing, the ALJ called the expert and began asking
questions within the scope of the remand. Tr. at 128–31. The
ALJ concluded his questioning with a hypothetical concerning
jobs available to someone restricted to sedentary work. Tr. at
131. The ALJ then stated, “Counsel, your claimant would Grid
out under the [sedentary] hypothetical. Do you have any
questions for the vocational expert, sir?” Tr. at 131. Moore’s
attorney highlighted that “it’s a short hearing,” Tr. at 131,
6 and asked questions essentially within the scope of remand. See
Tr. at 131–33.
Soon after the hearing, the ALJ issued a new decision that
again concluded that Moore was not disabled. Tr. at 77. As a
preliminary matter, the ALJ found that Moore constructively
waived her right to appear at the remand hearing because traffic
and incorrect directions do not amount to “good cause.” Tr. at
64–65. Turning to the merits, the ALJ explained that “the sole
basis for the remand related to the handling of the vocational
expert’s testimony” at step five,” and “[t]he Appeals Council
did not identify any issues with the analysis at steps one, two,
three, and four of the sequential evaluation or with the
analysis and formulation of [Moore’s] residual functional
capacity.” Tr. at 66. Accordingly, the ALJ explained that the
new decision “restates much of the previous analysis.” Tr. at
66. For example, in explaining why Moore could perform light
work, the ALJ quoted pages of analysis from the first decision.
Tr. at 70–74. The ALJ concluded that Moore could perform the
light work position of price marker. See Tr. at 76–77; Dep’t of
Labor, Dictionary of Occupational Titles 209.587-034, 1991 WL
671802 (4th ed. 1991) [hereinafter DOT 209.587-034]. The
Appeals Council affirmed.
Moore appealed to this court. She argues on appeal that
the ALJ did not adequately explain his decision and his
7 assessment of her lifting capacity was not based on substantial
evidence. See Doc. No. 8-1 at 5–7. She explains that no
medical opinion, including the opinion of therapist Otis relied
upon by the ALJ, found a lifting capacity compatible with light
work. In response, the Acting Commissioner argues that Moore
has waived this argument because she “neglected to raise any
concerns about the ALJ’s interpretation of therapist Otis’s
report in the pre-remand decision, which is unchanged in the
decision presently before the Court.” Doc. No. 11–1 at 5–6
(internal citation omitted).
2. Waiver
I conclude that Moore did not waive her challenge. Social
Security proceedings are governed by an informal, inquisitorial
model in which the ALJ has a “duty to investigate the facts and
develop the arguments” on each side. See Sims v. Apfel, 530
U.S. 103, 110–11 (2000). Moore’s lifting capacity was placed
squarely at issue during the original, full hearing before the
ALJ. She explicitly told the ALJ about significant restrictions
on her lifting capacity and gave supporting examples. In
addition, her attorney drew the ALJ’s attention to therapist
Otis’ RFC assessment, which likewise found significant lifting
restrictions. Moore’s attorney also posed a hypothetical to the
vocational expert concerning the prohibitive effect that a
frequent-lifting restriction would have on her ability to
8 perform light work jobs. In these ways, the lifting restriction
was squarely placed at issue during the first hearing.
Moore did not waive challenges to the ALJ’s subsequent
decision by not presenting them during the limited hearing on
remand from the Appeals Council. Cf. Sims, 530 U.S. at 110–14
(holding that judicial review did not require issue exhaustion
before the Appeals Council). See generally Jon C. Dubin,
Torquemada Meets Kafka: The Misapplication of the Issue
Exhaustion Doctrine to Inquisitorial Administrative Proceedings,
97 Colum. L. Rev. 1289, 1341–42 (1997) (describing imperfect fit
between issue-exhaustion requirement and inquisitorial Social
Security proceedings). First, Moore herself did not attend the
remand hearing, and the ALJ denied her the opportunity to appear
at a new hearing. Even if she constructively waived her right
to appear, she did not also thereby waive her challenges to the
ALJ’s decision. Second, the Appeals Council remanded on a
different issue, and the eighteen-minute remand hearing was
limited to that specific, granular concern. Tr. at 66 (noting
that “the sole basis for the remand related to the handling of
the vocational expert’s testimony”), 64 (noting that the ALJ
“proceeded with the hearing in order to take vocational expert
testimony”). Finally, because the ALJ posed a sedentary-work
hypothetical to the vocational expert on remand, Moore lacked
notice that the ALJ would reach the same RFC assessment as
9 before. Cf. Mills v. Apfel, 244 F.3d 1, 8 (1st Cir. 2001)
(finding waiver where ALJ stopped questioning vocational expert
at step four, but claimant failed to alert ALJ that step-five
inquiry was necessary due to her sporadic work history). For
these reasons, Moore did not waive her challenge to the ALJ’s
lifting capacity determination.
My conclusion respects the administrative process. The ALJ
had a duty to investigate the facts and support his decision
with substantial evidence. At the full hearing, Moore and her
attorney played their role. After the ALJ issued an unfavorable
decision, Moore did not waive all challenges to it by not
raising them at the limited remand hearing. Indeed, a contrary
result might effectively expand all remand hearings to address
all potential concerns with the ALJ’s original decision, even
where that decision was vacated on a narrow and separate issue,
the outcome might change, and the claimant sought further
Appeals Council review. Finally, my conclusion does not reflect
a general rule against waiver, but is instead limited to the
facts before me. In light of these considerations, I decline to
find that Moore waived her right to challenge the ALJ’s
assessment of her lifting capacity.
B. Lifting-Capacity Determination
Turning to the merits, Moore argues that the ALJ lacked
substantial evidence for his lifting-capacity determination
10 because it is unsupported by any medical opinion in the record
and largely unexplained. In response, the Acting Commissioner
argues that the ALJ reasonably interpreted conflicts in the
opinion evidence. For the following reasons, I conclude that
the ALJ failed to adequately explain his lifting-capacity
determination and support it with substantial evidence.
The only medical evidence discussed by the ALJ that
functionally assesses Moore’s lifting capacity was pronounced by
therapist Otis. Otis’ report states that from “Waist to Floor”
Moore could lift 18 pounds rarely, 16 pounds occasionally, and 2
pounds frequently. Tr. at 1360. From “Waist To Crown
(Handles),” Moore could lift 12 pounds rarely, 8 pounds
occasionally, and 2 pounds frequently. Tr. at 1360. From
“Waist To Crown (Preferred),” Moore could lift 18 pounds rarely,
14 pounds occasionally, and 3 pounds frequently. Tr. at 1360.
Moore could “Front Carry” 25 pounds rarely, 18 pounds
occasionally, and 3 pounds frequently. Tr. at 1360.1 Otis also
evaluated a variety of other functional capacities. A line in
his evaluation summarily states, “US Department of Labor
Physical Demand Level Light.” Tr. at 1359. The ALJ gave Otis’
1 The transcript contains a poor visual reproduction of the number reflecting Otis’ finding for front-carrying on a frequent basis. See Tr. at 1360. The parties jointly read the number as a “three,” Doc. No. 12 at 6–7, but the ALJ at one point reads it as a “five,” see Tr. at 71. That difference is immaterial to the disposition of this appeal. 11 opinion “significant” weight and vaguely stated that it
“provides support for” his own RFC assessment. Tr. at 73.
The ALJ concluded that Moore could perform light work. See
Tr. at 69. “Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing
up to 10 pounds.” 20 C.F.R. § 416.967(b). The ALJ did not find
additional lifting restrictions. A vocational expert testified
that someone with that functional capacity could perform the
light work job of price marker, which involves “[e]xerting up to
20 pounds of force occasionally . . . and/or up to 10 pounds of
force frequently.” DOT 209.587-034. Because there were a
sufficient number of price marker positions available to Moore,
the ALJ concluded that she was not disabled.2
The ALJ’s lifting-capacity determination is flawed. The
ALJ implicitly determined that Moore could lift 10 pounds
frequently. See Tr. at 69; § 416.967(b). The ALJ apparently
relied on Otis’ RFC assessment, stating that Otis “opined [to]
an ability to lift . . . approximately eighteen pounds
frequently.” Tr. at 73. But this is simply incorrect. In
reality, Otis opined that Moore could frequently lift only three
2 Although the vocational expert testified on remand that the number of price-marker positions available to Moore was reduced by 75% due to her standing/walking restriction, the ALJ concluded that the number remaining was sufficient. See Tr. at 77. 12 pounds. Tr. at 1360. Because light work entails “frequent
lifting or carrying of objects weighing up to 10 pounds,” §
416.967(b), the ALJ’s misstatement is material and not harmless.
See Wooldridge v. Bowen, 816 F.2d 157, 161 (4th Cir. 1987)
(recognizing reversible error where ALJ concluded that claimant
could perform light work even though she could lift no “more
than 20 pounds at a time with occasional lifting or carrying of
10 pounds” (quoting ALJ)). If the ALJ had determined instead
that Moore had a three-pound restriction that limits her to
sedentary work, she would be disabled under the Medical-
Vocational Guidelines. See Tr. at 131 (ALJ stating that Moore
“would Grid out under the [sedentary] hypothetical”); 20 C.F.R.
§§ 404.1563(d); Pt. 404, Subpt. P, App. 2, Rule 201.09.
Moreover, the ALJ may well have discovered that Moore cannot
transition to the light work job of price marker. See Tr. at
172–73 (vocational expert answering that hypothetical inability
to lift “two pounds on a frequent basis” would eliminate price
marker position); see also §§ 416.912(f) (2015) (since amended)
(providing that Social Security Administration “must provide
evidence about the existence of work in the national economy
that [the claimant] can do”), 416.920(g), 416.960(c). With a
greater lifting restriction, Moore may be simply unable to
perform that job, see Tr. at 172–73, or it may not be available
in sufficient numbers in the economy when accounting for the
13 lifting restriction, cf. Tr. at 128–31 (finding that restriction
to four hours standing/walking decreased by 75% the number of
available price marker positions, which generally require six
hours). These considerations undermine the ALJ’s conclusion
that Moore is not disabled.
The Acting Commissioner does not address the ALJ’s
misstatement. Instead, the Acting Commissioner argues that the
ALJ could have relied on an entirely different assessment, by
state reviewing physician Jonathan Jaffe, finding that Moore
could frequently lift 10 pounds. This argument is a nonstarter.
The ALJ did not discuss Dr. Jaffe’s RFC assessments, let alone
give them weight.3 See 20 C.F.R. § 416.927(e)(2)(ii) (2015)
(amended 2017); SSR 96-6p, 1996 WL 374180, at *2, 4 (July 2,
1996) (requiring that ALJ address and explain weight given to
state agency physician’s opinion). The ALJ certainly did not
explain that he was adopting only this discrete finding by Dr.
Jaffe, which was based only on a medical record review, over the
3 The ALJ alludes to Dr. Jaffe’s opinion only through an oblique reference to “the State agency medical and psychological consultants.” Tr. at 74. The ALJ states in a perfunctory way that while their opinions differ from the ALJ’s, “they deviate only slightly,” and unspecified “[h]earing level evidence supports the deviations.” Tr. at 74. Moreover, Dr. Jaffe’s opinion contains its own discrepancy. Dr. Jaffe found that Moore could lift only 10 pounds occasionally, Tr. at 180, which falls short of the light work ability ultimately found by the state agency. See Tr. at 185; 20 C.F.R. § 416.967(b). Since the ALJ does not discuss Dr. Jaffe’s functional assessments, he neither acknowledges nor attempts to resolve that discrepancy. 14 finding from Otis’ more recent in-person examination. See §
416.927(c)(1) (explaining that opinion by examining source is
generally entitled to greater weight than one by non-examining
source). For these reasons, the ALJ did not use Dr. Jaffe’s
finding to support the lifting-capacity determination.
The Acting Commissioner next argues that the ALJ reasonably
interpreted Otis’ opinion to arrive at the lifting-capacity
determination. This argument also fails. The ALJ sought to
reconcile a different discrepancy: between the maximum lifting
required for light work and therapist Otis’ finding that Moore
could only occasionally lift 18 pounds. See Tr. at 71 n.2. The
ALJ apparently determined that Moore could perform the maximum
lifting required for light work based on Otis’ finding that she
could occasionally lift 18 pounds and rarely lift 25 pounds.
Although the ALJ does not explain his reasoning, it is
apparently grounded in the diverging definitions of
“occasionally” used by the Social Security regulation and
therapist Otis. Whereas SSR 83-10 defines “occasionally” to
mean “from very little up to one-third of the time,” SSR 83-10,
1983 WL 31251, at *5 (January 1, 1983), therapist Otis defined
it to mean from six percent to one-third of the time, with
anything less labeled “rarely.” See Tr. at 1360. The ALJ
apparently concluded that Moore’s ability to “rarely” lift
15 twenty-five pounds satisfied the maximum exertion requirement of
light work.
I need not resolve this issue.4 The ALJ purported to
explain why Moore has the capacity for the “occasional” or
maximum lifting required for light work. The ALJ did not,
however, explain why Moore has the capacity for “frequent”
lifting required for light work. Instead, the ALJ relied on
therapist Otis’ assessment — which found a three-pound frequent-
lifting capacity that falls short of the ten pounds required for
light work — but misstated Otis’ frequent-lifting determination
as reflecting an eighteen-pound capacity. The conflict in the
evidence went unacknowledged and unaddressed.
In this context, the ALJ’s perfunctory mention that Otis’
report states “Department of Labor Physical Demand Level Light”
4 I also need not address potential differences in the various definitions of light work. See 20 C.F.R. § 416.967 (“Light work involves lifting no more than 20 pounds at a time . . . .”); Doc. No. 8–1 at 5 (Moore’s interpretation of section 416.967 as imposing a 20-pound occasional-lifting requirement); SSR 83-10 at *5 (stating, under elaboration of sedentary work, that “‘Occasionally’ means occurring from very little up to one-third of the time”); DOT 209.587-34 (stating that the light work required for price marker job involves “[e]xerting up to 20 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or up to 10 pounds of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time)” (emphasis added)); Doc. No. 11–1 at 6 n.2 (Acting Commissioner’s interpretation of Dictionary of Occupational Title’s “and/or” language as “and”); Tr. at 71, 1359 (unexplained “Department of Labor Physical Demand Level Light” standard). 16 does not amount to substantial evidence. See Tr. at 71, 1359.
Neither Otis, the ALJ, nor the Acting Commissioner provide
substantive content to this vague descriptor or provide a legal
citation. Nor do they explain why that vague and perfunctory
statement controls over Otis’ particularized functional
findings. Nor do they compare it to the Social Security
regulations, administrative guidance, or the requirements of a
price marker job. Cf. Salinas v. Sullivan, No. 91-C-2450, 1992
WL 51706, at *2 (N.D. Ill. Mar. 9, 1992). These failures are
compounded by the ALJ’s misstatement of Otis’ frequent-lifting
finding by a factor of six when according Otis’ opinion
significant weight and using it to fashion the RFC assessment.
For these reasons, I cannot meaningfully evaluate whether the
ALJ supportably resolved material conflicts in the evidence, or
instead ignored them. See Dube, 781 F. Supp. 2d at 35; Lord,
114 F. Supp. 2d at 13–14; Garfield, 732 F.2d at 610. I conclude
that the ALJ did not adequately explain the lifting-capacity
IV. CONCLUSION
Pursuant to sentence four of 42 U.S.C. § 405(g), I grant
Moore’s motion to reverse the decision of the Acting
Commissioner (Doc. No. 8) and deny the Acting Commissioner’s
motion to affirm the decision (Doc. No. 11). I remand the case
17 to the Social Security Administration for further proceedings
consistent with this order.
SO ORDERED.
/s/ Paul Barbadoro__________ Paul Barbadoro United States District Judge
May 25, 2017
cc: Laurie Smith Young, Esq. Robert J. Rabuck, Esq. Terry L. Ollila, Esq.