Beede v. US Social Security Administration

Filing 17

///CORRECTED ORDER (date only) granting 7 Motion to Reverse Decision of Commissioner; denying 11 Motion to Affirm Decision of Commissioner. This matter is remanded to the Acting Commissioner for further proceedings as outlined. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Brett Beede
v.

Civil No. 16-cv-010-JL
Opinion No. 2017 DNH 005

Carolyn Colvin,
Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
Brett Beede has appealed the Social Security
Administration’s (“SSA”) denial of his application for a period
of disability, disability insurance benefits, and supplemental
security income.

An administrative law judge at the SSA (“ALJ”)

ruled that, despite the severe impairment of degenerative disc
disease of the spine post laminectomy and discectomy, Beede
retains the residual functional capacity (“RFC”) to perform jobs
that exist in significant numbers in the national economy, and
thus is not disabled.

See 20 C.F.R. §§ 404.1505(a), 416.905(a).

The Appeals Council later denied Beede’s request for review, see
id. § 404.967, with the result that the ALJ’s decision became
the final decision on Beede’s application, see id. § 404.981.
Beede then appealed the decision to this court, which has
jurisdiction under 42 U.S.C. § 405(g) (Social Security).
Beede has moved to reverse the decision, see L.R. 9.1(b),
contending that the ALJ’s findings as to Beede’s RFC, made at

step three, are not supported by substantial evidence, and that
the ALJ erroneously relied on flawed vocational testimony at
step five of the process.

The Acting Commissioner of the SSA

has cross-moved for an order affirming the ALJ’s decision.
L.R. 9.1(e).

See

After careful consideration, the court grants

Beede’s motion to reverse (and denies the Acting Commissioner’s
motion to affirm) the ALJ’s decision.
I.

Background1
The ALJ invoked the requisite five-step process in

assessing Beede’s request for disability and disability
insurance benefits.

See 20 C.F.R. § 416.920.

First, he

concluded that Beede had not engaged in substantial gainful
activity during the period between the alleged onset of his
disability on December 16, 2006, and the date to which he would
remain insured, December 1, 2010.

The ALJ then concluded that

Beede suffered from a single severe impairment:

“degenerative

disc disease of the spine status post laminectomy and discectomy

The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitation in their
Joint Statement of Material Facts (document no. 12) is
incorporated by reference. See L.R. 9.1(d).
1

2

at L4-5”.1

Beede’s hepatitis C, alcohol abuse, and depression,

the ALJ determined, did not amount to severe impairments.2
At the third step, the ALJ found that Beede’s severe
degenerative disc disease did not meet or “medically equal” the
severity of one of the impairments listed in the Social Security
regulations, despite the examining physician’s opinion that it
did so.

See 20 C.F.R. §§ 416.920(d), 416.925, and 416.926.

After reviewing the medical evidence of record, Beede’s own
statements, the assessment of an examining orthopedist, the
examination report of an impartial medical consultant, and the
findings of a non-examining State agency medical consultant, the
ALJ concluded that Beede retained the RFC to perform light work,
albeit with several physical limitations.3

Though these

limitations prevented Beede from performing his past relevant
work as a cabinet builder, landscaper, and construction
supervisor, see 20 C.F.R. § 416.965, the ALJ found at step five
that Beede could perform jobs that exist in significant numbers

1

Admin. R. at 13.

2

Id. at 14-16.

Id. at 17-20. The ALJ considered, but gave no weight to, an
opinion provided by someone whose credentials to render that
opinion were not apparent and who, thus, was not considered an
acceptable medical source under the regulations. Id. at 20.
Beede does not challenge this aspect of the ALJ’s decision.
3

3

in the economy.

Therefore, the ALJ found, Beede was not

disabled within the meaning of the Social Security Act.
II.

Analysis
Beede challenges two aspects of the ALJ’s analysis.

He

contends that the ALJ engaged in a flawed RFC analysis, leading
to an equally flawed RFC finding, and that, at step five, the
ALJ relied on flawed vocational testimony to conclude that Beede
could work at jobs that exist in significant numbers in the
national economy despite his physical limitations.

The ALJ did

not err as to the first; his RFC analysis and the RFC are
supported by substantial evidence.

His failure to reconcile

inconsistencies between the vocational expert testimony elicited
at the hearing and the Dictionary of Occupational Titles at step
five of the analysis, however, mandates remand.
A.

RFC analysis

The ALJ’s residual functional capacity assessment must be
supported by substantial evidence in the record.

See Berrios

Lopez v. Sec'y of Health & Human Servs., 951 F.2d 427, 431.
Substantial evidence is that which a “reasonable mind, reviewing
the evidence in the record as a whole, could accept . . . as
adequate to support [the] conclusion.”

Ortiz v. Sec’y of Health

& Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (quoting

4

Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981)).
The ALJ concluded that Beede had the RFC to perform light
work, as defined by 20 C.F.R. §§ 404.1567(b) and 416.967(b),
with the following exceptions:
[he] can occasionally lift up to 20 lbs. but can
frequently lift up to 20 lbs. as well. He can stand
and walk up to 1-hour per workday. He is unlimited
with respect to sitting but requires the ability to
alternate position periodically as needed 30 minutes
at a time. This means [he] requires an essentially
seated job, involving up to about 1-hour of standing
and walking throughout the workday, with the ability
to sit for 30 minutes at a time before he requires the
ability to get up for a minute and stretch. [He] can
only occasionally engage in pushing and pulling
activities. He cannot climb ladders, ropes or
scaffolds but can frequently balance, kneel, crouch,
stoop and climb stairs. [He] can occasionally crawl.
[He] has no difficulties with respect to performing
manipulative activities, and has no difficulties with
respect to communication or visual activities.4
Beede contends that this RFC is not supported by substantial
evidence on two fronts.

Specifically, Beede notes that an RFC

that allows him to stand and walk up to only one hour per day
necessarily implies that Beede must sit the remainder of the
time.

Beede argues that substantial evidence in the record does

not support a conclusion that Beede is capable of sitting for
seven hours in the workday -- an implication of an RFC that

4

Admin. R. at 16-18.

5

limits him to standing and walking less than one hour.5

Beede

also contends that the ALJ improperly discounted the opinion of
one of his medical examiners as to Beede’s ability to maintain
attention and focus during the workday.
In crafting Beede’s RFC, the ALJ considered, among other
evidence, the opinions of two medical examiners -- Dr. Frank A.
Graf and Dr. Peter C. Loeser -- as well as one non-examining
State agency medical consultant, Dr. Burton Nault.

Dr. Graf

concluded that Beede could stand and/or walk “less than 2 hours
in an 8-hour workday,”6 which the ALJ considered in determining
that Beede could stand and/or walk up to one hour per workday.7
Though concluding that Beede’s impairment affected his ability
to sit, Dr. Graf indicated no time limitation; he indicated,
instead, that Beede “must periodically alternate sitting and
standing to relieve pain or discomfort.”8

The ALJ took this

limitation, as well as Beede’s testimony and the ALJ’s own
observations of Beede, into account in requiring that Beede have

5

Mot. to Reverse (doc. no. 7) at 4-5.

6

Admin. R. at 463.

7

Id. at 20.

8

Id. at 464.

6

the opportunity “to alternate position periodically as needed 30
minutes at a time.”9
Both Dr. Nault and Dr. Loesser more favorably evaluated
Beede’s ability to sit and stand for a long duration.

Dr. Nault

concluded that Beede could stand and/or walk “about 6 hours per
day,” and could “sit (with normal breaks)” for the same amount
of time.10

Dr. Loeser concluded that the effect of Beede’s

impairment on his functional capacity would “be no more than
mild,”11 though the ALJ afforded this opinion little weight
because it was inconsistent with the opinions of Drs. Nault and
Graf, and because Dr. Loeser did not indicate how Beede’s
impairment “would restrict him in the performance of specific
job tasks.”12
The ALJ crafted an RFC that took into account the opinions
of all three medical experts.

His conclusion as to Beede’s

ability to sit, and Beede’s need to alternate positions, accords
with Dr. Graf’s conclusions.

Accordingly, the ALJ’s

determination as to Beede’s ability to sit or stand is supported
by substantial evidence in the record.

9

Id. at 20.

10

Id. at 92.

11

Id. at 405.

12

Id. at 19.

7

The court will not

disturb an RFC so supported, even if “the record arguably could
support a different conclusion.”

Ortiz, 955 F.2d at 770.

Beede also argues that the ALJ erred in concluding that he
retained the function to perform “light work” when the RFC only
permits Beede to stand and/or walk for less than one hour per
day.

This should, Beede contends, be considered “sedentary

work.”13

“[A] sedentary job is defined as one which involves

sitting,” though it may require “a certain amount of walking and
standing . . . in carrying out job duties.”
§ 404.1567(b).

20 C.F.R.

A job is categorized as light work, on the other

hand, when it “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.”

Id. § 404.1567(c).

The

ability to perform light work incorporates the ability to
perform sedentary work, absent considerations not present here.
Id.

(“If someone can do light work, we determine that he or she

can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for
long periods of time.”).
The ALJ concluded, and Beede does not contest, that Beede
can occasionally and frequently lift up to 20 pounds.14

13

Mot. to Reverse (doc. no. 7) at 8-10.

14

Admin. R. at 16.

8

He then

concluded that Beede could not perform the full range of light
work, and imposed additional limitations to account for Beede’s
need to alternate positions, as described by Dr. Graf.

Though

there is some apparent inconsistency between the definition of
“light work” and an ability to stand for only one hour per day,
the ALJ’s significant limitations on Beede’s RFC mitigate any
such inconsistencies and appear consistent with the evidence of
record.
Finally, Beede contends that the ALJ erred in his treatment
of Dr. Graf’s opinion as to Beede’s inability to maintain
attention and concentration on work tasks throughout an eighthour workday.

In response to the question of whether it is

“medically reasonable to expect that [Beede’s] ability to
maintain attention and concentration on work tasks throughout an
8 hour day is significantly compromised by pain, prescribed
medication or both,” Dr. Graf opined that Beede’s attention and
concentration would be “limited by pain and psychiatric
[diagnoses].”15

Beede argues that the ALJ “erred in simply

ignoring Dr. Graf’s opinion” on this score.16
First, the ALJ did not err by discounting Dr. Graf’s
opinion as to the effect of depression on Beede’s ability to

15

Admin. R. at 465.

16

Mot. to Reverse (doc. no. 7) at 5-7.

9

maintain attention and concentration.

The ALJ discounted

Dr. Graf’s opinion on this score on the permissible ground that
Dr. Graf is an orthopedic surgeon, not a mental health
practitioner.

See 20 C.F.R. 404.1527(c)(5) (“We generally give

more weight to the opinion of a specialist about medical issues
related to his or her area of specialty than to the opinion of a
source who is not a specialist.”).

The ALJ further relied on

other evidence in the record in making this determination,
including Beede’s lack of mental health treatment and statements
by Beede and his attorney.17

Beede has not demonstrated that

this conclusion lacks substantial support in the record.

Cf.

Ortiz v. Sec’y of Health & Human Servs., 955 F.2d at 769-70.
Nor did the ALJ err in discounting Dr. Graf’s opinion that
Beede’s ability to maintain attention and concentration was
“limited by pain.”18

The ALJ did not, as Beede argues, ignore

that opinion; rather, the ALJ discounted it as contradicted by
Beede’s own representations as to his ability to concentrate and
pay attention.19

Specifically, Beede himself indicated that he

could pay attention “[a]ll day mostly,” that he finishes what he

17

Admin. R. at 14.

18

Id. at 465.

Id. at 14. See also id. at 17 (discussing Beede’s ability to
complete tasks and pay attention).
19

10

starts and that he follows written and spoken instructions
“well.”20
The ALJ is, as Beede points out, obligated to consider all
evidence, see 20 C.F.R. § 404.1527(a)(3), including medical
opinion evidence, see id. § 404.1527(b), in determining whether
a claimant is disabled.

The ALJ fulfilled this obligation by

considering Dr. Graf’s opinion, and explaining why, in light of
other evidence in the record, including Dr. Graf’s specialty and
Beede’s own representations, he discounted it.
B.

Vocational expert testimony

Though the ALJ’s RFC analysis passes muster, his conclusion
at step five of the analysis that Beede could perform jobs that
exist in significant numbers in the national economy does not.
In coming to that conclusion, the ALJ heard testimony from a
vocational expert as to whether such jobs exist for an
individual with Beede’s age, education, work experience, and
RFC.

The vocational expert testified that three jobs met those

requirements: price marker, furniture rental consultant, and
laundry classifier.21

Each of these jobs is categorized as

requiring a “light work” level of exertion.

The vocational

expert testified that “the Dictionary of Occupational Titles

20

Id. at 177.

21

Id. at 22.

11

does not categorize the sit/stand option” that the ALJ included
in Beede’s RFC, but that “[t]he jobs provided today as examples
do provide a sit/stand option for the individual as in the
hypothetical.”22

She drew this conclusion from her “experience

in working with employers, human resource representatives,
corporation[s], when writing job analyses, when observing
individuals in the work place, also asking questions for
research and labor market surveys.”23
The ALJ acknowledged that “the vocational expert’s
testimony is inconsistent with the information contained in the
Dictionary of Occupational Titles . . . .”24

In those

circumstances, the ALJ “must elicit a reasonable explanation for
the conflict before relying on the [vocational expert’s]
evidence to support a determination or decision about whether
the claimant is disabled.”

Social Security Ruling (“SSR”) 00–

04p, Titles II and XVI: Use of Vocational Expert and Vocational
Specialist Evidence, and Other Reliable Occupational Information
in Disability Decisions, 2000 WL 1898704, at *2 (S.S.A.2000)).
Though “[n]either the DOT nor the VE or VS evidence
automatically ‘trumps’ when there is a conflict,” it is

22

Id. at 67.

23

Id.

24

Id. at 22.

12

incumbent on the ALJ to “resolve the conflict by determining if
the explanation given by the [vocational expert] is reasonable
and provides a basis for relying on the [vocational expert]
testimony rather than on the DOT information.”

Id.

The ALJ did

not do so here.
The ALJ’s reconciliation of the conflict between the
vocational expert’s testimony and the Dictionary of Occupational
Titles was limited to eliciting an affirmative response to the
following question:

“Now, these are all light jobs as well.

And we’re looking at primarily a seated-type position.

And

these jobs would tolerate that mix of sitting and standing?”25
Though the vocational expert outlined her experience, she
offered no explanation for how or why (1) jobs listed as “light
work” would be “primarily a seated-type position,” or (2) these
jobs in particular “would tolerate [the] mix of sitting and
standing” described in the RFC.

Absent such evidence, the ALJ

has not satisfied his obligation to “elicit a reasonable
explanation for the conflict before relying on the [vocational
expert] evidence to support” his determination that Beede was
disabled.

SSR 00-04p, 2000 WL 1898704, at *2; Colby v.

Barnhart, 2004 DNH 110, 16 (“If there is a conflict between VE
testimony and the DOT classifications for jobs, the ALJ must ask

25

Id. at 67.

13

the VE to explain the conflict and state how it was resolved on
the record.”).
The Acting Commissioner contends that Beede has not carried
his burden of demonstrating that this error is prejudicial
because “nothing in the DOT suggests that the remaining two jobs
that the VE identified (i.e., price marker and laundry
classifier) are inconsistent with the RFC finding.”26
is not the calculus.

But that

The ALJ acknowledged an inconsistency

between the vocational expert’s testimony and the Dictionary of
Occupational Titles as to all three jobs.27

Before concluding

that these jobs are consistent with the RFC, the ALJ needed to
have reconciled that inconsistency.

He relied upon the

vocational expert’s testimony -- that such jobs, despite
requiring the ability to perform “light work,” could be
performed by someone requiring the ability to alternate between
sitting and standing -- without performing that reconciliation.
In doing so, the ALJ erred.
III. Conclusion28
Though substantial evidence in the record supports the
ALJ’s RFC determination, because the ALJ did not resolve

26

Mem. in Supp. of Mot. to Affirm (doc. no. 11-1) at 12.

27

Admin. R. at 22.

The Acting Commissioner has moved to strike Beede’s reply
memorandum on grounds that it merely reiterates (at times,
28

14

inconsistencies between the vocational expert’s testimony and
the Dictionary of Occupational Titles, Beede’s motion to reverse
the SSA’s decision29 is GRANTED and the Acting Commissioner’s
motion to affirm30 is DENIED.

This matter is remanded to the

Acting Commissioner for further proceedings, pursuant to
sentence four of 42 U.S.C. § 405(g).

The clerk shall enter

judgment accordingly and close the case.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

January 31, 2017

Francis M. Jackson, Esq.
Penelope E. Gronbeck, Esq.
Robert J. Rabuck, AUSA

verbatim) the claimant’s initial arguments in violation of Local
Rule 7.1(e)(1). See Mot. to Strike (doc. no. 14). Reply
memoranda are “restricted to rebuttal of factual and legal
arguments raised in the objection or opposition memorandum.”
L.R. 7.1(e)(1). To the extent the claimant’s reply memorandum
is merely repetitive of his motion to reverse, the court has
disregarded those portions. This does not alter the court’s
conclusion, however.
29

Document no. 7.

30

Document no. 11.

15