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Boyce v. Colvin

United States District Court, D. Maine

September 30, 2014

LISA WALLS BOYCE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDED DECISION [1]

JOHN H. RICH, III, Magistrate Judge.

The plaintiff in this Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal contends that the Appeals Council's decision to deny her application was not supported by substantial evidence. I recommend that the court affirm the commissioner's decision.

In accordance with the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520. 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge below found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act for purposes of SSD only through December 31, 2007, Finding 1, Record at 34; that she suffered from degenerative disc disease, obesity, anxiety, depression, and a history of substance abuse, impairments that were severe but which, considered separately or in combination, did not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 3-4, id. at 34-35; that she had the residual functional capacity ("RFC") to perform light work, except that she could only occasionally climb ramps or stairs, balance, crawl, stoop, kneel, or crouch, never climb ropes, ladders, or scaffolds, must avoid workplace hazards such as uneven work surfaces, must be limited to routine, repetitive work with only occasional decision-making, occasional and gradual workplace changes, and could tolerate no more than occasional interaction with the general public, Finding 5, id. at 36; that she was capable of performing her past relevant work as a maid, Finding 6, id. at 40; and that, therefore, she had not been under a disability, as that term is defined in the Social Security Act, at any time from the alleged date of onset of disability, July 24, 2003, through the date of the decision, January 27, 2012, Finding 7, id. at 41.

The Appeals Council decided to review this decision, id. at 10, and found that, while it agreed with Findings 1-5 of the administrative law judge's opinion, the plaintiff was unable to perform her past relevant work, id. at 10-12. It found that, based on the plaintiff's age (37 on the alleged date of onset of disability), high school education, work experience, and RFC, and using the Medical Vocational Rules in Appendix 2 to 20 C.F.R. Part 404, Subpart P, as a framework for decision-making, there were a significant number of jobs in the national economy that she could perform, and that, as a result, she had not been disabled at any relevant time, id. at 12. This decision was the final determination of the commissioner. 20 C.F.R. §§ 404.981, 416.1481.

The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

The Appeals Council reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

I. Discussion

The plaintiff's appeal centers on the testimony of the vocational expert at the hearing before the administrative law judge. Plaintiff's Itemized Statement of Errors ("Itemized Statement") (ECF No. 8) at 3-7. Specifically, she contends that the Appeals Council "incorrectly characterized" this testimony, id. at 3.

The defendant disagrees. Defendant's Opposition to Plaintiff's Itemized Statement of Errors ("Opposition") (ECF No. 11) at 2-6. She concedes that the vocational expert in fact testified that two of the three jobs listed by the Appeals Council as being available to the plaintiff, charge account clerk and cashier, could not be performed by the plaintiff because her assigned RFC limits her contact with the public. Opposition at 2. With respect to the third job, surveillance system monitor, however, the parties strongly disagree.

I begin with the well-settled principle that the availability of a single job for a claimant, and specifically the job of surveillance system monitor at issue here, may be sufficient to carry the commissioner's burden at step 5 of the sequential review process. E.g., Beeler v. Astrue, No. 2:09-CV-649-GZS, 2010 WL 4791836, at *5 (D. Me. Nov. 17, 2010); Brun v. Barnhart, No. 03-44-B-W, 2004 WL 413305, at *5-*6 (D. Me. Mar. 3, 2004). As to the surveillance system monitor job, the plaintiff contends that it is barred by the report of Dr. Allen, a state-agency reviewing psychologist, upon which the administrative law judge "based" the RFC that he assigned to the plaintiff, because "Dr. Allen reported that Ms. Wall-Boyce has [v]ariable concentration[.]'" Itemized Statement at 6.[2]

The only possible limitations included in the RFC adopted by the Appeals Council that could be tied to the plaintiff's ability to concentrate are the following: "The claimant would be limited to routine, repetitive work, with only occasional decision-making, only occasional and gradual workplace changes, and could tolerate no more than occasional interaction with the general public." Record at 12. The Appeals Council does not specify the basis in the record for these limitations, but it does say that it "adopts the residual functional capacity set forth in the hearing decision." Id. at 10. The limiting language quoted above also appears in the administrative law judge's decision. Record at 36.

The administrative law judge found that the plaintiff's mental impairments caused moderate difficulties in maintaining concentration, persistence, or pace.[3] Id. at 36. Of Dr. Allen, he said:

The opinion of the State Agency psychological consultant, Dr. Peter Allen, is also given great weight. Dr. Allen opined that the claimant's understanding and memory were within normal limits, but that she would struggle with complexities (13F). He opined that the claimant had variable concentration, but was capable of routine tasks during a normal workday and workweek ( Id. ) Dr. Allen opined that the claimant could interact appropriately with a small group of co-workers, could tolerate normal supervision, work occasionally with the public, and adapt to minor workplace changes ( Id. ). This opinion ...

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