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 requires 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. 

Case 1:08-cv-00071-PB Document 17 Filed 10/16/08 Page 1 of 26
 The background information is drawn from the Joint 1

Statement of Material Facts (Doc. No. 13) submitted by the

parties. Citations to the Administrative Record Transcript are

indicated by “Tr.”

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I. BACKGROUND1

A. Procedural History

On September 7, 2005, Huse filed an application for DIB,

alleging an onset date of April 1, 2005. Tr. at 55-57. This

application was denied initially and upon reconsideration. Id.

at 23-27, 31-33, 36-38. Thereafter, Huse requested a hearing,

which was held before ALJ Robert S. Klingebiel on April 12, 2007. 

Id. at 39-40, 403-47. At the hearing, Huse was represented by

counsel and both he and Tamara Sipitkowski, his girlfriend,

testified. Id. at 403-47. 

On July 20, 2007, the ALJ denied Huse’s claim. Id. 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. 

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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 19, 2008. Id. 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. Id. at 21, 55. He completed two years of

college. Id. at 96. His past relevant work experience was as a

truck driver. Id. 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. Id. 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. Id. 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. Id. 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. Id. at 128-29. 

On June 14, 2001, Huse returned to Dr. Karlson complaining

of left shoulder pain. Id. at 133. Dr. Karlson diagnosed Huse

with left shoulder rotator cuff tendonitis and prescribed

physical therapy. Id. at 126. On June 20, 2001, Huse complained

to Dr. Karlson of continuing left shoulder pain. Id. 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. Id. 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. Id. 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. Id. at 140. Kimball prescribed Zoloft to address

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Huse’s symptoms. Id. During a follow up visit with Kimball on

April 16, 2002, Huse complained of depression and noted some side

effects of Zoloft, but also reported positive effects from the

drug. Id. 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. Id. 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 O. Wansleben, a physician’s

assistant, examined Huse and treated him with Albuterol for

asthma. Id. 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.” Id. 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. 

Id. at 152. 

On November 20, 2002, Dr. Robert J. Ferguson examined Huse,

who complained of psychosomatic symptoms. Id. 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. Id. 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. Id. 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. Id. 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. Id. 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. Id. at 170-71.

On January 1, 2005, Dr. Marcus J. Hampers examined Huse, who

complained of back pain. Id. 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. Id. 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. Id. at

176-78. Huse was diagnosed with back pain and radiculopathy at

level S1, probably secondary to a herniated disc at level L5-S1,

and prescribed Ultram. Id. at 177. Dr. McLellan saw Huse again

on February 17, 2005 following complaints of weakness and

numbness in the back and left leg. Id. at 179-82. Huse was

diagnosed with back pain and radiculopathy at level S1 and

prescribed Ultram, and epidural steroid injection. An MRI of his

back revealed a herniated disc at level L5-S1. Id. at 179, 181-

82.

On March 17, 2005, Ms. Nancy Yazinski, a registered nurse

practitioner, examined Huse, who complained of back pain. Id. 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 frequently;

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an inability to climb a ladder greater than five feet; and only 

occasional bending and squatting. 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. Id. at 184-200, 204-

05.

On April 25, 2005, Huse received a steroidal injection in

his lumbar spine. Id. 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. Id. at 207. On May 16, 2005, Dr. Perry Ball

examined Huse, who complained of back and left leg pain. Id. 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. Id. 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

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Vicodin. Id. at 214. From August 23, 2005 through October 4,

2005, Huse participated in a physical therapy program at

Dartmouth Hitchcock Medical Center. Id. 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. Id. 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. Id. 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. Id. at 219. Huse was prescribed Wellbutrin and

Vicodin and found to have no work capacity at that time. Id. 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. 

Id. at 223-24. Ruppert noted that Huse had lost a great deal of

trunk range of motion and strength and lower extremity

flexibility. Id. at 223.

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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. Id. 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. Id. 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. Id. 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. Id. 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. Id. 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. Id. 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 frequently, and that he was a

candidate for a multi-disciplinary intensive physical

rehabilitation program with a behavioral support group. Id. 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. Id. 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. Id. 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. Id. 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. Id. 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. Id. 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. Id. 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. 

Id. 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

Technique 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. Id. 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. Id. 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. Id. 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 frequently 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; frequently climb; and occasionally balance,

stoop, kneel, crouch, and crawl. Id. at 319-27. On February 16,

2006, Dr. Cynthia Short affirmed the opinions expressed in Dr.

Abramson’s PRFCA. Id. at 329.

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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. 

Id. at 290-91. 

On January 3, 2006, Dr. Renn examined Huse, who complained

of depression and anxiety, and diagnosed him with depression. 

Id. at 342-43. 

On January 17, 2007, Dr. Micha Hooper, examined Huse, who

complained of depression and anxiety. Id. 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. Id. 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. Id. 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. Id. 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. Id. at 379.

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. Id. 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. Id. 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. 

Id. at 400. Dr. Wishart recommended that Huse continue with

psychological treatment. Id. 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. Id. 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. Id. 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. Id. 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. Id. 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. Id. 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. Id. at 421-22. In addition,

Huse testified that he took Trazadone to help him sleep, overCase 1:08-cv-00071-PB Document 17 Filed 10/16/08 Page 17 of 26
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the-counter medications for his back and leg pain, and Lithium

and Lorazepam for his psychiatric issues. Id. at 415-16. He

stated that he suffered nausea as a side effect of those

medications. Id. 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. Id. at 440-44.

F. ALJ’s Decision

The ALJ conducted the five-step sequential 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 qualified 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. Pt. 404, Subpt. P, App. 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. Id. 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 quantum 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 adequate to support his

conclusion.” Irlanda Ortiz v. Sec’y of Health & Human Servs.,

955 F.2d 765, 769 (1st Cir. 1991) (quoting 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.” Id. 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 requires 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 requires 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.” Id. (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. 

Tr. 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

Case 1:08-cv-00071-PB Document 17 Filed 10/16/08 Page 24 of 26
 Although the First Circuit has held that moderate 2

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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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 parttime 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

Case 1:08-cv-00071-PB Document 17 Filed 10/16/08 Page 25 of 26
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IV. CONCLUSION

For the foregoing reasons, I grant in part Huse’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. Esq.

Robert J. Rabuck, Esq

Case 1:08-cv-00071-PB Document 17 Filed 10/16/08 Page 26 of 26