Maietta v. Berryhill

          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 ...