UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jessica Green, Claimant

v. Case No. 13-cv-553-SM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Jessica Green, moves to reverse or vacate the Acting

Commissioner’s decision denying, in part, her applications for

Disability Insurance Benefits under Title II of the Social

Security Act, and Supplemental Security Income Benefits under

Title XVI,

and 1381-1383c (collectively, the

“Act”). The Acting Commissioner objects and moves for an order

affirming her decision.

For the reasons discussed below, claimant’s motion is

granted, and the Acting Commissioner’s motion is denied. Factual Background

I. Procedural History.

In January of 2011, claimant filed applications for

Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”), alleging that she had been unable to work since

November 20, 2010 (when she was involved in a serious motor

vehicle accident). Those applications were denied and claimant

requested a hearing before an Administrative Law Judge (“ALJ”).

In July of 2012, claimant and her attorney appeared before

an ALJ, who considered claimant’s application de novo. Two weeks

later, the ALJ issued a partially favorable decision, concluding

that claimant was disabled with respect to both her DIB and SSI

claims from November 10, 2010 through November 10, 2011. But,

the ALJ also concluded that claimant was no longer disabled as of

November 11, 2011. Claimant then sought review of the ALJ’s

decision by the Appeals Council. Her request was denied.

Accordingly, the ALJ’s partially favorable decision became the

final decision of the Acting Commissioner, subject to judicial

review. Subsequently, claimant filed a timely action in this

court, asserting that the ALJ’s decision is not supported by

substantial evidence. Claimant then filed a “Motion to Reverse”

the decision of the Acting Commissioner (document no. 8). In

response, the Commissioner filed a “Motion for Order Affirming

2 the Decision of the Commissioner” (document no. 11). Those

motions are now ripe.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a statement of stipulated facts which, because it is

part of the court’s record (document no. 12), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. “Substantial Evidence” and Deferential Review.

Pursuant to

(g), the court is empowered “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.” Factual findings and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(1st Cir. 1991). Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated Edison

Co. v. NLRB,

(1938). It is something less than

3 a preponderance of the evidence, so the possibility of drawing

two inconsistent conclusions from the evidence does not prevent

an administrative agency’s finding from being supported by

substantial evidence. Consolo v. Federal Maritime Comm’n.,

(1966). See also Richardson v. Perales,

(1971).

II. The Parties’ Respective Burdens.

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 which has lasted or can be expected to last

for a continuous period of not less than 12 months.”

(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The Act

places a heavy initial burden on the claimant to establish the

existence of a disabling impairment. See Bowen v. Yuckert,

(1987); Santiago v. Secretary of Health & Human

Services,

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

the claimant must prove, by a preponderance of the evidence, that

her impairment prevents her from performing her former type of

work. See Gray v. Heckler,

(1st Cir. 1985);

Paone v. Schweiker,

(D. Mass. 1982). If

the claimant demonstrates an inability to perform her previous

4 work, the burden shifts to the Commissioner to show that there

are other jobs in the national economy that she can perform, in

light of her age, education, and prior work experience. See

Vazquez v. Secretary of Health & Human Services,

(1st Cir. 1982). See also

(f) and

416.912(f).

In assessing a disability claim, the Commissioner considers

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

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

disability, as supported by the testimony of the claimant or

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

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled only if her:

physical or mental impairment or impairments are of such severity that [she] 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 [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work.

(d)(2)(A) (emphasis supplied). See also 42 U.S.C.

§ 1382c(a)(3)(B).

5 With those principles in mind, the court reviews claimant’s

motion to reverse and the Acting Commissioner’s motion to affirm

her decision.

Background - The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five-

step sequential evaluation process described in

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, she first determined that

claimant had not been engaged in substantial gainful employment

since her alleged onset of disability: November 10, 2010. Admin.

Rec. at 14. Next, she concluded that claimant suffers from the

following severe impairments: “right humerus fracture status post

rodding, traumatic brain injury, and chronic headaches.”

Nevertheless, the ALJ determined that those impairments,

regardless of whether they were considered alone or in

combination, did not meet or medically equal one of the

impairments listed in Part 404, Subpart P, Appendix 1. Id. at

15-16. Claimant does not challenge any of those findings.

Next, the ALJ concluded that, from November 10, 2010,

through November 10, 2011, claimant retained the residual

6 functional capacity (“RFC”) to perform the exertional demands of

a range of sedentary work.1 She noted, however, that:

active treatment of right upper extremity prevented sustaining a full-time schedule. The claimant was unable to use her right upper extremity, and concentration, persistence, and pace were moderately to severely limited by pain.

Admin. Rec. at 16. The ALJ then concluded that, given claimant’s

limitations, she was not able to perform any past relevant work,

nor were there any other jobs that exist in significant numbers

in the national economy that she could have performed. Id. at

18. Consequently, the ALJ concluded that claimant was

“disabled,” as that term is defined in the Act, from November 10,

2010, through November 10, 2011.

Next, the ALJ applied the sequential evaluation process to

determine whether claimant’s disability continued through the

1 “RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual’s medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual’s abilities on that basis.” Social Security Ruling (“SSR”), 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2, 1996) (citation omitted).

7 date of the ALJ’s decision or whether “medical improvement” had

occurred to the point that claimant was no longer disabled. See

(f) and 416.994(b)(5). After applying the

appropriate multi-step analysis, the ALJ concluded that “medical

improvement” had occurred as of November 11, 2011, which

increased claimant’s residual functional capacity. Admin. Rec.

at 19-20. Specifically, the ALJ determined that, beginning on

November 11, 2011, claimant had the residual functional capacity

to perform unskilled sedentary work, except she could not reach

overhead with her right upper extremity. Id. at 20. Given those

limitations, the ALJ determined that claimant could not perform

any of her past relevant work.

Finally, using the Medical-Vocational Guidelines, 20 C.F.R.

pt. 404, subpt. P, App. 2, tables 1-3 (also known as the “Grid”)

as a framework to guide her decision, the ALJ concluded that,

notwithstanding claimant’s exertional and non-exertional

limitations, as of November 11, 2011, she retained the RFC to

perform the requirements of jobs that exist in significant

numbers in the national economy. Id. at 21. Accordingly, she

concluded that claimant’s period of disability (beginning on the

date of her automobile accident) ended on November 11, 2011. Id.

8 Discussion

Claimant challenges the ALJ’s determination that her

disability ended on November 11, 2011, on two grounds, asserting

that she erred by concluding: (1) that claimant’s condition had

materially improved, without adequate support in the medical

record; and (2) that claimant’s inability to reach overhead with

her right arm did not significantly erode the relevant

occupational base and by then relying solely on the Grid to reach

the conclusion that claimant was no longer disabled (rather than

calling upon the expertise of a vocational expert).

The court turns first to the latter of those two arguments.

Specifically, claimant challenges the ALJ’s exclusive reliance

upon the Grid in determining that, notwithstanding her exertional

and non-exertional limitations, she is capable of performing a

range of sedentary jobs that exist in substantial numbers in the

national economy. According to claimant, the ALJ should have

called upon a vocational expert to assist in making that

determination. Given the somewhat unique circumstances presented

in this case, the court is inclined to agree.

At issue here is the ALJ’s conclusion that claimant has the

residual functional capacity to perform sedentary work “except

she can perform [only] unskilled work with no overhead reaching

9 with the right upper extremity.” Admin. Rec. at 20. Claimant

says her inability to do any overhead reaching with her right arm

(a “non-exertional impairment”) substantially erodes the

otherwise applicable occupational base of unskilled sedentary

work. Accordingly, she says the ALJ erred in simply using the

Grid to guide her finding that claimant was not disabled. As the

court of appeals has noted,

Nonexertional impairments are treated differently under the regulatory scheme. . . . [O]nce a claimant has demonstrated a severe impairment that prohibits return to his previous employment, the Secretary has the burden of proving the existence of other jobs in the national economy that the claimant can perform. The Grid is designed to enable the Secretary to satisfy this burden 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 his 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,

(1st Cir. 1989) (citations, internal punctuation, and footnote

omitted). See also Candelaria v. Barnhart,

,

10

, *1 (1st Cir. 2006) (“[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 is exertionally able to perform. In situations where a

nonexertional impairment does ‘significantly affect’ 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.”) (citations and internal punctuation omitted).

The question presented is, then, whether claimant’s

inability to perform any overhead reaching whatsoever with one

arm “significantly affects” her ability to perform the “full

range” of sedentary jobs. The ALJ declared that it did not.

Admin. Rec. at 21. But, she did not cite any authority for that

conclusion. See generally Candelaria,

,

, *2 (“The ALJ’s assumption (or implicit decision) that

the full range of light work would not be significantly reduced

by a limited restriction on overhead reaching may very well be

correct. However, the only support for this assumption is the

ALJ’s own impression. In such a situation, we think that an

expert’s opinion is required for an assessment of the

significance of claimant’s reaching restriction.”) (citation

11 omitted); Seavey v. Barnhart,

(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

self-evident.”) (citation and internal punctuation omitted);

Nixon v. Barnhart,

, *7 (D. Me. 2006) (“The burden

of proof at Step 5 rests on the commissioner. In the absence of

evidence or any persuasive authority (e.g., a Social Security

ruling) demonstrating that an upper-extremity restriction such as

the plaintiff’s has the effect of reducing the RFC for the full

range of light work only marginally, the commissioner’s decision

cannot stand.”).

Although the Commissioner has attempted to provide legal

support for the ALJ’s conclusion, none of the cases cited in her

memorandum is precisely on point.2 On the other hand, in

addition to the cases cited above, at least one Social Security

Ruling would seem to counsel against exclusive reliance on the

Grid under these circumstances.

2 For example, in Falcon-Cartagena v. Commissioner of Social Sec.,

,

, *2 (1st Cir. 2001), the claimant’s ability to perform sedentary work was only minimally impacted by her inability to engage in “constant overhead reaching with the left arm.” Presumably, claimant’s inability to perform any overhead reaching at all with one arm has a more significant impact on the relevant occupational base.

12 Reaching (extending the hands and arms in any direction) and handling (seizing, holding, grasping, turning or otherwise working primarily with the whole hand or hands) are activities required in almost all jobs. Significant limitations of reaching or handling, therefore, may eliminate a large number of occupations a person could otherwise do. Varying degrees of limitations would have different effects, and the assistance of a [vocational expert] may be needed to determine the effects of the limitations.

Social Security Ruling (“SSR”), 85-15, Titles II and XVI:

Capabilities to do Other Work - The Medical-Vocational Rules as a

Framework for Evaluating Solely Nonexertional Impairments,

, *7 (1985). Moreover, the nationwide occupational base

of sedentary jobs even for those with no nonexertional

impairments is comparatively limited. Adding the restriction

that claimant can never reach overhead with her right arm limits

(perhaps substantially) an already-narrow field of potential

employment. See generally SSR 96-9P, Policy Interpretation

Ruling Titles II and XVI: Determining Capability to do Other Work

- Implications of a Residual Functional Capacity for Less Than a

Full Range of Sedentary Work,

, *3 (July 2, 1996)

(“Under the regulations, ‘sedentary work’ represents a

significantly restricted range of work. Individuals who are

limited to no more than sedentary work by their medical

impairments have very serious functional limitations.”).

13 This is, to be sure, a close case. But, given the unique

facts presented, as well as what guidance can be gleaned from the

legal precedent in this area, caution and prudence counsel in

favor of remand so the ALJ might solicit the opinions of a

vocational expert.

Conclusion

The burden of proof at step five of the sequential analysis

rests on the Acting Commissioner, who must demonstrate that there

are jobs in the national economy that claimant can perform,

despite her exertional and nonexertional limitations. Absent

some evidence or persuasive authority demonstrating that an

upper-extremity restriction such as claimant’s only minimally

reduces the range of work that she can perform, the ALJ’s

decision cannot stand. See, e.g., Nixon,

at *7.

Rather than relying exclusively on the Grid as a “framework” to

guide her decision, the ALJ should have called upon a vocational

expert.

Parenthetically, the court notes that remanding this matter

for further proceedings will not only allow the ALJ to consult

with a vocational expert, but it will also afford her the

opportunity to gather additional medical evidence concerning

claimant’s “medical improvement” (including, if the ALJ deems it

14 appropriate, an RFC assessment from an approved medical source -

thereby addressing claimant’s other assertion of error concerning

the ALJ’s (alleged) reliance on an RFC prepared by a so-called

“single decisionmaker”).3

For the foregoing reasons, claimant’s motion for an order

reversing the decision of the Acting Commissioner (document no.

8) is granted to the extent it seeks a remand to the ALJ for

further proceedings consistent with this decision. The Acting

Commissioner’s motion for an order affirming her decision

(document no. 11) is denied.

Pursuant to sentence four of

(g), the

decision of the ALJ dated July 27, 2012, is vacated and this

matter is hereby remanded for further proceedings consistent with

this order. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

3 This court recently discussed, at some length, the use and role of “single decisionmakers” or “SDMs” in processing applications for Social Security benefits. See Stratton v. Astrue,

(D.N.H. 2012). See also Goupil v. Barnhart,

, *2 (D. Me. Oct. 31, 2003) (“[A]s part of an experiment initiated in New Hampshire and Maine to expedite processing of applications, SDMs have been rendering initial decisions, with a medical expert . . . being consulted only upon reconsideration, if any. Counsel [for the Commissioner] agreed with the proposition that, for purposes of review by this court, a decision by a non-medical SDM such as Crutcher is entitled to no weight.”).

15 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

November 13, 2014

cc: Tamara N. Gallagher, Esq. Karen B. Fitzmaurice, Esq. T. David Plourde, Esq.

16