United States District Court, D. Maine
FRANCIS JACKSON, MARC D. PEPIN, JR. LEAD ATTORNEY ATTORNEY TO BE NOTICED
JASON W. VALENCIA, NATASHA OELTJEN LEAD ATTORNEY ATTORNEY TO BE NOTICED
ORDER VACATING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR REHEARING
D. BROCK HORNBY UNITED STATES DISTRICT JUDGE.
The issue in this Supplemental Security Income Disability appeal is whether the Administrative Law Judge properly discounted a vocational expert’s testimony that if the claimant had the residual functional capacity the Administrative Law Judge described, but also fell within the bottom ten percent of the population in terms of her full scale IQ, gainful employment was not available to her. I heard oral argument on August 18, 2015. I disagree with the United States Magistrate Judge’s Recommended Decision,  and conclude that the Commissioner’s decision denying benefits was not supported by substantial evidence. Therefore, under 42 U.S.C. § 405(g), I VACATE and REMAND the matter for rehearing.
Background and Standard of Review
The relevant facts are summarized in the Recommended Decision (I include additional facts below, as necessary). I review the Commissioner’s decision to determine whether it was supported by substantial evidence. Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (citing 42 U.S.C. § 405(g)).
The dispute in this matter involves Step 5 of the Social Security Administration’s (“SSA”) five-step process for evaluating whether a person is disabled. See 20 C.F.R. § 416.920(a). The Commissioner of Social Security “has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the applicant can still perform.” Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). The Commissioner can make this showing in two ways: by applying the medical-vocational guidelines (also known as the “Grid”), 20 C.F.R. pt. 404, subpt. P, app. 2, or by relying on the testimony of a vocational expert. Dionne v. Heckler, 585 F.Supp. 1055, 1059 (D. Me. 1984).
Here, the ALJ properly determined that she needed the testimony of a vocational expert because the claimant had nonexertional impairments. See Record at 149; see also Heggarty v. Sullivan, 947 F.2d 990, 996 (1st Cir. 1991) (“If the occupational base is significantly limited by a nonexertional impairment, the [Commissioner] may not rely on the Grid to carry the burden of proving that there are other jobs a claimant can do.”); see also Dionne, 585 F.Supp. at 1059 (given that claimant’s impairment was nonexertional, the ALJ “properly enlisted the services of a vocational expert to determine whether a job existed in the national economy [that] Plaintiff, given her age, education, work history and mental impairment could perform.”).
An ALJ calls a vocational expert to establish whether a person with the claimant’s mental and physical impairments (as the ALJ has found them) nevertheless has work skills that “can be used in other work [i.e., work not previously done by the claimant] and the specific occupations in which they can be used.” See 20 C.F.R. § 416.966(e). To do so, the ALJ poses hypothetical residual functional capacities (roughly, the ability to perform work-related activities) to the vocational expert and asks whether jobs are available for a person with these abilities. See Social Security Administration, Office of Disability Adjudication and Review, Vocational Expert Handbook 35-36 (June 2011) (explaining that a vocational expert does not give an opinion on whether the hypotheticals accurately present the claimant’s abilities, but does testify as to whether a person with the abilities described in the hypotheticals can work in the national economy).
In her questions to the vocational expert here, the ALJ presented alternative hypothetical residual functional capacities for this claimant, and the vocational expert testified that, for some of the hypotheticals (one of which fit the ALJ’s ultimate factual finding), the claimant could perform three jobs in the national economy. Then, the following exchange occurred on cross-examination by the claimant’s lawyer:
Q: Assume the, the hypotheticals that the Judge gave you, but that the claimant is in the bottom 10 percent of the population in accordance with her full scale IQ, so that her work at the bottom 10 percent would be precluded, would that eliminate any or all of these jobs?
A: The bottom 10 percent, I would say at that level it would be a questionable capacity to work. Yes, I think it would eliminate, it would eliminate all work.
Q: Okay, and, and just to refine, is it your experience that people in the bottom 10 percent generally require what would be called ...