Marshall v. U.S. Social Security Administration, Commissioner

Filing 10

ORDER granting 7 Motion to Reverse Decision of Commissioner; denying 8 Motion to Affirm Decision of Commissioner. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

John Marshall
v.

Civil No. 14-cv-239-PB
Opinion No. 2015 DNH 010

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration
MEMORANDUM AND ORDER
John Marshall seeks judicial review of a decision by the
Commissioner of the Social Security Administration denying his
application for disability insurance benefits.

The

Administrative Law Judge (“ALJ”) below determined that Marshall
could not work in jobs that impose strict production quotas but
she later omitted that limitation when she asked the vocational
expert to identify jobs in the national economy that Marshall
could perform.

For the reasons I discuss below, this omission

requires a remand for further administrative proceedings.

I.

BACKGROUND

Pursuant to this Court’s Local Rule 9.1, the parties have
submitted a statement of stipulated facts which, because it is
part of the Court’s record (Doc. No. 9), need not be recounted

in this Memorandum and Order.

Facts relevant to the disposition

of this matter are discussed below.

II.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), 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.

My review “is limited 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).
Findings of fact made by the ALJ are accorded deference as
long as they are supported by substantial evidence.

Id.

Substantial evidence to support factual findings 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, factual findings are
conclusive even if the record “arguably could support a
2

different conclusion.”

Id. at 770.

Findings are not

conclusive, however, if they are derived 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 in the record.
Ortiz, 955 F.2d at 769.

Irlanda

It is the role of the ALJ, not the

court, to resolve conflicts in the evidence.

III.

Id.

ANALYSIS

The ALJ denied Marshall’s claim at Step Five of the
sequential process prescribed by 20 C.F.R. § 404.1520(a)(4).
Tr. at 23-24; see 20 C.F.R. § 404.1520(a)(4).

At that stage,

the Commissioner must “demonstrate that there are jobs in the
national economy that [the] claimant can perform” before she may
find that the claimant is not disabled.
947 F.2d 990, 995 (1st Cir. 1991).

Heggarty v. Sullivan,

For the Commissioner’s

denial of benefits to survive judicial review, substantial
evidence must support her conclusion that such jobs exist.
Rosado v. Sec’y of Health & Human Servs., 807 F.2d 292, 293-94
(1st Cir. 1986).
3

Where, as here, a claimant’s severe impairments are
nonexertional, the Commissioner ordinarily meets her burden at
Step Five by calling a vocational expert to testify.

E.g.,

Heggarty, 947 F.2d at 996; Ortiz v. Sec’y of Health & Human
Servs., 890 F.2d 520, 524 (1st Cir. 1989); Lugo v. Sec’y of
Health and Human Servs., 794 F.2d 14, 17 (1st Cir. 1986).

A

vocational expert’s testimony, however, can furnish substantial
evidence for the Commissioner’s finding at Step Five that a
claimant is not disabled only if the expert’s testimony fully
addresses the claimant’s residual functional capacity (“RFC”) as
determined by the ALJ prior to Step Four.

As the First Circuit

has explained, “in order for a vocational expert’s answer to a
hypothetical question to be relevant, the inputs into that
hypothetical must correspond to conclusions that are supported
by the outputs from the medical authorities.”

Arocho v. Sec’y

of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982); see
also Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002); Aubeuf
v. Schweiker, 649 F.2d 107, 114 (2d Cir. 1981); Sloan v. Astrue,
538 F. Supp. 2d 152, 156 (D.D.C. 2008).

That principle controls

here.
The ALJ determined that Marshall’s RFC included the
4

following four nonexertional limitations:
(1) That Marshall “should avoid hazards such as
unprotected heights and dangerous moving machinery”;
(2) That Marshall “would be limited to uncomplicated
tasks,” or those “that can typically be learned in
thirty days or less”;
(3) That Marshall’s “concentration, persistence, and
pace would be reduced to the point that productivity
would be no more than ten percent below the norm”; and
(4) That Marshall “could not perform work with strict
production quotas.”
Tr. at 17.

When she asked the vocational expert about jobs in

the national economy that a hypothetical person with these
limitations could perform, the ALJ did not include the fourth
limitation regarding strict production quotas.
59.

Tr. at 17, 56-

Responding to the ALJ’s hypothetical, the vocational expert

testified that such a person could work as an automotive
detailer, an automatic car wash attendant, a ticket
seller/taker, or a small products assembler.

Tr. at 57-58.

The

vocational expert’s opinion, however, was based on an incomplete
set of limitations that does not fully reflect Marshall’s RFC.
See Tr. at 56-59.

For that reason, the vocational expert’s

testimony cannot independently meet the Commissioner’s burden at
Step Five.

See Arocho, 670 F.2d at 375; Gallagher v. Astrue,
5

2009 DNH 048, 23-24 (remand required where vocational expert
opined on a hypothetical that did not include each of claimant’s
limitations).
The Commissioner does not dispute that the ALJ failed to
include the strict production quota limitation in the
hypothetical she presented to the vocational expert.
No. 8-1 at 7.

See Doc.

Instead, she argues that the ALJ’s omission was

harmless “because even if the ALJ had presented the additional
limitation to the [vocational expert,] it would not have changed
[the vocational expert’s] finding that [Marshall] could perform
a significant number of jobs.”
accurate is beside the point.

Id.

Whether this prediction is

The Commissioner’s conclusion

that jobs exist in the national economy that Marshall can
perform must be supported by substantial evidence to avoid
remand.

See Rosado, 807 F.2d at 292.

As I have explained, the

vocational expert’s testimony, standing alone, cannot satisfy
the Commissioner’s burden because it does not incorporate all of
Marshall’s limitations.

And fatally for the Commissioner, the

other source to which she points — the Dictionary of
Occupational Titles — does not satisfy her burden, either.
The Commissioner maintains that the Dictionary of
6

Occupational Titles provides substantial evidence for the
Commissioner’s conclusion that the strict quota production
limitation would not prevent Marshall from working in the
occupations identified by the vocational expert.
8-1 at 8-9.

See Doc. No.

The Dictionary entries for the four occupations

that the vocational expert identified, the Commissioner
observes, make no mention of a strict production quota
limitation.

See id.

That silence, the Commissioner argues,

provides substantial evidence for the conclusion that the four
occupations identified by the vocational expert do not require
fulfillment of strict production quotas.

See id.

The Commissioner is correct that the Dictionary’s
descriptions of the occupations named by the vocational expert
make no mention of a strict production quota, but this silence,
without more, does not validate the Commissioner’s argument.1

1

In

As an initial matter, I note that whether the Commissioner can
ever rely on the Dictionary in place of vocational expert
testimony at Step Five when the claimant’s RFC includes
nonexertional limitations appears to be an unsettled question.
Compare Fields v. Bowen, 805 F.2d 1168, 1170-71 (5th Cir. 1986)
(holding that the Dictionary cannot substitute for vocational
expert testimony “or other similar evidence” at Step Five) with
Peterson v. Chater, 96 F.3d 1015, 1016 (7th Cir. 1996)
(recognizing “vocational dictionary” as acceptable source at
Step Five). The First Circuit has not taken a clear position on
this question. Instead, the Circuit has instructed only that
7

effect, the Commissioner’s position would require a holding that
the mere omission of a given limitation from a certain
occupation’s Dictionary description provides substantial
evidence that the limitation does not apply to that occupation.
I am unpersuaded by the Commissioner’s argument.

The

Commissioner has cited no authority establishing that the
Dictionary includes an exhaustive list of limitations for each
occupation it describes.

In fact, taking the directly opposite

view, other courts have recognized that “the [Dictionary] is not
comprehensive, in that it cannot and does not purport to include
each and every specific skill or qualification for a particular
job.”

Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000); see

also Jones v. Apfel, 190 F.3d 1224, 1230 (11th Cir. 1999).2

For

where a claimant is found to have nonexertional limitations, “it
is likely that the testimony of a vocational expert will
typically be required.” Gagnon v. Sec’y of Health and Human
Servs., 666 F.2d 662, 666 n.9 (1st Cir. 1981) (emphasis added);
see also Heggarty, 947 F.2d at 996 (“Usually, testimony of a
vocational expert is required” where claimant is found to have
nonexertional limitations) (emphasis added). As I explain in
this Memorandum and Order, however, the Dictionary would not
provide the Commissioner with sufficient evidence even if it
could otherwise serve as a substitute for vocational expert
testimony. Therefore, this case does not require me to reach or
resolve this question.
2

Moreover, the Dictionary entries for each of the four
occupations named by the vocational expert specifically identify
8

these reasons, one court has observed that it “would be
manifestly inappropriate to make the [Dictionary] the sole
source of evidence concerning gainful employment.”
Shalala, 40 F.3d 789, 795 (6th Cir. 1994).

Barker v.

Given the

Dictionary’s general and necessarily incomplete structure, I
will not construe the Dictionary’s silence as substantial
evidence that an unmentioned limitation does not apply to a
particular occupation.
Resisting this conclusion, the Commissioner cites several
cases that, she argues, establish that “courts [may look] to the
[Dictionary] itself in determining whether particular jobs
entail production quotas or fast-paced production.”
1 at 9.

Doc. No. 8-

Some courts have indeed done so, but only where the

Dictionary clearly and unambiguously establishes that a
limitation not posed to a vocational expert does not apply to a
certain limitations that do not apply to those occupations. If
the Dictionary included an exhaustive list of each occupation’s
applicable limitations, this specification would be redundant
and unnecessary. See “Automobile Detailer,” Dictionary of
Occupational Titles 915.687-034, 1991 WL 687878 (noting that
“Climbing” is “Not Present” in that occupation’s setting); “Car
Wash Attendant, Automatic,” Dictionary of Occupational Titles
915.667-010, 1991 WL 687869 (same); “Ticket Seller,” Dictionary
of Occupational Titles 211.467-030, 1991 WL 671853 (same);
“Assembler, Small Products II,” Dictionary of Occupational
Titles 739.687-030, 1991 WL 680180 (same).
9

particular occupation.

See, e.g., Caldwell v. Barnhart, 261 F.

App’x 188, 190 (11th Cir. 2008) (ALJ’s omission of limitation
from hypothetical posed to vocational expert was harmless where
Dictionary unambiguously established that limitation did not
apply to occupations named by expert).3

Here, by contrast, the

Dictionary makes no mention at all of the strict production
quota limitation in describing the four occupations named by the
vocational expert.

In the absence of adequate vocational expert

testimony, such silence, without more, cannot meet the
Commissioner’s burden at Step Five.
Moreover, in each of the cases cited by the Commissioner,
the ALJ did include the production quota limitation in the
hypothetical posed to the vocational expert.

See Kelly v.

Astrue, No. CV-11-3295-JCG, 2012 WL 1439354, at *4 (C.D. Cal.
Apr. 26, 2012); Scott v. Comm’r of Soc. Sec., No. 1:10-CV-0061,
2011 WL 720198, at *3 (N.D. Ohio Jan. 25, 2011); Masek v.
Astrue, No. 08-C-1277, 2010 WL 1050293, at *9 (N.D. Ill. Mar.
22, 2010).

3

Thus, the vocational expert testimony in those cases

I intimate no view on whether this approach is permissible in
this Circuit. See supra note 1. Instead, I recognize only that
this approach appears to mark the greatest extent to which an
ALJ can rely on the Dictionary in the absence of adequate
vocational expert testimony.
10

itself provided substantial evidence for those ALJs’ Step Five
denial of benefits.

Those courts considered the Dictionary only

to establish that no conflict existed between the Dictionary and
the vocational expert opinions.

See Kelly, 2012 WL 1439354, at

*3-4; Scott, 2011 WL 720198, at *9; Masek, 2010 WL 1050293, at
*23.

Here, of course, the vocational expert did not opine on

production quotas because the ALJ never asked him to do so.

The

Commissioner seeks to use the Dictionary’s silence not to
validate vocational expert testimony, as the courts to which she
cites did, but rather to independently provide substantial
evidence for the ALJ’s Step Five conclusion.

As I have

explained, the Dictionary’s silence cannot serve that purpose,
and the cases she cites are not to the contrary.

IV.

CONCLUSION

The ALJ erred by omitting the strict quota limitation from
the hypothetical she posed to the vocational expert, and the
Dictionary of Occupational Titles does not render that error
harmless.

Thus, the ALJ’s decision to deny Marshall’s

application for benefits at Step Five lacks substantial
evidence.

Accordingly, I grant Marshall’s motion to reverse the
11

Commissioner’s decision (Doc. No. 7) and deny the Commissioner’s
motion to affirm her decision (Doc. No. 8).

Pursuant to

sentence four of 42 U.S.C. § 405(g), I remand the case to the
Social Security Administration for further proceedings
consistent with this decision.4
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
January 20, 2015
cc:

Ruth Dorothea Heintz, Esq.
Robert J. Rabuck, Esq.

4

Marshall offered other arguments in favor of remand. See Doc.
No. 7-1. Because I grant remand on the basis of the ALJ’s
failure to pose a complete hypothetical to the vocational
expert, however, I need not reach Marshall’s other arguments.
12