MULLEN v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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REPORT AND RECOMMENDED DECISION re 13 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 3/1/2019. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BARBARA M.,
Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION
COMMISSIONER,
Defendant
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1:18-cv-00186-JDL
REPORT AND RECOMMENDED DECISION
On Plaintiff Barbara M.’s application for disability insurance benefits under Title II
and supplemental security income benefits under Title XVI of the Social Security Act,
Defendant, the Social Security Administration Commissioner, found that Plaintiff has
severe impairments, but retains the functional capacity to perform substantial gainful
activity consisting in a subset of the light-duty job base. Defendant, therefore, denied
Plaintiff’s request for disability benefits. Plaintiff filed this action to obtain judicial review
of Defendant’s final administrative decision pursuant to 42 U.S.C. § 405(g).
Following a review of the record, and after consideration of the parties’ arguments,
I recommend the Court vacate the administrative decision and remand for further
proceedings.
The Administrative Findings
The Commissioner’s final decision is the August 2, 2017, decision of the
Administrative Law Judge. (ALJ Decision, ECF No. 9-2.)1 The ALJ’s decision tracks the
familiar five-step sequential evaluation process for analyzing social security disability
claims, 20 C.F.R. §§ 404.1520, 416.920.
The ALJ found Plaintiff has severe, but non-listing-level impairments consisting of
bilateral osteoarthritis of the knees, status post-wrist fracture (non-dominant), and shoulder
dysfunction (non-dominant). (Id. ¶¶ 3, 4.)
The ALJ also found that despite her
impairments, Plaintiff has the residual functional capacity (RFC) to meet the weight
demands of light work, except that Plaintiff cannot stand for more than two hours in an
eight-hour workday and can only occasionally push, pull, reach, and handle with her nondominant left upper extremity.2 (Id. ¶ 5.)
With the RFC as determined by the ALJ, Plaintiff cannot perform past relevant
work. (Id. ¶ 6.) The ALJ, however, determined that Plaintiff can transition to other jobs
existing in significant numbers in the national economy, including the representative job
of cashier within the specific context of parking lot attendants (Dictionary of Occupational
Titles # 211.462-010 / 23,000 jobs) and self-service gas stations (DOT # 211.462-010 /
240,000 jobs), and also the job of toll collector (DOT # 211.462-038 / 10,000 jobs). (Id. ¶
10.) Plaintiff has a “limited” education (Id. ¶ 8), and was “closely approaching advanced
age” when the ALJ issued her decision. (Id. ¶ 7.)
Because the Appeals Council found no reason to review that decision (R. 1), Defendant’s final decision
is the ALJ’s decision.
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The ALJ also found certain postural limitations that are not implicated by Plaintiff’s appeal.
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Standard of Review
A court must affirm the administrative decision provided the decision is based on
the correct legal standards and is supported by substantial evidence, even if the record
contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec’y
of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec’y of HHS,
819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind
might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401
(1971); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ’s findings
of fact are conclusive when supported by substantial evidence, but they are not conclusive
when derived by ignoring evidence, misapplying the law, or judging matters entrusted to
experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
Discussion
Plaintiff argues the ALJ erred when she failed to acknowledge that the RFC finding
describes a sedentary work capacity rather than a restricted light work capacity, redefined
the cashier job in a way that does not contemplate the actual demands regarding standing,
did not ask the vocational expert to discuss the degree of erosion of the light-exertion job
base, improperly distinguished a subset of cashier jobs, did not consider the fact that many
toll collector jobs are part-time, and failed to acknowledge that cashier jobs require
frequent reaching and handling. (Statement of Errors, ECF No. 13.)
The ALJ found Plaintiff to be “restricted [] to a range of light work that involve[s]
standing and walking for no more than two hours per day.” (R. 18.) In forming the RFC,
the ALJ gave great weight to the opinion of consulting expert Phyllis Sandell, M.D. (R.
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19, discussing Ex. 14A, R. 157–59.) Dr. Sandell concluded that Plaintiff occasionally can
manage weights up to 20 pounds, and frequently manage weights of up to 10 pounds, but
would have to work from a seated position for 6 hours in an 8-hour workday.3 (Id.)
Plaintiff argues the ALJ improperly characterized Plaintiff’s RFC as a restricted
light-duty work capacity rather than a sedentary work capacity. Plaintiff contends the error
is prejudicial because, due to her age, she would be disabled under the Medical-Vocational
Guidelines (the “Grid”) if the ALJ recognized that Plaintiff was limited to a sedentary work
capacity.4 (Statement of Errors at 3–4.) Defendant does not contest the assertion that
Plaintiff’s age placed her in an advantaged grid category, but Defendant argues the lightwork classification was a supportable finding. (Response at 2–4, & 9 n.3.)
At step 5, the burden shifts to the Commissioner to establish that the jobs a claimant
can perform exist in the national economy in significant numbers, giving particular
attention to the claimant’s age, education, work experience, and residual functional
capacity. 20 C.F.R. §§ 404.1520(a)(4)(v), (g)(1), 416.920(a)(4)(v), (g)(1); Goodermote v.
Sec’y of HHS, 690 F.2d 5, 7 (1st Cir. 1982). This burden is typically addressed through a
combined reliance on the Medical–Vocational Guidelines (a/k/a “the Grid”), 20 C.F.R. Part
404, Subpart P, Appendix 2, and the testimony of a vocational expert, who is asked to
The documents containing Dr. Sandell’s opinion include assessments authored by a disability examiner.
At page 9 of Exhibit 14 A (R. 159), there is a notation that “RFC is for seated light which precludes PRW
(laundry worker) which is described as heavy work by claimant and medium work by DOT. This changes
the RFC from seated light to sedentary work.” Defendant argues convincingly that this notation must be
understood to express an analysis performed by the disability examiner, not Dr. Sandell. See, e.g., Miles v.
Berryhill, No. 16-cv-1229, 2018 WL 1255761, at *3 (W.D. Okla. Mar. 12, 2018).
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See 20 C.F.R. Part 404, Subpt. P, App’x 2, § 201.09; Disability–Medical-Vocational Guidelines–
Conclusiveness of Rules, Social Security Ruling 83-5a, 1983 WL 31250 (SSA 1983).
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consider one or more hypothetical RFC findings. Goodermote, 690 F.2d at 7; Arocho v.
Sec’y of HHS, 670 F.2d 374, 375 (1st Cir. 1982). “‘The Grid,’ … consists of a matrix of
the applicant’s exertional capacity, age, education, and work experience. If the facts of the
applicant’s situation fit within the Grid’s categories, the Grid ‘directs a conclusion as to
whether the individual is or is not disabled.’” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir.
2001) (citing 20 C.F.R. pt. 404, subpt. P, App. 2, § 200.00(a)). Even when the Grid does
not direct a conclusion, it provides a “framework to guide the decision.” Id. (citing 20
C.F.R. § 416.969a(d)).
For example, a claimant’s exertional capacity may fit squarely in the “light exertion”
grid category, and because of the claimant’s younger age and high school education, the
Grid may point toward the conclusion that the claimant is not disabled. In such a case, the
ALJ can take administrative notice of the fact that the claimant’s ability to perform the
entire occupational base of unskilled, light-exertion work establishes that the claimant can
transition to other work existing in significant numbers in the national economy, thereby
satisfying the Commissioner’s burden of proof at step 5. See Grid § 200.00(b). If the same
claimant has additional, nonexertional impairments that erode his or her ability to perform
the work that comprises the light-exertion occupational base, then, unless the degree of
erosion is only marginal,5 the ALJ must ask a vocational expert about the claimant’s ability
to perform actual jobs, and whether the jobs exist in significant numbers in the national
economy; the ALJ may not simply conclude the claimant is not disabled based on the Grid.
See, e.g., Garcia-Martinez v. Barnhart, 111 F. App’x 22, 23 (1st Cir. 2004); Geoffroy v. Sec'y of HHS,
663 F.2d 315, 318 (1st Cir. 1981)
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Rose v. Shalala, 34 F.3d 13, 19 (1st Cir. 1994); Ortiz v. Sec'y of HHS, 890 F.2d 520, 524
(1st Cir. 1989).
In this case, the issue is the extent to which Plaintiff’s particular nonexertional
limitations (and other vocational factors) erode the occupational base; i.e., “how much the
individual’s work capability is further diminished in terms of any types of jobs within these
exertional ranges that would be contraindicated by the additional limitations or
restrictions.” Titles II & XVI: Capability to Do Other Work—The Medical–Vocational
Rules as a Framework for Evaluating Solely Nonexertional Impairments, SSR 85–15
(S.S.A. 1985). Plaintiff contends her nonexertional limitations, especially her ability to
walk/stand for only two hours, erode the light occupational base to such a degree that the
sedentary grid is the appropriate grid to apply in her case, which grid directs a finding that
she is disabled.
Under Defendant’s regulations, light work involves lifting up to 20 pounds
occasionally and 10 pounds frequently, and a job may also be classified as light if it does
not require significant lifting, but “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.”
20 C.F.R. §§ 404.1567(b), 416.967(b); see also SSR 83-10, 1983 WL 31251, at *6 (1983)
(light work generally involves standing or walking at least six hours in an eight-hour day).
Sedentary work, by contrast, involves lifting no more than 10 pounds at a time, and only
occasional walking and standing. 20 C.F.R. §§ 404.1567(a), 416.967(a); see also SSR 8310, 1983 WL 31251, at *5. Based on the ALJ’s supportable findings, Plaintiff’ RFC is
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between light-duty work capacity and sedentary because Plaintiff’s capacity to lift is in the
light category and her ability to walk/stand is in the sedentary category.
Pursuant to agency rules, when a claimant has an RFC that falls between “ranges of
work,” “the occupational base is affected and may or may not represent a significant
number of jobs in terms of the rules directing a conclusion as to disability.” Titles II and
XVI: Capability to Do Other Work – The Medical-Vocational Rules as a Framework for
Evaluating Exertional Limitations Within a Range of Work or Between Ranges of Work,
Social Security Ruling 83-12 (S.S.A. 1983), 1983 WL 31253 at *2. When a claimant’s
RFC is between ranges, adjudicators are directed to “consider the extent of any erosion of
the occupational base and access [sic] its significance.” Id. The Ruling includes the
following “Adjudicative Guidance”:
If 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, consider as follows:
a. An exertional capacity that is only slightly reduced in terms of the
regulatory criteria could indicate a sufficient remaining occupational base to
satisfy the minimal requirements for a finding of “Not disabled.”
b. On the other hand, if the exertional capacity is significantly reduced in
terms of the regulatory definition, it could indicate little more than the
occupational base for the lower rule and could justify a finding of “Disabled.”
c. In situations where the rules would direct different conclusions, and the
individual’s exertional limitations are somewhere “in the middle” in terms of
the regulatory criteria for exertional ranges of work, more difficult judgments
are involved as to the sufficiency of the remaining occupational base to
support a conclusion as to disability.
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Id. at * 2-3. 6
Here, the ALJ did not explicitly assess whether Plaintiff has “a slightly reduced
capacity” or a “significantly reduced capacity” for light work. Instead, the ALJ simply
asked the vocational expert to identify light-exertion jobs in a typical “framework”
scenario. (Hr’g Tr. at 66 – 76.) While an ALJ may rely on the testimony of a vocational
expert to make such a determination, see Blackburn v. Comm’r of Soc. Sec., No. 18-5123,
2018 WL 4378665 (6th Cir. Sept. 14, 2018) (affirming administrative decision, but
claimant could stand for four hours), in this case, neither in her analysis, nor in her
questioning of the expert, did the ALJ directly acknowledge that the RFC fell between two
work levels, including one that would require a finding of disability, nor did the ALJ make
a finding as to whether Plaintiff’s capacity to perform light-exertion work was slightly or
significantly reduced. In addition, the vocational expert’s testimony did not adequately
address the issue. For instance, the expert’s reliance in part on her placement of individuals
in the jobs “several years” ago of the jobs to support her opinion that Plaintiff could perform
the jobs was not particularly compelling or convincing. The expert provided no context
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Plaintiff relies on POMS § DI 25015.006, which section discusses borderline age scenarios. (Statement
of Errors Ex. A, ECF No. 13-1.) Section 25015.006 does not directly apply to a situation involving a
claimant with a work capacity that falls between two grid categories. However, it offers an example in
which a claimant with a four-hour limitation in standing/walking is treated as having only a sedentary
capacity because such a limitation “significantly erodes the occupational base of light work.” (Id., PageID
# 776.) Defendant objects to application of the example, because it is drawn from a section of the POMS
that is concerned with the issue of borderline age, not the exertional categories applied in the grids.
(Response at 9-10.) Defendant also objects to consideration of the example because it has been abandoned
in the revised POMS effective July 6, 2017. (Id. at 9 n.4.) I am not persuaded that the example found in
the earlier version of POMS § DI 25015.006 compels a conclusion that Plaintiff is entitled to application
of the sedentary grid rule. Instead, POMS § DI 25025.015, which the parties did not discuss, offers the
relevant guidance.
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for the experience and no specific examples. In addition, the expert’s description of the
RFC as “essentially sedentary” at one point (Hr’g Tr. at 67) only generates further
questions about the level of Plaintiff’s capacity.
When a claimant’s RFC is between two ranges, and particularly where one level
would require a finding of disabled under the Grid, an ALJ must assess whether the
claimant has a slightly or significantly reduced capacity for the range that would permit a
finding of not disabled. In this case, the ALJ did not make the necessary finding. To the
extent Defendant relies on the ALJ’s assessment of the erosion of the unskilled light
occupational base to satisfy that requirement, the vocational expert’s testimony, upon
which the ALJ relied, is insufficient.7
CONCLUSION
Based on the foregoing analysis, I recommend the Court vacate the administrative
decision and remand the matter for further proceedings.8
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, and request for oral
argument before the district judge, if any is sought, within fourteen (14) days
of being served with a copy thereof. A responsive memorandum and any
request for oral argument before the district judge shall be filed within
fourteen (14) days after the filing of the objection.
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This recommended decision should not be construed as a determination that an ALJ cannot rely on the
testimony of a vocational expert to make the assessment. As the court in Blackburn found, a vocational
expert’s testimony that identified “many light and sedentary” jobs, was sufficient. Blackburn, 2018 WL
4378665 at * 2.
Because I have determined that remand is warranted based on the ALJ’s failure to conduct the individual
assessment under the circumstances, I have not addressed Plaintiff’s other claimed errors.
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Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 15th day of February, 2019.
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