United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
JOHN H. RICH III, Magistrate Judge.
This Supplemental Security Income ("SSI") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the basis that the administrative law judge relied on flawed vocational testimony as to the number of jobs available in the national economy. See Plaintiff's Itemized Statement of Errors ("Statement of Errors") (ECF No. 11) at 9-10. I find no error and, accordingly, recommend that the court affirm the commissioner's decision.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 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 had severe impairments of fibromyalgia, lower back pain, bilateral leg pain, obesity, and depression, Finding 2, Record at 74; that she had the RFC to perform light work as defined in 20 C.F.R. § 416.967(b), with the limitations that she could occasionally climb ramps and/or stairs, could never climb ladders, ropes, or scaffolds, could occasionally crawl, stoop, kneel, and crouch, could frequently bilaterally reach, finger, and handle, needed to avoid exposure to extreme cold, humidity, and wetness, required work limited to simple and routine tasks, could not understand, remember, or carry out detailed instructions, and needed to be in a low-stress job, defined as requiring only occasional decision-making and occasional changes in the work setting, Finding 5, id. at 76-77; that, considering her age (50 years old, defined as an individual closely approaching advanced age, on her alleged disability onset date, May 13, 2010), education (limited), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 6-9, id. at 80; and that she, therefore, had not been disabled from May 13, 2010, through the date of the decision, January 14, 2013, Finding 10, id. at 82. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. § 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. § 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 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. § 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).
Based on the testimony of a vocational expert, the administrative law judge found the plaintiff capable of performing the representative jobs of cleaner/housekeeping, Dictionary of Occupational Titles (U.S. Dep't of Labor, 4th ed. rev. 1991) ("DOT") § 323.687-014, with 4, 980 jobs available in Maine and 877, 980 nationally, marker, DOT § 209.587-034, with 7, 880 jobs available in Maine and 1, 782, 800 nationally, and folding machine operator, DOT § 208.685-014, with 290 jobs available in Maine and 115, 010 nationally. See Record at 35-36, 81.
On cross-examination by the plaintiff's counsel, the vocational expert testified that her source for those numbers was the Bureau of Labor Statistics and that the numbers provided were not for the specific DOT-coded jobs that she had identified but, rather, for groups of jobs. See id. at 37-38. For example, she noted, there were 14 jobs in the group that includes folding machine operators, 38 in the group that includes markers, and nine in the group that includes cleaners/housekeeping. See id. at 38. When asked whether there was "a way that we can get an accurate number as to the incidence of just that specific job within the region or the national economy[, ]" she responded, "Not that I know of." Id. When asked how she could say that those were "accurate representations of the numbers of those jobs available if they are in fact jobs numbers for somewhere between nine and 33 [sic] other jobs[, ]" she testified, "The jobs are a representative sample of jobs in the DOT and the companion occupations." Id. at 39 (underline in original).
As the plaintiff points out, see Statement of Errors at 10, this court has held similar occupational incidence testimony inadequate to carry the commissioner's burden at Step 5, see St. Pierre v. Astrue, No. 1:10-cv-104-JAW, 2010 WL 5465635, at *2-*3 (D. Me. Dec. 29, 2010) (rec. dec., aff'd Jan. 19, 2011) (reversing and remanding on basis that vocational expert "essentially admitted that he did in fact rely on published raw numbers, which pertained not to the specific DOT code identified jobs at issue but rather to groups of jobs of differing skill and exertional levels that happened to contain the three specific jobs[, ]" as a result of which his testimony could not "constitute substantial evidence that the three specific jobs at issue existed in significant numbers in the national economy") (quoting Clark v. Astrue, Civil No. 09-390-P-H, 2010 WL 2924237, at *3 (D. Me. July 19, 2010) (rec. dec., aff'd Aug. 9, 2010) (emphasis in original).
However, as counsel for the commissioner contended at oral argument, St. Pierre and Clark are distinguishable in that, in those cases, vocational experts identified a significantly lower total number of jobs. In this case, the vocational expert identified three DOT-coded jobs that were part of job groups representing 2, 775, 790 jobs nationally. See Record at 35-36. By contrast, in St. Pierre, the vocational expert identified three DOT-coded jobs that were part of job groups representing 431, 378 jobs nationally, see St. Pierre, 2010 WL 5465635, at *2, and in Clark, the vocational expert identified three DOT-coded jobs that were part of job groups representing approximately 540, 000 jobs nationally, see Clark, 2010 WL 2924237, at *2.
The commissioner persuasively reasons that, despite the identification of numbers for groups of jobs rather than individual DOT-coded jobs, there are circumstances in which an administrative law judge reasonably can infer that the jobs at issue exist in significant numbers in the national economy. See Defendant's Opposition to Plaintiff's Statement of Errors ("Opposition") (ECF No. 14) at 17.
She notes that, in Guiton v. Colvin, 546 Fed.Appx. 137, 142 (4th Cir. 2013), the United States Court of Appeals for the Fourth Circuit rejected a challenge to reliance on a vocational expert's testimony that three DOT-coded jobs existed in numbers of 26, 330 jobs in North Carolina and 825, 000 nationally, when the expert admitted that the numbers were for groups of jobs containing the three jobs. See id.; Guiton, 546 Fed.Appx. at 141-43. The court explained:
Even assuming these numbers were overinclusive, far smaller figures would still suffice to satisfy the Commissioner's burden. We hold that the job numbers the VE [vocational expert] provided, although perhaps somewhat imprecise, were sufficiently ...