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Ulitsch v. Commissioner of U.S. Social Security Administration

United States District Court, D. New Hampshire

September 26, 2019

David Ulitsch
v.
Commissioner of the U.S. Social Security Administration

          ORDER ON APPEAL

          Joseph N. Laplante United States District Judge

         David Ulitsch has filed two motions[1] 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 20 C.F.R. § 404.1505(a). This decision was affirmed by the Appeals Council and thus became the final decision on his application. See Id. § 404.981. Ulitsch then appealed the decision to this court, see LR 9.1(b), which has jurisdiction under 42 U.S.C. § 405(g) (Social Security).

         After careful consideration, the court finds that remand is warranted to ensure that substantial evidence supported the 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-motion[2] 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.

         I. Background

         In September 2017, an ALJ followed the established five-step sequential evaluation process, see 20 C.F.R. § 404.1520, 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 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; 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 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.

         II. 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, 211 F.3d 652, 655 (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, ” id., that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” Richardson v. Perales, 402 U.S. 389, 401 (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., 955 F.2d 765, 769 (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., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

         III. 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 20 C.F.R. §§ 404.1520(a)(4)(v), (g)(1), 416.920(a)(4)(v), (g)(1); Goodermote v. Sec’y of HHS, 690 F.2d 5, 7 (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, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20 C.F.R. § 416.969; Medical–Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, App. 2, tables 1–3 (2001), cited in 20 C.F.R. § 416.969; Heckler v. Campbell, 461 U.S. 458 (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, 1983 WL 31253, at *1 (S.S.A. 1983); see also Spalke v. Berryhill, No. 16-10856, 2016 WL 10720160, 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, 213 F.Supp. 3d 229');">213 F.Supp. 3d 229, 234 (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] 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.” 20 C.F.R. §§ 404.1567(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.” Id. “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, 359 F.Supp. 3d 172, 180 (D.N.H. 2019) (quoting Trudnak v. Berryhill, No. 17-cv-195, 2018 WL 2058103, at *4 (D.N.H. May 3, 2018) (McCafferty, J.); see also SSR 83-10, 1983 WL 31251, 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, 1983 WL 31251, at *5; see also 20 C.F.R. § 404.1567(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, 1983 WL 31253. 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, 2018 WL 1243953, 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 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, 2017 WL 414059, at *4 (D.N.H. Jan. 31, 2017) (quoting SSR 00-4p, 2000 WL 1898704 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 ...


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