Castro v. US Social Security Administration, Commissioner

Filing 11

///ORDER granting 7 Motion to Reverse Decision of Commissioner; denying 8 Motion to Affirm Decision of Commissioner. The case is remanded for further proceedings pursuant to Sentence Four of § 402(g). Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jackeline Castro
v.

Civil No. 17-cv-399-JD
Opinion No. 2018 DNH 065

Acting Commissioner,
Social Security Administration

O R D E R
Jackeline Castro seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Acting Commissioner of
Social Security, denying her application for disability benefits
under Title II and supplemental security income under Title XVI
of the Social Security Act.

Castro moves to reverse on the

ground that the Administrative Law Judge (“ALJ”) erred in
relying on the Medical-Vocational Guidelines, 20 C.F.R. Part
404, Subpart P, Appendix 2 (“Grid”), to find that she was not
disabled.

The Acting Commissioner moves to affirm.

Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”

Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276

F.3d 1, 9 (1st Cir. 2001).

The court defers to the ALJ’s

factual findings as long as they are supported by substantial
evidence.

§ 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34

(1st Cir. 2016).
scintilla.”

Substantial evidence is “more than a mere

Richardson v. Perales, 402 U.S. 389, 401 (1971).

When the record could support differing conclusions, the court
must uphold the ALJ’s findings “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)
(internal quotation marks omitted).

Background
Castro applied for both disability benefits under Title II
and supplemental security income under Title XVI.

She claimed a

disability beginning in March of 2014 due to an ankle fracture,
left hip pain, and mental health impairments.

She has a high

school education and previously worked as a group leader and an
inspector.
The joint statement of material facts indicates that Castro
had an ankle injury in May of 2014.
pain and related depression.

She was treated for ankle

The joint statement focuses on her

mental health issues.

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A state agency psychologist, Jessica A. Stern, examined
Castro in November of 2014.

Dr. Stern found that Castro had

some difficulties in social functioning, concentration, and task
completion.

She also found that Castro would have trouble

adapting to work because of her leg problems and anhedonia
(inability to enjoy things that normally would be enjoyable).
Dr. Stern diagnosed major depressive disorder, body dysmorphic
disorder, and generalized anxiety disorder.
Laura Landerman, Ph.D., another state agency psychologist,
provided an opinion based on a review of Castro’s records in
December of 2014.

Dr. Landerman found that Castro had

depressive syndrome that caused her to be moderately limited in
her ability to interact appropriately with the public and would
require a socially isolated work setting.

On the other hand,

however, Dr. Landerman found that Castro was not limited in her
ability to ask questions and get assistance, accept instruction
and criticism from supervisors, and get along with co-workers
and peers.

She found that despite some limitations Castro could

work within a schedule, maintain concentration for up to two
hours, and work at an acceptable pace without excessive
interruptions due to her psychological symptoms.

The joint

statement indicates that Castro continued to receive counseling
and medication management through January of 2016.

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A hearing was held before an ALJ on March 17, 2016.

The

ALJ issued a decision on August 2, 2016, in which he found that
Castro was not disabled.

The ALJ found that Castro had severe

impairments due to reconstructive surgery on her left foot,
affective disorder, somatoform disorder, and anxiety disorder.
Despite those impairments, the ALJ found that Castro retained
the capacity to work at the light exertional level with
limitations to occasional postural movement; to doing simple,
routine, competitive, repetitive, and non-abstract tasks; to
occasional interaction with co-workers and supervisors; and to
no interaction with the public.
Based on that residual functional capacity, the ALJ used
the Grid to determine that Castro was not disabled.

The Appeals

Council denied Castro’s request for review, making the ALJ’s
decision the final decision of the Acting Commissioner.

Discussion
Castro contends that the ALJ erred in relying on the Grid
when he found that she had non-exertional limitations.

In

particular, Castro contends that the limitation that she could
only interact occasionally with co-workers and supervisors
precluded the ALJ’s reliance on the Grid.

The Acting

Commissioner argues that the ALJ properly relied on the Grid.

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In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis.

20 C.F.R. § 404.1520.1

The claimant bears

the burden through the first four steps of proving that her
impairments preclude her from working.
F.3d 606, 608 (1st Cir. 2001).

Freeman v. Barnhart, 274

At the fifth step, the Acting

Commissioner has the burden of showing that the claimant is
employable.

Heggarty v. Sullivan, 947 F.2d 990, 995 (1st Cir.

1991).
An ALJ may use the Grid as a “streamlined method” to
satisfy the burden at the fifth step “[w]here a claimant’s
impairments involve only limitations in meeting the strength
requirements of work.”

Id. at 995-96.

When a claimant has

nonexertional impairments, an ALJ can rely on the Grid only if
those impairments do not significantly affect the claimant’s
ability to do a full range of jobs at the designated exertional
level.

Id. at 996; accord Candelaria v. Barnhart, 195 Fed.

Appx. 2, 3 (1st Cir. 2006).

When nonexertional impairments

significantly affect the claimant’s ability to do the full range

For purposes of the issue raised in this case, the
pertinent regulations governing disability insurance benefits at
20 C.F.R. Part 404 are the same as the pertinent regulations
governing supplemental security income at 20 C.F.R. § 416, and
therefore, the court will cite only Part 404 regulations. See
Reagan v. Sec’y of Health & Human Servs., 877 F.2d 123, 124 (1st
Cir. 1989).
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of work, the Acting Commissioner “must carry her burden of
showing the availability of jobs in the national economy by
other means” which usually requires a vocational expert.
Tavarez v. Comm’r of Social Security, 138 Fed. Appx. 327, 329
(1st Cir. 2005).
The question in this case is whether the nonexertional
restrictions significantly affected the range of light work that
Castro could do.

More specifically, Castro argues that the

restriction to only occasional interaction with co-workers and
supervisors would significantly affect the range of jobs she
could do at the light exertional level.

The Acting Commissioner

argues, based on the Programs Operations Manual System (“POMS”)
definition of what constitutes appropriate responses to
supervisors and co-workers, that the restriction did not cause a
significant reduction in the available jobs.
The cited provision of POMS states that among the mental
abilities needed for any job is the ability to respond
appropriately to supervision and to co-workers and, with respect
to unskilled work, “the ability to . . . accept instructions and
respond appropriately to criticism from supervisors” and “get
along with coworkers or peers without (unduly) distracting them
or exhibiting behavioral extremes.”
(3).

POMS DI 25020.010(B)(2) &

The Acting Commissioner relies on Dr. Landerman’s opinion

to show that Castro did not have any limitations in those
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activities and asserts that the ALJ “clearly held” that she did
not have those limitations.
It is far from clear to what extent the ALJ’s restriction
on interaction with supervisors and co-workers would affect
Castro’s ability to do unskilled work at the light exertional
level.

The ALJ did not discuss Dr. Landerman’s findings and

opinions.2

The restrictions the ALJ included in the residual

functional capacity appear to be more limited than Dr.
Landerman’s opinion suggested.

The ALJ did not explain the

extent of the restriction he imposed.
In addition, the ALJ did not justify his decision to rely
on the Grid by reference to POMS or to any specific evidence in
the record.

Instead, the ALJ stated only that the nonexertional

limitations “have little or no effect on the occupational base
of unskilled work.”

In general, the court cannot affirm an

agency decision, including a decision of the Acting Commissioner
of Social Security, based on post hoc rationalizations that were
not part of the decision.

See, e.g., Erickson v. Berryhill,

2018 WL 1177932, at *10 (M.D. Pa. Feb. 14, 2018) (citing SEC v.
Chenery Corp., 332 U.S. 194 (1947)); Marcou v. Berryhill, 2017

The Acting Commissioner represents to the court that the
ALJ gave “great weight” to Dr. Landerman’s opinion. Apparently,
the Acting Commissioner relies on the ALJ’s general statement,
without explanation, that great evidentiary weight was given to
the opinions of the “non-examining and non-treating expert
sources.”
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WL 4118961, at *5 (D.R.I. Sept. 17, 2017); Miller v. Berryhill,
2017 WL 1021313, at *8 (S.D. Ohio Mar. 16, 2017); Wright v.
Colvin, 2016 WL 4083411, at *2-*3 (S.D. Ala. Aug. 1, 2016).
Another judge in this district has held that a restriction
to occasional or superficial interaction with co-workers and
supervisors precludes reliance on the Grid.3

Sherman v. Colvin,

2016 WL 7165890, at *5-*9 (D.N.H. Dec. 8, 2016) (citing and
discussing cases); Wilt v. Colvin, 2016 WL 5957557, at *5-*7
(D.N.H. Oct. 14, 2016) (citing and discussion cases); see also
Gurney v. Astrue, 2010 WL 323912, at *3 (D. Me. Jan. 20, 2010)
(finding restriction to occasional interaction with supervisors
and coworkers precluded use of Grid).

The undersigned judge has

also found that limitations on a claimant’s ability to interact
with the public and coworkers, in the absence of an adequate
explanation, preclude reliance on the Grid.

Snow v. Colvin,

2015 WL 225437, at *4 (D.N.H. Jan. 15, 2015).
Other courts are divided on the question of whether a
restriction to only occasional interaction with co-workers and
supervisors significantly affects the full range of unskilled
light work.

Some courts, as in this district, have found that

the same restriction or a similar restriction precludes use of

The ALJ restricted Castro to occasional interaction in the
residual functional capacity assessment, but he stated in his
decision that Castro “can tolerate only occasional, superficial
interaction with coworkers and supervisors.”
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the Grid.

See, e.g., Williams v. Colvin, 2016 WL 3034494, at

*11-*12 (S.D.N.Y. May 26, 2016) (limitation to occasional
interaction with “others” precluded use of the Grid); Morgan v.
Comm’r of Social Security, 2015 WL 5178410, at *2 (M.D. FL.
Sept. 4, 2015) (citing cases).

On the other hand, some courts

have found that such restrictions do not substantially affect
the number of jobs available and, therefore, do not preclude use
of the Grid.

See Burgard v. Berryhill, 2017 WL 6379237, at *4

(W.D.N.Y. Dec. 14, 2017) (citing other cases from W.D.N.Y.);
Hernderson v. Berryhill, 2017 WL 2190658, at *7-*10 (N.D. Ohio
Apr. 28, 2017); Rapport v. Comm’r of Social Security, 2017 WL
1284897, at *7 (S.D.N.Y. Apr. 5, 2017); Brown v. Colvin, 2016 WL
2944151, at *4-*5 (D. Conn. May 20, 2016).

See also Champion v.

Colvin, 2017 WL 663545, at *8 (E.D. Tenn. Feb. 17, 2017) (noting
conflicting results in the districts of the Sixth Circuit and
declining to reach the issue).
In this case, the ALJ did not explain why the restriction
to only occasional interaction with co-workers and supervisors,
along with no interaction with the public, would not
significantly affect the range of available light unskilled
jobs.

It is not apparent that those restrictions would have

little or no effect on the availability of jobs, and there was
no evidence from a vocational expert.

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Therefore, the Acting

Commissioner’s reliance on the Grid at Step Five was not
appropriate in this case.

Conclusion
For the foregoing reasons, the claimant’s motion to reverse
(document no. 7) is granted.

The Acting Commissioner’s motion

to affirm (document no. 8) is denied.
The case is remanded for further proceedings pursuant to
Sentence Four of § 402(g).
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 27, 2018
cc:

Daniel W. McKenna, Esq.
Terry L. Ollila, Esq.

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