Colby v . SSA CV-03-171-M 02/20/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joyce Colby, Claimant

v. Civil N o . 03-171-M Opinion N o .

Jo Anne B . Barnhart, Commissioner, Social Security Administration, Respondent

O R D E R

Pursuant to

(g), Joyce Colby (claimant) moves

for reversal of the Commissioner’s decision denying her

application for Social Security disability insurance benefits

under Title II of the Social Security Act,

. The

Commissioner, in turn, moves for an order affirming her decision.

For the reasons given below, the decision of the Commissioner is

remanded for further proceedings consistent with this opinion.

I. STANDARD OF REVIEW

(g) provides the standard of review:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive

The court must “uphold a denial of Social Security disability

benefits unless ‘the Secretary has committed a legal or factual

error in evaluating a particular claim.’” Manso-Pizarro v . Sec’y

of HHS,

5 , 16 (1st Cir. 1996) (quoting Sullivan v .

Hudson,

7 7 , 885 (1989)). Furthermore, “[i]t is the

responsibility of the [Commissioner] to determine issues of

credibility and to draw inferences from the record evidence.”

Irlanda Ortiz v . Sec’y of HHS,

(1st Cir. 1991)

(citations omitted). The Commissioner, rather than the court,

must resolve conflicts in the evidence.

The Commissioner’s findings of fact must be supported by

substantial evidence.

(g). That test applies

both to factual findings and to inferences and conclusions drawn

from those facts. Alexandrou v . Sullivan,

, 917-

918 (S.D.N.Y. 1991) (citing Levine v . Gardner,

2 7 , 730

(2d Cir. 1966)). “Substantial evidence is ‘more than [a] mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Currier v .

2 Sec’y of HEW,

9 4 , 597 (1st Cir. 1980) (quoting

Richardson v . Perales,

(1971)). This court

must affirm a properly supported determination, even if a

contrary conclusion might arguably be justified by the record.

Evangelista v . Sec’y of HHS,

(1st Cir. 1987).

A. Claimant’s Burden

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than 12 months.”

(d)(1)(A). The Act places a heavy initial burden on the

claimant to establish the existence of a disabling impairment.

See Bowen v . Yuckert,

3 7 , 146-47 (1987); Santiago v .

Sec’y of HHS,

, 5 (1st Cir. 1991). To satisfy that

burden, the claimant must prove that her impairment prevents her

from performing her former type of work. See Gray v . Heckler,

(1st Cir. 1985) (citing Goodermote v . Sec’y of

HHS,

, 7 (1st Cir. 1982)). Nevertheless, the claimant

3 is not required to establish a doubt-free claim. The initial

burden is satisfied by the usual civil standard: a “preponderance

of the evidence.” See Paone v . Schweiker,

0 8 , 810-

11 (D. Mass. 1982).

B. The Commissioner’s Burden

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective assertions of pain

and disability, as supported by the testimony of the claimant and

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v . Sec’y of HHS,

9 , 23 (1st Cir. 1986); Goodermote,

. Provided

the claimant has shown an inability to perform her previous work,

the burden shifts to the Commissioner to show that there are

other jobs in the national economy that she can perform. See

Vasquez v . Sec’y of HHS,

, 2 (1st Cir. 1982). If the

Commissioner shows the existence of other jobs that the claimant

can perform, then the overall burden to demonstrate disability

remains with the claimant. See Hernandez v . Weinberger,

4 1120, 1123 (1st Cir. 1974); Benko v . Schweiker, 551 F.Supp 6 9 8 ,

701 (D.N.H. 1982).

C. The Sequential Evaluation

When deciding whether a claimant is disabled, the

Commissioner must make a “sequential evaluation” which includes

the following five determinations: (1) whether the claimant is

engaged in substantial gainful activity; (2) whether the claimant

has a severe impairment; (3) whether the impairment meets or

equals a listed impairment; (4) whether the impairment prevents

the claimant from performing past relevant work; and (5) whether

the impairment prevents the claimant from doing any other work.

See

. Ultimately, a claimant is disabled

only if her:

physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.

(d)(2)(A).

5 II. BACKGROUND

A. Procedural History

Claimant first applied for disability insurance benefits on

August 4 , 2000. She claimed that lower back injuries had left

her unable to work since February 1 5 , 2000. Her application was

denied, and she immediately requested a hearing before an

Administrative Law Judge (“ALJ”). At that hearing, held on

December 1 1 , 2001, the ALJ determined that claimant was not

disabled within the meaning of the Social Security Act.

Specifically, the ALJ found that claimant was not engaged in

substantial gainful activity and, while she had a severe

impairment, it was not medically equivalent to a listed

impairment. He further found that while she could not return to

her prior relevant work, there was work within the national

economy that she could perform. The Appeals Council declined to

review the ALJ’s decision, making it a final agency determination

ripe for judicial review.

(g).

B. Stipulated Facts

Pursuant to local rule 9.1(d), the parties have submitted a

Joint Statement of Material Facts (document n o . 1 3 ) , which is

6 part of the court’s record. The facts included in that statement

are recounted only to the extent relevant to the disposition of

this matter.

C. The ALJ’s Findings

The ALJ found that claimant met the nondisability

requirements for a period of disability and for disability

insurance benefits and was insured for benefits through the date

of his decision. He further found that claimant had not engaged

in substantial gainful activity since the alleged onset of her

disability (step one) and that her impairment was “severe” based

on the requirements in

(b) (step t w o ) .

Although severe, claimant’s impairments did not, in the ALJ’s

view, meet or medically equal the impairments in Appendix 1 ,

Subpart P, Regulation N o . 4 (step three).

To make his determinations at steps four and five, the ALJ

was obligated to determine claimant’s residual functional

capacity (“RFC”), in essence, her ability to perform work-related

activities. He found that she had the residual functional

capacity for sedentary work, with the following restrictions: (1)

7 claimant needed to be able to change her position every half

hour; (2) she could only occasionally balance, kneel, or crouch;

and (3) she was limited to performing tasks that only

occasionally required overhead reaching with her left arm. In

making his RFC determination, the ALJ found claimant not to be

totally credible regarding her claim of complete inability to

work.

Based on the limitations noted above, the ALJ determined

that claimant was unable to perform her past relevant work (step

four), but was able to perform a significant range of sedentary

work available in the national economy (step five). Based on the

testimony of a vocational expert, the ALJ found that claimant

could perform the occupations of general office clerk and office

helper, which the ALJ characterized as “other sedentary work.”

(Tr. at 23.) Because there were a significant number of general

office clerk and office helper jobs in the national economy, the

ALJ determined that claimant was not under a disability, as

defined in the Social Security Act, at any time through the date

of his decision. Therefore, the ALJ found claimant was not

8 entitled to a period of disability or disability insurance

benefits based on her August 4 , 2000, application.

III. DISCUSSION

Claimant asserts three errors that require remand to the

ALJ. First, claimant argues that the ALJ failed to identify,

inquire into, or resolve an apparent conflict between the

vocational expert’s testimony and listings in the Dictionary of

Occupational Titles (“DOT”). Next, claimant contends that the

ALJ based his step-five determination on testimony from the

vocational expert given in response to an inappropriate

hypothetical question. Finally, claimant argues that the ALJ

erred by not finding her subjective allegations concerning her

limitations to be completely credible.

Respondent objects, contending that the vocational expert’s

testimony merely elaborated on DOT information, rather than

conflicting with i t . Respondent also asserts that the

hypothetical question posed to the vocational expert was

appropriate because it included all the limitations that the ALJ

found claimant to have. Because, respondent argues, the ALJ

9 correctly determined that claimant’s subjective allegations

regarding her limitations were not completely credible, he was

not required to include those limitations in the hypothetical

question posed to the vocational expert.

A. Conflict between the DOT and the Vocational Expert

The ALJ first found that claimant could perform a

significant range of sedentary work and then, based on the

vocational expert’s testimony, found that claimant could perform

two occupations, office helper (DOT 239.567-010) and general

office clerk (DOT 209.562.010), both of which were available in

significant numbers in the national economy. Both occupations,

however, are rated in the DOT as “light work,” which is defined

by the regulations as an occupation that “requires a good deal of

walking or standing” while “jobs are sedentary if walking and

standing are required only occasionally and other sedentary

criteria are met.”

.

According to Social Security Ruling (“SSR”) 00-4p,

(S.S.A.), when a vocational expert testifies, the ALJ

must inquire as to whether or not that testimony conflicts with

10 the DOT. If there is a conflict, the ALJ must recognize it and

state, on the record, how the conflict was resolved. In

pertinent part, SSR 00-4p provides:

When a VE or VS provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT. In these situations, the adjudicator will:

Ask the VE or VS if the evidence he or she has provided conflicts with information provided in the DOT; and

If the VE’s or VS’s evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.

When vocational evidence provided by a VE or VS is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE or VS evidence to support a determination or a decision that the individual is or is not disabled. The adjudicator will explain in the determination or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified.

at * 4 .

Although SSR 00-4p provides that “[n]either the DOT nor the

VE or VS evidence automatically ‘trumps’ when there is a

11 conflict,”

at * 2 , there are certain areas, including

exertional requirements, in which the DOT controls.

at * 3 .

Regarding exertional requirements, the ruling provides:

We classify jobs as sedentary, light, medium, heavy and very heavy (20 CFR 404.1567 and 416.967). These terms have the same meaning as they have in the exertional classifications noted in the DOT.

Although there may be a reason for classifying the exertional demands of an occupation (as generally performed) differently than the DOT (e.g., based on other reliable occupational information), the regulatory definitions of exertional levels are controlling. For example, if all available evidence (including VE testimony) establishes that the exertional demands of an occupation meet the regulatory definition of “medium” work (20 CFR 404.1567 and 416.967), the adjudicator may not rely on VE testimony that the occupation is “light” work.

(emphasis added).

1. Office helper

The vocational expert testified that the office helper job

“is actually classified as light,” but “it’s enough of a mix of

sitting and standing that it could be either way –- sedentary or

light.” (Tr. at 63.) The ALJ accepted that testimony without

12 explaining, in his decision, how he resolved the conflict between

the vocational expert’s testimony and the DOT.

According to claimant, the ALJ’s failure to explain his

resolution of the conflict renders his reliance on the vocational

expert’s testimony untenable. The Commissioner contends that the

vocational expert was merely elaborating on specifics not

included in the DOT, rather than contradicting i t . She also

relies on SSR 00-4p:

The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings. A V E , V S , or other reliable source of occupational information may be able to provide more specific information about jobs or occupations than the DOT.

at * 3 . While it is true that “[e]vidence from

VEs or VSs can include information not listed in the DOT,”

at

* 2 , the vocational expert in this case did not merely supplement

the information listed in the DOT; she offered an opinion

fundamentally inconsistent with the DOT regarding a matter in

which “the regulatory definitions . . . are controlling.” Id. at

*3. Because the DOT lists office helper as a light occupation,

the ALJ was not entitled to rely upon vocational expert testimony

13 in finding it to be sedentary. As a result, the ALJ’s

determination that claimant retained the residual functional

capacity to work as an office helper was not supported by

substantial evidence, and cannot be affirmed.

2. General office clerk

Regarding the occupation of general office clerk, the ALJ

did not inquire into whether there was any conflict between the

vocational expert’s testimony and the DOT. It appears that the

vocational expert (and the ALJ) assumed the occupation was

sedentary, but, because the ALJ did not inquire, the record is

inconclusive. Regardless of the vocational expert’s assumptions,

the DOT lists the general office clerk occupation as light and

under SSR 00-4p the DOT controls. Because the ALJ determined

that claimant had the residual functional capacity for only a

range of sedentary work, his decision that claimant was capable

of performing the “light work” occupation of general office clerk

was not supported by substantial evidence, despite his reliance

on a vocational expert. Because that determination was based on

insubstantial evidence, it cannot be affirmed.

14 Because neither occupation proposed by the vocational expert

and accepted by the ALJ can be performed by a person with a

residual functional capacity limited to sedentary work, the

Commissioner’s decision is vacated and the matter is remanded to

the ALJ for further findings and/or proceedings not inconsistent

with this decision.

B. Claimant’s other allegations of error

Because the matter is remanded on the grounds outlined

above, it is not necessary to address claimant’s arguments

concerning the ALJ’s hypothetical question and his credibility

determination.

IV. CONCLUSION

For the foregoing reasons, claimant’s motion to reverse and

remand (document n o . 10) is granted in part and denied in part.

To the extent it seeks reversal of the Commissioner’s decision

denying her benefits, that motion is denied. To the extent it

seeks remand to the ALJ for further consideration, it is granted.

The Commissioner’s motion for an order affirming her decision

(document n o . 12) is necessarily denied.

15 Pursuant to sentence four of

(g), this matter

is remanded to the ALJ for further proceedings. The Clerk shall

enter judgment in accordance with this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

February 2 0 , 2004

cc: David L . Broderick, Esq. Raymond J. Kelly, Esq.

16