UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mamata Rai

v. Case No. 15-cv-175-PB Opinion No.

Carolyn W. Colvin, Acting Commissioner, U.S. Social Security Administration

MEMORANDUM AND ORDER

Mamata Rai challenges the Social Security Administration’s

denial of her claim for Supplemental Security Income (“SSI”)

benefits. The Acting Commissioner, in turn, moves for an order

affirming her decision. For the reasons that follow, I reverse

the decision of the Acting Commissioner and remand for further

administrative proceedings.

I. BACKGROUND

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts (Doc. No. 14).

See LR 9.1. Because that joint statement is part of the court’s

record, I need not recount it here. I discuss facts relevant to

the disposition of this matter as necessary below. II. STANDARD OF REVIEW

Under

(g), I have the authority to review

the pleadings submitted by the parties and the administrative

record, and to enter a judgment affirming, modifying, or

reversing the “final decision” of the Commissioner. That review

is limited, however, “to determining whether the [Administrative

Law Judge] 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). I defer to the

Administrative Law Judge’s (ALJ’s) findings of fact, so long as

those findings are supported by substantial evidence.

Substantial evidence 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, the ALJ’s

factual findings are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. Findings

are not conclusive, however, if the ALJ derived his findings by

“ignoring evidence, misapplying the law, or judging matters

entrusted to experts.” Nguyen v. Chater,

(1st

2 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

Mamata Rai is a former refugee from Nepal who was 19 years

old in June 2012, when she filed for SSI benefits. Doc. No. 11

at 1-2. Rai filed for SSI on June 19, 2012, claiming disability

as of that day.1

The Social Security Administration denied

Rai’s SSI application, and in October 2013 a hearing was held

before ALJ Dory Sutker.

Following that hearing, the ALJ

issued a written decision denying Rai’s application. Tr. at 16-

25 (ALJ’s written decision).

In her decision, the ALJ found at step one that Rai had not

engaged in substantial gainful activity since June 19, 2012,

Rai’s alleged onset date. Tr. at 19. At step two, the ALJ

found that Rai suffered from heart and thyroid-related severe

1 The Joint Statement of Material Facts indicates that Rai’s alleged onset date was July 19, 2012, but this appears to be an error, since the hearing transcript and the ALJ’s decision both state that the date was June 19, 2012. Compare Doc. No. 11 at 1 with Tr. at 16, 35.

3 impairments.2 Tr. at 19. At step three, however, the ALJ

determined that Rai’s impairments did not meet or medically

equal any of the impairments listed in the relevant regulations.

Tr. at 19. The ALJ then found that Rai retained the Residual

Functional Capacity (“RFC”) to perform sedentary work with

certain restrictions, such as not climbing ladders, avoiding

fumes and odors, and limiting her work to “uncomplicated tasks

such as those that typically can be learned in thirty days or

less.” Tr. at 19. The ALJ also noted that Rai “would have

unscheduled absences of not more than 1 day per month” due to

her condition. Tr. at 19. At step four, the ALJ found that Rai

had no past relevant work experience. Tr. at 24. She also

concluded that Rai “has a limited education and is able to

communicate in English.” Tr. at 24. Lastly, at step five, the

ALJ consulted a vocational expert and used the Medical-

Vocational Guidelines (the “Grid”) to conclude that jobs existed

in the national economy that Rai could perform – and therefore

Rai was not disabled. Tr. at 24-25.

Rai requested review of the ALJ’s decision, but in December

2014, the Appeals Council denied her request. Tr. at 1. As a

2 The impairments are “mitral valve regurgitation with anterior leaflet prolapse status-post recent valve repair” and “hyperthyroidism.” Tr. at 19. 4 result, the ALJ’s decision constitutes the Commission’s final

decision, and this case is now ripe for review.

Rai filed this appeal in May 2015, asserting two challenges

to the ALJ’s decision. First, she claims that the ALJ failed to

develop vocational evidence addressing Rai’s English language

limitations, and improperly concluded that Rai was “able to

communicate in English.” Second, Rai argues that the ALJ erred

in assessing the importance of her unexcused absences from

school. I find Rai’s first argument – that the ALJ improperly

assessed Rai’s English skills – persuasive, and conclude that

the ALJ’s determination of Rai’s language capabilities was

conclusory and insufficiently supported by the evidence. As a

result, a remand is warranted.

The ALJ bears the burden at step five of proving that jobs

exist in the national economy that the claimant can perform.

Heggarty v. Sullivan,

(1st Cir. 1991). To

carry her burden, the ALJ must consider the claimant’s RFC and

her “age, education, and work experience.”

(a)(4)(v). “Education” includes “how well [claimants]

are able to communicate in English since this ability is often

acquired or improved by education.”

(b).

“Because English is the dominant language of the country, it may

be difficult for someone who doesn't speak and understand

5 English to do a job, regardless of the amount of education the

person may have in another language.”

(b)(5). The ALJ, therefore, must “consider a person’s

ability to communicate in English when [the ALJ] evaluate[s]

what work, if any, he or she can do.” Id.; see Lugo v. Chater,

(S.D.N.Y 1996) (Sotomayor, J.) (“Before

slotting a claimant into a particular grid rule, however, the

ALJ must first determine whether the claimant is conversant and

literate in English.”) (citing Vega v. Harris,

(2d Cir. 1981)).3

Here, the issue of Rai’s language limitations arose

numerous times in the record and at the hearing. In a

questionnaire submitted to the SSA, Rai’s English as a Second

3 A claimant’s English capabilities affect the ALJ’s analysis at step five. For example, in order to successfully apply the Grid, an ALJ must first place the claimant in an educational category, which in some instances includes determining whether the claimant is “illiterate and unable to communicate in English” or “Limited or less – at least literate and able to communicate in English.” See 20 C.F.R. Pt. 404, Subpt. P, App. 2. Similarly, to analyze a claimant’s ability to perform certain jobs, a vocational expert generally must consult the Dictionary of Occupational Titles (“DOT”) and its “companion publication,” the Selected Characteristics of Occupations (“SCO”). See

(d); SSR 00-4P,

(Dec. 4, 2000), at *1. These publications outline six different levels of General Education Development (“GED”), which include “Language Development.” See Doc. No. 14-1 at 2-4, 11- 14. Once a claimant has been assigned a GED level, the DOT indicates what potential jobs a claimant at that level may perform. See

(d); see also Doc. No. 14-2. 6 Language (ESL) teacher Genevieve Munoz noted that Rai’s “English

is not very good and she does not understand much.” Tr. at 166.

Munoz indicated that as a “familiar listener,” she could only

understand Rai 1/2 to 2/3 of the time when the topic of

conversation was known, and no more than 1/2 of the time when

the topic was unknown. Tr. at 169. Munoz clarified that Rai’s

difficulty speaking English was a “language problem, not a

learning disability.” Tr. at 166.

In addition, state medical reviewer Jonathan Jaffe noted in

his report that Rai “speaks little English, primary language is

Nepal.” Tr. at 59. Similarly, state disability adjudicator

Sherri Connor indicated in her “Assessment of Vocational

Factors” that Rai had “LIMITED ENGLISH.” Tr. at 62 (emphasis in

original). Using the Grid, Connor determined that Rai belonged

in category 201.23, which applies to young individuals who are

“illiterate or unable to communicate in English.” Tr. at 62-63;

see 20 C.F.R. Pt. 404, Subpt. P, App. 2, 201.23. Moreover, in a

“Disability Report - Field Office,” an interviewer noted that

Rai “speaks nepali,” “her english is very limited,” and she

“brought in an interpreter” to the interview. Tr. at 143. On

another form, Rai indicated that “No,” she could not “speak and

understand English;” “Yes,” she could “read and understand

English;” and “No,” she could not “write more than [her] name in

7 English.” Tr. at 145. In Rai’s appeal documents and medical

records, her English problems are consistently mentioned. See,

e.g., Tr. at 187 (“Limited ability to communicate in English”),

194 (“[Rai] comes in now with [a] translator”).

At the hearing before the ALJ, Rai appears to have

communicated mostly through a Nepali interpreter.4 See Tr. at

31-44 (hearing transcript). The ALJ engaged Rai in a brief

exchange of questions, mostly of a biographical nature (although

as explained above, it is unclear whether or not Rai answered

directly or through an interpreter). Tr. at 36-38. At one

point, Rai’s representative stated that she “does understand

some English, so simple questions . . . are not going to be a

problem.” Tr. at 36. Rai also stated that she had started, but

not finished, the eleventh grade; did not have a GED; went to

school part time; could read “a little bit;” and did “not know

that well Nepali.” Tr. at 37-38.

4 The hearing transcript is somewhat unclear as to the issue of Rai’s Nepali interpretation. A Nepali interpreter was sworn in at the beginning of the hearing. Tr. at 31. The ALJ later appears to ask Rai questions directly, but it is not clear whether or not an interpreter was used. Tr. at 36. Rai’s brief, however, states that “Ms. Rai testified at her hearing almost entirely through an interpreter,” Doc. No. 9-1 at 3, and the Commissioner does not appear to dispute that assertion. See Doc. No. 10-1 at 3-5.

8 After the ALJ finished interviewing Rai, Rai’s

representative questioned Elizabeth LaFlamme, a vocational

expert (“VE”). Tr. at 42-44. LaFlamme was asked whether an

individual with a sedentary work capacity but a “reading, math,

and language, the GED [level] of 0 to 1” would be able to

perform the job of an “addresser,” “document preparer,” or

“surveillance system monitor.”5 Tr. at 43. LaFlamme replied

that all three vocations would require greater language skills

than a “0 to 1.” Tr. at 43. The ALJ asked no follow-up

questions. See Tr. at 43. The hearing concluded shortly

thereafter, with no further discussion of Rai’s language

abilities or capacity to perform unskilled vocations. Tr. at

43-45. The next month, the ALJ issued her decision, finding

that Rai had “a limited education and was able to communicate in

English.” Tr. at 24.

This finding was not supported by substantial evidence. As

stated above, an ALJ may not derive her findings by “ignoring

evidence, misapplying the law, or judging matters entrusted to

experts.” Nguyen,

. Here, the ALJ provided no

explanation as to how she concluded that Rai was able to

communicate in English. See Tr. at 24. Her decision provides

5 Disability adjudicator Sherri Connor had previously identified these three vocations as jobs that Rai could perform given her RFC and other limitations. Tr. at 63. 9 no commentary on Rai’s stated language limitations; no account

of what process was used, if any, to determine Rai’s English

level; and – perhaps most troublingly – no response to the VE’s

statements that a person with a “0 to 1” English capacity could

not perform any of the three jobs the state had recommended for

Rai.6 Instead, the ALJ simply concluded that Rai “was able to

communicate in English,” and applied the Grid to find that Rai

was not disabled. See Tr. at 24. This conclusory statement is

insufficient and warrants a remand.

Our cases support this outcome. Although the First Circuit

has not squarely addressed the issue, the Second Circuit has

made clear that the ALJ must first determine whether a claimant

is literate and able to communicate in English before applying

the Grid. Vega,

. In Vega, the Second

Circuit remanded in favor of a claimant who spoke limited

English because the ALJ made no formal findings “on the

questions of literacy and ability to communicate in English.”

(“The absence of findings by the ALJ on the questions of

literacy and ability to communicate in English is crucial . . .

.”). Similarly, in Lugo, a claimant with limited English won a

6 Admittedly, Rai’s language abilities were not assessed, so it may be that Rai has a higher English level than “0 to 1.” Tr. at 43. Without some further evaluation of Rai’s English skills, however, I cannot properly assess the relevance of the VE’s statement. 10 remand when the ALJ “did not specify the basis of his finding

that Lugo could both speak and read some English.” Lugo,

(“This finding [of the claimant’s English

abilities] is pivotal because it dictates which grid rule the

ALJ will use as a framework for decisionmaking, and which type

of testimony he will solicit from a vocational expert, if one is

required.”). Closer to home, in Banushi v. Barnhart, the court

remanded because the ALJ failed to evaluate the claimant’s

English abilities despite record evidence that the claimant had

difficulty communicating in English.

, at *8-10

(D. Mass. June 26, 2007) (“[T]here is no indication in the

decision that plaintiff's ability to communicate in English was

considered in evaluating what work she could do . . . . The lack

of a finding . . . constitutes legal error.”). Courts have thus

consistently ordered a remand where, as here, the ALJ provides

no reasoned basis for her conclusion regarding a claimant’s

English ability.

The Commissioner argues that the ALJ properly concluded

that Rai could communicate in English because Rai could

“understand, read and write a simple message such as

instructions or inventory lists.” Doc. No. 10-1 at 3-5

(emphasis in original). To support this claim, the Commissioner

points to Rai’s ESL teacher’s statement that the teacher

11 understood “up to two thirds” of Rai’s conversation when the

topic was known, and to Rai’s representative’s statement that

Rai “does understand some English, so simple questions . . . are

not going to be a problem.”7 Doc. No. 10-1 at 4-5.

Although the Commissioner may be correct that Rai’s English

skills are good enough to work a sedentary job, her argument

fails because the ALJ left no clue as to what evidence she

relied upon to make her determination. To the extent the ALJ

may have relied on Rai’s responses to the ALJ’s questions during

the hearing, Vega repudiates the idea that “a brief exchange”

with the claimant may “substitute for a determination on the

question of ability to communicate in English.” Vega,

. At bottom, however, I cannot conclude that the ALJ

properly supported her finding when the ALJ declined to provide

any explanation as to how she reached that finding. Indeed, it

is a “simple but fundamental rule of administrative law” that “a

reviewing court, in dealing with a determination or judgment

which an administrative agency alone is authorized to make, must

judge the propriety of such action solely by the grounds invoked

7 The Commissioner also argues that Rai could satisfactorily speak English because she “was also able to complete the disability forms requested by the agency.” Doc. No. 10-1 at 4. The Commissioner appears to be mistaken, however: the form that she cites was filled out by a “Parsu Nepal,” not Mamata Rai. Tr. at 160. 12 by the agency.” Sec. & Exch. Comm’n v. Chenery Corp.,

(1947). On that standard, the ALJ’s decision is

unsupportable, and a remand is warranted.8

IV. CONCLUSION

For the foregoing reasons, Rai’s motion to reverse the

decision of the Commissioner (Doc. No. 9) is granted. The

Commissioner’s motion to affirm (Doc. No. 10) is denied.

Pursuant to sentence four of

(g), I remand the

8 Although the Commissioner has not raised this issue, there are some circumstances where the Grid dictates a finding of “not disabled” even when a claimant is found “illiterate or unable to communicate in English.” See 20 C.F.R. § Pt. 404, Subpt. P, App. 2, 201.23. For claimants aged 18-44 who have the RFC to perform “a full range of sedentary work,” the Grid explains that there are still “sufficient numbers of jobs” available despite the claimant’s English limitations because “the bulk of unskilled work relate[s] to working with things (rather than with data or people).” 20 C.F.R. § Pt. 404, Subpt. P, App. 2, 201.00(h)(4)(i). Here, however, even if the ALJ had supportably found that Rai was unable to communicate in English, sole reliance on the Grid would have been inappropriate because Rai did not have “a full range” of sedentary work. See id. (emphasis added). Rather, Rai had the RFC to perform sedentary work only with a host of restrictions, including “never climb[ing] ladders, ropes, or scaffolds . . . hav[ing] no concentrated exposure to temperature extremes, no exposure to hazards . . . limit[ing] [her work] to uncomplicated tasks such as those that typically can be learned in thirty days or less” and “hav[ing] unscheduled absences of not more than 1 day per month.” Tr. at 19. Because these restrictions limit the sedentary work Rai can perform, it appears that Rai does not directly fit into any of the Grid’s categories, and therefore sole reliance on the Grid would be improper. 13 case to the Social Security Administration for further

proceedings consistent with this decision.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge January 14, 2016

cc: Douglas Grauel, Esq. Robert Rabuck, Esq.

14