UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Crystal Fall

v. Civil No. 18-cv-281-JL Opinion No.

U.S. Social Security Administration, Commissioner

ORDER ON APPEAL

Crystal Fall has appealed the Social Security

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

of disability, disability insurance benefits, and supplemental

security income. An administrative law judge (“ALJ”) at the SSA

ruled that, despite severe impairments, Fall retains the

residual functional capacity (“RFC”) to perform past relevant

work and jobs that exist in significant numbers in the national

economy, and thus is not disabled. See

(a),

416.905(a). The Appeals Council later denied Fall’s request for

review, see

§§ 404.967, 416.1467, making the ALJ’s ruling

the final decision on Fall’s application, see id. §§ 404.981,

416.1481. Fall then appealed the decision to this court, which

has jurisdiction under

(g) (Social Security).

Fall has moved to reverse the decision. See LR 9.1(b).

The Commissioner of the SSA has cross-moved for an order

affirming the ALJ’s decision. See LR 9.1(c). After careful consideration, the court grants Fall’s motion and denies the

Commissioner’s motion.

Applicable legal standard

The court limits its review of a final decision of the SSA

“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). It

“review[s] questions of law de novo, but defer[s] to the

Commissioner’s findings of fact, so long as they are supported

by substantial evidence,”

that is, “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion,” Richardson v. Perales,

(1971)

(quotations omitted). Though the evidence in the record may

support multiple conclusions, the court will still 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). The court therefore

“must uphold a denial of social security . . . benefits unless

‘the [Commissioner] has committed a legal or factual error in

evaluating a particular claim.’” Manso-Pizarro v. Sec'y of

Health and Human Servs.,

(1st Cir. 1996) (per

curiam) (quoting Sullivan v. Hudson,

(1989)).

2 Background

The court recounts here only those facts relevant to the

instant appeal. The parties’ more complete recitation in their

Joint Statement of Material Facts1 is incorporated by reference.

The ALJ invoked the requisite five-step sequential evaluation

process to assess Fall’s request for a period of disability,

disability insurance benefits, and supplemental security income.

See

, 416.920. After determining at the

first step that Fall had not engaged in substantial gainful

activity after the alleged onset of her disability, the ALJ

analyzed the severity of her impairments.2 At this second step,

the ALJ found that Fall had several severe impairments: a left

knee internal derangement, degenerative disc disease, obesity,

and asthma.3

At the third step, the ALJ found that Fall’s severe

impairments, individually and in combination, did not meet or

“medically equal” the severity of one of the impairments listed

in the Social Security regulations.4 See

(d), 404.1525, 404.1526, 416.920(d), 416.925,

1 Document no. 9. 2 Admin. R. at 14. 3

4

3 416.926. After reviewing the medical evidence of record,

medical opinions, and Fall’s own statements, the ALJ concluded

that Fall retained the RFC to perform light work, see

(b), 416.967(b), with additional limitations:

[S]he could stand or walk for two hours in an eight- hour day; and she requires the option to alternate between sitting and standing at forty-five-minute intervals allowing the individual the opportunity to remain in the new position for five minutes before returning to the previous position. She can climb ramps and stairs no more than ten percent of the workday, but never climb ladders; occasionally balance or stoop, but never kneel, crouch, or crawl; occasionally operate foot controls with the left lower extremity; and occasionally reach overhead bilaterally. She can have no exposure to extreme cold or extreme heat; no exposure to vibration; exposure to wetness, humidity, and pulmonary irritants is limited to what is found in a typical office or retail environment; no exposure to unprotected heights; and may not operate dangerous moving machinery.5

At steps 4 and 5, the ALJ found that, even limited in this

manner, Fall was able to perform her past relevant work as a

customer service representative or, as an alternative finding,

jobs that exist in significant numbers in the national economy. 6

See

, 404.1566, 416.965, 416.966. The ALJ

thus concluded his analysis and found that Fall was not disabled

within the meaning of the Social Security Act.7

5 Admin. R. at 15. 6 Admin. R. at 22-24. 7 Admin. R. at 24.

4 Analysis

Fall argues that the ALJ erred by: (1) improperly weighing

the medical opinion evidence in the record; (2) improperly

evaluating Fall’s testimony; and (3) relying on the testimony of

the vocational expert despite failing to incorporate into all of

the non-exertional limitations from his RFC findings into his

hypothetical questions to the expert. Fall’s third argument

raises an issue which requires remand, so the court does not

reach her first two arguments.8

Fall argues that the ALJ’s step 4 and alternative step 5

determinations are not supported by substantial evidence because

the ALJ did not elicit testimony from the vocational expert

about certain non-exertional limitations included in his RFC

findings. The ALJ posed four hypotheticals of increasing

limitation to the vocational expert, none of which entirely

matched the ultimate RFC.9 The vocational expert testified that

Fall would be able to perform her past relevant work as a

customer service representative under the first three

hypotheticals.10 Under the fourth hypothetical, which introduced

8 On the court’s limited review of these issues, substantial evidence appears to exist in the record to support the ALJ’s evaluation of medical evidence and testimony. 9 Admin. R. at 104-08. 10

5 a limitation to performing simple, routine tasks, the expert

testified that Fall would not be able to perform that past

position, but identified three occupations available in

significant numbers in the national economy which Fall could

still perform.11

The ALJ acknowledged in his decision that “the vocational

expert was not given a hypothetical exactly matching the

residual functional capacity” ultimately adopted, but

nevertheless found that the claimant could perform past relevant

work as a customer service representative.12 He reasoned that

the only hypothetical limitation which led the expert to exclude

that customer service position was a limitation to simple tasks,

which the ALJ did not include in the RFC.13 The ALJ also found,

in the alternative and relying on the vocational expert’s

response to the fourth hypothetical, that the claimant would be

able to perform jobs that exist in significant numbers in the

national economy.

One of the ways in which the RFC varied from the

hypotheticals presented to the expert is that the ALJ included

in the RFC a limitation to “occasionally reach overhead

11

12 Admin. R. at 22. 13 Admin. R. at 22-23.

6 bilaterally.”14 The claimant argues, and the Commissioner

concedes, that the Selected Characteristics of Occupations

entries for the Fall’s past position as a customer service

representative and the three occupations identified in the

alternative finding indicate frequent reaching. The

Commissioner argues that this is not problematic because the

record indicates the ALJ made a scrivener’s error in including

an occasional, rather than frequent, reaching limitation in the

RFC. The ALJ gave the opinion of Dr. Fuchs, the agency’s

medical expert, great weight. 15 Dr. Fuchs’s opinion, which was

provided after the vocational expert testified, included a

limitation to frequent overhead reaching.16 The Commissioner

contends that the ALJ intended to adopt this limitation, and

accidentally substituted “occasionally” for “frequently” in the

RFC.

But the ALJ explicitly noted that the RFC “does not

perfectly mirror the opinion of Dr. Fuchs and does in fact

include some additional limitations based on the claimant’s

reports, including a lesser ability to stand and walk and an

14 Admin. R. at 15 15 Admin. R. at 19. 16

7 allowance to alternate positions.”17 In addition to these

differences and overhead reaching, the RFC recognizes greater

limitations than Dr. Fuchs’s opinion on exposure to extreme heat

or cold and Fall’s ability to kneel, crouch, or crawl. The ALJ

thus deviated from Dr. Fuchs’s opinion without explicitly

listing all the deviations. Notably, all these deviations

recognized greater limitations than Dr. Fuchs’s opinion.

The Commissioner points to the ALJ’s discussion of treating

physician Dr. Tran’s medical opinion as evidence that the ALJ

did not intend to adopt an occasional reaching limitation:

[S]ome of Dr. Tran’s specific limitations appear grossly overstated on their face, such as the finding that she could never twist, stoop, crouch, or squat or that she could never reach in any direction with the bilateral upper extremities. The claimant is clearly able to perform all of these functions on at least some basis, as she is able to care for her personal needs, help care for her children and pets, manage living on a farm, etc. These tasks clearly require an ability to use the upper extremities, twist, stoop, crouch, and squat.18

But this rejection of a total inability to reach overhead does

not indicate whether the ALJ intended to adopt an occasional or

frequent limitation in the RFC. Furthermore, the ALJ here

states that Fall must possess an ability to crouch on some

basis, but including a limitation of never crouching in the RFC.

17 Admin. R. at 19-20 (emphasis added). 18 Admin. R. at 21-22.

8 That inconsistency undermines the implication urged by the

Commissioner.

The Commissioner’s remaining and strongest argument in

support of the scrivener’s error argument is that the ALJ, in

making the step 5 alternative finding, states that:

Of note, the residual functional capacity above does have some additional limitations that were not presented to the vocational expert, but were added based on the supplemental hearing testimony of Dr. Fuchs. These additional limitations include . . . frequent overhead reaching . . . . I added these additional limitations to the residual functional capacity based upon Dr. Fuchs’ opinion. Further testimony from the vocational expert is not necessary in this case because a review of the DOT job descriptions for the above representative jobs does not indicate these positions would require the need to . . . reach more than frequently . . . .19

The ALJ clearly conducted the step 4 and 5 analyses under the

understanding that the RFC recognized a limitation to only

frequent overhead reaching. Notably though, the ALJ continued

into a cryptic passage:

Furthermore, the vocational expert identified 350,000 jobs that fit within the hypothetical presented. If I were to find that, notwithstanding the fact that there is no indication that these jobs require more than occasional operation of foot controls, more than frequent overhead reaching, and some exposure to vibrations, 17,500 jobs would still remain. I find

19 Admin. R. at 24.

9 that this number would constitute a significant number of jobs in the national economy.20

There are at least two errors in this passage. First, some

reasoning explaining why twenty percent of the available jobs

would remain available even incorporating the limitations has

clearly been omitted. Second, the vocational expert actually

identified 485,000 jobs within the hypothetical, as the ALJ

recounted in the prior paragraph of his order.21 These errors

cast doubt on the Commissioner’s suggestion that the accuracy of

the step 4 and step 5 analysis should be preferred over the

plain statement of the RFC at step 3.

The RFC, an important passage in this or any similar ALJ

decision, indicates a limitation of occasional overhead

reaching. Nothing in the step 3 analysis indicates that the ALJ

clearly intended otherwise. In conducting steps 4 and 5 of the

sequential evaluation, the ALJ assumed that the RFC included a

frequent overhead reaching limitation. The step 4 and step 5

analyses contain editing errors. The Commissioner urges that

the tension between the RFC and the later findings should be

resolved by finding that the ALJ committed a scrivener’s error

20

21Id. The court’s best explanation of this error is that the vocational expert identified positions with 175,000, 150,000, and 160,000 jobs. In totaling these figures, the ALJ might have omitted a digit and included 15,000 rather than 150,000.

10 in the RFC. The court disagrees. The internal inconsistencies

in the ALJ’s decision are too great to reach that conclusion.

And there is no evidence in the record that would allow the

court to assume that Fall would be able to perform her past work

or other work that exists in substantial numbers in the national

economy if she is in fact limited to occasional overhead

reaching. Remand to resolve this issue is thus “more than an

empty exercise.” Ward v. Comm’r of Soc. Sec.,

(1st Cir. 2000).

Conclusion

For these reasons, Fall’s motion to reverse the

Commissioner’s decision22 is GRANTED and the Commissioner’s

motion to affirm23 is DENIED. The case is remanded to the

Commissioner for further proceedings, pursuant to sentence four

of 42 U.S.C. 405(g). The Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge Dated: September 27, 2019

cc: D. Lance Tillinghast, Esq. Sarah E. Choi, Esq.

22 Document no. 8. 23 Document no. 10.

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