UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John Marshall

v. Civil No. 14-cv-239-PB Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

John Marshall seeks judicial review of a decision by the

Commissioner of the Social Security Administration denying his

application for disability insurance benefits. The

Administrative Law Judge (“ALJ”) below determined that Marshall

could not work in jobs that impose strict production quotas but

she later omitted that limitation when she asked the vocational

expert to identify jobs in the national economy that Marshall

could perform. For the reasons I discuss below, this omission

requires a remand for further administrative proceedings.

I. BACKGROUND

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 (Doc. No. 9), need not be recounted in this Memorandum and Order. Facts relevant to the disposition

of this matter are discussed below.

II. STANDARD OF REVIEW

Under

(g), I am authorized to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or reversing the

“final decision” of the Commissioner. My review “is limited to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence.” Ward

v. Comm’r of Soc. Sec.,

(1st Cir. 2000).

Findings of fact made by the ALJ are accorded deference as

long as they are supported by substantial evidence.

Substantial evidence to support factual findings exists “‘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.,

(1st Cir. 1991) (per curiam) (quoting Rodriguez v. Sec’y of

Health & Human Servs.,

(1st Cir. 1981)). If

the substantial evidence standard is met, factual findings are

conclusive even if the record “arguably could support a

2 different conclusion.” Id. at 770. Findings are not

conclusive, however, if they are derived by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts.”

Nguyen v. Chater,

(1st Cir. 1999) (per curiam).

The ALJ is responsible for determining issues of credibility and

for drawing inferences from evidence in the record. Irlanda

Ortiz,

. It is the role of the ALJ, not the

court, to resolve conflicts in the evidence.

III. ANALYSIS

The ALJ denied Marshall’s claim at Step Five of the

sequential process prescribed by

(a)(4).

Tr. at 23-24; see

(a)(4). At that stage,

the Commissioner must “demonstrate that there are jobs in the

national economy that [the] claimant can perform” before she may

find that the claimant is not disabled. Heggarty v. Sullivan,

(1st Cir. 1991). For the Commissioner’s

denial of benefits to survive judicial review, substantial

evidence must support her conclusion that such jobs exist.

Rosado v. Sec’y of Health & Human Servs.,

(1st Cir. 1986).

3 Where, as here, a claimant’s severe impairments are

nonexertional, the Commissioner ordinarily meets her burden at

Step Five by calling a vocational expert to testify. E.g.,

Heggarty,

; Ortiz v. Sec’y of Health & Human

Servs.,

(1st Cir. 1989); Lugo v. Sec’y of

Health and Human Servs.,

(1st Cir. 1986). A

vocational expert’s testimony, however, can furnish substantial

evidence for the Commissioner’s finding at Step Five that a

claimant is not disabled only if the expert’s testimony fully

addresses the claimant’s residual functional capacity (“RFC”) as

determined by the ALJ prior to Step Four. As the First Circuit

has explained, “in order for a vocational expert’s answer to a

hypothetical question to be relevant, the inputs into that

hypothetical must correspond to conclusions that are supported

by the outputs from the medical authorities.” Arocho v. Sec’y

of Health & Human Servs.,

(1st Cir. 1982); see

also Burns v. Barnhart,

(3d Cir. 2002); Aubeuf

v. Schweiker,

(2d Cir. 1981); Sloan v. Astrue,

(D.D.C. 2008). That principle controls

here.

The ALJ determined that Marshall’s RFC included the

4 following four nonexertional limitations:

(1) That Marshall “should avoid hazards such as unprotected heights and dangerous moving machinery”;

(2) That Marshall “would be limited to uncomplicated tasks,” or those “that can typically be learned in thirty days or less”;

(3) That Marshall’s “concentration, persistence, and pace would be reduced to the point that productivity would be no more than ten percent below the norm”; and

(4) That Marshall “could not perform work with strict production quotas.”

Tr. at 17. When she asked the vocational expert about jobs in

the national economy that a hypothetical person with these

limitations could perform, the ALJ did not include the fourth

limitation regarding strict production quotas. Tr. at 17, 56-

59. Responding to the ALJ’s hypothetical, the vocational expert

testified that such a person could work as an automotive

detailer, an automatic car wash attendant, a ticket

seller/taker, or a small products assembler. Tr. at 57-58. The

vocational expert’s opinion, however, was based on an incomplete

set of limitations that does not fully reflect Marshall’s RFC.

See Tr. at 56-59. For that reason, the vocational expert’s

testimony cannot independently meet the Commissioner’s burden at

Step Five. See Arocho,

; Gallagher v. Astrue,

5

(remand required where vocational expert

opined on a hypothetical that did not include each of claimant’s

limitations).

The Commissioner does not dispute that the ALJ failed to

include the strict production quota limitation in the

hypothetical she presented to the vocational expert. See Doc.

No. 8-1 at 7. Instead, she argues that the ALJ’s omission was

harmless “because even if the ALJ had presented the additional

limitation to the [vocational expert,] it would not have changed

[the vocational expert’s] finding that [Marshall] could perform

a significant number of jobs.”

Whether this prediction is

accurate is beside the point. The Commissioner’s conclusion

that jobs exist in the national economy that Marshall can

perform must be supported by substantial evidence to avoid

remand. See Rosado,

. As I have explained, the

vocational expert’s testimony, standing alone, cannot satisfy

the Commissioner’s burden because it does not incorporate all of

Marshall’s limitations. And fatally for the Commissioner, the

other source to which she points — the Dictionary of

Occupational Titles — does not satisfy her burden, either.

The Commissioner maintains that the Dictionary of

6 Occupational Titles provides substantial evidence for the

Commissioner’s conclusion that the strict quota production

limitation would not prevent Marshall from working in the

occupations identified by the vocational expert. See Doc. No.

8-1 at 8-9. The Dictionary entries for the four occupations

that the vocational expert identified, the Commissioner

observes, make no mention of a strict production quota

limitation. See

That silence, the Commissioner argues,

provides substantial evidence for the conclusion that the four

occupations identified by the vocational expert do not require

fulfillment of strict production quotas. See

The Commissioner is correct that the Dictionary’s

descriptions of the occupations named by the vocational expert

make no mention of a strict production quota, but this silence,

without more, does not validate the Commissioner’s argument.1 In

1 As an initial matter, I note that whether the Commissioner can ever rely on the Dictionary in place of vocational expert testimony at Step Five when the claimant’s RFC includes nonexertional limitations appears to be an unsettled question. Compare Fields v. Bowen,

(5th Cir. 1986) (holding that the Dictionary cannot substitute for vocational expert testimony “or other similar evidence” at Step Five) with Peterson v. Chater,

(7th Cir. 1996) (recognizing “vocational dictionary” as acceptable source at Step Five). The First Circuit has not taken a clear position on this question. Instead, the Circuit has instructed only that 7 effect, the Commissioner’s position would require a holding that

the mere omission of a given limitation from a certain

occupation’s Dictionary description provides substantial

evidence that the limitation does not apply to that occupation.

I am unpersuaded by the Commissioner’s argument. The

Commissioner has cited no authority establishing that the

Dictionary includes an exhaustive list of limitations for each

occupation it describes. In fact, taking the directly opposite

view, other courts have recognized that “the [Dictionary] is not

comprehensive, in that it cannot and does not purport to include

each and every specific skill or qualification for a particular

job.” Carey v. Apfel,

(5th Cir. 2000); see

also Jones v. Apfel,

(11th Cir. 1999).2 For

where a claimant is found to have nonexertional limitations, “it is likely that the testimony of a vocational expert will typically be required.” Gagnon v. Sec’y of Health and Human Servs.,

, 666 n.9 (1st Cir. 1981) (emphasis added); see also Heggarty,

(“Usually, testimony of a vocational expert is required” where claimant is found to have nonexertional limitations) (emphasis added). As I explain in this Memorandum and Order, however, the Dictionary would not provide the Commissioner with sufficient evidence even if it could otherwise serve as a substitute for vocational expert testimony. Therefore, this case does not require me to reach or resolve this question. 2 Moreover, the Dictionary entries for each of the four occupations named by the vocational expert specifically identify 8 these reasons, one court has observed that it “would be

manifestly inappropriate to make the [Dictionary] the sole

source of evidence concerning gainful employment.” Barker v.

Shalala,

(6th Cir. 1994). Given the

Dictionary’s general and necessarily incomplete structure, I

will not construe the Dictionary’s silence as substantial

evidence that an unmentioned limitation does not apply to a

particular occupation.

Resisting this conclusion, the Commissioner cites several

cases that, she argues, establish that “courts [may look] to the

[Dictionary] itself in determining whether particular jobs

entail production quotas or fast-paced production.” Doc. No. 8-

1 at 9. Some courts have indeed done so, but only where the

Dictionary clearly and unambiguously establishes that a

limitation not posed to a vocational expert does not apply to a

certain limitations that do not apply to those occupations. If the Dictionary included an exhaustive list of each occupation’s applicable limitations, this specification would be redundant and unnecessary. See “Automobile Detailer,” Dictionary of Occupational Titles 915.687-034,

(noting that “Climbing” is “Not Present” in that occupation’s setting); “Car Wash Attendant, Automatic,” Dictionary of Occupational Titles 915.667-010,

(same); “Ticket Seller,” Dictionary of Occupational Titles 211.467-030,

(same); “Assembler, Small Products II,” Dictionary of Occupational Titles 739.687-030,

(same).

9 particular occupation. See, e.g., Caldwell v. Barnhart,

(11th Cir. 2008) (ALJ’s omission of limitation

from hypothetical posed to vocational expert was harmless where

Dictionary unambiguously established that limitation did not

apply to occupations named by expert).3 Here, by contrast, the

Dictionary makes no mention at all of the strict production

quota limitation in describing the four occupations named by the

vocational expert. In the absence of adequate vocational expert

testimony, such silence, without more, cannot meet the

Commissioner’s burden at Step Five.

Moreover, in each of the cases cited by the Commissioner,

the ALJ did include the production quota limitation in the

hypothetical posed to the vocational expert. See Kelly v.

Astrue, No. CV-11-3295-JCG,

, at *4 (C.D. Cal.

Apr. 26, 2012); Scott v. Comm’r of Soc. Sec., No. 1:10-CV-0061,

, at *3 (N.D. Ohio Jan. 25, 2011); Masek v.

Astrue, No. 08-C-1277,

, at *9 (N.D. Ill. Mar.

22, 2010). Thus, the vocational expert testimony in those cases

3 I intimate no view on whether this approach is permissible in this Circuit. See supra note 1. Instead, I recognize only that this approach appears to mark the greatest extent to which an ALJ can rely on the Dictionary in the absence of adequate vocational expert testimony. 10 itself provided substantial evidence for those ALJs’ Step Five

denial of benefits. Those courts considered the Dictionary only

to establish that no conflict existed between the Dictionary and

the vocational expert opinions. See Kelly,

, at

*3-4; Scott,

, at *9; Masek,

, at

*23. Here, of course, the vocational expert did not opine on

production quotas because the ALJ never asked him to do so. The

Commissioner seeks to use the Dictionary’s silence not to

validate vocational expert testimony, as the courts to which she

cites did, but rather to independently provide substantial

evidence for the ALJ’s Step Five conclusion. As I have

explained, the Dictionary’s silence cannot serve that purpose,

and the cases she cites are not to the contrary.

IV. CONCLUSION

The ALJ erred by omitting the strict quota limitation from

the hypothetical she posed to the vocational expert, and the

Dictionary of Occupational Titles does not render that error

harmless. Thus, the ALJ’s decision to deny Marshall’s

application for benefits at Step Five lacks substantial

evidence. Accordingly, I grant Marshall’s motion to reverse the

11 Commissioner’s decision (Doc. No. 7) and deny the Commissioner’s

motion to affirm her decision (Doc. No. 8). Pursuant to

sentence four of

(g), I remand the case to the

Social Security Administration for further proceedings

consistent with this decision.4

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

January 20, 2015

cc: Ruth Dorothea Heintz, Esq. Robert J. Rabuck, Esq.

4 Marshall offered other arguments in favor of remand. See Doc. No. 7-1. Because I grant remand on the basis of the ALJ’s failure to pose a complete hypothetical to the vocational expert, however, I need not reach Marshall’s other arguments.

12