United States District Court, D. Maine
JOHN H. RICH, III, Magistrate Judge.
In this Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal,  the plaintiff contends that the administrative law judge erred in finding that she could return to her past relevant work, in failing to find that such work was in fact an unsuccessful work attempt, and in assigning her a residual functional capacity ("RFC") that was unsupported by substantial evidence. I vacate the decision of the commissioner.
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 (for purposes of SSD) only through September 30, 2012, Finding 1, Record at 14; that she suffered from the residuals of bilateral carpal tunnel syndrome status post release procedures, the residuals of lumbar laminectomy, obesity, a history of partial ACL (anterior cruciate ligament) tear, fibromyalgia, attention deficit hyperactivity disorder, depression not otherwise specified, anxiety not otherwise specified, and dependent personality disorder, impairments that were severe but which did not, considered separately or in combination, 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.; that she retained the RFC for light work, except that she could not climb ladders, ropes, or scaffolds, could only occasionally balance, stoop, kneel, crouch, crawl, or climb ramps or stairs, must avoid forceful gripping or grasping, repetitive wrist movements, vibratory tools, unprotected heights and uneven terrain, could understand and remember simple instructions, could execute simple tasks on a consistent schedule to complete a normal workday and week, could interact appropriately with coworkers and supervisors, but must avoid interaction with the general public, and could adapt to occasional routine changes in the workplace, Finding 5, id. at 15; that the plaintiff was able to perform her past relevant work as a coin box collector, Finding 6, id. at 18; and that, therefore, she had not been under a disability, as that term is defined in the Social Security Act, from July 8, 2011, the alleged date of onset, through the date of the decision, January 9, 2013, Finding 7, id. 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, 416.1481; 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); Social Security Ruling 82-62, reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.
A. Due Process
The plaintiff first contends that the administrative law judge deprived her of due process of law by instructing the vocational expert who testified at the hearing not to consider the job of coin box operator as past relevant work and subsequently finding, as the basis for denying the plaintiff's application for benefits, that the job of coin box operator was past relevant work to which the plaintiff could return. Plaintiff's Itemized Statement of Errors ("Itemized Statement") (ECF No. 12) at 4-8. The argument, however, is based on an unduly strained interpretation of the transcript of the relevant portion of the hearing.
The following is the relevant excerpt of the hearing transcript:
Q [by the administrative law judge]: If you would please... identify for me [the plaintiff's] past work....
A [by the vocational expert]:... And I have coin box collector. 292.687-010. Light duty, SVP 2.
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Q:... I'd like you to assume a hypothetical claimant... is [the plaintiff's] same age, possesses [her] same education, and possesses [her] same past work. I'd like you to assume that the hypothetical claimant can perform light work, except the hypothetical claimant can never climb ladders, ropes, or scaffolds, but may climb stairs or ramps, balance, stoop, crouch, kneel or crawl occasionally. The hypothetical claimant must avoid forceful gripping or grasping, and the hypothetical claimant must avoid repetitive wrist movements. The hypothetical claimant must avoid vibrating tools in the bilateral upper extremities, unprotected heights, and irregular terrain. Hypothetical claimant can understand and remember simple instructions. My hypothetical claimant can execute simple tasks on a consistent schedule to complete a work day or a work week. My hypothetical claimant can interact with co-workers and supervisors, but not the general public. The hypothetical claimant can adapt to occasional routine changes in the work place. Do you have any questions about that hypothetical...?
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Q. Okay. Given that hypothetical..., can the hypothetical claimant perform any of [the plaintiff's] past work?
A. With the - it looks like the only job that would fit within this hypothetical would be that of a coin box collector....
Q. Thank you.... I'd like you to assume that coin box collector is not past relevant work, and based upon your testimony, that would eliminate all other jobs that you identified, is that correct?
A. Yes. Yes.
Q. Is there other work in the national economy that the hypothetical claimant would be able to perform?
A. Let me - In - where is he now? Inserting machine operator. 208.685-018. SVP 2, light duty. I have around 7, 300 nationally.... Bottling line attendant. 920.687-042.
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A: SVP 1, light duty. I have around 140, 000 nationally.... Bakery worker. Bakery line worker. 524.687-022. SVP 2, light duty. I have around 5, 000 for that DOT code nationally.
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Q Thank you.... I don't have any additional ...