UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jacqueline Dussault

v. Civil No. 15-cv-441-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Jacqueline Dussault appeals the Social Security

Administration’s (“SSA”) denial of her application for

disability benefits. An Administrative Law Judge (“ALJ”) found

that Dussault suffered from the following severe impairments:

diabetes, trochanteric (hip) bursitis, early osteoarthritis of

the hips, and left shoulder myofascial pain syndrome. The ALJ

also found that Dussault suffered from several non-severe

impairments: post heart attack, iritis and depression.

Employing the Medical Vocational Guidelines, 20 C.F.R. pt. 404,

subpt. P, App. 2 (“the Grid”), the ALJ ultimately found that

Dussault was not disabled within the meaning of the Social

Security Act because she has sufficient residual functional

capacity (“RFC”) to work at jobs that exist in significant

numbers in the national economy. See

(d)(2)(A).

The SSA Appeals Council subsequently denied Dussault’s request for review of the ALJ’s decision, rendering the ALJ’s decision

final. Dussault timely appealed to this court, pursuant to

(g). In due course, Dussault moved to reverse the

SSA’s decision and the SSA’s Acting Commissioner moved to affirm

the denial of benefits.

Dussault asserts a single argument – that the ALJ erred in

relying on the Grid because she improperly concluded that

Dussault’s non-exertional limitations had little or no effect on

the occupational base of sedentary unskilled work and made her

decision without input from a vocational expert.

After consideration of the parties’ arguments and the

administrative record, the court finds that the ALJ improperly

relied on the Grid to determine the effect of Dussault’s

limitations. Therefore, Dussault’s motion is granted and the

Acting Commissioner’s motion is denied.

I. Standard of Review

The court’s review of SSA’s final decision “is limited to

determining whether the ALJ used the proper legal standards and

found facts upon the proper quantum of evidence.” Ward v.

Comm’r of Soc. Sec.,

(1st Cir. 2000). The

ALJ’s decision will be upheld if it is supported by substantial

evidence, that is, “such evidence as a reasonable mind might

2 accept as adequate to support a conclusion.” Richardson v.

Perales,

(1971) (quotations omitted). This is

less evidence than a preponderance but “more than a mere

scintilla.” Id.; Consolo v. Fed. Mar. Comm’n,

(1966). The possibility of drawing two inconsistent conclusions

from the evidence does not preclude a finding of substantial

evidence. Consolo,

. Accordingly, the ALJ’s

resolution of evidentiary conflicts must be upheld if supported

by substantial evidence, even if contrary results are

supportable. Rodriguez Pagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1987). The court next turns to the

ALJ’s decision.

II. Background1

In analyzing Dussault’s benefit application, the ALJ

invoked the required five-step process. See

. First, she concluded that Dussault had not engaged in

substantial work activity after the alleged onset of her

disability on January 12, 2009. Next, the ALJ determined that

1 Thecourt recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts is incorporated by reference. See L.R. 9.1(d).

3 Dussault suffered from several severe impairments: diabetes

mellitus, trochanteric bursitis and early osteoarthritis of the

hips, and left shoulder myofascial pain syndrome. See

(c). At the third step, the ALJ concluded that

Dussault’s impairments –– either individually or collectively --

did not meet or “medically equal” one of the listed impairments

in the Social Security regulations. See

(d), 404.1525, 404.1526. The ALJ next found that

Dussault had the RFC to perform sedentary work, with the

modification that she perform postural activities only

occasionally and that she can only occasionally reach overhead

with one arm.2 See

(a) and 416.967(a).

After finding at step four that Dussault could not perform

any past relevant work, the ALJ proceeded to step five, at which

the SSA bears the burden of showing that a claimant can perform

other work that exists in the national economy. Freeman v.

Barnhart,

(1st Cir. 2001). Here, the ALJ,

considering Dussault’s age, education and work experience, using

the Grid as a framework, concluded Dussault could perform jobs

2 Ina section of her opinion entitled “Findings of fact and Conclusions of Law,” the ALJ found that Dussault can reach overhead only occasionally with her right arm, but later in the opinion, ascribed this limitation to her left arm. The court will address with discrepancy, infra.

4 which exist in the regional and national economy. Accordingly,

the ALJ found Dussault not disabled within the meaning of the

Social Security Act.

III. Analysis

As previously noted, Dussault claims that the ALJ

impermissibly relied on the Grid. Underlying this argument are

two related assertions. First, Dussault argues that the ALJ

concluded that Dussault suffered from impairments in both

shoulders, a significant non-exertional impairment that would

preclude use of the Grid and require the testimony of a

vocational expert. Next, she argues that a vocational expert is

required even if only one of her shoulders is impaired. Because

the court is persuaded by the second contention and remands on

that basis, it need not resolve the first, as that can be

addressed on remand as well. For background purposes, however,

the court first outlines the dispute as to the impairment.

As noted, supra, n.2, the dispute on whether one or both of

Dussault's shoulders is impaired stems from certain

contradictory entries in the ALJ's opinion. Under finding of

fact no. 3, only the left shoulder is implicated.3 Yet in

3 Admin. R. at 16.

5 finding no. 5, the ALJ includes only a limitation to Dussault’s

right shoulder.3 Finally, in addressing Dussault’s symptoms, the

ALJ observed that Dr. Nault, a state agency medical consultant,

noted an impairment in Dussault’s right shoulder, but discounted

it because Dussault only alleged left shoulder pain. The ALJ

then concluded her discussion with the following: “The records

confirm that the claimant was diagnosed with left shoulder

impairment, rather than right. As such, the undersigned finds

that her left shoulder is limited to only occasional reaching.”5

Ultimately, after finding that such an impairment “would have

little or no effect” on the range of available sedentary work,

the ALJ found Dussault not disabled.6 For purposes of the

court's analysis, the court proceeds in accordance with the

ALJ's final indication, that is, that Dussault's impairment was

limited to her left shoulder.

At issue here is the ALJ's use of the Grid after concluding

that Dussault has the residual functional capacity to perform

sedentary work but only occasionally reach overhead with her

3 Admin. R. at 18. 5 Admin. R. at 20. 6 Admin. R. at 21.

6 left shoulder.7 Dussault argues that this limitation (a “non-

exertional impairment”) substantially erodes the otherwise

applicable occupational base of unskilled sedentary work, and

that use of the Grid was therefore inappropriate. In addressing

the Grid, the Court of Appeals has noted:

The Grid is designed to enable the Secretary to satisfy [her] burden [at step 5] in a “streamlined” fashion without resorting to the live testimony of vocational experts. Yet the Grid is predicated on an individual’s having an impairment which manifests itself by limitations in meeting the strength requirements of jobs. Accordingly, where a claimant has one or more non-strength limitations, the Guidelines do not accurately reflect what jobs would or would not be available. In cases where a nonexertional impairment significantly affects claimant’s ability to perform the full range of jobs he is otherwise exertionally capable of performing, the Secretary must carry [her] burden of proving the availability of jobs in the national economy by other means, typically through the use of a vocational expert. On the other hand, should a nonexertional limitation be found to impose no significant restriction on the range of work a claimant is exertionally able to perform, reliance on the Grid remains appropriate.

Ortiz v. Secretary of Health & Human Services,

(1st Cir. 1989) (citations, internal punctuation, and footnote

omitted). Similarly, “[t]he use of the grid is permissible only

if a claimant’s nonexertional limitations do not impose

significant restrictions on the range of work that the claimant

7 Admin. R. at 20.

7 is exertionally able to perform.” Candelaria v. Barnhart,

(1st Cir. 2006). Where a nonexertional

impairment “significantly affect[s] a claimant’s capacity to

perform the full range of jobs she is otherwise exertionally

capable of performing, the Commissioner must carry her burden of

proving the availability of jobs in the national economy by

other means, typically through the use of a vocational expert.”

(citations and internal punctuation omitted). See also,

Seavey v. Barnhart,

(1st Cir. 2001) (“[A]lthough 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.”) (citation and internal punctuation omitted).

The Acting Commissioner argues that Dussault’s impairment

lacks sufficient significance to foreclose use of the Grid.

She cites Falcon-Cartegena v. Comm’r of Soc. Sec,

(1st Cir. 2001), for its finding that a limitation of “no

constant overhead reaching” with one arm had “only marginal”

effect on the relevant occupation base. But the fact that that

limitation had only marginal effect does not necessarily mean

that a restriction allowing for only occasional overhead

reaching is similarly marginal. According to the Dictionary of

Occupational Titles, there are three relevant levels of

8 activity: 1) “occasional” activity, which is activity that

exists up to one-third of the time in an occupation; 2)

“frequent,” activity, which occurs between one-third and two-

thirds of the time; and 3) “constant” activity, which is

activity that exists two-thirds or more of the time in an

occupation. 2 Dictionary of Occupational Titles app. C, at 1013

(4th ed. 1991). See also, Gilbert v. Astrue, Civ. No. 06-99-B-W,

(D. Me. Mar. 27, 2007), report and recommendation

adopted, Civ. No. 06-99-B-W,

(D. Me. Apr. 30,

2007) (observing that the DOT makes a distinction between

“constant” and “frequent” activity, defining “frequent” as “from

1/3 to 2/3 of the time.”)

Applying these definitions, it is possible that one who can

engage in no constant (more than two-thirds of the time)

overhead reaching with one arm, such as the claimant in Falcon-

Cartegena, is still capable of doing so “frequently” (between

one-third and two-thirds of the time). By contrast, Dussault’s

RFC limits her to only reaching occasionally, that is, up to

one-third of the time, which necessarily precludes the

“frequent” reaching that was permissible for the Falcon-

Cartegena claimant. It follows, therefore, that the “marginal

effect” finding in Falcon-Cartegena is inapposite here. See

Saiz v. Barnhart,

(10th Cir. 2004) (rejecting

9 use of the grids in light of claimant’s reaching limitation);

Quimby v. Astrue, No. 07-128-B-W,

, (D. Me. Mar.

5, 2008) (finding that ALJ’s use of the Grid was “clearly

inconsistent” with limitation of no frequent overhead work).

The ALJ’s assessment of a limitation on Dussault’s reaching

in conjunction with a sedentary RFC is not a minor issue. A

sedentary RFC already “represents a significantly restricted

range of work.” Social Security Ruling (SSR) 96–9p,

, at *3. Reaching is “required in almost all jobs” and a

limitation in this regard “may eliminate a large number of

occupations a person could otherwise do.” SSR (Program Policy

Statement) 85–15,

, at *7; see Butler v. Barnhart,

, 1000–01 (D.C. Cir. 2004) (citing SSR 85–15 for

significance of reaching limitation in sedentary context and

reversing ALJ decision that failed to properly account for

evidence of such limitation).

Given the legal significance of Dussault’s impairment, and

the lack of any explanation from the ALJ, the court finds that

the Acting Commissioner has failed to meet her burden at Step 5

of the analysis. The court therefore vacates the ALJ’s decision

and remands this case for further proceedings consistent with

this order. Any further proceedings must clear up whether one

or both of Dussault’s shoulders is implicated, and must use a

10 vocational expert to assess the impact of this limitation on the

occupational base of unskilled sedentary work.

IV. Conclusion

The claimant’s motion to reverse the decision of the acting

commissioner8 is granted. The Acting Commissioner’s motion to

affirm9 is denied.

SO ORDERED.

_ /s/ Joseph N. Laplante _ Joseph N. Laplante United States District Judge

February 16, 2017

cc: Karen B. Fitzmaurice, Esq. Penelope E. Gronbeck, Esq. T. David Plourde, Esq.

8 Doc. No. 9. 9 Doc. No. 10.

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