Rai v. US Social Security Administration, Acting Commissioner
Filing
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ORDER granting 9 Motion to Reverse Decision of Commissioner; denying 10 Motion to Affirm Decision of Commissioner. So Ordered by Judge Paul J. Barbadoro.(jna)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mamata Rai
v.
Case No. 15-cv-175-PB
Opinion No. 2016 DNH 013
Carolyn W. Colvin,
Acting Commissioner,
U.S. Social Security
Administration
MEMORANDUM AND ORDER
Mamata Rai challenges the Social Security Administration’s
denial of her claim for Supplemental Security Income (“SSI”)
benefits.
The Acting Commissioner, in turn, moves for an order
affirming her decision.
For the reasons that follow, I reverse
the decision of the Acting Commissioner and remand for further
administrative proceedings.
I.
BACKGROUND
In accordance with Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts (Doc. No. 14).
See LR 9.1.
Because that joint statement is part of the court’s
record, I need not recount it here.
I discuss facts relevant to
the disposition of this matter as necessary below.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I have the authority to review
the pleadings submitted by the parties and the administrative
record, and to enter a judgment affirming, modifying, or
reversing the “final decision” of the Commissioner.
That review
is limited, however, “to determining whether the [Administrative
Law Judge] 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
Administrative Law Judge’s (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
2
Cir. 1999) (per curiam).
The ALJ is responsible for determining
issues of credibility and for drawing inferences from evidence
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.
III. ANALYSIS
Mamata Rai is a former refugee from Nepal who was 19 years
old in June 2012, when she filed for SSI benefits.
at 1-2.
Doc. No. 11
Rai filed for SSI on June 19, 2012, claiming disability
as of that day.1
Id.
The Social Security Administration denied
Rai’s SSI application, and in October 2013 a hearing was held
before ALJ Dory Sutker.
Id.
Following that hearing, the ALJ
issued a written decision denying Rai’s application.
Tr. at 16-
25 (ALJ’s written decision).
In her decision, the ALJ found at step one that Rai had not
engaged in substantial gainful activity since June 19, 2012,
Rai’s alleged onset date.
Tr. at 19.
At step two, the ALJ
found that Rai suffered from heart and thyroid-related severe
The Joint Statement of Material Facts indicates that Rai’s
alleged onset date was July 19, 2012, but this appears to be an
error, since the hearing transcript and the ALJ’s decision both
state that the date was June 19, 2012. Compare Doc. No. 11 at 1
with Tr. at 16, 35.
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impairments.2
Tr. at 19.
At step three, however, the ALJ
determined that Rai’s impairments did not meet or medically
equal any of the impairments listed in the relevant regulations.
Tr. at 19.
The ALJ then found that Rai retained the Residual
Functional Capacity (“RFC”) to perform sedentary work with
certain restrictions, such as not climbing ladders, avoiding
fumes and odors, and limiting her work to “uncomplicated tasks
such as those that typically can be learned in thirty days or
less.”
Tr. at 19.
The ALJ also noted that Rai “would have
unscheduled absences of not more than 1 day per month” due to
her condition.
Tr. at 19.
At step four, the ALJ found that Rai
had no past relevant work experience.
Tr. at 24.
She also
concluded that Rai “has a limited education and is able to
communicate in English.”
Tr. at 24.
Lastly, at step five, the
ALJ consulted a vocational expert and used the MedicalVocational Guidelines (the “Grid”) to conclude that jobs existed
in the national economy that Rai could perform – and therefore
Rai was not disabled.
Tr. at 24-25.
Rai requested review of the ALJ’s decision, but in December
2014, the Appeals Council denied her request.
Tr. at 1.
As a
The impairments are “mitral valve regurgitation with anterior
leaflet prolapse status-post recent valve repair” and
“hyperthyroidism.” Tr. at 19.
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result, the ALJ’s decision constitutes the Commission’s final
decision, and this case is now ripe for review.
Rai filed this appeal in May 2015, asserting two challenges
to the ALJ’s decision.
First, she claims that the ALJ failed to
develop vocational evidence addressing Rai’s English language
limitations, and improperly concluded that Rai was “able to
communicate in English.”
Second, Rai argues that the ALJ erred
in assessing the importance of her unexcused absences from
school.
I find Rai’s first argument – that the ALJ improperly
assessed Rai’s English skills – persuasive, and conclude that
the ALJ’s determination of Rai’s language capabilities was
conclusory and insufficiently supported by the evidence.
As a
result, a remand is warranted.
The ALJ bears the burden at step five of proving that jobs
exist in the national economy that the claimant can perform.
Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991).
To
carry her burden, the ALJ must consider the claimant’s RFC and
her “age, education, and work experience.”
404.1520(a)(4)(v).
20 C.F.R. §
“Education” includes “how well [claimants]
are able to communicate in English since this ability is often
acquired or improved by education.”
20 C.F.R. § 416.964(b).
“Because English is the dominant language of the country, it may
be difficult for someone who doesn't speak and understand
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English to do a job, regardless of the amount of education the
person may have in another language.”
416.964(b)(5).
20 C.F.R. §
The ALJ, therefore, must “consider a person’s
ability to communicate in English when [the ALJ] evaluate[s]
what work, if any, he or she can do.”
Id.; see Lugo v. Chater,
932 F.Supp. 497, 502 (S.D.N.Y 1996) (Sotomayor, J.) (“Before
slotting a claimant into a particular grid rule, however, the
ALJ must first determine whether the claimant is conversant and
literate in English.”) (citing Vega v. Harris, 636 F.2d 900,
903-904 (2d Cir. 1981)).3
Here, the issue of Rai’s language limitations arose
numerous times in the record and at the hearing.
In a
questionnaire submitted to the SSA, Rai’s English as a Second
A claimant’s English capabilities affect the ALJ’s analysis
at step five. For example, in order to successfully apply the
Grid, an ALJ must first place the claimant in an educational
category, which in some instances includes determining whether
the claimant is “illiterate and unable to communicate in
English” or “Limited or less – at least literate and able to
communicate in English.” See 20 C.F.R. Pt. 404, Subpt. P, App.
2. Similarly, to analyze a claimant’s ability to perform
certain jobs, a vocational expert generally must consult the
Dictionary of Occupational Titles (“DOT”) and its “companion
publication,” the Selected Characteristics of Occupations
(“SCO”). See 20 C.F.R. § 404.1566(d); SSR 00-4P, 2000 WL
1898704 (Dec. 4, 2000), at *1. These publications outline six
different levels of General Education Development (“GED”), which
include “Language Development.” See Doc. No. 14-1 at 2-4, 1114. Once a claimant has been assigned a GED level, the DOT
indicates what potential jobs a claimant at that level may
perform. See 20 C.F.R. § 404.1566(d); see also Doc. No. 14-2.
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Language (ESL) teacher Genevieve Munoz noted that Rai’s “English
is not very good and she does not understand much.”
Tr. at 166.
Munoz indicated that as a “familiar listener,” she could only
understand Rai 1/2 to 2/3 of the time when the topic of
conversation was known, and no more than 1/2 of the time when
the topic was unknown.
Tr. at 169.
Munoz clarified that Rai’s
difficulty speaking English was a “language problem, not a
learning disability.”
Tr. at 166.
In addition, state medical reviewer Jonathan Jaffe noted in
his report that Rai “speaks little English, primary language is
Nepal.”
Tr. at 59.
Similarly, state disability adjudicator
Sherri Connor indicated in her “Assessment of Vocational
Factors” that Rai had “LIMITED ENGLISH.”
original).
Tr. at 62 (emphasis in
Using the Grid, Connor determined that Rai belonged
in category 201.23, which applies to young individuals who are
“illiterate or unable to communicate in English.”
see 20 C.F.R. Pt. 404, Subpt. P, App. 2, 201.23.
Tr. at 62-63;
Moreover, in a
“Disability Report - Field Office,” an interviewer noted that
Rai “speaks nepali,” “her english is very limited,” and she
“brought in an interpreter” to the interview.
Tr. at 143.
On
another form, Rai indicated that “No,” she could not “speak and
understand English;” “Yes,” she could “read and understand
English;” and “No,” she could not “write more than [her] name in
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English.”
Tr. at 145.
In Rai’s appeal documents and medical
records, her English problems are consistently mentioned.
See,
e.g., Tr. at 187 (“Limited ability to communicate in English”),
194 (“[Rai] comes in now with [a] translator”).
At the hearing before the ALJ, Rai appears to have
communicated mostly through a Nepali interpreter.4
31-44 (hearing transcript).
See Tr. at
The ALJ engaged Rai in a brief
exchange of questions, mostly of a biographical nature (although
as explained above, it is unclear whether or not Rai answered
directly or through an interpreter).
Tr. at 36-38.
At one
point, Rai’s representative stated that she “does understand
some English, so simple questions . . . are not going to be a
problem.”
Tr. at 36.
Rai also stated that she had started, but
not finished, the eleventh grade; did not have a GED; went to
school part time; could read “a little bit;” and did “not know
that well Nepali.”
Tr. at 37-38.
The hearing transcript is somewhat unclear as to the issue
of Rai’s Nepali interpretation. A Nepali interpreter was sworn
in at the beginning of the hearing. Tr. at 31. The ALJ later
appears to ask Rai questions directly, but it is not clear
whether or not an interpreter was used. Tr. at 36. Rai’s
brief, however, states that “Ms. Rai testified at her hearing
almost entirely through an interpreter,” Doc. No. 9-1 at 3, and
the Commissioner does not appear to dispute that assertion. See
Doc. No. 10-1 at 3-5.
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After the ALJ finished interviewing Rai, Rai’s
representative questioned Elizabeth LaFlamme, a vocational
expert (“VE”).
Tr. at 42-44.
LaFlamme was asked whether an
individual with a sedentary work capacity but a “reading, math,
and language, the GED [level] of 0 to 1” would be able to
perform the job of an “addresser,” “document preparer,” or
“surveillance system monitor.”5
Tr. at 43.
LaFlamme replied
that all three vocations would require greater language skills
than a “0 to 1.”
questions.
Tr. at 43.
See Tr. at 43.
The ALJ asked no follow-up
The hearing concluded shortly
thereafter, with no further discussion of Rai’s language
abilities or capacity to perform unskilled vocations.
43-45.
Tr. at
The next month, the ALJ issued her decision, finding
that Rai had “a limited education and was able to communicate in
English.”
Tr. at 24.
This finding was not supported by substantial evidence.
As
stated above, an ALJ may not derive her findings by “ignoring
evidence, misapplying the law, or judging matters entrusted to
experts.”
Nguyen, 172 F.3d at 35.
Here, the ALJ provided no
explanation as to how she concluded that Rai was able to
communicate in English.
See Tr. at 24.
Her decision provides
Disability adjudicator Sherri Connor had previously identified
these three vocations as jobs that Rai could perform given her
RFC and other limitations. Tr. at 63.
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no commentary on Rai’s stated language limitations; no account
of what process was used, if any, to determine Rai’s English
level; and – perhaps most troublingly – no response to the VE’s
statements that a person with a “0 to 1” English capacity could
not perform any of the three jobs the state had recommended for
Rai.6
Instead, the ALJ simply concluded that Rai “was able to
communicate in English,” and applied the Grid to find that Rai
was not disabled.
See Tr. at 24.
This conclusory statement is
insufficient and warrants a remand.
Our cases support this outcome.
Although the First Circuit
has not squarely addressed the issue, the Second Circuit has
made clear that the ALJ must first determine whether a claimant
is literate and able to communicate in English before applying
the Grid.
Vega, 636 F.2d at 903-904.
In Vega, the Second
Circuit remanded in favor of a claimant who spoke limited
English because the ALJ made no formal findings “on the
questions of literacy and ability to communicate in English.”
Id. (“The absence of findings by the ALJ on the questions of
literacy and ability to communicate in English is crucial . . .
.”).
Similarly, in Lugo, a claimant with limited English won a
Admittedly, Rai’s language abilities were not assessed, so it
may be that Rai has a higher English level than “0 to 1.” Tr.
at 43. Without some further evaluation of Rai’s English skills,
however, I cannot properly assess the relevance of the VE’s
statement.
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remand when the ALJ “did not specify the basis of his finding
that Lugo could both speak and read some English.”
Lugo, 932
F.Supp. at 501 (“This finding [of the claimant’s English
abilities] is pivotal because it dictates which grid rule the
ALJ will use as a framework for decisionmaking, and which type
of testimony he will solicit from a vocational expert, if one is
required.”).
Closer to home, in Banushi v. Barnhart, the court
remanded because the ALJ failed to evaluate the claimant’s
English abilities despite record evidence that the claimant had
difficulty communicating in English.
2007 WL 1858658, at *8-10
(D. Mass. June 26, 2007) (“[T]here is no indication in the
decision that plaintiff's ability to communicate in English was
considered in evaluating what work she could do . . . . The lack
of a finding . . . constitutes legal error.”).
Courts have thus
consistently ordered a remand where, as here, the ALJ provides
no reasoned basis for her conclusion regarding a claimant’s
English ability.
The Commissioner argues that the ALJ properly concluded
that Rai could communicate in English because Rai could
“understand, read and write a simple message such as
instructions or inventory lists.”
(emphasis in original).
Doc. No. 10-1 at 3-5
To support this claim, the Commissioner
points to Rai’s ESL teacher’s statement that the teacher
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understood “up to two thirds” of Rai’s conversation when the
topic was known, and to Rai’s representative’s statement that
Rai “does understand some English, so simple questions . . . are
not going to be a problem.”7
Doc. No. 10-1 at 4-5.
Although the Commissioner may be correct that Rai’s English
skills are good enough to work a sedentary job, her argument
fails because the ALJ left no clue as to what evidence she
relied upon to make her determination.
To the extent the ALJ
may have relied on Rai’s responses to the ALJ’s questions during
the hearing, Vega repudiates the idea that “a brief exchange”
with the claimant may “substitute for a determination on the
question of ability to communicate in English.”
at 904.
Vega, 636 F.2d
At bottom, however, I cannot conclude that the ALJ
properly supported her finding when the ALJ declined to provide
any explanation as to how she reached that finding.
Indeed, it
is a “simple but fundamental rule of administrative law” that “a
reviewing court, in dealing with a determination or judgment
which an administrative agency alone is authorized to make, must
judge the propriety of such action solely by the grounds invoked
The Commissioner also argues that Rai could satisfactorily
speak English because she “was also able to complete the
disability forms requested by the agency.” Doc. No. 10-1 at 4.
The Commissioner appears to be mistaken, however: the form that
she cites was filled out by a “Parsu Nepal,” not Mamata Rai.
Tr. at 160.
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by the agency.”
194, 196 (1947).
Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S.
On that standard, the ALJ’s decision is
unsupportable, and a remand is warranted.8
IV.
CONCLUSION
For the foregoing reasons, Rai’s motion to reverse the
decision of the Commissioner (Doc. No. 9) is granted.
The
Commissioner’s motion to affirm (Doc. No. 10) is denied.
Pursuant to sentence four of 42 U.S.C. § 405(g), I remand the
Although the Commissioner has not raised this issue, there
are some circumstances where the Grid dictates a finding of “not
disabled” even when a claimant is found “illiterate or unable to
communicate in English.” See 20 C.F.R. § Pt. 404, Subpt. P,
App. 2, 201.23. For claimants aged 18-44 who have the RFC to
perform “a full range of sedentary work,” the Grid explains that
there are still “sufficient numbers of jobs” available despite
the claimant’s English limitations because “the bulk of
unskilled work relate[s] to working with things (rather than
with data or people).” 20 C.F.R. § Pt. 404, Subpt. P, App. 2,
201.00(h)(4)(i). Here, however, even if the ALJ had supportably
found that Rai was unable to communicate in English, sole
reliance on the Grid would have been inappropriate because Rai
did not have “a full range” of sedentary work. See id.
(emphasis added). Rather, Rai had the RFC to perform sedentary
work only with a host of restrictions, including “never
climb[ing] ladders, ropes, or scaffolds . . . hav[ing] no
concentrated exposure to temperature extremes, no exposure to
hazards . . . limit[ing] [her work] to uncomplicated tasks such
as those that typically can be learned in thirty days or less”
and “hav[ing] unscheduled absences of not more than 1 day per
month.” Tr. at 19. Because these restrictions limit the
sedentary work Rai can perform, it appears that Rai does not
directly fit into any of the Grid’s categories, and therefore
sole reliance on the Grid would be improper.
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case to the Social Security Administration for further
proceedings consistent with this decision.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
January 14, 2016
cc:
Douglas Grauel, Esq.
Robert Rabuck, Esq.
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