Dussault v. US Social Security Administration, Commissioner

Filing 13

///ORDER granting 9 Motion to Reverse Decision of Commissioner; denying 10 Motion to Affirm Decision of Commissioner. So Ordered by Chief Judge Joseph N. Laplante.(gla)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Jacqueline Dussault
v.

Civil No. 15-cv-441-JL
Opinion No. 2017 DNH 029

Carolyn Colvin, Acting Commissioner,
Social Security Administration

ORDER ON APPEAL
Jacqueline Dussault appeals the Social Security
Administration’s (“SSA”) denial of her application for
disability benefits.

An Administrative Law Judge (“ALJ”) found

that Dussault suffered from the following severe impairments:
diabetes, trochanteric (hip) bursitis, early osteoarthritis of
the hips, and left shoulder myofascial pain syndrome.

The ALJ

also found that Dussault suffered from several non-severe
impairments: post heart attack, iritis and depression.
Employing the Medical Vocational Guidelines, 20 C.F.R. pt. 404,
subpt. P, App. 2 (“the Grid”), the ALJ ultimately found that
Dussault was not disabled within the meaning of the Social
Security Act because she has sufficient residual functional
capacity (“RFC”) to work at jobs that exist in significant
numbers in the national economy.

See 42 U.S.C. § 423(d)(2)(A).

The SSA Appeals Council subsequently denied Dussault’s request

for review of the ALJ’s decision, rendering the ALJ’s decision
final.

Dussault timely appealed to this court, pursuant to 42

U.S.C. § 405(g).

In due course, Dussault moved to reverse the

SSA’s decision and the SSA’s Acting Commissioner moved to affirm
the denial of benefits.
Dussault asserts a single argument – that the ALJ erred in
relying on the Grid because she improperly concluded that
Dussault’s non-exertional limitations had little or no effect on
the occupational base of sedentary unskilled work and made her
decision without input from a vocational expert.
After consideration of the parties’ arguments and the
administrative record, the court finds that the ALJ improperly
relied on the Grid to determine the effect of Dussault’s
limitations.

Therefore, Dussault’s motion is granted and the

Acting Commissioner’s motion is denied.

I.

Standard of Review
The court’s review of SSA’s final decision “is limited to

determining whether the ALJ used the proper legal standards and
found facts upon the proper quantum of evidence.”

Ward v.

Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).

The

ALJ’s decision will be upheld if it is supported by substantial
evidence, that is, “such evidence as a reasonable mind might

2

accept as adequate to support a conclusion.”

Richardson v.

Perales, 402 U.S. 389, 401 (1971) (quotations omitted).

This is

less evidence than a preponderance but “more than a mere
scintilla.”
(1966).

Id.; Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620

The possibility of drawing two inconsistent conclusions

from the evidence does not preclude a finding of substantial
evidence.

Consolo, 383 U.S. at 620.

Accordingly, the ALJ’s

resolution of evidentiary conflicts must be upheld if supported
by substantial evidence, even if contrary results are
supportable.

Rodriguez Pagan v. Sec’y of Health & Human Servs.,

819 F.2d 1, 2 (1st Cir. 1987).

The court next turns to the

ALJ’s decision.

II.

Background1
In analyzing Dussault’s benefit application, the ALJ

invoked the required five-step process.
416.920.

See 20 C.F.R. §

First, she concluded that Dussault had not engaged in

substantial work activity after the alleged onset of her
disability on January 12, 2009.

Next, the ALJ determined that

The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitation in their
Joint Statement of Material Facts is incorporated by reference.
See L.R. 9.1(d).
1

3

Dussault suffered from several severe impairments: diabetes
mellitus, trochanteric bursitis and early osteoarthritis of the
hips, and left shoulder myofascial pain syndrome.
§ 416.1520(c).

See 20 C.F.R.

At the third step, the ALJ concluded that

Dussault’s impairments –– either individually or collectively -did not meet or “medically equal” one of the listed impairments
in the Social Security regulations.
404.1520(d), 404.1525, 404.1526.

See 20 C.F.R. §§

The ALJ next found that

Dussault had the RFC to perform sedentary work, with the
modification that she perform postural activities only
occasionally and that she can only occasionally reach overhead
with one arm.2

See 20 C.F.R. §§ 404.1567(a) and 416.967(a).

After finding at step four that Dussault could not perform
any past relevant work, the ALJ proceeded to step five, at which
the SSA bears the burden of showing that a claimant can perform
other work that exists in the national economy.
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).

Freeman v.

Here, the ALJ,

considering Dussault’s age, education and work experience, using
the Grid as a framework, concluded Dussault could perform jobs

In a section of her opinion entitled “Findings of fact and
Conclusions of Law,” the ALJ found that Dussault can reach
overhead only occasionally with her right arm, but later in the
opinion, ascribed this limitation to her left arm. The court
will address with discrepancy, infra.
2

4

which exist in the regional and national economy.

Accordingly,

the ALJ found Dussault not disabled within the meaning of the
Social Security Act.

III.

Analysis
As previously noted, Dussault claims that the ALJ

impermissibly relied on the Grid.
two related assertions.

Underlying this argument are

First, Dussault argues that the ALJ

concluded that Dussault suffered from impairments in both
shoulders, a significant non-exertional impairment that would
preclude use of the Grid and require the testimony of a
vocational expert.

Next, she argues that a vocational expert is

required even if only one of her shoulders is impaired.

Because

the court is persuaded by the second contention and remands on
that basis, it need not resolve the first, as that can be
addressed on remand as well.

For background purposes, however,

the court first outlines the dispute as to the impairment.
As noted, supra, n.2, the dispute on whether one or both of
Dussault's shoulders is impaired stems from certain
contradictory entries in the ALJ's opinion.

Under finding of

fact no. 3, only the left shoulder is implicated.3

3

Admin. R. at 16.

5

Yet in

finding no. 5, the ALJ includes only a limitation to Dussault’s
right shoulder.3

Finally, in addressing Dussault’s symptoms, the

ALJ observed that Dr. Nault, a state agency medical consultant,
noted an impairment in Dussault’s right shoulder, but discounted
it because Dussault only alleged left shoulder pain.

The ALJ

then concluded her discussion with the following: “The records
confirm that the claimant was diagnosed with left shoulder
impairment, rather than right.

As such, the undersigned finds

that her left shoulder is limited to only occasional reaching.”5
Ultimately, after finding that such an impairment “would have
little or no effect” on the range of available sedentary work,
the ALJ found Dussault not disabled.6

For purposes of the

court's analysis, the court proceeds in accordance with the
ALJ's final indication, that is, that Dussault's impairment was
limited to her left shoulder.
At issue here is the ALJ's use of the Grid after concluding
that Dussault has the residual functional capacity to perform
sedentary work but only occasionally reach overhead with her

3

Admin. R. at 18.

5

Admin. R. at 20.

6

Admin. R. at 21.

6

left shoulder.7

Dussault argues that this limitation (a “non-

exertional impairment”) substantially erodes the otherwise
applicable occupational base of unskilled sedentary work, and
that use of the Grid was therefore inappropriate.

In addressing

the Grid, the Court of Appeals has noted:
The Grid is designed to enable the Secretary to
satisfy [her] burden [at step 5] in a “streamlined”
fashion without resorting to the live testimony of
vocational experts. Yet the Grid is predicated on an
individual’s having an impairment which manifests
itself by limitations in meeting the strength
requirements of jobs. Accordingly, where a claimant
has one or more non-strength limitations, the
Guidelines do not accurately reflect what jobs would
or would not be available. In cases where a
nonexertional impairment significantly affects
claimant’s ability to perform the full range of jobs
he is otherwise exertionally capable of performing,
the Secretary must carry [her] burden of proving the
availability of jobs in the national economy by other
means, typically through the use of a vocational
expert. On the other hand, should a nonexertional
limitation be found to impose no significant
restriction on the range of work a claimant is
exertionally able to perform, reliance on the Grid
remains appropriate.
Ortiz v. Secretary of Health & Human Services, 890 F.2d 520, 524
(1st Cir.1989) (citations, internal punctuation, and footnote
omitted).

Similarly, “[t]he use of the grid is permissible only

if a claimant’s nonexertional limitations do not impose
significant restrictions on the range of work that the claimant

7

Admin. R. at 20.

7

is exertionally able to perform.”
Fed. Appx. 2, 3 (1st Cir. 2006).

Candelaria v. Barnhart, 195
Where a nonexertional

impairment “significantly affect[s] a claimant’s capacity to
perform the full range of jobs she is otherwise exertionally
capable of performing, the Commissioner must carry her burden of
proving the availability of jobs in the national economy by
other means, typically through the use of a vocational expert.”
Id.

(citations and internal punctuation omitted).

See also,

Seavey v. Barnhart, 276 F.3d 1, 7 (1st Cir. 2001) (“[A]lthough 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 selfevident.”) (citation and internal punctuation omitted).
The Acting Commissioner argues that Dussault’s impairment
lacks sufficient significance to foreclose use of the Grid.
She cites Falcon-Cartegena v. Comm’r of Soc. Sec, 21 F. App’x
11, 14 (1st Cir. 2001), for its finding that a limitation of “no
constant overhead reaching” with one arm had “only marginal”
effect on the relevant occupation base.

But the fact that that

limitation had only marginal effect does not necessarily mean
that a restriction allowing for only occasional overhead
reaching is similarly marginal.

According to the Dictionary of

Occupational Titles, there are three relevant levels of

8

activity: 1) “occasional” activity, which is activity that
exists up to one-third of the time in an occupation; 2)
“frequent,” activity, which occurs between one-third and twothirds of the time; and 3) “constant” activity, which is
activity that exists two-thirds or more of the time in an
occupation.

2 Dictionary of Occupational Titles app. C, at 1013

(4th ed.1991).

See also, Gilbert v. Astrue, Civ. No. 06-99-B-W,

2007 WL 951388 (D. Me. Mar. 27, 2007), report and recommendation
adopted, Civ. No. 06-99-B-W, 2007 WL 1266682 (D. Me. Apr. 30,
2007) (observing that the DOT makes a distinction between
“constant” and “frequent” activity, defining “frequent” as “from
1/3 to 2/3 of the time.”)
Applying these definitions, it is possible that one who can
engage in no constant (more than two-thirds of the time)
overhead reaching with one arm, such as the claimant in FalconCartegena, is still capable of doing so “frequently” (between
one-third and two-thirds of the time).

By contrast, Dussault’s

RFC limits her to only reaching occasionally, that is, up to
one-third of the time, which necessarily precludes the
“frequent” reaching that was permissible for the FalconCartegena claimant.

It follows, therefore, that the “marginal

effect” finding in Falcon-Cartegena is inapposite here.

See

Saiz v. Barnhart, 392 F.3d 397, 400 (10th Cir. 2004) (rejecting

9

use of the grids in light of claimant’s reaching limitation);
Quimby v. Astrue, No. 07-128-B-W, 2008 WL 660180, (D. Me. Mar.
5, 2008) (finding that ALJ’s use of the Grid was “clearly
inconsistent” with limitation of no frequent overhead work).
The ALJ’s assessment of a limitation on Dussault’s reaching
in conjunction with a sedentary RFC is not a minor issue.

A

sedentary RFC already “represents a significantly restricted
range of work.” Social Security Ruling (SSR) 96–9p, 1996 WL
374185, at *3.

Reaching is “required in almost all jobs” and a

limitation in this regard “may eliminate a large number of
occupations a person could otherwise do.”

SSR (Program Policy

Statement) 85–15, 1985 WL 56857, at *7; see Butler v. Barnhart,
353 F.3d 992, 1000–01 (D.C. Cir. 2004) (citing SSR 85–15 for
significance of reaching limitation in sedentary context and
reversing ALJ decision that failed to properly account for
evidence of such limitation).
Given the legal significance of Dussault’s impairment, and
the lack of any explanation from the ALJ, the court finds that
the Acting Commissioner has failed to meet her burden at Step 5
of the analysis.

The court therefore vacates the ALJ’s decision

and remands this case for further proceedings consistent with
this order.

Any further proceedings must clear up whether one

or both of Dussault’s shoulders is implicated, and must use a

10

vocational expert to assess the impact of this limitation on the
occupational base of unskilled sedentary work.

IV.

Conclusion
The claimant’s motion to reverse the decision of the acting

commissioner8 is granted.

The Acting Commissioner’s motion to

affirm9 is denied.
SO ORDERED.

_ /s/ Joseph N. Laplante
Joseph N. Laplante
United States District Judge
February 16, 2017
cc:

Karen B. Fitzmaurice, Esq.
Penelope E. Gronbeck, Esq.
T. David Plourde, Esq.

8

Doc. No. 9.

9

Doc. No. 10.

11

_