United States District Court, D. Maine
REPORT AND RECOMMENDED
DECISION[1]
John
H. Rich III, United States Magistrate Judge.
This
Social Security Disability (“SSD”) appeal raises
the question of whether the administrative law judge
(“ALJ”) 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 ALJ failed to consider a vocational expert's
testimony that he required an accommodation in the form of a
special chair. See Plaintiff's Itemized
Statement of Errors (“Statement of Errors”) (ECF
No. 12) at 3-7. Because that testimony lacks foundation in
the record, I find no reversible error and, accordingly,
recommend that the court affirm the commissioner's
decision.
Pursuant
to the commissioner's sequential evaluation process, 20
C.F.R. § 404.1520; Goodermote v. Secretary of Health
& Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the
ALJ found, in relevant part, that the plaintiff met the
insured status requirements of the Social Security Act
through December 31, 2015, Finding 1, Record at 20; that he
had severe impairments of atrial fibrillation and morbid
obesity, Finding 3, id.; that he had the residual
functional capacity (“RFC”) to perform less than
a full range of light work, as defined in 20 C.F.R. §
404.1567(b), Finding 5, id. at 22; that, considering
his age (47 years old, defined as a younger individual, as of
his alleged disability onset date, August 2, 2011, and
subsequently changing age categories to closely approaching
advanced age), [2] education (at least high school), work
experience (transferability of skills immaterial), and RFC,
there were jobs existing in significant numbers in the
national economy that he could perform, Findings 7-10,
id. at 27; and that he, therefore, had not been
disabled from August 2, 2011, his alleged onset date of
disability, through December 31, 2015, his date last insured
for SSD benefits, Finding 11, id. at 28. 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. § 404.981; 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); 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 ALJ
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 his past relevant
work. 20 C.F.R. § 404.1520(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, who testified that he was six feet four inches
tall and weighed 490 pounds, see Record at 39-40,
raises one issue on appeal: that the ALJ ignored testimony of
a vocational expert (“VE”) that it would be a
“reasonable accommodation” to provide him with a
special bariatric chair, or, as his counsel refined the point
at oral argument, a larger chair, see Statement of
Errors at 3, 7; Record at 52.[3]
He
argues that this was reversible error because:
1.
Social Security Ruling 02-1p (“SSR 02-1p”)
directs that an ALJ should assess the effect obesity has upon
an individual's ability to perform routine movement and
necessary physical activity in a work setting, see
Statement of Errors at 5 n.3; SSR 02-1p, reprinted in
West's Social Security Reporting Service Rulings
1983-1991 (Supp. 2017), at 255; and
2. If
he could not perform the jobs at issue without a
“reasonable accommodation” as that phrase is
defined in the Americans with Disabilities Act
(“ADA”), he should not have been found capable of
performing them for purposes of his SSD application.
See Statement of Errors at 6; Social Security Ruling
00-1c, reprinted in West's Social Security Reporting
Service Rulings 1983-1991 (Supp. 2017) (“SSR
00-1c”), at 221 (“[W]hen the SSA [Social Security
Administration] determines whether an individual is disabled
for SSDI purposes, it does not take the possibility of
‘reasonable accommodation' into account . . . .
[A]n ADA suit claiming that the [claimant] can perform her
job with reasonable accommodation may well prove consistent
with an SSDI claim that the [claimant] could not perform her
own job (or other jobs) without it.”); Sullivan v.
Halter, 135 F.Supp.2d 985, 987-88 (S.D. Iowa 2001)
(“Whether or how an employer might be willing, or
required, to alter job duties to suit the limitations of a
specific individual is not relevant because Social
Security's assessment must be based on broad vocational
patterns rather than on any individual employer's
practices.”) (citation and internal punctuation
omitted).
The
commissioner rejoins that the plaintiff's argument rests
on a fatally flawed premise, because there is no evidence
that he needed a bariatric chair or, even, a larger chair.
See Defendant's Opposition to Plaintiff's
Itemized Statement of Errors (“Opposition”) (ECF
No. 14) at 4-7. In the alternative, she argues that, even
assuming that the plaintiff did need a larger chair, remand
is unwarranted because the provision of a larger chair is the
sort of accommodation that would be granted broadly rather
than according to an individual's employer's
practices. See id. at 6-7; Jones v. Apfel,
174 F.3d 692, 693-94 (5th Cir. 1999) (no reversible error
when VE's testimony indicated that provision of a
sit-stand option was “a prevalent accommodation in the
workplace” and, thus, “based on broad vocational
patterns . . . rather than on any individual employer's
practices”) (citations and internal quotation marks
omitted).
I
conclude that the commissioner's threshold argument, that
there is no evidence that the plaintiff needed a larger
chair, is dispositive in her favor and, hence, do not reach
her alternative point.
In
response to questions from his counsel at hearing, the
...