UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Randy G. Sherman

v. Civil No. 16-cv-125-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Randy Sherman moves to

reverse the Acting Commissioner’s decision to deny his

application for Social Security disability insurance benefits

under Title II of the Social Security Act,

. The

Acting Commissioner, in turn, moves for an order affirming her

decision. For the reasons that follow, this matter is remanded

to the Acting Commissioner for further proceedings consistent

with this order.

I. Standard of Review

The applicable standard of review in this case provides, in

pertinent part:

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 . . . .

(g). However, the court “must uphold a denial of

social security disability benefits unless ‘the [Acting

Commissioner] has committed a legal or factual error in

evaluating a particular claim.’” Manso-Pizarro v. Sec’y of HHS,

(1st Cir. 1996) (per curiam) (quoting Sullivan v.

Hudson,

(1989)).

As for the statutory requirement that the Acting

Commissioner’s findings of fact be supported by substantial

evidence, “[t]he substantial evidence test applies not only to

findings of basic evidentiary facts, but also to inferences and

conclusions drawn from such facts.” Alexandrou v. Sullivan,

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

(2d Cir. 1966)). In turn, “[s]ubstantial

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. Sec’y of HEW,

(1st Cir. 1980) (quoting Richardson v. Perales,

(1971)). But, “[i]t is the responsibility of the

[Acting Commissioner] to determine issues of credibility and to

draw inferences from the record evidence. Indeed, the

resolution of conflicts in the evidence is for the [Acting

2 Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,

(1st Cir. 1991) (per curiam) (citations

omitted). Moreover, the court “must uphold the [Acting

Commissioner’s] conclusion, even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence.” Tsarelka v. Sec’y of HHS,

(1st Cir. 1988) (per curiam). Finally, when determining

whether a decision of the Acting Commissioner is supported by

substantial evidence, the court must “review[] the evidence in

the record as a whole.” Irlanda Ortiz,

(quoting

Rodriguez v. Sec’y of HHS,

(1st Cir. 1981)).

II. Background

The parties have submitted a Joint Statement of Material

Facts. That statement, document no. 12, is part of the court’s

record and will be summarized here, rather than repeated in

full.

Sherman applied for Social Security disability insurance

benefits (“DIB”) in April 2013, claiming that he became disabled

on April 2, 2012. He was last insured for DIB on December 31,

2012.

In 2003, Sherman suffered a compound fracture of his left

tibia/fibula. Thereafter, a metal rod and screws were implanted

in his lower leg. Sherman has been diagnosed with various

3 impairments, including chronic pain, moderate recurrent major

depression, posttraumatic stress disorder (“PTSD”), and rule out

attention deficit hyperactivity disorder.1 He has been treated

with various medications and has received therapy for his mental

impairments.

In March 2011, Sherman began seeing Dr. Peter Moran as his

primary care provider. At his first appointment with Dr. Moran,

Sherman reported that he had “a ‘metal rod’ in his left leg that

was placed in 2003 and . . . continues to hurt him after a

compound tib/fib [fracture].” Administrative Transcript

(hereinafter “Tr.”) 198. Dr. Moran also reported that Sherman

was under “[i]ncreased stress,” for which he was taking Pristiq2

and Budeprion SR,3 and that Sherman had been diagnosed with

depression and anxiety disorder. In January 2013, Dr. Moran

1 “‘Rule-out’ in a medical record means that the disorder is suspected but not confirmed — i.e., there is evidence that the criteria for a diagnosis may be met, but more information is needed in order to rule it out.” Byes v. Astrue,

, 916 n.3 (8th Cir. 2012) (citing United States v. Grape,

, 593 n.2 (3d Cir. 2008)).

2 Pristiq is a “trademark for preparations of desvenlafaxine succinate.” Dorland’s Illustrated Medical Dictionary 1515 (32nd ed. 2012). Desvenlafaxine succinate is “used as an antidepressant.” Id. at 501.

3 Budeprion SR is a brand name of the antidepressant budpropion. See https:www.nlm.nih.gov/medlineplus/druginfo/ meds//a695033.html#brand-name-1 (last revised Feb. 15, 2016).

4 referred Sherman to Jennifer Bloomgren for a psychiatric

evaluation, and she continued treating him thereafter.

In April 2013, on a form provided to her by New Hampshire

Disability Determination Services, Bloomgren offered the

following opinion concerning the degree to which Sherman’s

ability to function was affected by his psychological,

psychiatric, or behavioral problems:

Randy has difficulty with focus and concentration as well as significant issues with anxiety and irritability. He has difficulty sleeping at night making things worse. We have started an antipsychotic medication for mood stabilizing effects. Having difficult with weaning off Effexor XR.4 Anxiety still elevated w/difficulty w/sleep + irritability.

Tr. 206.

In July 2014, Dr. Moran drafted a letter, to whom it may

concern, that expressed the following opinions concerning

Sherman’s ability to work:

In my medical opinion, Mr. Sherman is not capable of standing or walking for longer than thirty minutes at a time due to chronic pain in his right leg. I believe that he is unable to stand or walk for more than two hours over an eight hour period. In addition, his chronic pain is contributing to depression, anxiety and PTSD. He is afraid of social situations and would have difficulty performing in a competitive work environment. . . .

4 Effexor is a “trademark for preparations of venlafaxine hydrochloride.” Dorland’s, supra note 2, at 595. Venlafaxine hydrochloride is “used as an antidepressant and antianxiety agent.” Id. at 2046.

5 I do not expect any significant improvement in his condition in the future. I consider him unemployable. He remains the same or worse since his 12/07/2012 visit with me.

Tr. 234.5

After the Social Security Administration (“SSA”) denied

Sherman’s application for benefits, he received a hearing before

an Administrative Law Judge (“ALJ”). Subsequently, the ALJ

issued a decision that includes the following relevant findings

of fact and conclusions of law:

3. Through the date last insured, the claimant had the following severe impairments: affective disorder, status post leg fracture, alcohol abuse (20 CFR 404.1520(c)).

. . . .

4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404. 1526).

. . . .

5. After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except he has the ability to understand, remember, and carry out unskilled, simple tasks of 1-3

5 At least one of Dr. Moran’s treatment notes also refers to right leg pain. See Tr. 235. However, Dr. Moran’s initial office note and at least one subsequent note refer to left leg pain. See Tr. 196, 198. The court presumes that the discrepancy is the result of a typographic or transcription error.

6 step instructions. He can adjust to changes in routine. He can maintain appropriate superficial interactions with coworkers and supervisors.

. . . .

6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404. 1565).

. . . .

10. Through the date last insured, considering the claimant’s age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).

Tr. 20, 21, 22, 26. Without relying upon the testimony of a

vocational expert (“VE”), and without providing any explanation

or identifying any evidence, the ALJ concluded that Sherman’s

“additional limitations had little or no effect on the

occupational base of unskilled sedentary work.” Tr. 27.

III. Discussion

A. The Legal Framework

To be eligible for disability insurance benefits, a person

must: (1) be insured for such benefits; (2) not have reached

retirement age; (3) have filed an application; and (4) be under

a disability.

(a)(1). The only question in

this case is whether the ALJ correctly determined that Sherman

7 was not under a disability from April 2, 2012, through December

31, 2012, which is the last day on which he was insured for DIB.

To decide whether a claimant is disabled for the purpose of

determining eligibility for disability insurance benefits, an

ALJ is required to employ a five-step process. See

.

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant’s] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the [claimant], given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart,

(1st Cir. 2001) (citing

, which outlines the same five-step process as

the one prescribed in

).

The claimant bears the burden of proving that he is

disabled. See Bowen v. Yuckert,

(1987). He

must do so by a preponderance of the evidence. See Mandziej v.

Chater,

(D.N.H. 1996) (citing Paone v.

Schweiker,

(D. Mass. 1982)). However,

8 [o]nce the [claimant] has met his or her burden at Step 4 to show that he or she is unable to do past work due to the significant limitation, the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the [claimant] can still perform. Arocho v. Sec’y of Health & Human Servs.,

(1st Cir. 1982). If the [claimant’s] limitations are exclusively exertional, then the Commissioner can meet her burden through the use of a chart contained in the Social Security regulations.

; Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, App. 2, tables 1-3 (2001), cited in

; Heckler v. Campbell,

(1983). “The Grid,” as it is known, consists of a matrix of the [claimant’s] exertional capacity, age, education, and work experience. If the facts of the [claimant’s] situation fit within the Grid’s categories, the Grid “directs a conclusion as to whether the individual is or is not disabled.” 20 C.F.R. pt. 404, subpt. P, App. 2, § 200.00(a), cited in

. However, if the claimant has nonexertional limitations (such as mental, sensory, or skin impairments, or environmental restrictions such as an inability to tolerate dust,

§ 200(e)) that restrict his [or her] ability to perform jobs he [or she] would otherwise be capable of performing, then the Grid is only a “framework to guide [the] decision,”

.969a(d) (2001). See also Pratts v. Chater,

(2d Cir. 1996) (discussing use of Grid when applicant has nonexertional limitations).

Seavey,

(parallel citations omitted).

B. Sherman’s Claims

Sherman claims that the ALJ erred in: (1) evaluating the

medical opinion evidence; (2) assessing the credibility of his

statements about pain and other symptoms of his impairments; (3)

9 determining his residual functional capacity (“RFC”);6 and (4)

determining that there were jobs he could perform, at Step 5,

without taking testimony from a VE. Claimant’s fourth argument

is persuasive, and dispositive.

Magistrate Judge Rich has recently characterized the law of

this circuit regarding when an ALJ may determine that a claimant

is not disabled, at Step 5, without the benefit of testimony

from a VE:

The Grid generally cannot permissibly be used as a vehicle to meet the commissioner’s Step 5 burden – vocational expert testimony ordinarily must be sought instead – if a claimant’s nonexertional impairments significantly affect his or her ability “to perform the full range of jobs” at the appropriate exertional level. Ortiz v. Secretary of Health & Human Servs.,

(1st Cir. 1989) (citation and internal quotation marks omitted). “[A]though 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.” Seavey v. Barnhart,

(1st Cir. 2001) (citation and internal quotation marks omitted).

Parker v. Colvin, No. 1:15-cv-00446-JHR,

, at *6

(D. Me. Sept. 19, 2016). Moreover, Judge Barbadoro has noted

that “[t]he First Circuit has cautioned that ‘an ALJ typically

should err on the side of taking vocational evidence when a

6 “Residual functional capacity” is a term of art that means “the most [a claimant] can still do despite [his] limitations.”

(a)(1).

10 [non-exertional] limitation is present in order to avoid

needless agency rehearings.’” Brindley v. Colvin, No. 14-cv-

548-PB,

, at *5 (D.N.H. Jan. 29, 2016) (quoting

Ortiz,

) (remanding where ALJ neither called

vocational expert nor explained why reliance upon the Grid was

appropriate, but “merely stated, without explanation or citation

to record evidence, that [the claimant’s] non-exertional

limitations have little or no effect on the occupational base of

unskilled light work”) (internal quotation marks and citation to

the record omitted); see also Pacensa v. Astrue,

(D. Mass. 2012).

Here, the ALJ included two nonexertional limitations in

Sherman’s RFC: (1) an ability to “understand, remember, and

carry out unskilled, simple tasks of 1-3 step instructions,” Tr.

22; and (2) an ability to interact only superficially with

coworkers and supervisors. But, the ALJ did not explain or

support her determination that Sherman’s nonexertional

limitations “had little or no effect on the occupational base of

unskilled sedentary work,” Tr. 27. Therefore, based on Seavey,

the ALJ was free to resolve Sherman’s claim at Step 5 without

evidence from a vocational expert only if it is self-evident

that the two limitations she identified would have a negligible

effect upon a claimant’s ability to perform the full range of

11 unskilled sedentary jobs. The ALJ’s first limitation, to work

involving “unskilled, simple tasks of 1-3 step instructions,”

Tr. 22, does not preclude reliance on the Grid. See Gurney v.

Astrue, Civ. No. 09-153-B-W,

, at *2 (D. Me. Jan.

20, 2010). However, it is not self-evident that a limitation to

“superficial interactions with coworkers and supervisors,” Tr.

22 (emphasis added), would only have a negligible effect on a

person’s ability to perform the full range of unskilled jobs.

Consequently, the ALJ committed reversible error by declining to

take evidence from a VE to support her Step 5 determination.

The court begins with two observations. First, a

limitation to “superficial interaction” is somewhat nebulous,

and the ALJ’s decision in this case does little to distinguish

between superficial and non-superficial interactions, or to

explain how a capacity for superficial interaction is sufficient

to perform a large number of jobs. Second, actual litigation of

the issue presented in this case is sparse. During the course

of researching this issue, the court located several dozen

cases, perhaps as many as 100, in which ALJs determined that

claimants were capable of only superficial interaction with co-

workers and/or supervisors. But in nearly all of them, VE

evidence was taken, seemingly without a second thought by the

ALJ. That said, the court has located two decisions that are

12 directly on point, and that support a determination that, under

the circumstances of this case, the ALJ was obligated to take

evidence from a VE.

In Stewart v. Colvin, “the ALJ’s RFC finding included the

limitation that Plaintiff could only ‘relate to supervisors and

peers on a superficial work basis.’” No. CIV-12-0802-HE,

, at *6 (W.D. Okla. July 24, 2013) (quoting the

record). Notwithstanding that limitation, “[t]he ALJ did not

obtain expert vocational testimony but instead relied entirely

on the grids after making the conclusory statement that

‘claimant’s mental impairments ha[d] only a slight effect on the

occupational base.’”7

(quoting the record). The Stewart

court remanded, on grounds that “the ALJ’s step five decision

based on the grid rules [was] not supported by substantial

evidence in the record.” Id.; see also Johnson v. Colvin, No.

CIV-13-871-R,

, at *6 (W.D. Okla. Dec. 16, 2014)

(remanding where ALJ declared, without analysis or explanation,

that various limitations, including limitation to “superficial

7 While Magistrate Judge Purcell criticized the ALJ in Stewart for relying on the Grid after making a conclusory statement about the effect of the claimant’s mental impairments on the occupational base, the ALJ in that case went further than the ALJ in this case, by supporting his or her conclusion with references to a medical note and a mental status examination. See

, at *2.

13 interaction with coworkers and supervisors,” had “little or no

effect on the occupational base of unskilled work at all

exertional levels”).

In Lewis v. Astrue, the ALJ found that the claimant was

limited to “superficial contacts with co-workers and the

public.”8 No. 3:11-cv-05482-RJB-KLS,

, at *10

(W.D. Wash. Mar. 5, 2012), R & R adopted by

(Mar. 26, 2012). Despite that limitation, the ALJ in Lewis made

a Step 5 determination that the clamant was not disabled,

without taking testimony from a VE. The claimant challenged the

ALJ’s reliance on the Grid, and the court agreed:

[T]he restriction to only superficial contact with co- workers is a significant non-exertional limitation that makes reliance on the Grids inappropriate here. It is difficult to see how such a limitation — as opposed to, say, only occasional contact with one’s coworkers — would not have a significant impact on plaintiff’s ability to perform a full range of sedentary work. See SSR 85–15,

at *4 [(S.S.A. 1985)] (noting “[a] substantial loss of ability” to respond appropriately to co-workers “would severely limit the potential occupational base”).

Id. at *10.

8 If the term “co-workers” is taken to include supervisors, then the limitation in Lewis with respect to internal workplace interaction is identical to the limitation in this case. But if that term was intended to apply to peers but not supervisors, then the limitation in Lewis is less limiting than the one ascribed to claimant in this case.

14 Neither Stewart nor Johnson goes into any real detail as to

why a limitation to superficial interaction with supervisors and

coworkers is sufficiently serious to require VE testimony, but a

rationale may be derived from the Lewis court’s citation to SSR

85-15, which provides:

The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base.

, at *4 (emphasis added); see also SSR 96-9p,

, at *9 (S.S.A. July 2, 1996) (“These mental activities

are generally required by competitive, remunerative, unskilled

work: . . . [r]esponding appropriately to supervision, co-

workers and usual work situations.”).

Without saying so directly, the court in Lewis necessarily

assumed that a person’s ability to respond appropriately to

supervision and coworkers is significantly affected by a

limitation to superficial interactions. That assumption, in

turn, seems reasonable. If the only interactions with

supervisors and coworkers that are necessary to perform all

unskilled jobs are superficial interactions, then a limitation

to superficial interactions with supervisors and coworkers would

15 not significantly affect the occupational base of unskilled

work. But the ALJ offered neither an explanation nor any

evidentiary support for such a proposition, and it is not self-

evident. Conversely, a person who is limited to superficial

interactions with supervisors would be able to respond

appropriately to supervision provided through superficial

interactions, but would not be able to respond appropriately to

supervision provided through interactions that must be more than

superficial. In the absence of any reason to believe that

supervision for all unskilled jobs may be provided exclusively

through superficial interactions, this court is persuaded by

Stewart, Johnson, and Lewis that the ALJ’s reliance upon the

Grids was inappropriate.

That said, the court has found one case involving a

limitation similar to the one in this case in which the court

affirmed an ALJ’s decision to do without a VE while ruling

against the claimant at Step 5. In Mitchell v. Astrue, the ALJ

made the following RFC assessment: “Claimant can perform simple

tasks with routine supervision; can relate to supervisors and

peers on a superficial work basis; and cannot relate to the

general public.”

(10th Cir. 2012).

Notwithstanding that limitation, and without taking evidence

from a VE, the ALJ found that the claimant “could perform

16 substantially all of the work available in the unskilled light

work category because [she] ‘retain[ed] the capacity for work

with routine supervision and work-related contact.’”

at 760

(quoting the record). Importantly, the court in Mitchell

explained that “the ALJ supported his use of the grids with a

discussion of [the claimant’s] mental impairment, its effect on

job performance under SSR 85-15, and [the claimant’s] continuing

ability to perform a substantial majority of light unskilled

work.”

Here, however, the ALJ offered no support for her

use of the Grid beyond her conclusory statement that “the

additional limitations had little or no effect on the

occupational base of unskilled sedentary work.” Tr. 27.

Therefore, Mitchell does not persuade the court to affirm the

ALJ’s decision to forego a VE in this case.

In addition to Mitchell, which involved a limitation to

superficial interaction, several courts have ruled that VE

testimony was not necessary in cases involving limitations

similar to the ones in this case, but that did not use the term

“superficial.” See, e.g., Lancaster v. Astrue, No. 10-cv-0088-

MJP-JPD,

, at *3 (W.D. Wash. July 19, 2010)

(limitation to “only incidental contact with the public and co-

workers”), R & R adopted by

(Aug. 10, 2010);

Summers v. Comm’r of Soc. Sec., No. CIV S-08-1309-CMK,

2051633, at *1 (E.D. Cal. July 10, 2009) (limitation to “no

frequent public or co-worker contact”); Dollins v. Astrue, Civ.

No. 08-141-KSF,

, at *4 (E.D. Ky. Sept. 24, 2008)

(“a limitation to simple, unskilled, entry level work that

allows for less stress[ful] work without public contact or

significant interaction with others”); Atkinson v. Barnhart, No.

3:05-cv-00471-HDM-VPC,

, at *2 (D. Nev. May 19,

2006) (limitation to “simple unskilled work without frequent

public or coworker contact”). However, in Boley v. Astrue,

Magistrate Judge Grand rejected Lancaster, Summers, Dollins, and

Atkinson and found that VE testimony was required when the

claimant “was limited to ‘unskilled [work] with only minimal

contact/interaction with co-workers; minimal contact with, and

minimal direction from, a supervisor; and work requiring only

brief and superficial contact with the public.’” No. 11-10896,

, at *10 (E.D. Mich. Feb. 10, 2012) (quoting the

record), R & R adopted by

(Mar. 1, 2012).

According to Judge Grand:

[I]n . . . those cases . . . the courts supported their decisions only with the regulation’s language that unskilled work generally deals with objects rather than people. None addressed the specific proposition that a limited ability to respond to supervisors and/or co-workers “would severely limit the potential occupational base.” SSR 85–15,

. See also

(“[a] limited ability to carry out certain mental activities, such as limitations in . . . responding appropriately to

18 supervision, co-workers and work pressures in a work setting, may reduce your ability to do past work and other work.”).

Boley,

, at *13 (citations omitted).

As to why the fact that unskilled work deals with objects

rather than people is insufficient to support an ALJ’s

conclusion that a limitation on a claimant’s ability to interact

with coworkers and supervisors has only a negligible effect on

the ability to do unskilled jobs, Judge Grand explained:

Although unskilled work deals primarily with objects and not data or people, SSR 85–15, 1985 [WL] 56857, at *[4], it does require the following skills: “the abilities, (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work situation.” SSR 85–15,

[, at *4] (emphasis added).

Boley,

, at *11 (parallel citations omitted). In

Stark v. Astrue, Judge Patel elaborated on that point:

While the ALJ opines that there still exist[s] a significant amount of unskilled work in the national market “dealing primarily with objects, rather than with data or people,” a realistic approach would reveal that all jobs require some level of interaction with co-workers and supervisors, and that the ALJ’s speculation of a substantial occupational base is an impermissible stretch.

No. C 07-6465 MHP,

, at *8 (N.D. Cal. Aug. 18,

2009) (ruling that where claimant had RFC to perform only jobs

involving limited contact with the public and coworkers, “the

ALJ was under an obligation to hear the testimony of a

19 vocational expert and there [was] a need to remand on that

basis”). In other words, SSR 85-15 recognizes that there is a

difference between what a person works with, i.e., things or

people, and the context in which he or she works, i.e., under

minimal rather than ubiquitous supervision, or in a solitary

rather than a populous workplace. Thus, SSR 85-15 plainly

contemplates that a person can be incapable of performing a

“job[] [that] ordinarily involve[s] dealing primarily with

objects,”

, at *4, if that person is sufficiently

unable “to respond appropriately to supervision, coworkers, and

usual work situations,”

In addition to the direct support provided by Stewart,

Johnson, and Lewis for a determination that the ALJ in this case

was obligated to take evidence from a VE, there is also the

following indirect support.

In Moon v. Colvin, the ALJ did take testimony from a VE,

but “did not incorporate [an] opinion that [the claimant] was

capable of superficial interactions with few co-workers in the

hypothetical question” he posed to the VE. No. C14-5647 BHS,

, at *4 (W.D. Wash. Mar. 16, 2015). Because the

ALJ did not include that limitation in his hypothetical

question, the court ruled that the VE’s response to that

question could not “support [the ALJ’s] finding that [the

20 claimant could] perform jobs in the national economy.”

(citing Matthews v. Shalala,

(9th Cir. 1993));

see also Baker v. Astrue, No. 5:09 CV 1171,

, at

*6 (N.D. Ohio July 7, 2010) (“More troubling, perhaps, is the

fact that the [VE’s] testimony does not include any limitation

for only superficial interaction with co-workers and supervisors

as included in the prior ALJ’s RFC finding. . . . [I]t still is

unclear whether a person who can tolerate only superficial

interaction with supervisors and co-workers can perform the

three identified jobs because there is no testimony regarding

that issue.”). If a limitation to superficial interaction with

coworkers and supervisors is significant enough that an ALJ

commits reversible error by failing to bring it to the attention

of a VE, then, by extension, such a limitation cannot be so

negligible that an ALJ can proceed without a VE when he ascribes

it to a claimant.

Moon and Baker both provide indirect support for the

court’s conclusion that the ALJ in this case was required to

take evidence from a VE when making her Step 5 determination.

In response to Sherman’s claim that the ALJ was obligated

to obtain VE testimony, the Acting Commissioner makes this

counterargument:

This Court has held that a limitation in the RFC, “to avoid overly critical supervision,” did not

21 substantially erode the occupational base. Beaton v. Astrue,

,

, at *7; see also Garcia-Martinez v. Barnhart,

(1st Cir. 2004) (limitation to “routine” work does not preclude reliance on the Grids). Based on the above, a limitation to “appropriate,” albeit superficial, interaction with coworkers and supervisors would not substantially erode the unskilled occupational base.

Doc. no. 10-1, at 15. That argument is not persuasive.

In Beaton, the ALJ found that the claimant was limited to

employment without “overly critical supervision,” and the ALJ

ruled against him at Step 5, without taking testimony from a VE.

See

, at *7. After calling it “a close

question,” Judge DiClerico determined that “the ALJ’s

determination was . . . minimally sufficient.”

(citations

omitted). However, the limitation in Beaton referred to the

kind of workplace supervision the claimant could tolerate while

the limitation in this case refers the claimant’s ability to

interact with coworkers and supervisors. Given the differences

between the limitation in Beaton and the limitation in this

case, Judge DiClerico’s decision in Beaton is not as persuasive

as the Acting Commissioner contends.

As for Garcia-Martinez, the Acting Commissioner cites that

case for the proposition that a “limitation to ‘routine work’

does not preclude reliance on the Grids.” Doc. no. 10-1, at 15.

The issue here, however, is a limitation to “superficial

interactions with coworkers and supervisors,” Tr. 22, not a

22 limitation to routine work. While there is some appeal to the

proposition that routine work can be effectively performed

without anything more than superficial interaction with

coworkers and supervisors, the ALJ did not offer such an

analysis – or any other analysis – when she made her Step 5

determination. Moreover, while it would not be surprising to

hear a VE offer testimony to that effect, the validity of that

proposition is not quite self-evident. Rather, drawing such a

conclusion seems more properly to fall within the purview of a

vocational expert. In short, Garcia-Martinez is distinguishable

as that case did not involve any limitation on the claimant’s

ability to interact with coworkers and supervisors.

In light of the foregoing discussion of Beaton and Garcia-

Martinez, the court concludes that the Acting Commissioner “has

failed to make a persuasive case that . . . the restriction to

only [superficial] interaction[s] with . . . co-workers [and

supervisors]. . . has no more than a negligible effect on

[Sherman’s] ability to perform the full range of unskilled

jobs.” Gurney,

, at *3.

The court concludes by reiterating two key points. First,

when an ALJ assesses nonexertional limitations, reliance on a VE

is the default rule. See Parker,

, at *6. And

second, “an ALJ typically should err on the side of taking

23 vocational evidence when a [non-exertional] limitation is

present.” Brindley,

, at *5. Finally, it is

important to bear in mind the consequences of the remand order

in this case. The court is not remanding for an award of

benefits, or with instructions for the SSA to determine that

claimant is disabled by his inability to engage in anything more

than superficial interaction with coworkers and supervisors.

Rather, all that will happen as a result of this order is that

on remand, claimant will receive the benefit of a Step 5

determination that is supported by substantial evidence, rather

than an unexplained and conclusory assertion. See Galinski v.

Astrue, No. C11-516-RSL-JPD,

, at *16 (W.D. Wash.

Dec. 16, 2011), R & R adopted by

(Jan. 12, 2012)

(remanding where claimant needed to “avoid working with the

general public, but [could] work with a supervisor and a few

coworkers . . . [and] would do best with a predictable work

routine,” but ALJ did not take evidence from a VE, resulting in

a Step 5 determination that “speculate[d] about the base of

unskilled work without supporting . . . evidence from the

record”).

IV. Conclusion

For the reasons given, the Acting Commissioner’s motion for

an order affirming her decision, document no. 10, is denied, and

24 Sherman’s motion to reverse that decision, document no. 8, is

granted to the extent that the case is remanded to the Acting

Commissioner for further proceedings, pursuant to sentence four

of

(g). The clerk of the court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

December 8, 2016

cc: Ruth Dorothea Heintz, Esq. T. David Plourde, Esq.

25