UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

David Ulitsch

v. Civil No. 18-cv-694-JL Opinion No.

Commissioner of the U.S. Social Security Administration

ORDER ON APPEAL

David Ulitsch has filed two motions1 to reverse and remand

the Social Security Administration’s (“SSA”) decision to deny

his application for a period of disability and disability

insurance benefits. An administrative law judge (“ALJ”) at SSA

found that Ulitsch, despite severe impairments, retains the

residual functional capacity (“RFC”) to perform light exertional

work, subject to certain limitations, and thus is not disabled

under Social Security regulations. See

(a).

This decision was affirmed by the Appeals Council and thus

became the final decision on his application. See

§ 404.981. Ulitsch then appealed the decision to this court,

see LR 9.1(b), which has jurisdiction under

(g)

(Social Security).

After careful consideration, the court finds that remand is

warranted to ensure that substantial evidence supported the

1 Pl.’s Mot. for Order Reversing Decision (doc. no 8); Pl.’s Mot. to Remand (doc. no. 15). ALJ’s RFC and step 5 determinations. In the proceeding below,

the ALJ found that Ulitsch had an RFC falling between the light

work and sedentary work ranges, but did not adequately assess

the impact of Ulitsch’s standing/walking limitation on the

occupational base. Although the ALJ consulted with a vocational

expert, the expert’s testimony did not specifically explain the

impact of Ulitsch’s two-hour standing/walking limitation on

potential jobs existing in the national economy. Further, the

administrative record does not clearly state what methodology

the expert used, if any, to account for Ulitsch’s RFC and his

limitations. As such, the court grants Ulitsch’s first motion

and denies the SSA Commissioner’s cross-motion2 for an order

affirming the SSA’s final decision, see LR 9.1(e). Finally, the

court denies as moot Ulitsch’s second motion challenging the

authority of the ALJ under the Appointments Clause, see U.S.

Const., Art. II, § 2, cl. 2, given the order of remand on his

first motion.

Background

In September 2017, an ALJ followed the established five-

step sequential evaluation process, see

,

and found that Ulitsch is not disabled under section 216(i) and

223(d) of the Social Security Act. At step 1, he found that

2 Doc. no. 11.

2 Ulitsch had not engaged in substantial gainful activity since

December 15, 2015.3 At step 2, he found that Ulitsch has two

severe impairments that significantly limit the ability to

perform basic work activities – (i) degenerative disc disease of

the lumbar spine and (ii) obesity.4 At step 3, he found that

Ulitsch’s physical impairments, considered both individually and

in combination, did not meet or medically equal the severity

criteria of an impairment listed in 20 C.F.R. Part 404, Subpart

P, Appendix 1.5 Nevertheless, the ALJ stated he would consider

the effects of obesity at later steps in the five-step process,

including when assessing Ulitsch’s RFC.6

The ALJ ultimately found that Ulitsch retained “the

residual functional capacity to perform light work as defined in

20 C.F.R. 404.1567(b) and 416.967(b) except he can stand and

walk for 2 hours in an 8 hour workday; he cannot climb ladders,

ropes, or scaffolds; he can occasionally climb ramps and stairs;

3 Admin. R. at 14. 4

In doing so, the ALJ declined to find that Ulitsch’s evaluated hypertension and gastroesophageal reflux disease (“GERD”) constituted severe impairments because they were “being managed medically, and amenable to proper control by adherence to recommended medical management and medication compliance.” Id. at 15. Further, the ALJ noted that “[t]here were no significant problems or limitations notes in the objective record.” Id. 5 Id. 6 Id.

3 and he can occasionally balance, stoop, kneel, crouch, and

crawl.”7 In doing so, the ALJ found that Ulitsch’s medically

determinable impairments could reasonably be expected to cause

Ulitsch’s alleged symptoms – in particular, pain and movement

limitations. Nevertheless, he found that Ulitsch’s statements

“concerning the intensity, persistence and limiting effects of

these symptoms [were] not entirely consistent with the medical

evidence and other evidence in the record,”8 which showed “only

mild degenerative disc disease and only some abnormalities on

objective examination.”9 Further, the ALJ noted that “no

treating or examining medical professional persuasively opined

limitations beyond the residual functional capacity.”10

At step 4, the ALJ found that Ulitsch is unable to perform

any past relevant work.11 Finally, at step 5, the ALJ found,

based on the testimony of a vocational expert, that Ulitsch,

given his age, education, work experience, and residual

functional capacity, was capable of making a successful

adjustment to work that exists in significant numbers in the

7 Id. 8 Id. at 16. 9 Id. at 20. 10 Id. 11 Id. at 21-22.

4 national economy, including price marker, laundry classifier,

and ticket seller.12 Under this framework, the ALJ concluded

that a finding of “not disabled” was appropriate.

Applicable legal standard

In reviewing a challenge of a final determination by the

SSA, the court limits its review “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). In doing so, the court “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 must still uphold an 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

12 Id. at 22-23.

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

Health and Human Servs.,

(1st Cir. 1996) (per

curiam) (quoting Sullivan v. Hudson,

(1989)).

Analysis

On appeal, Ulitsch raises five issues that he contends

warrant remand. In his first motion, he contends that the ALJ

erred by failing to properly assess, and ultimately base his RFC

on, the medical opinions in the record; classifying Ulitsch as

limited to light, rather than sedentary work; relying on

vocational testimony that was inconsistent with the regulatory

definition for light work; and relying on vocational expert

testimony based on a flawed RFC assessment resulting from the

errors above.13 Additionally, he asserts for the first time in a

second motion that the ALJ was not properly appointed as an

“Officer” of the United States when he ruled on Ulitsch’s

application. After reviewing each issue, the court finds that

only the third argument warrants remand.

At step 5, the Commissioner bears the burden of

establishing that there are jobs existing in significant numbers

in the national economy that a claimant can perform, given his

or her age, education, work experience, and residual functional

capacity. See

(a)(4)(v), (g)(1),

13 See Pl.’s Reply (doc. no. 12) at 1.

6 416.920(a)(4)(v), (g)(1); Goodermote v. Sec’y of HHS,

(1st Cir. 1982). Under some circumstances, the

Commissioner can meet [this] burden through the use of a chart

contained in the Social Security regulations.” Seavey v.

Barnhart,

(1st Cir. 2001) (citing

; Medical–Vocational Guidelines, 20 C.F.R. pt. 404,

subpt. P, App. 2, tables 1–3 (2001), cited in

; Heckler v. Campbell,

(1983)). But if

“an individual’s exertional RFC does not coincide with the

exertional criteria of any one of the [exertional] ranges, i.e.

sedentary, light, and medium, as defined in sections 404.1567

and 416.967 of the regulations,” then the ALJ must “consider the

extent of any erosion of the occupational base and access [sic]

its significance,” advisably with the aid of a vocational

expert. Social Security Ruling (“SSR”) 83-12,

, at

*1 (S.S.A. 1983); see also Spalke v. Berryhill, No. 16-10856,

, at *10 (D. Mass. Sept. 20, 2017) (Hillman, J.)

(citing SSR 83–12) (“Where a claimant is not capable of

performing the full range of a category of work, a vocational

expert should be consulted to clarify the implications of the

claimant’s RFC for the occupational base.”); Gross v. Colvin,

(D. Mass. 2016) (Talwani, J.) (where

claimant’s RFC fell between light and sedentary, in part due to

a two-hour limitation on standing/walking, “SSR 83–12 advise[d] 7 the ALJ [to] use a vocational expert to determine the impact the

reduced exertional capacity has on the occupational base”).

Here, both parties acknowledge that the ALJ’s RFC

assessment – specifically, that Ulitsch retained the residual

functional capacity to perform light work, but could only “stand

or walk for 2 hours in an 8-hour work day” – does not neatly

coincide with the criteria for light or sedentary work.14 Social

Security regulations define “light work” as having the strength

to lift up to “20 pounds at a time with frequent lifting or

carrying of up to 10 pounds.”

(b),

416.967(b)(6). Even if a job does not involve significant

lifting, it is still light work if it “requires a good deal of

walking or standing, or when it involves sitting most of the

time with some pushing and pulling of arm or leg controls.”

“As for what qualifies as ‘a good deal of walking or standing,’

the SSA has explained that ‘the full range of light work

requires standing or walking, off and on, for a total of

approximately 6 hours of an 8-hour workday.’” Baillargeon v.

Berryhill,

(D.N.H. 2019) (quoting

Trudnak v. Berryhill, No. 17-cv-195,

, at *4

(D.N.H. May 3, 2018) (McCafferty, J.); see also SSR 83-10, 1983

14Admin. R. at 15; see Pl.’s Mot. to Reverse (doc. no. 8) at 9- 10; Def.’s Mot. to Affirm Mem. (doc. no. 11-1) at 7.

, at *6. Sedentary work, in contrast, is defined as

“work performed primarily in a seated position,” and which

entails sitting for “approximately 6 hours of an 8-hour

workday,” SSR 83-10,

, at *5; see also

(a).

SSR 83-12 provides that in a case like Ulitsch’s, where

“the exertional level falls between two rules which direct

opposite conclusions, i.e., “not disabled” at the higher

exertional level and “disabled” at the lower exertional level,”

the ALJ must examine the degree the exertional capacity is

reduced, advisably with the aid of vocational expert testimony.

SSR 83-12,

. Several district court cases from

within the First Circuit illustrate what constitutes an adequate

assessment of whether a claimant has a slightly or significantly

reduced capacity for light work. In Saeed v. Berryhill, for

example, Judge Burroughs remanded a social security appeal for

further consideration where it was uncertain whether an ALJ had

sufficiently considered the impact of a two-hour

standing/walking limitation on the claimant’s occupational base.

No. 16-cv-11928,

, at *11 (D. Mass. Mar. 19,

2018). The ALJ had adopted a light-work RFC similar to

Ulitsch’s that incorporated a two-hour standing/walking

limitation, but did not specifically address this limitation in

his questions to the vocational expert. Judge Burroughs found 9 that this limitation “appear[ed] to contradict a finding that a

claimant can lift or carry at a light work level.” Id. at *10.

Additionally, she found that the vocational expert had not

specifically addressed the impact of this limitation on

potential jobs for the claimant in the national economy. Id.

Even though Judge Burroughs found that the apparent

contradiction did not necessitate a remand, she found remand to

be “the better course” to ensure that substantial evidence

supported the ALJ’s RFC and step 5 determinations. Id. at *11.

Likewise, in Beede v. Colvin, this court remanded a denial

of benefits because the ALJ failed to “‘elicit a reasonable

explanation for [a] conflict [between the vocational expert’s

testimony and the Dictionary of Occupational Titles] before

relying on the [expert’s] evidence to support’ his determination

that Beede was [not] disabled.” No. 16-cv-010-JL,

, at *4 (D.N.H. Jan. 31, 2017) (quoting SSR 00-4p,

at *2). The ALJ had determined that the claimant had

the residual functional capacity to perform light work, except

that he could “stand and walk up to 1-hour per work day [and

was] unlimited with respect to sitting but require[d] the

ability to alternate position periodically as needed 30 minutes

at a time.” Id. at *2. In response to the ALJ’s hypotheticals,

the vocational expert testified that “three [light-duty] jobs

met those requirements: price marker, furniture rental 10 consultant, and laundry classifier.” Id. at *4 (footnote

omitted). When the ALJ recognized an inconsistency between the

expert’s testimony and the DOT, he attempted to resolve it by

asking whether these jobs would tolerate the claimant’s needs

for sitting and standing. In response:

The expert testified that “the Dictionary of Occupational Titles [did] not categorize the sit/stand option” that the ALJ included in Beede’s RFC, but that “[t]he jobs provided today as examples do provide a sit/stand option for the individual as in the hypothetical.” She drew this conclusion from her “experience in working with employers, human resource representatives, corporation[s], when writing job analyses, when observing individuals in the work place, also asking questions for research and labor market surveys.”

Id. The court found that this was not a reasonable explanation

for the inconsistency:

Though the vocational expert outlined her experience, she offered no explanation for how or why (1) jobs listed as “light work” would be “primarily a seated- type position,” or (2) these jobs in particular “would tolerate [the] mix of sitting and standing” described in the RFC. Absent such evidence, the ALJ has not satisfied his obligation to “elicit a reasonable explanation for the conflict before relying on the [vocational expert] evidence to support” his determination that Beede was disabled.

Id. (citing SSR 00-4p,

, at *2; Colby v.

Barnhart, No. Civ.03-189,

, at *6 (D.N.H. July

27, 2004)).

In light of these decisions, the court similarly finds that

the ALJ in this case failed to elicit adequate testimony from

11 the vocational expert to explain how a person with Ulitsch’s

light-work RFC and limitations could perform the jobs identified

by the vocational expert. In his hypotheticals, the ALJ began

by asking the vocational expert whether jobs existed in the

national economy for individuals of the same age, education, and

work experience as Ulitsch and that were limited to light

exertional work. In response, the vocational expert identified

three jobs: price marker, housekeeper, and laundry classifier.15

The ALJ then asked whether jobs existed in the national economy

for such an individual that was also limited “to standing and

walking for two hours in an eight-hour workday.” The expert

answered that:

The price marker would continue to fit with the hypothetical as well as the laundry classifier. The housekeeper would not. However, a ticket seller would fit, DOT Code 211.467-030, SVP 2, light, 20,000 jobs. Now, the important – the definition was given for – to be standing or walking for two hours is different than the definition presented by SSA. So, based on my own personal experience, in writing job analyses or labor market surveys or when observing jobs in a worksite, the ticket seller and laundry classifier and price marker have the seating apparatus available for the person. So, this would allow continued work in a light-duty work capacity and sitting, or standing as necessary. So, these jobs meet this.16

Like the expert in Beede, the vocational expert here

offered no explanation for how or why the “light work” jobs she

15 Admin. R. at 51. 16 Admin. R. at 53.

12 previously identified for Ulitsch could still be performed by a

person who cannot stand or walk for more than two-hours in a

workday, for example, by explaining the amount of walking,

standing, or sitting required to perform each job. See also

Baillargeon,

. In addition, she did not

elaborate on (and the ALJ did not inquire about) how the two-

hour standing/walking limitation deviated from the definition

presented by SSA or the DOT.17 Finally, at no point did the ALJ

acknowledge in his questions to the vocational expert that the

RFC fell between two work levels, including one that would

require a finding of disability.18

The court does not hold “that a two-hour standing/walking

limitation necessitates a RFC of sedentary work, or that the

mere inconsistency between such a standing/walking limitation”

and the definition presented by SSA or the DOT requires a

17Admin. R. at 53. As his last question, the ALJ asked the vocational expert: “And other than the difference you’ve already explained with respect to definitions in the DOT and your past experiences, your testimony (sic) consistent with the DOT?” Admin. R. at 55. The expert responded, “Yes, your Honor.” The administrative record, however, does not reflect any direct questioning or answers about the differences. 18The court observes that the ALJ’s decision does introduce the Medical Vocational Guidelines and discusses how certain findings would lead to a conclusion of “disabled” or “not disabled.” See Admin. R. at 21. But this language appears to be a boilerplate standard rather than language specifically analyzing Ulitsch’s case.

13 remand. See Saeed,

, at *11. Under these

circumstances, however, the court finds, just as Judge Burroughs

did in Saeed, that remand is warranted to ensure that these

potential conflicts were addressed or, put differently, that

there is substantial evidence addressing the impact of Ulitsch’s

two-hour standing/walking limitation on the occupational base.

See Saeed,

, at *11; see also Gross,

(remanding where claimant’s RFC had two-hour

standing/walking limitation, but it was not clear “what

methodology [vocational expert] used to account for the reduced

exertional capacity of [claimant]”). Accordingly, the court

does not find that substantial evidence supports the ALJ’s RFC

and step 5 determinations, and thus grants Ulitsch’s first

motion.

Because the court grants Ulitsch’s first motion, it does

not reach the issue raised by Ulitsch’s second motion concerning

whether the ALJ was properly appointed under the Constitution.

In June 2018 (after Ulitsch’s 2017 hearing before the ALJ), the

Supreme Court held that ALJs are “officers” under the

Appointments Clause, U.S. Const., Art. II, § 2, cl. 2. Lucia v.

Securities and Exchange Commission,

(2018). The

next month, the Social Security Commissioner ratified the

appointments of all then-existing ALJs. See Social Security EM-

18003 REV 2. On remand, any ALJ reviewing Ulitsch’s application 14 for benefits will have the benefit of this appointment. Any

review by an appointed ALJ will therefore render Ulitsch’s

current Appointments-Clause challenge moot.

Conclusion

In sum, the court grants Ulitsch’s first motion to

reverse,19 denies his second motion to reverse20 as moot, and

denies the Commission’s motion for an order affirming its

disability insurance benefits decision.21 This matter is

remanded for further proceedings consistent with this order.

The clerk shall enter judgment accordingly and close the case.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: September 26, 2019

cc: Alexandra M. Jackson, Esq. Rami M. Vanegas, Esq.

19 Doc. no. 8. 20 Doc. no. 15. 21 Doc. no. 11.

15