UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jackeline Castro

v. Civil No. 17-cv-399-JD Opinion No.

Acting Commissioner, Social Security Administration

O R D E R

Jackeline Castro seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of

Social Security, denying her application for disability benefits

under Title II and supplemental security income under Title XVI

of the Social Security Act. Castro moves to reverse on the

ground that the Administrative Law Judge (“ALJ”) erred in

relying on the Medical-Vocational Guidelines, 20 C.F.R. Part

404, Subpart P, Appendix 2 (“Grid”), to find that she was not

disabled. The Acting Commissioner moves to affirm.

Standard of Review

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s

factual findings as long as they are supported by substantial

evidence. § 405(g); see also Fischer v. Colvin,

(1st Cir. 2016). Substantial evidence is “more than a mere

scintilla.” Richardson v. Perales,

(1971).

When the record could support differing conclusions, the court

must uphold the ALJ’s findings “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)

(internal quotation marks omitted).

Background

Castro applied for both disability benefits under Title II

and supplemental security income under Title XVI. She claimed a

disability beginning in March of 2014 due to an ankle fracture,

left hip pain, and mental health impairments. She has a high

school education and previously worked as a group leader and an

inspector.

The joint statement of material facts indicates that Castro

had an ankle injury in May of 2014. She was treated for ankle

pain and related depression. The joint statement focuses on her

mental health issues.

2 A state agency psychologist, Jessica A. Stern, examined

Castro in November of 2014. Dr. Stern found that Castro had

some difficulties in social functioning, concentration, and task

completion. She also found that Castro would have trouble

adapting to work because of her leg problems and anhedonia

(inability to enjoy things that normally would be enjoyable).

Dr. Stern diagnosed major depressive disorder, body dysmorphic

disorder, and generalized anxiety disorder.

Laura Landerman, Ph.D., another state agency psychologist,

provided an opinion based on a review of Castro’s records in

December of 2014. Dr. Landerman found that Castro had

depressive syndrome that caused her to be moderately limited in

her ability to interact appropriately with the public and would

require a socially isolated work setting. On the other hand,

however, Dr. Landerman found that Castro was not limited in her

ability to ask questions and get assistance, accept instruction

and criticism from supervisors, and get along with co-workers

and peers. She found that despite some limitations Castro could

work within a schedule, maintain concentration for up to two

hours, and work at an acceptable pace without excessive

interruptions due to her psychological symptoms. The joint

statement indicates that Castro continued to receive counseling

and medication management through January of 2016.

3 A hearing was held before an ALJ on March 17, 2016. The

ALJ issued a decision on August 2, 2016, in which he found that

Castro was not disabled. The ALJ found that Castro had severe

impairments due to reconstructive surgery on her left foot,

affective disorder, somatoform disorder, and anxiety disorder.

Despite those impairments, the ALJ found that Castro retained

the capacity to work at the light exertional level with

limitations to occasional postural movement; to doing simple,

routine, competitive, repetitive, and non-abstract tasks; to

occasional interaction with co-workers and supervisors; and to

no interaction with the public.

Based on that residual functional capacity, the ALJ used

the Grid to determine that Castro was not disabled. The Appeals

Council denied Castro’s request for review, making the ALJ’s

decision the final decision of the Acting Commissioner.

Discussion

Castro contends that the ALJ erred in relying on the Grid

when he found that she had non-exertional limitations. In

particular, Castro contends that the limitation that she could

only interact occasionally with co-workers and supervisors

precluded the ALJ’s reliance on the Grid. The Acting

Commissioner argues that the ALJ properly relied on the Grid.

4 In determining whether a claimant is disabled for purposes

of social security benefits, the ALJ follows a five-step

sequential analysis.

The claimant bears

the burden through the first four steps of proving that her

impairments preclude her from working. Freeman v. Barnhart,

(1st Cir. 2001). At the fifth step, the Acting

Commissioner has the burden of showing that the claimant is

employable. Heggarty v. Sullivan,

(1st Cir.

1991).

An ALJ may use the Grid as a “streamlined method” to

satisfy the burden at the fifth step “[w]here a claimant’s

impairments involve only limitations in meeting the strength

requirements of work.”

. When a claimant has

nonexertional impairments, an ALJ can rely on the Grid only if

those impairments do not significantly affect the claimant’s

ability to do a full range of jobs at the designated exertional

level.

; accord Candelaria v. Barnhart,

(1st Cir. 2006). When nonexertional impairments

significantly affect the claimant’s ability to do the full range

1 For purposes of the issue raised in this case, the pertinent regulations governing disability insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at

, and therefore, the court will cite only Part 404 regulations. See Reagan v. Sec’y of Health & Human Servs.,

(1st Cir. 1989).

5 of work, the Acting Commissioner “must carry her burden of

showing the availability of jobs in the national economy by

other means” which usually requires a vocational expert.

Tavarez v. Comm’r of Social Security,

(1st Cir. 2005).

The question in this case is whether the nonexertional

restrictions significantly affected the range of light work that

Castro could do. More specifically, Castro argues that the

restriction to only occasional interaction with co-workers and

supervisors would significantly affect the range of jobs she

could do at the light exertional level. The Acting Commissioner

argues, based on the Programs Operations Manual System (“POMS”)

definition of what constitutes appropriate responses to

supervisors and co-workers, that the restriction did not cause a

significant reduction in the available jobs.

The cited provision of POMS states that among the mental

abilities needed for any job is the ability to respond

appropriately to supervision and to co-workers and, with respect

to unskilled work, “the ability to . . . accept instructions and

respond appropriately to criticism from supervisors” and “get

along with coworkers or peers without (unduly) distracting them

or exhibiting behavioral extremes.” POMS DI 25020.010(B)(2) &

(3). The Acting Commissioner relies on Dr. Landerman’s opinion

to show that Castro did not have any limitations in those

6 activities and asserts that the ALJ “clearly held” that she did

not have those limitations.

It is far from clear to what extent the ALJ’s restriction

on interaction with supervisors and co-workers would affect

Castro’s ability to do unskilled work at the light exertional

level. The ALJ did not discuss Dr. Landerman’s findings and

opinions.2 The restrictions the ALJ included in the residual

functional capacity appear to be more limited than Dr.

Landerman’s opinion suggested. The ALJ did not explain the

extent of the restriction he imposed.

In addition, the ALJ did not justify his decision to rely

on the Grid by reference to POMS or to any specific evidence in

the record. Instead, the ALJ stated only that the nonexertional

limitations “have little or no effect on the occupational base

of unskilled work.” In general, the court cannot affirm an

agency decision, including a decision of the Acting Commissioner

of Social Security, based on post hoc rationalizations that were

not part of the decision. See, e.g., Erickson v. Berryhill,

, at *10 (M.D. Pa. Feb. 14, 2018) (citing SEC v.

Chenery Corp.,

(1947)); Marcou v. Berryhill, 2017

2 The Acting Commissioner represents to the court that the ALJ gave “great weight” to Dr. Landerman’s opinion. Apparently, the Acting Commissioner relies on the ALJ’s general statement, without explanation, that great evidentiary weight was given to the opinions of the “non-examining and non-treating expert sources.”

, at *5 (D.R.I. Sept. 17, 2017); Miller v. Berryhill,

, at *8 (S.D. Ohio Mar. 16, 2017); Wright v.

Colvin,

, at *2-*3 (S.D. Ala. Aug. 1, 2016).

Another judge in this district has held that a restriction

to occasional or superficial interaction with co-workers and

supervisors precludes reliance on the Grid.3 Sherman v. Colvin,

, at *5-*9 (D.N.H. Dec. 8, 2016) (citing and

discussing cases); Wilt v. Colvin,

, at *5-*7

(D.N.H. Oct. 14, 2016) (citing and discussion cases); see also

Gurney v. Astrue,

, at *3 (D. Me. Jan. 20, 2010)

(finding restriction to occasional interaction with supervisors

and coworkers precluded use of Grid). The undersigned judge has

also found that limitations on a claimant’s ability to interact

with the public and coworkers, in the absence of an adequate

explanation, preclude reliance on the Grid. Snow v. Colvin,

, at *4 (D.N.H. Jan. 15, 2015).

Other courts are divided on the question of whether a

restriction to only occasional interaction with co-workers and

supervisors significantly affects the full range of unskilled

light work. Some courts, as in this district, have found that

the same restriction or a similar restriction precludes use of

3 The ALJ restricted Castro to occasional interaction in the residual functional capacity assessment, but he stated in his decision that Castro “can tolerate only occasional, superficial interaction with coworkers and supervisors.”

8 the Grid. See, e.g., Williams v. Colvin,

, at

*11-*12 (S.D.N.Y. May 26, 2016) (limitation to occasional

interaction with “others” precluded use of the Grid); Morgan v.

Comm’r of Social Security,

, at *2 (M.D. FL.

Sept. 4, 2015) (citing cases). On the other hand, some courts

have found that such restrictions do not substantially affect

the number of jobs available and, therefore, do not preclude use

of the Grid. See Burgard v. Berryhill,

, at *4

(W.D.N.Y. Dec. 14, 2017) (citing other cases from W.D.N.Y.);

Hernderson v. Berryhill,

, at *7-*10 (N.D. Ohio

Apr. 28, 2017); Rapport v. Comm’r of Social Security,

, at *7 (S.D.N.Y. Apr. 5, 2017); Brown v. Colvin,

, at *4-*5 (D. Conn. May 20, 2016). See also Champion v.

Colvin,

, at *8 (E.D. Tenn. Feb. 17, 2017) (noting

conflicting results in the districts of the Sixth Circuit and

declining to reach the issue).

In this case, the ALJ did not explain why the restriction

to only occasional interaction with co-workers and supervisors,

along with no interaction with the public, would not

significantly affect the range of available light unskilled

jobs. It is not apparent that those restrictions would have

little or no effect on the availability of jobs, and there was

no evidence from a vocational expert. Therefore, the Acting

9 Commissioner’s reliance on the Grid at Step Five was not

appropriate in this case.

Conclusion

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

(document no. 7) is granted. The Acting Commissioner’s motion

to affirm (document no. 8) is denied.

The case is remanded for further proceedings pursuant to

Sentence Four of § 402(g).

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

March 27, 2018

cc: Daniel W. McKenna, Esq. Terry L. Ollila, Esq.

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