UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Kathy Ann Wilt
v. Civil No. 15-cv-439-LM Opinion No. 2016 DNH 182 Carolyn W. Colvin, Acting Commissioner, Social Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Kathy Wilt moves to reverse
the Acting Commissioner’s decision to deny her applications for
Social Security disability insurance benefits, or DIB, under
Title II of the Social Security Act, 42 U.S.C. § 423, and for
supplemental security income, or SSI, under Title XVI, 42 U.S.C.
§ 1382. The Acting Commissioner, in turn, moves for an order
affirming her decision. For the reasons that follow, this
matter is remanded to the Acting Commissioner for further
proceedings consistent with this order.
I. Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .
42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions); see also 42 U.S.C. § 1383(c)(3) (establishing
§ 405(g) as the standard of review for SSI decisions). However,
the court “must uphold a denial of social security . . .
benefits unless ‘the [Acting Commissioner] has committed a legal
or factual error in evaluating a particular claim.’” Manso-
Pizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per
curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW, 612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[Acting Commissioner] to determine issues of credibility and to
2 draw inferences from the record evidence. Indeed, the
resolution of conflicts in the evidence is for the [Acting
Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (per curiam) (citations
omitted). Moreover, the court “must uphold the [Acting
Commissioner’s] conclusion, even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence.” Tsarelka v. Sec’y of HHS, 842 F.2d 529,
535 (1st Cir. 1988) (per curiam). Finally, when determining
whether a decision of the Acting Commissioner is supported by
substantial evidence, the court must “review[ ] the evidence in
the record as a whole.” Irlanda Ortiz, 955 F.2d at 769 (quoting
Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)).
II. Background
The parties have submitted a Joint Statement of Material
Facts. That statement, document no. 12, is part of the court’s
record and will be summarized here, rather than repeated in
full.
Wilt has been diagnosed with various physical and mental
impairments. She applied for both DIB and SSI in October of
2012.
3 In April of 2013, Wilt’s physical residual functional
capacity (“RFC”)1 was assessed by Dr. Burton Nault, a non-
examining physician who reviewed her medical records. Based
upon his review, Dr. Nault identified no exertional or non-
exertional limitations on Wilt’s ability to perform work-related
activities.
In February of 2013, the SSA referred Wilt to Dr. Evelyn
Harriott, a psychologist, for a consultative examination. Based
upon her examination, Dr. Harriott prepared a Mental Health
Evaluation Report on Wilt. In her report, Dr. Harriott gave
Wilt diagnoses of panic disorder without agoraphobia and major
depressive disorder, moderate. Dr. Harriott also offered the
following opinions on Wilt’s then current level of functioning:
[Ms. Wilt] was cooperative and appears able to interact appropriately with others. . . .
. . . Ms. Wilt is able to understand and remember basic and familiar locations, information and procedures. . . .
. . . Ms. Wilt is able to attend, concentrate and persist at a below average pace to complete rote and brief tasks. . . .
. . . Ms. Wilt is able to make simple decisions. She also appears able to interact appropriately, at least for brief periods, as she did in the office today. However, she is not motivated to interact with people
1 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1) & 416.945(a)(1).
4 and doesn’t care about grooming herself when going out in pubic to run errands. It is unlikely that she would keep attendance and a schedule, as she is not motivated to do so and complains of constant stomach upset.
Administrative Transcript (hereinafter “Tr.”) 341-42.
In February of 2013, Wilt’s mental RFC was assessed by Dr.
John Warren, a non-examining psychologist who reviewed her
medical records. Dr. Warren indicated that Wilt had limitations
in all four areas he reported on: (1) understanding and memory;
(2) sustained concentration and persistence; (3) social
interaction; and (4) adaptation. He summarized his opinions on
Wilt’s mental RFC this way:
Claimant [is] able to understand/remember simple instructions. Unable to do so for moderately to highly complex/detailed instructions.
Claimant is able to sustain the mental demands associated with carrying out simple tasks over the course of [a] routine workday/workweek within acceptable attention, persistence, [and] pace tolerances. Unable to do so for moderately to highly complex/detailed tasks requiring sustained concentration.
Claimant is able to sustain the basic demands associated with relating adequately with supervisors/co-workers. Unable to interact appropriately with the general public.2
2 He supported his conclusions concerning Wilt’s capacity for social interaction with findings that Wilt had moderate limitations in her abilities to: (1) accept instructions and respond appropriately to criticism from supervisors; (2) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and (3) maintain socially appropriate behavior and adhere to basic standards of neatness
5 Claimant is able to adapt to routine workplace change, remain aware of environmental hazards, form basic plans/goals, [and] travel independently.
Tr. 49-50, 61-62.
After the SSA denied Wilt’s applications for benefits, she
received a hearing before an Administrative Law Judge (“ALJ”).
Subsequently, the ALJ issued a decision that includes the
following relevant findings of fact and conclusions of law:
3. The claimant has the following severe impairments: anxiety and depression (20 CFR 404.1520(c) and 416.920(c)).
. . . .
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: The claimant can remember and perform simple tasks; interact superficially with coworkers and supervisors, and have rare contact with the general public; and maintain a schedule and acceptable attendance.
and cleanliness, and with a finding that she had marked limitations in her ability to interact appropriately with the general public.
6 6. The clamant has no past relevant work (20 CFR 404.1565 and 416.965).
10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
Tr. 12, 14, 16, 19, 20. Without relying upon the testimony of a
vocational expert (“VE”), and without providing any evidence or
explanation, the ALJ concluded that Wilt’s nonexertional
limitations, including her limitation to superficial
interactions with coworkers and supervisors, had “little or no
effect on the occupational base of unskilled work at all
exertional levels.” Tr. 20.
III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). To be eligible
for supplemental security income, a person must be aged, blind,
or disabled, and must meet certain requirements pertaining to
income and assets. 42 U.S.C. § 1382(a). The question in this
case is whether Wilt was under a disability from August 31,
7 2010, through August 5, 2014, which is the date of the ALJ’s
decision.
To decide whether a claimant is disabled for the purpose of
determining eligibility for either DIB or SSI benefits, an ALJ
is required to employ a five-step process. See 20 C.F.R. §§
404.1520 (DIB) & 416.920 (SSI).
The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20
C.F.R. § 416.920).
The claimant bears the burden of proving that she is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). She
must do so by a preponderance of the evidence. See Mandziej v.
Chater, 944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982)). However,
[o]nce the [claimant] has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming
8 forward with evidence of specific jobs in the national economy that the [claimant] can still perform. Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982). If the [claimant’s] limitations are exclusively exertional, then the Commissioner can meet her burden through the use of a chart contained in the Social Security regulations. 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). “The Grid,” as it is known, consists of a matrix of the [claimant’s] exertional capacity, age, education, and work experience. If the facts of the [claimant’s] situation fit within the Grid’s categories, the Grid “directs a conclusion as to whether the individual is or is not disabled.” 20 C.F.R. pt. 404, subpt. P, App. 2, § 200.00(a), cited in 20 C.F.R. § 416.969. However, if the claimant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust, id. § 200(e)) that restrict his [or her] ability to perform jobs he [or she] would otherwise be capable of performing, then the Grid is only a “framework to guide [the] decision,” 20 C.F.R. § 416.969a(d) (2001). See also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (discussing use of Grid when applicant has nonexertional limitations).
Seavey, 276 F.3d at 5 (parallel citations omitted).
B. Wilt’s Claims
Wilt claims that the ALJ made several errors in assessing
her RFC and also erred at Step 5 in two ways, by relying upon a
faulty RFC and by failing to obtain the testimony of a
vocational expert. Even if the ALJ properly determined Wilt’s
RFC, the RFC she ascribed to Wilt required her to take testimony
from a VE. Her failure to do so necessitates a remand.
9 In a recent decision, Magistrate Judge Rich characterized
the law of this circuit regarding when an ALJ may determine that
a claimant is not disabled, at Step 5, without the benefit of
testimony from a VE:
The Grid generally cannot permissibly be used as a vehicle to meet the commissioner’s Step 5 burden – vocational expert testimony ordinarily must be sought instead – if a claimant’s nonexertional impairments significantly affect his or her ability “to perform the full range of jobs” at the appropriate exertional level. Ortiz v. Secretary of Health & Human Servs., 890 F.2d 520, 524 (1st Cir. 1989) (citation and internal quotation marks omitted). “[A]though a nonexertional impairment can have a negligible effect, ordinarily the ALJ must back such a finding of negligible effect with the evidence to substantiate it, unless the matter is self-evident.” Seavey v. Barnhart, 276 F.3d 1, 7 (1st Cir. 2001) (citation and internal quotation marks omitted).
Parker v. Colvin, No. 1:15-cv-00446-JHR, 2016 WL 4994997, at *6
(D. Me. Sept. 19, 2016). Moreover, as Judge Barbadoro has
recently noted, “[t]he First Circuit has cautioned that ‘an ALJ
typically should err on the side of taking vocational evidence
when a [non-exertional] limitation is present in order to avoid
needless agency rehearings.’” Brindley v. Colvin, No. 14-cv-
548-PB, 2016 WL 355477, at *5 (D.N.H. Jan. 29, 2016) (quoting
Oritz, 890 F.2d at 528) (remanding where ALJ neither called
vocational expert nor explained why reliance upon the Grid was
appropriate, but “merely stated, without explanation or citation
to record evidence, that [the claimant’s] non-exertional
10 limitations have little or no effect on the occupational base of
unskilled light work”) (internal quotation marks and citation to
the record omitted).
Here, the ALJ included three non-exertional limitations in
Wilt’s RFC: (1) an ability to remember and perform only simple
tasks; (2) an ability to interact only superficially with
coworkers and supervisors; and (3) a capacity for only rare
contact with the general public. Based upon Seavey, and the
ALJ’s failure to explain or support her determination that
Wilt’s nonexertional limitations “have little or no effect on
the occupational base of unskilled work at all exertional
levels,” Tr. 20, the ALJ was free to resolve Wilt’s claim at
Step 5 without evidence from a vocational expert only if it is
self-evident that the three limitations she identified would
have a negligible effect upon a claimant’s ability to perform
the full range of unskilled jobs. The problem lies with the
limitation the ALJ found with respect to Wilt’s ability to
interact with coworkers and supervisors.3
3 It is well established that “limitations to simple work and simple instructions and [to] work not involving interaction with the public . . . [do] not . . . preclude reliance on the Grid, at least in cases in which . . . a claimant has been found capable of performing work at all exertional levels.” Gurney v. Astrue, Civ. No. 09-153-B-W, 2010 WL 323912, at *2 (D. Me. Jan. 20, 2010) (citations omitted).
11 With regard to the mental abilities necessary to perform
unskilled work, guidance from the SSA provides:
The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base.
Social Security Ruling (“SSR”) 85-15, 1985 WL 56857, at *4
(S.S.A. 1985) (emphasis added).
In Parker, the court ruled that the ALJ’s failure to
acknowledge evidence that the claimant “had limitations bearing
on her ability to respond appropriately to supervision and/or
coworkers . . . undermined his reliance on the Grid” because “it
is not self-evident that [those limitations] would have had only
a negligible effect on the [claimant’s] ability to perform the
full range of work at all exertional levels.” 2016 WL 4994997,
at *7 (citing Gurney v. Astrue, Civ. No. 09-153-B-W, 2010 WL
323912, at *3 (D. Me. Jan. 20, 2010)). The decision in Gurney,
on which Judge Rich relied in Parker, is both on point and
persuasive. In Gurney, when assessing the claimant’s RFC, the
ALJ identified six limitations, including a limitation to
occasional interaction with co-workers and supervisors. See
2010 WL 323912, at *1. Notwithstanding the limitations he
12 identified, the ALJ determined, without relying upon the
testimony of a VE, that the claimant was not disabled, at Step
5. In the district court, the claimant argued that the
testimony of a VE was required due to three limitations in her
RFC, including a limitation to occasional interaction with co-
workers. Id. at *3. The magistrate judge deemed it unnecessary
to consider all three of the claimant’s limitations, and
recommended a remand, because
the commissioner . . . failed to make a persuasive case that one of those limitations, the restriction to only occasional interaction with supervisors and co- workers, has no more than a negligible effect on a claimant’s ability to perform the full range of unskilled jobs.
Id.
Here, the Acting Commissioner has failed to make a
persuasive case that a limitation to superficial interaction
with supervisors and coworkers has only a negligible effect on a
person’s ability to perform the full range of unskilled jobs.
As a preliminary matter, the court notes one difference between
the limitation in Gurney and the limitation in this case. In
Gurney the claimant was limited to “only occasional interaction
with supervisors and co-workers.” 2010 WL 323912, at *3
(emphasis added). In this case, the ALJ found that Wilt was
limited to superficial interaction with coworkers and
13 supervisors. See Tr. 16. That difference, however, cuts in
Wilt’s favor:
[T]he restriction to only superficial contact with co- workers is a significant non-exertional limitation that makes reliance on the Grids inappropriate here. It is difficult to see how such a limitation — as opposed to, say, only occasional contact with one’s coworkers — would not have a significant impact on plaintiff’s ability to perform a full range of sedentary work. See SSR 85–15, 1985 WL 56857 at *4 (noting “[a] substantial loss of ability” to respond appropriately to co-workers “would severely limit the potential occupational base”).
Lewis v. Astrue, No. 3:11-cv-05482-RJB-KLS, 2012 WL 1022219, at
*10 (W.D. Wash. Mar. 5, 2012), R & R adopted by 2012 WL 1022202
(Mar. 26, 2012). So too here; it is difficult to see how a
limitation to superficial interaction with coworkers and
supervisors would not have a significant impact on Wilt’s
ability to perform a full range of unskilled work.
In response to Wilt’s claim that the ALJ was obligated to
obtain VE testimony, the Acting Commissioner acknowledges
Gurney, but then frames the following counterargument:
[O]nly significant limitation in supervisory interaction erodes the potential job base. SSR 85-15, 1985 WL 56857, at *4. This Court has held that a similar limitation in the RFC, “to avoid overly critical supervision,” did not substantially erode the occupational base. Beaton v. Astrue, Civ. No. 10-cv- 343-JD, 2011 DNH 046, 2011 WL 1051060, at *7; see Garcia-Martinez v. Barnhart, 111 F. App’x 22, 23, 2004 WL 2240136 (1st Cir. Oct. 1, 2004).
14 Doc. No. 11-1, at 15. The Acting Commissioner’s reliance upon
Beaton and Garcia-Martinez is misplaced.
In Beaton, the ALJ found that the claimant was limited to
employment without “overly critical supervision,” and the ALJ
ruled against him at Step 5, without taking testimony from a VE.
2011 WL 1051060, at *7. After calling it a close question,
Judge DiClerico determined that “the ALJ’s determination was . .
. minimally sufficient.” Id. (citations omitted). However,
while the limitation in Beaton referred to supervision and the
one in this case refers to supervisors, those two limitations
are materially distinguishable. The limitation in Beaton
described something the claimant could not tolerate, i.e.,
overly critical supervision. The limitation in this case
describes something the claimant cannot do, i.e., interact with
either supervisors or coworkers in anything other than a
superficial way. Because of the differences between the
limitation in Beaton and the limitation in this case, including
the fact that Wilt’s limitation pertains to both supervisors and
coworkers, Judge DiClerico’s decision in Beaton has no
particular bearing on the question before this court.
As for Garcia-Martinez, it is sufficient to note that while
the Acting Commissioner cites that case for the proposition that
“a limitation for no more than occasional interaction with co-
15 workers and supervisors and rare interaction with the general
public does not preclude an ALJ from relying on the Grids,” doc.
no. 11-1, at 15-16, the opinion in that case says no such thing.
In Garcia-Martinez, the claimant was limited to work that “(1)
was of a routine, repetitive nature, (2) did not involve undue
pressure, and (3) did not involve interactions with the public.”
111 F. App’x at 23. Because Garcia-Martinez involved no
limitation on the claimant’s ability to interact with either
supervisors or coworkers, the opinion in that case is
inapposite, and offers no useful guidance for the resolution of
this case.
Given the foregoing discussion of Beaton and Garcia-
Martinez, the court concludes that the Acting Commissioner “has
failed to make a persuasive case that . . . the restriction to
only [superficial] interaction with supervisors and co-workers .
. . has no more than a negligible effect on [Wilt’s] ability to
perform the full range of unskilled jobs.” Gurney, 2010 WL
323912, at *3.
Parker, Gurney, and Lewis all counsel in favor of remand.
“To be sure, several courts have drawn the opposite conclusion
under similar facts.” Boley v. Astrue, No. 11-10896, 2012 WL
680393, at *13 (E.D. Mich. Feb. 10, 2012) (citations omitted), R
& R adopted by 2012 WL 680392 (Mar. 1, 2012). But as Magistrate
16 Judge Grand points out in Boley, in most of those cases, “the
courts supported their decisions only with the regulation’s
language [i.e., language in SSR 85-15] that unskilled work
generally deals with objects rather than people.” This court
concurs with Judge Grand’s appraisal of those decisions as
unpersuasive because “[n]one [of them] addressed the specific
proposition that a limited ability to respond to supervisors
and/or co-workers ‘would severely limit the potential
occupational base.’” Id. (quoting SSR 85-15, 1985 WL 56857, at
*4; citing 20 C.F.R. § 404.1545). Moreover, as Judge Grand also
points out, even though unskilled jobs typically require those
performing them to work primarily with objects rather than
people, those jobs still require the ability to respond
appropriately to supervision and coworkers. See Boley, 2012 WL
680393, at *11. In other words, there is a difference between
what a person works with, i.e., things or people, and the
context in which he or she works, i.e., under minimal rather
than ubiquitous supervision, or in a solitary rather than a
populous workplace. In short, the holdings of Parker, Gurney,
Lewis, and Boley (along with numerous other decisions cited
therein, see 2012 WL 680393, at *12) convince this court that
the specific limitations in Wilt’s RFC required the ALJ to call
17 upon a vocational expert at Step 5, and that her failure to do
so necessitates a remand.
IV. Conclusion
For the reasons given, the Acting Commissioner’s motion for
an order affirming her decision, document no. 11, is denied, and
Wilt’s motion to reverse that decision, document no. 9, is
granted to the extent that this matter is remanded to the Acting
Commissioner for further proceedings, pursuant to sentence four
of 42 U.S.C. § 405(g). The clerk of the court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
October 14, 2016
cc: Penelope E. Gronbeck, Esq. Terry L. Ollila, Esq.