UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary Moore

Case No. 16-cv-365-PB Opinion No.

US Social Security Administration, Acting Commissioner, Nancy A. Berryhill

MEMORANDUM AND ORDER

Mary Moore challenges the Social Security Administration’s

decision to deny her claim for supplemental security income

(SSI) benefits. She argues, among other things, that the

Administrative Law Judge (“ALJ”) improperly determined that she

had the lifting capacity required for light work. The Acting

Commissioner moves for an order affirming the ALJ’s decision.

I. BACKGROUND

In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts (Doc. No. 12).

Because that joint statement is part of the court’s record, I do

not recount it here. I discuss facts relevant to the

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

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. See

(g). That review is limited,

however, “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). I defer to the 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

Cir. 1999) (per curiam). The ALJ is responsible for determining

issues of credibility and for drawing inferences from evidence

2 in the record. Irlanda Ortiz,

. It is the role

of the ALJ, not the court, to resolve conflicts in the evidence.

But the ALJ’s decision must enable the reviewing court to

determine whether the ALJ engaged with conflicts, rather than

failing to consider them. See Dube v. Astrue,

(D.N.H. 2011); Lord v. Apfel,

, 13–14

(D.N.H. 2000); see also Garfield v. Schweiker,

(7th Cir. 1984).

III. ANALYSIS

Moore is a fifty-five-year-old woman with a scattered work

history who alleges disability as of November 15, 2007. See Tr.

at 322; Doc. No. 12 at 1 n.1. She alleges disabling impairments

of fibromyalgia, lupus, lobectomy, degenerative joint disease,

vertigo, chronic obstructive pulmonary disease, vocal cord

dysfunction, panic disorder, anxiety disorder, and post-

traumatic stress disorder. She alleges that these impairments

impose both exertional and non-exertional limitations on her

ability to work. The ALJ found that Moore was not disabled

because she could perform the light work job of price marker.

On appeal, Moore argues that the ALJ improperly determined

that she had the lifting capacity required for light work even

though no medical opinion supported that determination. In

response, the Acting Commissioner argues that Moore waived her

3 challenge by not raising it before the ALJ and, in the

alternative, the ALJ reasonably interpreted the medical opinion

evidence to arrive at his lifting-capacity determination.

I begin by explaining why Moore has not waived her

challenge. Turning to the merits, I conclude that the ALJ did

not support his determination with substantial evidence because

he misstated a critical finding and failed to adequately address

conflicts in the evidence.

A. Waiver

The Acting Commissioner argues that Moore waived her

challenge to the lifting determination because she “did not

raise it before the ALJ.” See Doc. No. 11–1 at 5. Because

Moore’s lifting restriction was presented to the ALJ, a

subsequent remand hearing was limited to a different issue, and

she squarely raised her argument in this court, I do not find

waiver.

1. Procedural History

There were two hearings before the ALJ. In the first,

Moore testified that “her symptoms greatly restrict her ability

to . . . lift . . . .” Tr. at 70 (ALJ’s characterization of

testimony). She explained, “I can’t lift — sometimes I can’t

lift my grandchildren.” Tr. at 153. She further explained,

“[t]he most I can do for physical activity right now is to

basically do like leg lifts and that’s really hard to do.” Tr.

4 at 156. She testified that she had difficulty holding even very

light items like dustpans and knives, and could not pursue

favorite activities such as knitting and painting due to pain or

shaking hands. See Tr. at 157–59. In addition, Moore’s

attorney highlighted therapist Benjamin Otis’ functional

capacity assessment, which found significant lifting

restrictions. Her attorney cited the corresponding exhibit and

stated, “[s]o, I mean, that’s in evidence, so I really don’t

have to go through that.” Tr. at 166. Her attorney also

specifically asked the vocational expert about the impact of a

lifting restriction on her ability to transition to the jobs

identified, including price marker, inquiring whether, “if she

were unable to lift two pounds on a frequent basis, would that

eliminate being able to perform any of those positions?” Tr. at

172–73. The expert answered that the restriction would indeed

eliminate those jobs. Tr. at 173.

Soon after the hearing, the ALJ issued a decision

concluding, at step five of the sequential process for

evaluating disability claims, that Moore was not disabled

because she could perform available light work jobs. See 42

U.S.C. § 1382c(a)(3)(A); 20 C.F.R. 416.920. In assessing her

residual functional capacity (“RFC”), the ALJ did not recognize

a lifting restriction. Moore appealed to the Appeals Council,

which vacated the ALJ’s decision. The Appeals Council remanded

5 for a new hearing to specifically address a discrepancy in

testimony by the vocational expert, who had failed to explain

his conclusion that Moore could perform light work jobs that

generally require standing/walking for six hours despite Moore’s

restriction to four hours. Tr. at 207. The Appeals Council

remanded the case to resolve this discrepancy and directed the

ALJ to ask the vocational expert particular questions about it.

Tr. at 207–08. The Appeals Council did not opine on other

aspects of the ALJ’s decision. See Tr. at 207–08.

The remand hearing lasted only eighteen minutes, and Moore

did not attend. See Tr. at 124, 134. At the hearing, the ALJ

explained that the Appeals Council remanded the case to resolve

the discrepancy in the vocational expert’s testimony pertaining

to the standing/walking restriction and stated, “[s]o, at this

point, we will be going to the [vocational expert].” Tr. at

124–25. After briefly discussing new evidence submitted after

the first hearing, the ALJ called the expert and began asking

questions within the scope of the remand. Tr. at 128–31. The

ALJ concluded his questioning with a hypothetical concerning

jobs available to someone restricted to sedentary work. Tr. at

131. The ALJ then stated, “Counsel, your claimant would Grid

out under the [sedentary] hypothetical. Do you have any

questions for the vocational expert, sir?” Tr. at 131. Moore’s

attorney highlighted that “it’s a short hearing,” Tr. at 131,

6 and asked questions essentially within the scope of remand. See

Tr. at 131–33.

Soon after the hearing, the ALJ issued a new decision that

again concluded that Moore was not disabled. Tr. at 77. As a

preliminary matter, the ALJ found that Moore constructively

waived her right to appear at the remand hearing because traffic

and incorrect directions do not amount to “good cause.” Tr. at

64–65. Turning to the merits, the ALJ explained that “the sole

basis for the remand related to the handling of the vocational

expert’s testimony” at step five,” and “[t]he Appeals Council

did not identify any issues with the analysis at steps one, two,

three, and four of the sequential evaluation or with the

analysis and formulation of [Moore’s] residual functional

capacity.” Tr. at 66. Accordingly, the ALJ explained that the

new decision “restates much of the previous analysis.” Tr. at

66. For example, in explaining why Moore could perform light

work, the ALJ quoted pages of analysis from the first decision.

Tr. at 70–74. The ALJ concluded that Moore could perform the

light work position of price marker. See Tr. at 76–77; Dep’t of

Labor, Dictionary of Occupational Titles 209.587-034,

(4th ed. 1991) [hereinafter DOT 209.587-034]. The

Appeals Council affirmed.

Moore appealed to this court. She argues on appeal that

the ALJ did not adequately explain his decision and his

7 assessment of her lifting capacity was not based on substantial

evidence. See Doc. No. 8-1 at 5–7. She explains that no

medical opinion, including the opinion of therapist Otis relied

upon by the ALJ, found a lifting capacity compatible with light

work. In response, the Acting Commissioner argues that Moore

has waived this argument because she “neglected to raise any

concerns about the ALJ’s interpretation of therapist Otis’s

report in the pre-remand decision, which is unchanged in the

decision presently before the Court.” Doc. No. 11–1 at 5–6

(internal citation omitted).

2. Waiver

I conclude that Moore did not waive her challenge. Social

Security proceedings are governed by an informal, inquisitorial

model in which the ALJ has a “duty to investigate the facts and

develop the arguments” on each side. See Sims v. Apfel,

, 110–11 (2000). Moore’s lifting capacity was placed

squarely at issue during the original, full hearing before the

ALJ. She explicitly told the ALJ about significant restrictions

on her lifting capacity and gave supporting examples. In

addition, her attorney drew the ALJ’s attention to therapist

Otis’ RFC assessment, which likewise found significant lifting

restrictions. Moore’s attorney also posed a hypothetical to the

vocational expert concerning the prohibitive effect that a

frequent-lifting restriction would have on her ability to

8 perform light work jobs. In these ways, the lifting restriction

was squarely placed at issue during the first hearing.

Moore did not waive challenges to the ALJ’s subsequent

decision by not presenting them during the limited hearing on

remand from the Appeals Council. Cf. Sims, 530 U.S. at 110–14

(holding that judicial review did not require issue exhaustion

before the Appeals Council). See generally Jon C. Dubin,

Torquemada Meets Kafka: The Misapplication of the Issue

Exhaustion Doctrine to Inquisitorial Administrative Proceedings,

, 1341–42 (1997) (describing imperfect fit

between issue-exhaustion requirement and inquisitorial Social

Security proceedings). First, Moore herself did not attend the

remand hearing, and the ALJ denied her the opportunity to appear

at a new hearing. Even if she constructively waived her right

to appear, she did not also thereby waive her challenges to the

ALJ’s decision. Second, the Appeals Council remanded on a

different issue, and the eighteen-minute remand hearing was

limited to that specific, granular concern. Tr. at 66 (noting

that “the sole basis for the remand related to the handling of

the vocational expert’s testimony”), 64 (noting that the ALJ

“proceeded with the hearing in order to take vocational expert

testimony”). Finally, because the ALJ posed a sedentary-work

hypothetical to the vocational expert on remand, Moore lacked

notice that the ALJ would reach the same RFC assessment as

9 before. Cf. Mills v. Apfel,

(1st Cir. 2001)

(finding waiver where ALJ stopped questioning vocational expert

at step four, but claimant failed to alert ALJ that step-five

inquiry was necessary due to her sporadic work history). For

these reasons, Moore did not waive her challenge to the ALJ’s

lifting capacity determination.

My conclusion respects the administrative process. The ALJ

had a duty to investigate the facts and support his decision

with substantial evidence. At the full hearing, Moore and her

attorney played their role. After the ALJ issued an unfavorable

decision, Moore did not waive all challenges to it by not

raising them at the limited remand hearing. Indeed, a contrary

result might effectively expand all remand hearings to address

all potential concerns with the ALJ’s original decision, even

where that decision was vacated on a narrow and separate issue,

the outcome might change, and the claimant sought further

Appeals Council review. Finally, my conclusion does not reflect

a general rule against waiver, but is instead limited to the

facts before me. In light of these considerations, I decline to

find that Moore waived her right to challenge the ALJ’s

assessment of her lifting capacity.

B. Lifting-Capacity Determination

Turning to the merits, Moore argues that the ALJ lacked

substantial evidence for his lifting-capacity determination

10 because it is unsupported by any medical opinion in the record

and largely unexplained. In response, the Acting Commissioner

argues that the ALJ reasonably interpreted conflicts in the

opinion evidence. For the following reasons, I conclude that

the ALJ failed to adequately explain his lifting-capacity

determination and support it with substantial evidence.

The only medical evidence discussed by the ALJ that

functionally assesses Moore’s lifting capacity was pronounced by

therapist Otis. Otis’ report states that from “Waist to Floor”

Moore could lift 18 pounds rarely, 16 pounds occasionally, and 2

pounds frequently. Tr. at 1360. From “Waist To Crown

(Handles),” Moore could lift 12 pounds rarely, 8 pounds

occasionally, and 2 pounds frequently. Tr. at 1360. From

“Waist To Crown (Preferred),” Moore could lift 18 pounds rarely,

14 pounds occasionally, and 3 pounds frequently. Tr. at 1360.

Moore could “Front Carry” 25 pounds rarely, 18 pounds

occasionally, and 3 pounds frequently. Tr. at 1360.1 Otis also

evaluated a variety of other functional capacities. A line in

his evaluation summarily states, “US Department of Labor

Physical Demand Level Light.” Tr. at 1359. The ALJ gave Otis’

1 The transcript contains a poor visual reproduction of the number reflecting Otis’ finding for front-carrying on a frequent basis. See Tr. at 1360. The parties jointly read the number as a “three,” Doc. No. 12 at 6–7, but the ALJ at one point reads it as a “five,” see Tr. at 71. That difference is immaterial to the disposition of this appeal. 11 opinion “significant” weight and vaguely stated that it

“provides support for” his own RFC assessment. Tr. at 73.

The ALJ concluded that Moore could perform light work. See

Tr. at 69. “Light work involves lifting no more than 20 pounds

at a time with frequent lifting or carrying of objects weighing

up to 10 pounds.”

(b). The ALJ did not find

additional lifting restrictions. A vocational expert testified

that someone with that functional capacity could perform the

light work job of price marker, which involves “[e]xerting up to

20 pounds of force occasionally . . . and/or up to 10 pounds of

force frequently.” DOT 209.587-034. Because there were a

sufficient number of price marker positions available to Moore,

the ALJ concluded that she was not disabled.2

The ALJ’s lifting-capacity determination is flawed. The

ALJ implicitly determined that Moore could lift 10 pounds

frequently. See Tr. at 69; § 416.967(b). The ALJ apparently

relied on Otis’ RFC assessment, stating that Otis “opined [to]

an ability to lift . . . approximately eighteen pounds

frequently.” Tr. at 73. But this is simply incorrect. In

reality, Otis opined that Moore could frequently lift only three

2 Although the vocational expert testified on remand that the number of price-marker positions available to Moore was reduced by 75% due to her standing/walking restriction, the ALJ concluded that the number remaining was sufficient. See Tr. at 77. 12 pounds. Tr. at 1360. Because light work entails “frequent

lifting or carrying of objects weighing up to 10 pounds,” §

416.967(b), the ALJ’s misstatement is material and not harmless.

See Wooldridge v. Bowen,

(4th Cir. 1987)

(recognizing reversible error where ALJ concluded that claimant

could perform light work even though she could lift no “more

than 20 pounds at a time with occasional lifting or carrying of

10 pounds” (quoting ALJ)). If the ALJ had determined instead

that Moore had a three-pound restriction that limits her to

sedentary work, she would be disabled under the Medical-

Vocational Guidelines. See Tr. at 131 (ALJ stating that Moore

“would Grid out under the [sedentary] hypothetical”);

(d); Pt. 404, Subpt. P, App. 2, Rule 201.09.

Moreover, the ALJ may well have discovered that Moore cannot

transition to the light work job of price marker. See Tr. at

172–73 (vocational expert answering that hypothetical inability

to lift “two pounds on a frequent basis” would eliminate price

marker position); see also §§ 416.912(f) (2015) (since amended)

(providing that Social Security Administration “must provide

evidence about the existence of work in the national economy

that [the claimant] can do”), 416.920(g), 416.960(c). With a

greater lifting restriction, Moore may be simply unable to

perform that job, see Tr. at 172–73, or it may not be available

in sufficient numbers in the economy when accounting for the

13 lifting restriction, cf. Tr. at 128–31 (finding that restriction

to four hours standing/walking decreased by 75% the number of

available price marker positions, which generally require six

hours). These considerations undermine the ALJ’s conclusion

that Moore is not disabled.

The Acting Commissioner does not address the ALJ’s

misstatement. Instead, the Acting Commissioner argues that the

ALJ could have relied on an entirely different assessment, by

state reviewing physician Jonathan Jaffe, finding that Moore

could frequently lift 10 pounds. This argument is a nonstarter.

The ALJ did not discuss Dr. Jaffe’s RFC assessments, let alone

give them weight.3 See

(e)(2)(ii) (2015)

(amended 2017); SSR 96-6p,

, at *2, 4 (July 2,

1996) (requiring that ALJ address and explain weight given to

state agency physician’s opinion). The ALJ certainly did not

explain that he was adopting only this discrete finding by Dr.

Jaffe, which was based only on a medical record review, over the

3 The ALJ alludes to Dr. Jaffe’s opinion only through an oblique reference to “the State agency medical and psychological consultants.” Tr. at 74. The ALJ states in a perfunctory way that while their opinions differ from the ALJ’s, “they deviate only slightly,” and unspecified “[h]earing level evidence supports the deviations.” Tr. at 74. Moreover, Dr. Jaffe’s opinion contains its own discrepancy. Dr. Jaffe found that Moore could lift only 10 pounds occasionally, Tr. at 180, which falls short of the light work ability ultimately found by the state agency. See Tr. at 185;

(b). Since the ALJ does not discuss Dr. Jaffe’s functional assessments, he neither acknowledges nor attempts to resolve that discrepancy. 14 finding from Otis’ more recent in-person examination. See §

416.927(c)(1) (explaining that opinion by examining source is

generally entitled to greater weight than one by non-examining

source). For these reasons, the ALJ did not use Dr. Jaffe’s

finding to support the lifting-capacity determination.

The Acting Commissioner next argues that the ALJ reasonably

interpreted Otis’ opinion to arrive at the lifting-capacity

determination. This argument also fails. The ALJ sought to

reconcile a different discrepancy: between the maximum lifting

required for light work and therapist Otis’ finding that Moore

could only occasionally lift 18 pounds. See Tr. at 71 n.2. The

ALJ apparently determined that Moore could perform the maximum

lifting required for light work based on Otis’ finding that she

could occasionally lift 18 pounds and rarely lift 25 pounds.

Although the ALJ does not explain his reasoning, it is

apparently grounded in the diverging definitions of

“occasionally” used by the Social Security regulation and

therapist Otis. Whereas SSR 83-10 defines “occasionally” to

mean “from very little up to one-third of the time,” SSR 83-10,

, at *5 (January 1, 1983), therapist Otis defined

it to mean from six percent to one-third of the time, with

anything less labeled “rarely.” See Tr. at 1360. The ALJ

apparently concluded that Moore’s ability to “rarely” lift

15 twenty-five pounds satisfied the maximum exertion requirement of

light work.

I need not resolve this issue.4 The ALJ purported to

explain why Moore has the capacity for the “occasional” or

maximum lifting required for light work. The ALJ did not,

however, explain why Moore has the capacity for “frequent”

lifting required for light work. Instead, the ALJ relied on

therapist Otis’ assessment — which found a three-pound frequent-

lifting capacity that falls short of the ten pounds required for

light work — but misstated Otis’ frequent-lifting determination

as reflecting an eighteen-pound capacity. The conflict in the

evidence went unacknowledged and unaddressed.

In this context, the ALJ’s perfunctory mention that Otis’

report states “Department of Labor Physical Demand Level Light”

4 I also need not address potential differences in the various definitions of light work. See

(“Light work involves lifting no more than 20 pounds at a time . . . .”); Doc. No. 8–1 at 5 (Moore’s interpretation of section 416.967 as imposing a 20-pound occasional-lifting requirement);

(stating, under elaboration of sedentary work, that “‘Occasionally’ means occurring from very little up to one-third of the time”); DOT 209.587-34 (stating that the light work required for price marker job involves “[e]xerting up to 20 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or up to 10 pounds of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time)” (emphasis added)); Doc. No. 11–1 at 6 n.2 (Acting Commissioner’s interpretation of Dictionary of Occupational Title’s “and/or” language as “and”); Tr. at 71, 1359 (unexplained “Department of Labor Physical Demand Level Light” standard). 16 does not amount to substantial evidence. See Tr. at 71, 1359.

Neither Otis, the ALJ, nor the Acting Commissioner provide

substantive content to this vague descriptor or provide a legal

citation. Nor do they explain why that vague and perfunctory

statement controls over Otis’ particularized functional

findings. Nor do they compare it to the Social Security

regulations, administrative guidance, or the requirements of a

price marker job. Cf. Salinas v. Sullivan, No. 91-C-2450,

, at *2 (N.D. Ill. Mar. 9, 1992). These failures are

compounded by the ALJ’s misstatement of Otis’ frequent-lifting

finding by a factor of six when according Otis’ opinion

significant weight and using it to fashion the RFC assessment.

For these reasons, I cannot meaningfully evaluate whether the

ALJ supportably resolved material conflicts in the evidence, or

instead ignored them. See Dube,

; Lord,

114 F. Supp. 2d at 13–14; Garfield,

. I conclude

that the ALJ did not adequately explain the lifting-capacity

determination and support it with substantial evidence.

IV. CONCLUSION

Pursuant to sentence four of

(g), I grant

Moore’s motion to reverse the decision of the Acting

Commissioner (Doc. No. 8) and deny the Acting Commissioner’s

motion to affirm the decision (Doc. No. 11). I remand the case

17 to the Social Security Administration for further proceedings

consistent with this order.

SO ORDERED.

/s/ Paul Barbadoro__________ Paul Barbadoro United States District Judge

May 25, 2017

cc: Laurie Smith Young, Esq. Robert J. Rabuck, Esq. Terry L. Ollila, Esq.

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