Huse v. SSA CV-08-71-PB 10/16/08
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Michael D . Huse
v. Case No. 08-cv-71-PB
Opinion No. 2008 DNH 178
Michael J. Astrue. Commissioner,
US Social Security Administration
MEMORANDUM AND ORDER
Michael Huse has sued the Commissioner of the Social
Security Administration in an effort to overturn the
Commissioner's denial of his application for Social Security
Disability Insurance Benefits ("DIB"). Huse's principal argument
is that the presiding Administrative Law Judge ("ALJ") failed to
properly account for Huse's mental impairments when he determined
Huse's residual functional capacity ("RFC"). According to Huse,
this mistake reguires that the case be remanded because it caused
the ALJ to improperly use the medical vocational guidelines (the
"Grid") rather than a vocational expert to determine that Huse
was not disabled. Because I agree with these arguments, I vacate
the Commissioner's decision and remand the case for further
proceedings.
I. BACKGROUND1
A. Procedural History
On September 7, 2005, Huse filed an application for DIB,
alleging an onset date of April 1, 2005. T r . at 55-57. This
application was denied initially and upon reconsideration. Id.
at 23-27, 31-33, 36-38. Thereafter, Huse reguested a hearing,
which was held before ALJ Robert S. Klingebiel on April 12, 2007.
I d . at 39-40, 403-47. At the hearing, Huse was represented by
counsel and both he and Tamara Sipitkowski, his girlfriend,
testified. I d . at 403-47.
On July 20, 2007, the ALJ denied Huse's claim. I d . at 12-
22. Although the ALJ found that Huse suffered from a major
depressive disorder and a back injury, he concluded that Huse was
not disabled because he had the RFC to perform light work that
did not involve regular interaction with others. Id. Further,
the ALJ found that although Huse was unable to perform any past
relevant work, he was able to engage in other work that existed
in significant numbers in the national economy. Id.
1 The background information is drawn from the Joint
Statement of Material Facts (Doc. No. 13) submitted by the
parties. Citations to the Administrative Record Transcript are
indicated by "T r ."
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The ALJ's decision became the final decision of the
Commissioner when the Appeals Council denied Huse's request for
review on January 1 9 , 2008. I d . at 7-9.
B. Huse's Education and Work History
Huse was 39 years old when the ALJ denied his application on
July 20, 2007. I d . at 21, 55. He completed two years of
college. Id. at 96. His past relevant work experience was as a
truck driver. I d . at 85, 93.
C. Medical Evidence
The administrative record contains detailed medical
information and diagnoses by various doctors of Huse's physical
and mental impairments from 1999 to 2007.
In February 1999 and for six days in September 1999, Huse
was treated at Dartmouth Hitchcock Medical Center for major
depressive episodes. I d . at 292-94,332-41. In April 1999, Huse
was referred to the Hitchcock Pain Clinic following complaints of
chronic pain at the site of a prior hernia repair. I d . at 110.
Upon exam at the Clinic, Dr. Robert J. Rose noted that Huse
appeared depressed and had a somewhat confrontational attitude,
but exhibited no pain symptoms. I d . at 111-14.
In January and February of 2001, Huse visited Dr. Kristine
A. Karlson, who diagnosed him with left knee and right shoulder
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pain and prescribed a strengthening program and orthotics. Id.
at 121-22. On March 14, 2001, Brian S. Kimball, a physician's
assistant, examined Huse, who complained of respiratory illness.
Kimball diagnosed Huse with acute back pain in his thoracic
spine, most consistent with a muscular origin. I d . at 128-29.
On June 14, 2001, Huse returned to Dr. Karlson complaining
of left shoulder pain. I d . at 133. Dr. Karlson diagnosed Huse
with left shoulder rotator cuff tendonitis and prescribed
physical therapy. I d . at 126. On June 20, 2001, Huse complained
to Dr. Karlson of continuing left shoulder pain. I d . at 134-35.
Dr. Karlson treated Huse with a steriod injection and prescribed
continuing physical therapy. Id.
On August 7, 2001, Dr. Jonathan Ross performed a general
medical examination of Huse, who complained of left shoulder and
left knee pain, as well as right shoulder joint problems. I d . at
138-39. Dr. Ross assessed Huse to be in generally good health,
with the probability of continuing musculoskeletal problems from
pushing his body hard. I d . at 139. The doctor noted that no
further interventions were needed at that time. Id.
Kimball examined Huse again on April 12, 2002 and noted that
Huse had symptoms of depression with associated sleep
disturbance. I d . at 140. Kimball prescribed Zoloft to address
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Huse's symptoms. Id. During a follow up visit with Kimball on
April 1 6 , 2 0 0 2 , Huse complained of depression and noted some side
effects of Zoloft, but also reported positive effects from the
drug. I d . at 142. Kimball noted that Huse's depression was
improving and recommended an increase in Zoloft. Id.
On May 28, 2002, Dr. Ross again examined Huse, who
complained of depression and insomnia. I d . at 144. Dr. Ross
diagnosed Huse with depression that responded to medication, and
opined that he needed counseling, medication adjustment, and
coffee reduction. Id.
_____ On June 5, 2002, Thomas 0. Wansleben, a physician's
assistant, examined Huse and treated him with Albuterol for
asthma. I d . at 146. On October 16, 2002, Wansleben again
examined Huse following symptoms of syncope and memory loss. Id.
at 150-51. Wansleben evaluated Huse as being an "anxious young
man and somewhat difficult to assess." I d . at 150. A magnetic
resonance imaging ("MRI") study of Huse's head on November 1,
2002 revealed normal findings, other than a mucus retention cyst.
I d . at 152.
On November 20, 2002, Dr. Robert J. Ferguson examined Huse,
who complained of psychosomatic symptoms. I d . at 155. Dr.
Ferguson diagnosed Huse with an unspecified anxiety disorder and
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noted that he would likely benefit from psychotherapy focusing on
stress management, expression of emotion, and coping strategies.
Id. On December 4, 2002, Huse returned to Dr. Ferguson and
complained of stress and anxiety. I d . at 156. Dr. Ferguson
encouraged Huse to follow-up on referrals and practice
progressive muscle relaxation daily. Id.
On December 28, 2002, Wansleben examined Huse, who
complained of shortness of breath, and prescribed Alburterol for
asthma. I d . at 157-58. On February 9, 2004, Wansleben again saw
Huse, who complained of anxiety, increased pressures from his job
and home life, and trouble with his anger. I d . at 166-67. Huse
was diagnosed with a long-standing history of anxiety disorder,
with a probable depressive component and increased symptoms. He
was instructed to increase his Wellbutrin. I d . at 166.
On April 28, 2004, Dr. Richard D. Whiting examined Huse, who
complained of back pain, and diagnosed him with lower back pain,
possibly orthotic related. I d . at 170-71.
On January 1, 2005, Dr. Marcus J. Hampers examined Huse, who
complained of back pain. I d . at 172-73. Dr. Hampers diagnosed
Huse with lower back pain, likely related to a herniated disc,
and prescribed him Percocet and non-steroidal medications. Id.
at 172-73.
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On January 4, 2005, Dr. Edward J. Merrens saw Huse, who
complained of pain in his left calf. I d . at 174-75. Upon exam,
Huse was in no apparent distress and was diagnosed with calf pain
and a possible recent disc herniation that was better, with
normal sensation and function and a perception of numbness. Id.
Dr. Merrens prescribed ibuprofen and Percocet. Id.
On February 3, 2005, Dr. Robert K. McLellan examined Huse,
who complained of weakness and numbness in his left leg. I d . at
176-78. Huse was diagnosed with back pain and radiculopathy at
level SI, probably secondary to a herniated disc at level L5-S1,
and prescribed Ultram. I d . at 177. Dr. McLellan saw Huse again
on February 17, 2005 following complaints of weakness and
numbness in the back and left leg. I d . at 179-82. Huse was
diagnosed with back pain and radiculopathy at level SI and
prescribed Ultram, and epidural steroid injection. An MRI of his
back revealed a herniated disc at level L5-S1. I d . at 179, 181-
82 .
On March 17, 2005, Ms. Nancy Yazinski, a registered nurse
practitioner, examined Huse, who complained of back pain. I d . at
183. Huse was diagnosed with a herniated disc in his lumbar
spine and limited to modified duty at work, which included
lifting twenty-five pounds maximally and ten pounds freguently;
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an inability to climb a ladder greater than five feet; and only
occasional bending and sguatting. Id.
On April 1, 2005, Dr. McLellan saw Huse because of
complaints of low back and leg pain, weakness and numbness. Id.
at 184. Dr. McLellan determined that it was necessary to remove
Huse from the workplace and placed him in a physical therapy
program. Id. From April 8, 2005 through May 6, 2005, Huse
participated in a physical therapy program at Dartmouth Hitchcock
Medical Center, aimed at work conditioning. I d . at 184-200, 204-
05.
On April 25, 2005, Huse received a steroidal injection in
his lumbar spine. I d . at 197. On May 13, 2005, Dr. McLellan
noted that Huse did not benefit from his most recent steroidal
injection in the lumbar spine, and recommended that he undergo a
discectomy. I d . at 207. On May 16, 2005, Dr. Perry Ball
examined Huse, who complained of back and left leg pain. I d . at
208-09. Dr. Ball informed Huse of the risks involved with a
discectomy, and Huse expressed his desire to proceed with the
surgery. Id. On May 24, 2005, Huse underwent a discectomy at
level L5-S1. I d . at 210-14, 295-301.
On July 20, 2005, Dr. Ross examined Huse, who complained of
a fair amount of back pain, and prescribed physical therapy and
Vicodin. I d . at 214. From August 23, 2005 through October 4,
2005, Huse participated in a physical therapy program at
Dartmouth Hitchcock Medical Center. I d . at 216-17, 221, 223-29,
233-34, 237-38, 241.
On August 29, 2005, Dr. Ball met with Huse and noted that
his radicular pain was mostly resolved but that he still had a
fair amount of back pain. I d . at 218. In addition, Huse
complained to Dr. Ball of multiple financial and social stressors
and was discouraged about his situation. Id. Huse also visited
Dr. McLellan on August 29, 2005 and complained of back pain,
depression, and anxiety. I d . at 219-20, 222. Dr. McLellan
diagnosed Huse with status post discectomy and difficulty
adjusting to his current work status, which precipitated his
depressed mood. I d . at 219. Huse was prescribed Wellbutrin and
Vicodin and found to have no work capacity at that time. I d . at
219-20.
On September 6, 2005, Birgit Ruppert, a physical therapist,
reported that Huse's symptoms had lessened since his surgery but
that he had shown no recent improvement in his functional status.
I d . at 223-24. Ruppert noted that Huse had lost a great deal of
trunk range of motion and strength and lower extremity
flexibility. I d . at 223.
On September 22, 2005, Dr. Lewis Sussman performed a
psychological evaluation of Huse during which it was observed or
Huse reported that he had normal energy and motivation; a "shot"
memory; concentration and attention that was impaired by mood and
pain; a very angry, discouraged, frustrated and depressed mood;
and psychomotor agitation. I d . at 230-32, 358-60. Dr. Sussman
diagnosed Huse with an adjustment disorder with mixed anxiety and
a depressed mood, and a Global Assessment of Functioning ("GAF")
score of 55; advised him to consult with his medical providers
about receiving anti-depressant and anti-anxiety medication; and
found him to be a good candidate for cognitive-behavioral
counseling. Id.
Also on September 22, 2005, Huse visited Dr. McLellan, who
stated that Huse had not made substantial functional progress and
continued to show fearfulness around increasing activity. I d . at
235. Dr. McLellan felt Huse was having difficulty coping with
his pain, as well as other stressors in his life, and recommended
Wellbutrin for Huse's psychiatric symptoms and participation in
function assessment and a functional restoration program. Id.
On September 29, 2005, Dr. McLellan saw Huse, who complained
of agitation. I d . at 239-40. Dr. McLellan stated that Huse's
psychological status continued to be a barrier to his full-time
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employment. I d . at 239. Huse was diagnosed with an adjustment
reaction to his discectomy, with mixed emotional features, as
well as agitation as a side effect of his Wellbutrin. Id. Dr.
McLellan instructed Huse to decrease his Wellbutrin and to take
Trazodone. Id.
On October 5, 2005, Dr. Sussman performed another
psychological evaluation of Huse to determine whether the
Functional Restoration Program ("FRP") would help Huse achieve
his functional goals. I d . at 242-44. Dr. Sussman concluded that
Huse's significant cognitive side effects from his medications
were a barrier to his participation in the FRP. I d . at 244.
During a functional assessment on October 7, 2005, Dr. Ross
opined that Huse could lift no more than twenty pounds
occasionally and ten pounds freguently, and that he was a
candidate for a multi-disciplinary intensive physical
rehabilitation program with a behavioral support group. I d . at
245-47. Dr. Ross stated that the functional assessment showed
that Huse had physical limitations in range of motion,
cardiovascular endurance, functional strength, and overall
physical capacities that interfered with his ability to perform
basic functional tasks and activities of daily living that
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affected his quality of life. I d . at 247. The Spine Center at
Dartmouth Hitchcock Medical Center also noted in the functional
assessment study that Huse had psychological symptoms that were
barriers to reaching his goals. I d . at 248.
From October 7, 2005 through November 11, 2005, Huse
participated in a FRP at Dartmouth Hitchcock Medical Center. Id.
at 248-50, 252-81, 355-57, 361. Huse was discharged from the
program without completing it because he was not psychologically
in a position to participate. I d . at 281. He was not able to
progress at a level that would allow him to meet his goals of
returning to work. Id.
On October 12, 2005, Dr. McLellan saw Huse, who complained
of agitation. I d . at 251. Huse was instructed to discontinue
using Wellbutrin and Trazodone, and to take Lexapro. Id.
On October 17, 2005, Occupational Therapist Virginia Reeves
assessed Huse as being able to lift ten pounds frequently and 15
pounds occasionally with a light work demand level. I d . at 252-
54. And on November 8, 2005, Dr. Rowland G. Hazard assessed Huse
as being able to lift more than ten pounds and as having a
sedentary work demand level. I d . at 269-71.
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On November 16, 2005, Dr. McLellan examined Huse, who
complained of back pain and occasional tingling in his left leg.
I d . at 282-83. Huse was diagnosed with status-post discectomy at
level L5-S1, which had reached a maximum medical improvement, and
ongoing depression and anxiety. Id. Dr. McLellan opined that
Huse had a physical work capacity but that his emotional health
was a disabling barrier to his returning to the competitive
workplace environment. Id.
On December 12, 2005, Dr. Edward Hurley, a non-examining
state agency psychologist, completed a Psychiatric Review
Technigue Form ("PRTF"), in which he opined that, due to an
adjustment disorder, Huse had mild restrictions in activities of
daily living; mild difficulties in maintaining social
functioning; moderate difficulties in maintaining concentration,
persistence, or pace; and no repeated episodes of decompensation
of extended duration. I d . at 302, 305, 312.
Dr. Hurley also completed a Mental Residual Functional
Capacity Assessment ("MRFCA"), in which he determined that Huse
was moderately limited in his ability to: (1) understand,
remember, and carry out detailed instructions; (2) complete a
normal workday or workweek without interruptions from
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psychologically based symptoms; (3) perform at a consistent pace
without an unreasonable number and length of rest periods; and
(4) interact appropriately with the general public. I d . at 316-
18, 448. However, Dr. Hurley determined that Huse retained the
social capacity for routine interactions with supervisors and
coworkers, the ability to complete simple 3 step instructions,
and the adaptive capacity to deal with routine changes, safety,
and transportation. Id. On February 15, 2006, Dr. Thomas
Reilly, a non-examining state agency psychologist, affirmed the
opinions expressed in Dr. Hurley's PRTF and MRFCA. I d . at 328.
On December 13, 2005, Dr. Leslie Abramson, a non-examining
state agency physician, completed a Physical Residual Functional
Capacity Assessment ("PRFCA"), in which she determined that Huse
should avoid concentrated exposure to vibration, and could
occasionally lift twenty pounds and freguently lift ten pounds;
stand or walk for about six hours in an eight hour workday; sit
for about six hours in an eight hour workday; push and pull
without limitation; freguently climb; and occasionally balance,
stoop, kneel, crouch, and crawl. I d . at 319-27. On February 16,
2006, Dr. Cynthia Short affirmed the opinions expressed in Dr.
Abramson's PRFCA. I d . at 32 9.
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On December 14, 2005, Dr. McLellan stated that he was
discharging Huse from his practice and that he would defer to
Huse's psychiatrist and psychologist regarding the impact of his
ongoing depression and anxiety on his physical work capacity.
I d . at 290-91.
On January 3, 2006, Dr. Renn examined Huse, who complained
of depression and anxiety, and diagnosed him with depression.
I d . at 342-43.
On January 17, 2007, Dr. Micha Hooper, examined Huse, who
complained of depression and anxiety. I d . at 344-47. Dr. Hooper
diagnosed Huse with major depressive disorder and a GAF score of
60. Id. On March 7 and 23, 2007, Dr. Hooper again examined Huse
and each time diagnosed him with major depressive order and a GAF
score of 60. I d . at 351-54, 368.
On May 25, 2007, Ms. Lori P. Gurney, a licensed
Psychologist, examined Huse, who complained of depression. Id.
at 375-77. Gurney ruled out bipolar disorder and diagnosed Huse
with major depression, post traumatic stress disorder, and a GAF
score of 55. I d . at 377. Gurney also completed a Medical Source
Statement of Ability To Do Work-Related Activities (Mental) form,
in which she opined that Huse had a mild limitation in his
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ability to respond to work situations and changes in a routine
work setting, and moderate limitations in his ability to interact
with supervisors and co-workers. I d . at 378-79. She also stated
that Huse's anxiety and chronic pain and back injury prevented
Huse from engaging in extended periods of driving, heavy lifting,
and other job related duties. I d . at 37 9.
On November 1, 2007, Dr. Ronald L. Green opined that Huse
could not sustain any work activities of any kind due to back
pain and depressive disease. I d . at 388-89.
On July 19, 2007, Dr. Heather A . Wishart performed a
cognitive psychological evaluation of Huse, who complained of
memory loss with impulse control and anger issues. I d . at 395-
402. Psychological testing indicated that Huse was experiencing
moderate to severe mood symptoms which might be negatively
affecting his cognitive abilities and functioning in daily life.
I d . at 400. Dr. Wishart recommended that Huse continue with
psychological treatment. I d . at 401.
D. Administrative Evidence
_____ The record contains an undated Pain Report completed by
Huse. Huse reported continuous lower back pain and a lack of
feeling in his right hand. I d . at 68-75. The record also
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contains a Function Report completed by Huse on October 25, 2005
about his daily activities. Huse reported the ability to perform
personal care, do laundry, shop, walk, and drive, although those
tasks could only be done for short period of time and sometimes
required care or assistance. I d . at 77-84.
E. Hearing Testimony
Huse, who was represented by counsel, testified at the
hearing and was questioned by the ALJ. He stated that he had
continuing psychiatric problems dating back to a motor vehicle
accident in 1993 and marital problems in 1999. I d . at 411-13.
He also stated that he had undergone treatment and surgery for
spinal problems, but still suffered pain in his legs and back;
needed to be helped out of bed three times per week; and had
trouble walking. I d . at 413-14, 418-19. Huse further testified
that he had problems with memory, reading comprehension, dizzy
spells, nausea, strength on his left side when walking, and
sleeping. I d . at 417-20. He reported engaging in daily
activities such as taking his son to school, working part-time,
washing dishes, watching television, vacuuming with assistance,
and going to medical appointments. I d . at 421-22. In addition,
Huse testified that he took Trazadone to help him sleep, over-
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the-counter medications for his back and leg pain, and Lithium
and Lorazepam for his psychiatric issues. I d . at 415-16. He
stated that he suffered nausea as a side effect of those
medications. I d . at 416-17.
Huse's girlfriend testified at the hearing that Huse
appeared very stressed, was very forgetful, constantly complained
of back pain, couldn't sit or lie down for very long, had trouble
getting up from a sitting position, and was working part-time
driving a mail transport truck. I d . at 440-44.
F. ALJ's Decision
The ALJ conducted the five-step seguential evaluation
process set forth in 20 C.F.R. § 404.1520 to determine whether
Huse was disabled. At step one, the ALJ determined that Huse had
not engaged in substantial gainful activity since the alleged
onset date of his disability. At step two, the ALJ determined
that Huse suffered from back injuries and major depression that
collectively gualified as a severe combination of impairments.
At step three, the ALJ nevertheless determined that Huse was not
disabled under the Commission's listings of impairments. 20
C.F.R. P t . 404, Subpt. P, A p p . 1. In making these
determinations, the ALJ found that Huse experienced mild
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restrictions in activities of daily living, mild difficulties in
social functioning, and moderate difficulties with regard to
concentration, persistence, or pace. I d . at 18.
The ALJ determined at step four that Huse could not return
to his past relevant work as a truck driver. At step five,
however, the ALJ concluded that Huse was not disabled because
jobs exist in the national economy in significant numbers that
Huse was capable of performing in spite of his impairments. In
making these determinations, the ALJ found that Huse had an RFC
that allowed him to perform light work except for having to
regularly interact with others. The ALJ did not explain how, if
at all, Huse's moderate difficulties with concentration,
persistence, or pace affected his RFC. Nor did the ALJ explain
his decision to use the Grid rather than a vocational expert to
make his step five determination except to state that "the
additional nonexertional limitations have little or no effect on
the occupational base of unskilled light work as evidenced by the
claimant's current ability to perform on a part-time basis work
activity in a job that the Dictionary of Occupational Titles
classifies as medium exertional level work." Id. at 21.
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II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), I am authorized to review the
pleadings submitted by the parties and the transcript of the
administrative record and enter a judgment affirming, modifying,
or reversing the decision of the ALJ. My review is limited to
determining whether the ALJ used the proper legal standards and
found facts based upon the proper guantum of evidence. Ward v.
Comm'r of Soc. Sec.,
211 F.3d 652, 655 (1st Cir. 2000); Nguyen v.
Chater,
172 F.3d 31, 35 (1st Cir. 1999) .
The ALJ's findings of fact are accorded deference as long as
they are supported by substantial evidence. Ward, 211 F.3d at
655. Substantial evidence to support the ALJ's factual findings
exist "if a reasonable mind, reviewing the evidence in the record
as a whole, could accept it as adeguate to support his
conclusion." Irlanda Ortiz v. Sec'y of Health & Human Servs.,
955 F.2d 765, 769 (1st Cir. 1991) (guoting Rodriguez v. Sec'y of
Health and Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981)). If
the substantial evidence standard is met, the ALJ's factual
findings are conclusive even if the record "arguably could
support a different conclusion." I d . at 770. The ALJ's findings
are not conclusive, however, if they are derived by "ignoring
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evidence, misapplying the law, or judging matters entrusted to
experts." Nguyen, 172 F.3d at 35.
The ALJ is responsible for determining issues of credibility
and for drawing inferences from evidence in the record. Irlanda
Ortiz, 955 F.2d at 769. It is the role of the ALJ, not the role
of this court, to resolve conflicts in the evidence.
Id.
III. ANALYSIS
Huse challenges the ALJ's RFC determination because he
claims that it fails to account for Huse's moderate difficulties
with concentration, persistence, or pace. He then argues that
this failure reguires that the case be remanded because it caused
the ALJ to mistakenly rely on the Grid, which ordinarily cannot
be used if a claimant suffers from significant nonexertional
limitations.
A. The ALJ's Assessment of Huse's Residual Functional Capacity
Social Security Ruling ("SSR") 96-8p reguires an ALJ to
consider both exertional limitations and nonexertional
limitations when he determines a claimant's RFC. SSR 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, 1996 WL 374184,
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at *6-7 (July 2 , 1996). In the present case, the ALJ found that
Huse's mental impairments caused him to experience mild
difficulty in activities of daily living, mild difficulty in
social functioning, and moderate difficulty with concentration,
persistence, or pace. The only nonexertional limitation that the
ALJ included in the RFC, however, was his finding that Huse
lacked the capacity to regularly interact with others. This
limitation plainly results from Huse's mild difficulty with
social functioning rather than his more severe difficulty with
concentration, persistence, or pace. Although it is conceivable
that a claimant's moderate difficulty with concentration,
persistence, or pace might not cause functional limitations that
would have to be reflected in an RFC in certain cases, the record
in this case includes expert opinion evidence that Huse's mental
impairments left him with the limited ability to carry out
instructions of more than four steps. Under these circumstances,
the ALJ needed to explain how, if at all, Huse's moderate
difficulty with concentration, persistence, or pace affected his
RFC. His failure to do so violates SSR 96-8p.
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B. ALJ's Determination of Huse's Ability to Perform
Other Work in the National Economy
Huse next alleges that the ALJ erred in using the Grid
rather than a vocational expert to find that Huse could perform a
significant number of jobs in the national economy in spite of
his impairments.
If a claimant has nonexertional limitations, the Grid may
not be applied unless the ALJ makes a finding that the claimant's
nonexertional limitations are not significant. See Heggarty v.
Sullivan, 947 F.2d 990, 995-96 (1st Cir. 1991) . If a
nonexertional impairment significantly affects the claimant's
ability to perform a full range of jobs he is otherwise
exertionally capable of performing, the Commissioner's burden
must be satisfied by other means, including the use of a
vocational expert. Ortiz v. Sec'y of Health & Human Servs.,
890
F.2d 520, 524 (1st Cir. 1989). However, if an otherwise
significant non-exertional impairment "has the effect only of
reducing that occupational base marginally, the Grid remains
highly relevant and can be relied on exclusively to yield a
finding as to a disability." I d . (footnote omitted). If a
nonexertional impairment is not significant and has only a
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negligible effect, the ALJ should substantiate that finding with
evidence unless the matter is self-evident. Seavey v. Barnhart,
276 F.3d 1, 7 (1st Cir. 2001) .
In the case at hand, the ALJ determined that he could make
use of the Grid, because:
The additional nonexertional limitations have little or
no effect on the occupational base of unskilled light
work as evidenced by the claimant's current ability to
perform on a part-time basis work activity in a job
that the Dictionary of Occupational Titles classifies
as medium exertion level work.
T r . at 21. The Commissioner argues that this explanation
justifies the ALJ's decision to use the Grid because it is a
finding that Huse's nonexertional limitations were insignificant.
I am unpersuaded by the Commissioner's argument for two
reasons. First, because the only nonexertional limitation that
the ALJ included in Huse's RFC was his determination that Huse
lacked the ability to regularly interact with others, the ALJ's
insignificance finding can only pertain to this limitation. It
cannot excuse any undisclosed limitations that resulted from
Huse's moderate difficulties with concentration, persistence, or
pace. Second, the ALJ's insignificance finding cannot stand even
if he intended it to address Huse's difficulty with
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concentration, persistence, or pace because he failed to
adequately justify any such finding. The only way in which the
ALJ substantiated his finding was by noting Huse's ability to
perform medium exertion level work on a part-time basis.
However, proof of the ability to engage in part-time work does
not adequately substantiate a finding that a claimant's
difficulties with concentration, persistence, or pace are
insignificant. This is because difficulties with concentration,
persistence, or pace might significantly impact an individual's
ability to perform work on a regular and continuing basis that he
would otherwise be able to perform without incident on a part-
time basis. Accordingly, even if the ALJ had intended his
insignificance finding to encompass any functional limitations
resulting from Huse's moderate difficulty with concentration,
persistence, or pace, his finding would not have been supported
by substantial evidence.2
2 Although the First Circuit has held that moderate
limitations in maintaining attention and concentration do not
preclude use of the Grid, see Ortiz, 890 F.2d at 526-527, in the
instant case, reliance on the Grid as the exclusive basis for
determining that Huse was capable of performing jobs in the
national economy was inappropriate because the ALJ failed to
undertake any thoughtful evaluation of the significance of Huse's
difficulty with concentration, persistence, or pace.
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IV. CONCLUSION
For the foregoing reasons, I grant in part Ruse's motion to
reverse (Doc. No. 11), deny the Commissioner's motion to affirm
(Doc. No. 12), and remand this case to the Social Security
Administration. The clerk is directed to enter judgment
accordingly.
SO ORDERED.
/s/Paul Barbadoro____________
Paul Barbadoro
United States District Judge
October 16, 2008
cc: Raymond J. Kelly. Esg.
Robert J. Rabuck, Esg
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