UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kathy Ann Wilt

v. Civil No. 15-cv-439-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Pursuant to

(g), Kathy Wilt moves to reverse

the Acting Commissioner’s decision to deny her applications for

Social Security disability insurance benefits, or DIB, under

Title II of the Social Security Act,

, and for

supplemental security income, or SSI, under Title XVI,

. 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) (setting out the standard of review for DIB

decisions); see also

(c)(3) (establishing

§ 405(g) as the standard of review for SSI decisions). However,

the court “must uphold a denial of social security . . .

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

2 draw inferences from the record evidence. Indeed, the

resolution of conflicts in the evidence is for the [Acting

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.

Wilt has been diagnosed with various physical and mental

impairments. She applied for both DIB and SSI in October of

2012.

3 In April of 2013, Wilt’s physical residual functional

capacity (“RFC”)1 was assessed by Dr. Burton Nault, a non-

examining physician who reviewed her medical records. Based

upon his review, Dr. Nault identified no exertional or non-

exertional limitations on Wilt’s ability to perform work-related

activities.

In February of 2013, the SSA referred Wilt to Dr. Evelyn

Harriott, a psychologist, for a consultative examination. Based

upon her examination, Dr. Harriott prepared a Mental Health

Evaluation Report on Wilt. In her report, Dr. Harriott gave

Wilt diagnoses of panic disorder without agoraphobia and major

depressive disorder, moderate. Dr. Harriott also offered the

following opinions on Wilt’s then current level of functioning:

[Ms. Wilt] was cooperative and appears able to interact appropriately with others. . . .

. . . Ms. Wilt is able to understand and remember basic and familiar locations, information and procedures. . . .

. . . Ms. Wilt is able to attend, concentrate and persist at a below average pace to complete rote and brief tasks. . . .

. . . Ms. Wilt is able to make simple decisions. She also appears able to interact appropriately, at least for brief periods, as she did in the office today. However, she is not motivated to interact with people

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

(a)(1) & 416.945(a)(1).

4 and doesn’t care about grooming herself when going out in pubic to run errands. It is unlikely that she would keep attendance and a schedule, as she is not motivated to do so and complains of constant stomach upset.

Administrative Transcript (hereinafter “Tr.”) 341-42.

In February of 2013, Wilt’s mental RFC was assessed by Dr.

John Warren, a non-examining psychologist who reviewed her

medical records. Dr. Warren indicated that Wilt had limitations

in all four areas he reported on: (1) understanding and memory;

(2) sustained concentration and persistence; (3) social

interaction; and (4) adaptation. He summarized his opinions on

Wilt’s mental RFC this way:

Claimant [is] able to understand/remember simple instructions. Unable to do so for moderately to highly complex/detailed instructions.

Claimant is able to sustain the mental demands associated with carrying out simple tasks over the course of [a] routine workday/workweek within acceptable attention, persistence, [and] pace tolerances. Unable to do so for moderately to highly complex/detailed tasks requiring sustained concentration.

Claimant is able to sustain the basic demands associated with relating adequately with supervisors/co-workers. Unable to interact appropriately with the general public.2

2 He supported his conclusions concerning Wilt’s capacity for social interaction with findings that Wilt had moderate limitations in her abilities to: (1) accept instructions and respond appropriately to criticism from supervisors; (2) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and (3) maintain socially appropriate behavior and adhere to basic standards of neatness

5 Claimant is able to adapt to routine workplace change, remain aware of environmental hazards, form basic plans/goals, [and] travel independently.

Tr. 49-50, 61-62.

After the SSA denied Wilt’s applications for benefits, she

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. The claimant has the following severe impairments: anxiety and depression (20 CFR 404.1520(c) and 416.920(c)).

. . . .

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

. . . .

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: The claimant can remember and perform simple tasks; interact superficially with coworkers and supervisors, and have rare contact with the general public; and maintain a schedule and acceptable attendance.

. . . .

and cleanliness, and with a finding that she had marked limitations in her ability to interact appropriately with the general public.

6 6. The clamant has no past relevant work (20 CFR 404.1565 and 416.965).

. . . .

10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

Tr. 12, 14, 16, 19, 20. Without relying upon the testimony of a

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

explanation, the ALJ concluded that Wilt’s nonexertional

limitations, including her limitation to superficial

interactions with coworkers and supervisors, had “little or no

effect on the occupational base of unskilled work at all

exertional levels.” Tr. 20.

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)(A)-(D). To be eligible

for supplemental security income, a person must be aged, blind,

or disabled, and must meet certain requirements pertaining to

income and assets.

(a). The question in this

case is whether Wilt was under a disability from August 31,

7 2010, through August 5, 2014, which is the date of the ALJ’s

decision.

To decide whether a claimant is disabled for the purpose of

determining eligibility for either DIB or SSI benefits, an ALJ

is required to employ a five-step process. See

(DIB) & 416.920 (SSI).

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

).

The claimant bears the burden of proving that she is

disabled. See Bowen v. Yuckert,

(1987). She

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,

[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

8 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. Wilt’s Claims

Wilt claims that the ALJ made several errors in assessing

her RFC and also erred at Step 5 in two ways, by relying upon a

faulty RFC and by failing to obtain the testimony of a

vocational expert. Even if the ALJ properly determined Wilt’s

RFC, the RFC she ascribed to Wilt required her to take testimony

from a VE. Her failure to do so necessitates a remand.

9 In a recent decision, Magistrate Judge Rich 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, as Judge Barbadoro has

recently noted, “[t]he First Circuit has cautioned that ‘an ALJ

typically should err on the side of taking vocational evidence

when a [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

Oritz,

) (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

10 limitations have little or no effect on the occupational base of

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

the record omitted).

Here, the ALJ included three non-exertional limitations in

Wilt’s RFC: (1) an ability to remember and perform only simple

tasks; (2) an ability to interact only superficially with

coworkers and supervisors; and (3) a capacity for only rare

contact with the general public. Based upon Seavey, and the

ALJ’s failure to explain or support her determination that

Wilt’s nonexertional limitations “have little or no effect on

the occupational base of unskilled work at all exertional

levels,” Tr. 20, the ALJ was free to resolve Wilt’s claim at

Step 5 without evidence from a vocational expert only if it is

self-evident that the three limitations she identified would

have a negligible effect upon a claimant’s ability to perform

the full range of unskilled jobs. The problem lies with the

limitation the ALJ found with respect to Wilt’s ability to

interact with coworkers and supervisors.3

3 It is well established that “limitations to simple work and simple instructions and [to] work not involving interaction with the public . . . [do] not . . . preclude reliance on the Grid, at least in cases in which . . . a claimant has been found capable of performing work at all exertional levels.” Gurney v. Astrue, Civ. No. 09-153-B-W,

, at *2 (D. Me. Jan. 20, 2010) (citations omitted).

11 With regard to the mental abilities necessary to perform

unskilled work, guidance from the SSA 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.

Social Security Ruling (“SSR”) 85-15,

, at *4

(S.S.A. 1985) (emphasis added).

In Parker, the court ruled that the ALJ’s failure to

acknowledge evidence that the claimant “had limitations bearing

on her ability to respond appropriately to supervision and/or

coworkers . . . undermined his reliance on the Grid” because “it

is not self-evident that [those limitations] would have had only

a negligible effect on the [claimant’s] ability to perform the

full range of work at all exertional levels.”

,

at *7 (citing Gurney v. Astrue, Civ. No. 09-153-B-W,

, at *3 (D. Me. Jan. 20, 2010)). The decision in Gurney,

on which Judge Rich relied in Parker, is both on point and

persuasive. In Gurney, when assessing the claimant’s RFC, the

ALJ identified six limitations, including a limitation to

occasional interaction with co-workers and supervisors. See

, at *1. Notwithstanding the limitations he

12 identified, the ALJ determined, without relying upon the

testimony of a VE, that the claimant was not disabled, at Step

5. In the district court, the claimant argued that the

testimony of a VE was required due to three limitations in her

RFC, including a limitation to occasional interaction with co-

workers. Id. at *3. The magistrate judge deemed it unnecessary

to consider all three of the claimant’s limitations, and

recommended a remand, because

the commissioner . . . failed to make a persuasive case that one of those limitations, the restriction to only occasional interaction with supervisors and co- workers, has no more than a negligible effect on a claimant’s ability to perform the full range of unskilled jobs.

Id.

Here, the Acting Commissioner has failed to make a

persuasive case that a limitation to superficial interaction

with supervisors and coworkers has only a negligible effect on a

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

As a preliminary matter, the court notes one difference between

the limitation in Gurney and the limitation in this case. In

Gurney the claimant was limited to “only occasional interaction

with supervisors and co-workers.”

, at *3

(emphasis added). In this case, the ALJ found that Wilt was

limited to superficial interaction with coworkers and

13 supervisors. See Tr. 16. That difference, however, cuts in

Wilt’s favor:

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

Lewis v. Astrue, No. 3:11-cv-05482-RJB-KLS,

, at

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

(Mar. 26, 2012). So too here; it is difficult to see how a

limitation to superficial interaction with coworkers and

supervisors would not have a significant impact on Wilt’s

ability to perform a full range of unskilled work.

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

obtain VE testimony, the Acting Commissioner acknowledges

Gurney, but then frames the following counterargument:

[O]nly significant limitation in supervisory interaction erodes the potential job base. SSR 85-15,

, at *4. This Court has held that a similar limitation in the RFC, “to avoid overly critical supervision,” did not substantially erode the occupational base. Beaton v. Astrue, Civ. No. 10-cv- 343-JD,

,

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

,

(1st Cir. Oct. 1, 2004).

14 Doc. No. 11-1, at 15. The Acting Commissioner’s reliance upon

Beaton and Garcia-Martinez is misplaced.

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.

, at *7. After calling it a close question,

Judge DiClerico determined that “the ALJ’s determination was . .

. minimally sufficient.”

(citations omitted). However,

while the limitation in Beaton referred to supervision and the

one in this case refers to supervisors, those two limitations

are materially distinguishable. The limitation in Beaton

described something the claimant could not tolerate, i.e.,

overly critical supervision. The limitation in this case

describes something the claimant cannot do, i.e., interact with

either supervisors or coworkers in anything other than a

superficial way. Because of the differences between the

limitation in Beaton and the limitation in this case, including

the fact that Wilt’s limitation pertains to both supervisors and

coworkers, Judge DiClerico’s decision in Beaton has no

particular bearing on the question before this court.

As for Garcia-Martinez, it is sufficient to note that while

the Acting Commissioner cites that case for the proposition that

“a limitation for no more than occasional interaction with co-

15 workers and supervisors and rare interaction with the general

public does not preclude an ALJ from relying on the Grids,” doc.

no. 11-1, at 15-16, the opinion in that case says no such thing.

In Garcia-Martinez, the claimant was limited to work that “(1)

was of a routine, repetitive nature, (2) did not involve undue

pressure, and (3) did not involve interactions with the public.”

. Because Garcia-Martinez involved no

limitation on the claimant’s ability to interact with either

supervisors or coworkers, the opinion in that case is

inapposite, and offers no useful guidance for the resolution of

this case.

Given 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 with supervisors and co-workers .

. . has no more than a negligible effect on [Wilt’s] ability to

perform the full range of unskilled jobs.” Gurney,

, at *3.

Parker, Gurney, and Lewis all counsel in favor of remand.

“To be sure, several courts have drawn the opposite conclusion

under similar facts.” Boley v. Astrue, No. 11-10896,

, at *13 (E.D. Mich. Feb. 10, 2012) (citations omitted), R

& R adopted by

(Mar. 1, 2012). But as Magistrate

16 Judge Grand points out in Boley, in most of those cases, “the

courts supported their decisions only with the regulation’s

language [i.e., language in SSR 85-15] that unskilled work

generally deals with objects rather than people.” This court

concurs with Judge Grand’s appraisal of those decisions as

unpersuasive because “[n]one [of them] addressed the specific

proposition that a limited ability to respond to supervisors

and/or co-workers ‘would severely limit the potential

occupational base.’”

(quoting SSR 85-15,

, at

*4; citing

). Moreover, as Judge Grand also

points out, even though unskilled jobs typically require those

performing them to work primarily with objects rather than

people, those jobs still require the ability to respond

appropriately to supervision and coworkers. See Boley,

, at *11. In other words, 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. In short, the holdings of Parker, Gurney,

Lewis, and Boley (along with numerous other decisions cited

therein, see

, at *12) convince this court that

the specific limitations in Wilt’s RFC required the ALJ to call

17 upon a vocational expert at Step 5, and that her failure to do

so necessitates a remand.

IV. Conclusion

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

an order affirming her decision, document no. 11, is denied, and

Wilt’s motion to reverse that decision, document no. 9, is

granted to the extent that this matter 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

October 14, 2016

cc: Penelope E. Gronbeck, Esq. Terry L. Ollila, Esq.

18