UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Marie Devin

v. Civil No. 08-cv-242-PB

Michael J. Astrue, Commissioner,

Social Security Administration

REPORT AND RECOMMENDATION

Before the court for a recommendation of disposition is an

appeal from a final decision by the Commissioner of the Social

Secuirty Administration (“SSA”) denying plaintiff Marie Devin’s 

application for benefits. See 42 U.S.C. § 405(g) (Supp. 2008)

(providing for district court review of final decisions of the

SSA); see also 28 U.S.C. § 636(b)(1)(B) (authorizing magistrate

judge review). Plaintiff has filed a motion to reverse or, in

the alternative, to vacate the decision and remand for further

consideration of vocational expert evidence (document no. 8). 

Defendant filed a motion to affirm the Commissioner’s denial of

benefits (document no. 10). For the reasons set forth below, I

recommend that plaintiff’s motion for a remand be granted.

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Discussion

1. Background

Pursuant to this court’s local rules, see United States

District Court for the District of New Hampshire Rule 9.1(d), the

parties filed a joint statement of facts which are part of the

record and which I have reviewed. Only those facts relevant to

the disposition of this matter are discussed below, as needed. 

2. Standard of Review

An individual seeking social security benefits has a right

to judicial review of a decision denying the application. See 42

U.S.C. § 405(g) (Supp. 2008). The court is empowered to affirm,

modify, reverse or remand the decision of the Commissioner, based

upon the pleadings and transcript of the record. See id. The

factual findings of the Commissioner shall be conclusive,

however, so long as they are supported by “substantial evidence”

in the record. See Ortiz v. Sec’y of HHS, 955 F.2d 765, 769 (1st

Cir. 1991) (quoting 42 U.S.C. § 405(g)). “Substantial evidence”

is “‘more than a mere scintilla. It 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)

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));

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see also Currier v. Sec’y of HHS, 612 F.2d 594, 597 (1st Cir.

1980). The Commissioner is responsible for resolving issues of

credibility and drawing inferences from the evidence in the

record. See Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st

Cir. 1981) (reviewing court must defer to the judgment of the

Commissioner). The Court does not need to agree with the

Commissioner’s decision but only to determine whether it is

supported by substantial evidence. See id. Finally, the court

must uphold a final decision denying benefits unless the decision

is based on a legal or factual error. See Manso-Pizarro v. Sec’y

of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (citing Sullivan v.

Hudson, 490 U.S. 877, 885 (1989)).

3. Plaintiff’s Disability

Plaintiff claims she is disabled under the Social Security

Act, because the combination of her multiple sclerosis and

depression have prevented her and will continue to prevent her

for more than 12 months, from engaging in substantial gainful

activity. See 42 U.S.C. § 423(d)(1)(A) (defining disability).

In this action, plaintiff challenges the administrative law

judge’s (“ALJ”) analysis at steps 4 and 5 of the sequential

protocol for evaluating disability. See 20 C.F.R. § 404.1520

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(a)(4) (setting forth disability determination procedure); see

also Goodermote v. Sec’y of HHS, 690 F.2d 5, 6 (1st Cir. 1982)

(outlining the 5 step protocol followed to determine disability). 

Plaintiff argues the ALJ erred in not obtaining expert testimony

from a vocational specialist to better assess her residual

functional capacity (“RFC”). The critical issue here is whether

plaintiff has nonexertional limitations which required defendant

to obtain evidence from a vocational specialist, rather than just

relying on the medical-vocational guidelines, to determine the

availability of jobs for purposes of assessing her disability. 

See 20 C.F.R. § 404.1520(a)(4)(iv) & (v) (factoring RFC, age,

education and past relevant work to determine whether the

impairments render claimant disabled); see also 20 C.F.R. Pt.

404, Subpt. P, App. 2 (tables determining whether someone is

disabled based on RFC, age, education and experience). Plaintiff

contends the ALJ was required to obtain vocational expert

evidence, while defendant argues such evidence was not necessary

and the ALJ’s decision is supported by substantial evidence. 

It is undisputed that plaintiff met her burden of proving

that she has not engaged in substantially gainful work since

April 30, 2005, her alleged onset date, and that she is severely

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impaired by the combined effect of her multiple sclerosis and

depression. See Certified Record of the Proceedings before the

SSA (“CR”) at 24 (finding plaintiff had met steps 1 and 2); see

also Buxton v. Astrue, Civil No. 08-cv-20-SM, slip op., 2008 WL

4287863, *2 (D.N.H. Sept. 16, 2008) (citing Bowen v. Yuckert, 482

U.S. 137, 146-47 (1987) to place the burden of proving a

disabling impairment on claimant). At step 3, the ALJ found

plaintiff’s impairments did not meet or equal any of the criteria

identified in the regulations listing impairments, which rendered

her not disabled at step 3 and required the ALJ to proceed to

step 4 in the disability analysis. See CR at 25-26 (citing 20

C.F.R., Part 404, Subpt. P, App. 1, §§ 11.09 & 12.04); see also

20 C.F.R. § 404.1520(a)(4)(iii). At step 4, the ALJ concluded

that plaintiff retained the RFC to perform sedentary work that is

simple, repetitive and unskilled, but that she could not return

to her former employment. See CR at 27-29. The ALJ then

proceeded to step 5 to determine whether other jobs were

available in the national economy to which plaintiff could adjust 

given her RFC. Relying on the medical-vocational guidelines set

forth in the regulations, he concluded that plaintiff was not

disabled. See CR at 29-30 (citing 20 C.F.R., Part 404, Subpt. P,

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App. 2, Rule 201.28).

Plaintiff does not dispute the ALJ’s finding that she was

limited to simple, repetitive, unskilled work, but she asserts

she was further limited by the requirements that she needed a

flexible job with an understanding boss, to accommodate her

fatigue and enable her to work at her own pace. These additional

limitations were nonexertional, which plaintiff contends required

the ALJ to obtain evidence from a vocational expert to better

understand and implement the guidelines set forth in the

regulations, rather than simply relying on the vocational grid. 

See id. Defendant counters that plaintiff was not further

impaired by these nonexertional limitations, so the ALJ was not

required to obtain the additional vocational evidence and his

decision based solely on the grid is supported by substantial

evidence. As demonstrated below, the record reflects that

additional evidence is needed here before a disability

determination may be properly made.

The rules provide that in certain cases where nonexertional

limitations exist, expert vocational evidence is needed to

interpret the grid and assist the ALJ in determining what work

remains available. See Heggarty v. Sullivan, 947 F.2d 990, 996

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(1st Cir. 1991) (citing authority); see also West’s Soc. Sec.

Reporting Serv. - Rulings: 1983-1991 at 41 (1992) (Soc. Sec.

Ruling (“SSR”) 83-14 entitled “Capability to Do Other Work - the

Medical-Vocational Rules as a Framework for Evaluating a

Combination of Exertional and Nonexertional Impairments”). When

“[n]o table rule applies to direct a conclusion of “Disabled” or

“Not disabled” where an individual has a nonexertional limitation

or restriction imposed by a medically determinable impairment, .

. . the table rules are used, in conjunction with the definitions

and discussions provided in the text of the regulations, as a

framework for decisionmaking.” Id. at 42. As the First Circuit

has explained:

If a non-strength impairment, even though

considered significant, has the effect of

only reducing that occupational base marginally,

the Grid remains highly relevant and can be

relied on exclusively to yield a finding as to

disability. Yet the more that occupational base

is reduced by a nonexertional impairment, the 

less applicable are the factual predicates

underlying the Grid rules, and the greater the

need for vocational evidence.

Heggarty, 947 F.3d at 996 (quoting Ortiz v. Sec’y of HHS, 890

F.2d 520, 524 (1st Cir. 1989). Because the nonexertional

impairment may significantly affect claimant’s ability to perform

the full range of jobs at her strength level, and because the SSA

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bears the burden of proving jobs are available that claimant can

do with her limitations, vocational expert testimony is usually

required to determine the appropriate occupational base. See id.

(citing Ortiz, 890 F.2d at 524 and Lugo v. Sec’y of HHS, 794 F.2d

14, 17 (1st Cir. 1986) (per curiam)); see also Buxton, 2008 WL

4287863 at *4 (“‘if the applicant has nonexertional limitations .

. . that restrict his ability to perform jobs he would otherwise

be capable of performing, then the Grid is only a framework to

guide the decision.’” (quoting Seavey v. Barnhart, 276 F.3d 1, 5

(1st Cir. 2001)). 

In other words, a decision on disability usually cannot be

directed by the matrix rules set forth in Appendix 2 when both an

exertional and a nonexertional limitation affect plaintiff’s RFC.

Those rules direct a conclusion when the claimant satisfies the

specific criteria set forth in the tables; however, when the

claimant either has an exertional RFC that does not coincide with

the defined ranges provided by the regulations or has a

nonexertional limitation, vocational evidence should be consulted

to assess how the problem impacts the occupational base. See SSR

83-12 & 83-14; see also 20 C.F.R. Pt. 404, Subpt. P. App. 2, §

200.00(e)(2) (explaining how with nonexertional limitations the

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grid rules typically provide only a framework for analysis of,

rather than directing a conclusion on, the disability

determination). 

The record demonstrates that the ALJ erred in relying solely

on Rule 201.28 to direct his finding of no disability. See 20

C.F.R. Part 404, Subpt. P, App. 2, § 200.00(b) (requiring further

consideration of what types of jobs may be needed when a claimant

does not satisfy every criteria of a rule). The evidence shows

that plaintiff’s multiple sclerosis does cause her to tire easily

and that she would benefit from a schedule that accommodates her

fatigue. For example, in July 2005, Drs. Ellen Crouse and

Caitlin Macaulay, neuropsychologists at Dartmouth Medical School,

evaluated plaintiff. See CR at 606-12. The doctors found her

“symptoms of mild depression and anxiety, combined with fatigue,

are likely to negatively affect her daily functioning,” and

recommended, among other things, she structure her day “to allow

ample time to complete tasks and to take periodic breaks to renew

her energy . . . [and] to work on complex or cognitively

challenging tasks when she is least fatigued.” Id. at 611-12.

Similarly, plaintiff’s treating physicians at Dartmouth

Hitchcock Medical Center (“DHMC”) Multiple Sclerosis Center

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concluded she was negatively impacted by her fatigue. Plaintiff

most frequently saw Brant Oliver, a nurse practioner in neurology

there. He noted on several occasions that plaintiff was not

working because she felt she had no choice because of her severe

fatigue. See CR at 620 (11/05), 808 & 810 (12/06), 847-56

(04/07). Although the ALJ discounted NP Oliver’s diagnosis

because nurse practitioners are not a listed “acceptable medical

source,” see 20 C.F.R. § 404.1513(a), plaintiff correctly points

out that he summarized the opinions of the team working at DHMC’s

Multiple Sclerosis Center which included NP Oliver, two medical

doctors and one PhD. See CR at 855; see also 20 C.F.R. §

404.1527 (evaluating medical opinion evidence). That team

concluded that plaintiff’s functional capacity evaluation results

indicated “a self-paced sedentary work level capacity” and that

an occupational medicine evaluation would be beneficial. See CR

at 856. This evidence is particularly persuasive because it

reflects the opinions of plaintiff’s treating physicians. See 20

C.F.R. § 1527(d) (explaining how different opinions are weighed).

Another Functional Capacity Evaluation was done in October

2006 by an industrial rehabilitation therapist, Bradford Shedd. 

See id. at 780-81. Mr. Shedd also concluded that plaintiff’s

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physical performance was inhibited by “her complaints of fatigue

and discomfort,” that she demonstrated a need for a “self paced

sedentary physical demand level” which would vary daily, and that

her physical demand capacity appeared unlikely to improve. See

id. at 781. 

On the other hand, plaintiff or her records were evaluated

by several other doctors, who consistently concluded she did not

suffer from any significant cognitive impairment, and that her

self-reported concerns about lack of concentration, understanding

and attention were not that credible. See CR at 791-92 (Dr.

Warman), 439-41 & 793-803 (Dr. Schneider), 817-24 (Dr. Gumbinas), 

857 (Dr. Babkes) & 858-59 (Dr. Chalal). The doctors focused on

plaintiff’s psychological profile and consistently found a mild

depressive effect of the disease which, however, did not prevent

plaintiff from functioning well in a variety of daily activities. 

These psychiatric evaluations did not preclude a finding of

fatigue, and plaintiff’s cognitive health did not eliminate the

adverse physical effects of her multiple sclerosis that impose

nonexertional limitations on her ability to work. As Dr. Warman

acknowledged, plaintiff’s symptoms of depression would make it

difficult to maintain attendance or follow schedules, and he

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recommended that her “neuropsychological testing from [DHMC] be

referred to in determining her cognitive functioning.” CR at

791-92. Dr. Gumbinas, who discounted the opinions of plaintiff’s

treating physicians at DHMC, acknowledged that she “does have

some fatigue” even though her “formal neurological examination is

normal.” CR at 818. Similarly, Dr. Chalal found plaintiff still

fatigued despite her insignificant psychiatric complaints. See

id. at 858-59. 

This medical evidence demonstrates that plaintiff in fact

does have nonexertional limitations in addition to her exertional

limitations. There is evidence in the record which supports

plaintiff’s claim that she needs a flexible, self-paced job with

an understanding boss. It is undisputed that the ALJ did not

elicit vocational evidence in the form of a report or testimony. 

The ALJ should not have relied simply on the grid at step 5 to

determine whether jobs exist that plaintiff could perform,

because the tables do not reflect an occupational base that is

circumscribed by her individual restrictions. The rules require

vocational evidence in these circumstances. See SSR 83-12 & 83-

14. Accordingly, I recommend that this case be remanded to the

ALJ for further consideration of plaintiff’s RFC and the

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availability of jobs in the national economy considering that

RFC, with the guidance and assistance of a vocational expert. 

See Arocho, 670 F.2d at 376 (requiring “relevant testimony that

substantial work exists . . . commensurate with appellant’s

particular capacities”); see also Buxton, 2008 WL 4287863 at *5

(finding error in ALJ’s reliance on the Grid without reference to

vocational evidence to assess the nonexertional limitations on

claimant’s ability to work).

CONCLUSION

For the reasons set forth above, I recommend that

plaintiff’s motion to reverse or remand (document no. 8) be

granted and defendant’s motion to affirm (document no. 10) be

denied. Any objections to this report and recommendation must

be filed within ten (10) days of receipt of this notice. Failure

to file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

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Date: May 6, 2009 

cc: Janine Gawryl, Esq. 

 Gretchen Leah Witt, Esq.

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