UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John F. Boland

v. Civil No. 17-cv-172-LM Opinion No.

Commissioner of Social Security

O R D E R

John Boland seeks judicial review, pursuant to

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

Security Administration, denying his application for disability

insurance benefits. Boland moves to reverse the Acting

Commissioner’s decision, and the Acting Commissioner moves to

affirm. Separately, the Acting Commissioner moves to strike

Boland’s response to her surreply, and Boland moves for leave to

file his response nunc pro tunc to the Acting Commissioner’s

surreply. For the reasons discussed below, Acting

Commissioner’s motion to strike is granted, Boland’s motion for

leave to file his response is denied, and the decision of the

Acting Commissioner is reversed.

I. Boland’s Response to the Acting Commissioner’s Surreply

On January 25, 2018, Boland filed a reply to the Acting

Commissioner’s motion for an order affirming her decision. See

doc. no. 14. On January 30, 2018, the Acting Commissioner filed a surreply. See doc. no. 16. On February 7, 2018, Boland filed

a response to the Acting Commissioner’s surreply. See doc. no.

19.

On February 9, 2018, the Acting Commissioner moved to

strike Boland’s response to her surreply, arguing that the

court’s local rules do not allow a plaintiff to file a response

to a surreply. See doc. no. 20. Boland then moved for leave to

file his response to the surreply, see doc. no. 21, and filed an

objection to the Acting Commissioner’s motion to strike, see

doc. no. 22, arguing in both filings that the local rules permit

his response.

After the parties filed their motions, the court issued an

order in another social security case involving the same

attorneys and a similar dispute over the local rules. See

Palombo v. Berryhill, No. 17-cv-284-LM,

, at *1

(D.N.H. June 25, 2018). The court does not repeat that

discussion here and refers the parties to that order to the

extent they require clarification of the meaning of Local Rule

9.1, which governs social security disability cases.

The Local Rules do not permit Boland to file a response to

the Acting Commissioner’s surreply. Therefore, the government’s

motion to strike Boland’s response is granted, and Boland’s

motion for leave to file his response is denied.

2 II. Boland’s Appeal

A. 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 [Administrative Law Judge] 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.

(g); see also Fischer v.

Colvin,

(1st Cir. 2016). “Substantial evidence

is more than a scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Astralis Condo. Ass’n v. Sec’y Dep’t of Housing &

Urban Dev.,

(1st Cir. 2010).

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis.

(a)(4). The claimant “has the burden of production

and proof at the first four steps of the process.” Freeman v.

Barnhart,

(1st Cir. 2001). The first three

steps are (1) determining whether the claimant is engaged in

substantial gainful activity; (2) determining whether she has a

severe impairment; and (3) determining whether the impairment

3 meets or equals a listed impairment.

(a)(4)(i)-(iii).

At the fourth step of the sequential analysis, the ALJ

assesses the claimant’s residual functional capacity (“RFC”),

which is a determination of the most a person can do in a work

setting despite her limitations caused by impairments,

§ 404.1545(a)(1), and her past relevant work, id.

§ 404.1520(a)(4)(iv). If the claimant can perform her past

relevant work, the ALJ will find that the claimant is not

disabled. See id. § 404.1520(a)(4)(iv). If the claimant cannot

perform her past relevant work, the ALJ proceeds to Step Five,

in which the ALJ has the burden of showing that jobs exist in

the economy which the claimant can do in light of the RFC

assessment. See id. § 404.1520(a)(4)(v).

B. Background

A detailed statement of the facts can be found in the

parties’ Joint Statement of Material Facts (doc. no. 10). The

court provides a brief summary of the case here.

On April 10, 2013, Boland filed an application for

disability insurance benefits, alleging a disability onset date

of October 1, 2012, when he was 47 years old. He alleged a

disability due to wrist impairment, back impairment, sleep

4 disorder, ADD/ADHD, learning disorder, anxiety disorder, and

major depression disorder.

After Boland’s claim was denied, he requested a hearing in

front of an ALJ. On March 7, 2014, the ALJ held a hearing,

during which Boland testified and was represented by an

attorney. On May 27, 2014, the ALJ issued an unfavorable

decision. After the Appeals Council affirmed the decision,

Boland appealed to this court. On June 12, 2015, the court

granted the Acting Commissioner’s assented-to motion to remand

the case, under sentence four of

(g), for further

consideration of the opinion of consultative psychologist Dr.

Lawrence Jasper and for further consideration of the severity of

Boland’s learning difficulties.

On November 2, 2015, the ALJ held a supplemental hearing.

Boland, who was represented by an attorney at the supplemental

hearing, appeared and testified, as did his wife.

On January 22, 2016, the ALJ issued an unfavorable

decision. He found that Boland had the following severe

impairments: ADD/ADHD, learning disorder, and affective

disorder. The ALJ also found that Boland’s wrist impairment and

back impairment were not severe. He further found that Boland

had the residual functional capacity to perform medium work, as

defined in

(b), with certain limitations as

5 to his ability to follow instructions and maintain attention and

concentration.

Elizabeth C. Laflamme, an impartial vocational expert,

testified at the hearing. In response to hypotheticals posed by

the ALJ, Laflamme testified that a person with Boland’s RFC

could perform jobs that exist in significant numbers in the

national economy, including janitor, hospital cleaner, and hand

packager. Based on Laflamme’s testimony, the ALJ found at Step

Five that Boland was not disabled.

On October 28, 2016, the Appeals Council denied Boland’s

request for review, making the ALJ’s decision the Acting

Commissioner’s final decision. This action followed.

C. Discussion

Boland argues that the ALJ erred in his assessment of

Boland’s residual functional capacity by improperly evaluating

both his mental and physical limitations, which led to an

erroneous Step Five finding. He raises several specific

challenges, including that the ALJ ignored a portion of the

vocational expert’s testimony and that he either failed to

address or improperly disregarded medical evidence in the

record.

6 1. Vocational Expert’s Testimony

Boland argues that the ALJ erred in his Step Five

determination because he ignored a portion of the vocational

expert’s testimony which shows that Boland could not do any of

the three representative jobs upon which the ALJ relied. The

Acting Commissioner disputes Boland’s argument, contending that

the vocational expert’s testimony supports the ALJ’s Step Five

determination.

“In making a disability determination, the ALJ is required

to consider all of the record evidence.” Lawrence v. Apfel, No.

CIV. 99-198-JD,

, at *2 (D.N.H. June 14, 2000).

“The opinion of a vocational expert as to whether a claimant is

capable of performing work may be relied upon as substantial

evidence only if the hypothetical posed to the expert is

accurate, based on the record evidence.” Id.; see also Rose v.

Shalala,

(1st Cir. 1994); Price v. Astrue, No.

CIV.A. 11-11207-JGD,

, at *9 (D. Mass. Sept. 28,

2012) (“The opinion of a vocational expert that a Social

Security claimant can perform certain jobs qualifies as

substantial evidence at the fifth step of the analysis as long

as the opinion is in response to a hypothetical that accurately

describes the claimant's limitations.” (internal quotation marks

and citation omitted)).

7 The ALJ determined that Boland had the RFC to:

perform medium work as defined in 20 [C.F.R. §] 404.1567(b) and can handle short and simple, but not complex 1-3 step instructions; maintain attention, concentration, persistence and pace for 2-hour increments during an 8-hour workday and a 40-hour work week; work in coordination with others only if such work is a very small part of his job description[;] and can deal adequately with change in a setting that is not [a] fast-paced time, production setting.

Doc. no. 10 at 16. During the vocational expert’s testimony,

the ALJ asked her whether jobs exist in the economy that a

hypothetical individual with that RFC could perform. See Admin.

Rec. at 378-79. The vocational expert replied that an

individual with that RFC could do the job of a janitor, hospital

cleaner, and hand packer, all of which exist in significant

numbers in the national economy. The ALJ determined that the

vocational expert’s testimony was consistent with the

information contained in the DOT and found at Step Five that

Boland was not disabled.

Boland contends that the ALJ erred by ignoring the

remainder of the vocational expert’s testimony. Specifically,

Boland points to his counsel’s questioning of the vocational

expert, during which his counsel asked whether an individual

with a “general learning ability aptitude” of five would be able

to perform the job of a janitor, hospital cleaner, or hand

packer. The vocational expert responded that such an individual

8 would not be able to perform those jobs. See Admin. Rec. at

380-81.

Boland asserts that he submitted material to the ALJ that

supports the principle that IQ and general learning ability are

equivalent, such that his IQ score is equivalent to a general

learning ability aptitude of five. Specifically, Boland

submitted: (1) a section from the U.S. Department of Labor’s

General Aptitude Test Battery booklet that contains a subsection

titled “Intelligence” which defines intelligence as “General

learning ability”; (2) an extract from an article written by a

psychologist, Arthur Jensen, equating the two concepts; and (3)

a letter from a psychologist, Dr. Barbara J. McKim, stating that

generally Full-Scale I.Q. is the score that correlates best with

general learning ability.

The parties spend much of their briefing arguing over

whether and to what degree IQ is the equivalent of general

learning ability.1 The parties agree that “case law demonstrates

that there is disagreement over whether and to what degree

general learning ability and IQ are interchangeable.” Jenkins

v. Colvin, No. 1:14-CV-285-DBH,

, at *2 (D. Me.

Aug. 28, 2015).

1 The Acting Commissioner does not dispute that to the extent the two concepts are interchangeable, an IQ in the bottom 10 percent would be equivalent to a general learning ability aptitude of five.

9 As Boland notes, however, there is a more fundamental issue

in this case: the ALJ’s failure to address the evidence Boland

submitted in support of his position on the issue. At the

conclusion of the vocational expert’s testimony, the ALJ asked

Boland’s attorney whether the ALJ had the complete record.

Boland’s attorney stated that he wanted to make sure the ALJ had

the letter from Dr. McKim, as well as the other documents

referenced above, which were included as attachments with Dr.

McKim’s letter. Boland’s attorney stated that it was “a pretty

important piece of evidence” and that the equivalence of IQ

scores and general learning ability aptitude is “a pretty big

issue in the case.” Admin. Rec. at 382. The ALJ responded:

“All right, I will look at it.” Id. at 383.

A residual functional capacity assessment must be “based on

all of the relevant medical and other evidence.”

(a)(3). Evidence may include descriptions and observations

provided by persons who are not medical sources.

An ALJ must

consider all the record evidence in making his decision, including

opinions and evidence from sources who are not “acceptable medical

sources.”2 SSR 06-3p,

(Aug. 9, 2006).

2 The Commissioner rescinded SSR 06-03p effective for claims filed on or after March 27, 2017. See Rescission of Social Security Rulings 96-2p, 96-5p, and 06-3p,

, 15263 (Mar. 27, 2017). SSR 06-3p was in effect as of the date of the ALJ’s decision.

10 On the other hand, however, “while the ALJ must consider

the entire record, he is ‘not required to discuss each piece of

evidence in the record specifically.’” Sullivan v. Colvin, No.

14-13772-LTS,

, at *5 (D. Mass. Sept. 24, 2015)

(quoting Goncalves v. Astrue,

(D. Mass.

2011)); see also Santiago v. Sec’y of Health & Human Servs.,

,

, at *4 (1st Cir. Jan. 25, 1995)

(unpublished decision). Despite that rule of leniency, an ALJ

is not free to ignore relevant record evidence. Nguyen,

; Bica v. Astrue, No. 11-cv-86-JD,

, at

*7 (D.N.H. Nov. 17, 2011) (“An ALJ may not ignore relevant

evidence, particularly relevant evidence that supports the

claimant’s application.”).

It is clear from the vocational expert’s testimony that if

Boland’s IQ equates to a general learning ability aptitude of

five, he could not perform any of the jobs upon which the ALJ

based his Step Five determination. Although Boland did not

offer expert testimony on the question, he submitted documentary

evidence that he urged the ALJ to review as support for his

contention that his IQ equates to that general learning ability

aptitude. Boland’s counsel stressed the importance of both the

issue and the documentary evidence that he submitted in support

of his contention. The ALJ stated, “I will look at it.”

11 Despite this record, the ALJ’s decision does not mention

either the issue or the evidence. The court cannot discern,

therefore, whether the ALJ reviewed the documentary evidence or

considered the issue. As the issue is potentially dispositive

on the ALJ’s RFC assessment, it is worthy of mention. Thus, it

is unreasonable to conclude from the ALJ’s silence—particularly

on this unique record—that he necessarily rejected the evidence

and deemed it unworthy to address.

“‘[F]ailure of the [ALJ] . . . to provide the reviewing

court with the sufficient basis to determine that the [ALJ]

applied the correct legal standards are grounds for reversal.’”

Linehan v. Berryhill,

(D. Mass. 2017)

(quoting Weiler v. Shalala,

(D. Mass.

1996)). “The ALJ cannot reject evidence for no reason, or for

the wrong reason, and must explain the basis for his findings.

Failure to provide an adequate basis for the reviewing court to

determine whether the administrative decision is based on

substantial evidence requires a remand to the ALJ for further

explanation.” Crosby v. Heckler,

(D.

Mass. 1985); accord King v. Colvin,

(D.

Mass. 2015); see also Dumont v. Berryhill, No. 16-11502-JGD,

, at *8 (D. Mass. Dec. 22, 2017).

12 For this reason, the court is unable to determine whether

the ALJ’s decision is based on substantial evidence. Therefore,

the case must be remanded for further proceedings.

2. Remaining Issues

In light of the foregoing, the court need not address

Boland’s remaining claims of error. The ALJ may address those

issues, if necessary, upon remand.

CONCLUSION

For the foregoing reasons, the plaintiff’s motion to

reverse (doc. no. 6) is granted, and the Acting Commissioner’s

motion to affirm (doc. no. 11) is denied. The plaintiff’s

motion for leave to file a response (doc. no. 21) is denied and

the Acting Commissioner’s motion to strike (doc. no. 20) is

granted. 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

September 18, 2018

cc: Counsel of Record

13