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Edwards v. Colvin

United States District Court, D. Maine

January 2, 2015

DENISE MARIE EDWARDS, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM 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 administrative law judge committed reversible error when he stated that he relied on evidence that did not exist, failed to include in the residual function capacity ("RFC") that he assigned to the plaintiff any limitations arising from one of her severe impairments, and erred in evaluating her credibility. I 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 found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through June 30, 2015, Finding 1, Record at 23; that she suffered from a history of cerebral aneurysm and monocular exotropia in the left eye, 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 24; that she retained the RFC to perform medium work except that she could never climb ladders, ropes or scaffolds, must avoid tasks requiring good binocular vision, and must avoid unprotected heights and dangerous machinery, Finding 5, id.; that she was capable of performing her past relevant work as a presser and a cashier, Finding 6, id. at 28; 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, March 1, 2010, through the date of the decision, August 14, 2012, Finding 7, id. at 29. The Appeals Council declined to review the decision, id. at 1-3, making it the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1981; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

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 administrative law judge reached Step 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. §§ 404.1520(f), 416.920(f); SSR 82-62, reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

I. Discussion

A. Lack of Vocational Expert Testimony

The plaintiff first challenges, Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff ("Itemized Statement") (ECF No. 11), at 3, the administrative law judge's conclusion that she could return to her past relevant work as a presser and a cashier, because he gave the following as the justification for that decision: "[i]n response to a hypothetical question at the hearing that reflected the claimant's residual functional capacity, the vocational expert testified that the individual would be able to complete her past work as a presser and cashier II as they were actually performed and as [they are] generally performed[.]" Record at 28. The parties agree that the vocational expert gave no such testimony at the hearing. Itemized Statement at 2; Defendant's Opposition to Plaintiff's Statement of Errors ("Opposition") (ECF No. 12) at 2.

The plaintiff contends that the administrative law judge, therefore, had no basis for his conclusion. Itemized Statement at 3. She adds that he did not make inquiry into the requirements of her past work as "required by" Social Security Ruling 82-62, nor did he inquire about her functional limitations. Id. [2] The defendant responds that "[t]he fact that the VE did not testify that Plaintiff could perform [her past relevant] work does not render the ALJ's finding unsupported." Opposition at 3.

Vocational testimony is not required at Step 4. Lewis v. Barnhart, No. 05-3-B-W, 2005 WL 1923514, at *2 (D. Me. Aug. 9, 2005) (and cases cited therein). So long as there is other evidence in the record to support the administrative law judge's Step 4 conclusion, the error of relying on nonexistent testimony is harmless. Id. n2. As the defendant points out, Opposition at 3-4, the descriptions of the two jobs at issue presented in the Dictionary of Occupational Titles ("DOT") fit within the parameters of the RFC assigned to the plaintiff by the administrative law judge. The vocational expert testified that the presser job is defined at section 363.682-014 of the DOT and the cashier II job at section 211.462-010. Record at 49.

The plaintiff argues that "[i]t is not apparent that the jobs do not require good binocular vision, or any of the other conditions in" the RFC. Itemized Statement at 3. She also questions whether the presser job requires the use of dangerous equipment. Id. However, the DOT descriptions of the jobs answer these questions. The RFC specifies that the plaintiff can never climb ladders, ropes, or scaffolds, must avoid tasks requiring good binocular vision, [3] and must avoid unprotected heights and dangerous machinery. Record at 24. The DOT describes the cashier II job as not requiring climbing or far acuity or depth perception. Dictionary of Occupational Titles § 211.462-010 (U.S. Dep't of Labor, 4th ed. rev. 1991). No moving mechanical parts or high exposed places are involved. Id.

The DOT describes the presser job as not requiring climbing or far acuity and only occasional depth perception. DOT § 363.682-014. It does not involve moving mechanical parts or high exposed places. Id. In addition, the state-agency physicians found that the assigned RFC would not prevent the plaintiff from returning to her past work, Record at 59, 80, and this is additional substantial evidence supporting the administrative law judge's Step 4 finding.

The cashier II job, at least, is consistent with the RFC. That is sufficient to sustain the administrative ...


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