United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge
Social Security Disability (“SSD”) appeal raises
the question of whether the administrative law judge
(“ALJ”) supportably found the plaintiff, who
alleges that he is disabled by degenerative disc disease,
irritable bowel syndrome (“IBS”), anxiety, and
high blood pressure, capable of performing work existing in
significant numbers in the national economy. The plaintiff
seeks remand on the bases that the ALJ's assessment of
his residual functional capacity (“RFC”) is not
supported by substantial evidence, the ALJ erroneously
evaluated his testimony regarding his symptoms in determining
his RFC, and the ALJ failed to incorporate all of the
nonexertional limitations from his RFC findings into his
hypothetical questions to the vocational expert
(“VE”). See Itemized Statement of
Specific Errors (“Statement of Errors”) (ECF No.
13) at 1-2. Without reaching the first two points of error, I
recommend that the court find for the plaintiff on his third
identified point of error concerning the ALJ's
hypothetical and remand this action.
to the commissioner's sequential evaluation process, 20
C.F.R. § 404.1520; Goodermote v. Sec'y 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 13; that he
had severe impairments of degenerative disc disease, IBS, and
anxiety, Finding 3, id.; that he had the RFC to
perform less than the full range of light work as defined in
20 C.F.R. § 404.1567(b) in that he could lift and/or
carry up to 20 pounds occasionally and 10 pounds frequently,
sit for at least six hours and stand or walk for six hours in
an eight-hour day, occasionally climb, balance, stoop, kneel,
crouch, and crawl, might require an unscheduled break of up
to five minutes in the morning and another such break in the
afternoon, was able to maintain concentration and attention
sufficient to perform uncomplicated work tasks over an
eight-hour workday, assuming short (scheduled) work breaks on
average every two hours, was not able to interact with the
public, could work in the presence of co-workers and engage
in appropriate occasional social interaction, but could not
work in the context of a work team where work-related
interaction with co-workers was constant and physically
close, and could deal appropriately with supervisors on an
occasional basis, but not in circumstances in which
monitoring and intervention by supervisors was physically
close and/or frequent or continuous, Finding 5, id.
at 15; that, considering his age (47 years old, defined as a
younger individual, on his alleged disability onset date,
October 16, 2010), 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 24-25; and that he, therefore, had not been
disabled from October 16, 2010, through the date of the
decision, November 30, 2015, Finding 11, id. at 25.
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. Sec'y of Health & Human Servs.,
869 F.2d 622, 623 (1st Cir. 1989).
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.
Sec'y 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. Sec'y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981).
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. Sec'y of Health & Human
Servs., 807 F.2d 292, 294 (1st Cir. 1986).
included the following relevant nonexertional limitations in
his RFC determination:
The [plaintiff] can work in the presence of co-workers and
engage in appropriate occasional social interaction, but
cannot work in the context of a work team where work-related
interaction with co-workers is constant and physically close;
and can deal appropriately with supervisors on an occasional
basis, but not in circumstances [w]here monitoring and
intervention by supervisors is physically close and/or
frequent or continuous.
5, Record at 15 (emphasis added). At hearing, the ALJ asked
the VE to consider a hypothetical claimant who, inter
alia, “would not be able to perform activities
that require interaction with the public; could work in the
presence of coworkers and deal with them on an occasional
social or casual basis but could not work on a work team
where ongoing work-related interaction is frequent or
continuous[, ]” and “could work with supervisors
on an occasional basis, not (phonetic) for monitoring or
intervention is frequent or continuous.”
Id. at 63 (emphasis added). The VE testified that
the posited limitations would rule out the plaintiff's
past work but would permit the performance of the jobs of
unskilled mail clerk, assembler, and package sorter. See
Id. at 63-64. The ALJ relied on that testimony in
determining, at Step 5, that the plaintiff could perform work
existing in significant numbers in the national economy.
See id. at 25.
plaintiff notes that “[t]he ALJ did not pose the
limitation that [he] cannot work ‘in circumstances
where monitoring and intervention by supervisors is
physically close and/or frequent or continuous'
to [the VE].” Statement of Errors at 15 (quoting
Finding 5, Record at 15) (emphasis in Statement of Errors).
He asserts that, because the VE did not consider the issue of
physically close supervision, and the issue is not addressed
in the Dictionary of Occupational Titles
(“DOT”) (U.S. Dep't of Labor 4th ed. 1991),
it is unclear that the jobs identified by the VE could be
performed with that additional limitation. See id.
Hence, he contends, the commissioner failed to meet her Step
5 burden to demonstrate that there were jobs existing in
significant numbers in the national economy that he could
perform, warranting remand. See id. I agree.
commissioner construes the hypothetical question posed to the
VE as consistent with the ALJ's RFC determination,
arguing in the alternative that any error was harmless
because the DOT makes clear that a person with the omitted
limitation could still perform two of the three jobs at
issue. See Defendant's Opposition to
Plaintiff's Statement of Errors
(“Opposition”) (ECF No. 15) at 18-20.
first point, the commissioner asserts that the phrase
“physically close” need not have been conveyed to
the VE because “[t]he use of the phrase
‘and/or' means that ‘either or both of the
items connected by it are involved.'” Id.
at 19 (quoting The American Heritage Dictionary
of the English Language 47 (4th ed. 2000)). She
Hence, based on the plain language of the RFC, the ALJ was
free to limit Plaintiff to supervision that satisfied any of
the following: (1) supervision that was not “physically
close[”;] (2) supervision that was not
“physically close and frequent or continuous[;]”
or (3) supervision that was not “frequent or
continuous.” It is the third permissible option that
the ALJ used. This is not a situation where the ALJ omitted
any supervisory limitation; rather, the ALJ recited the
supervisory limitation in a way permitted by the plain
language of the RFC.
Id. at 19 (citation omitted). At oral argument, much
to the same point, counsel for the commissioner contended
that the phrase “physically close” can be
excluded from the longer phrase “not . . . physically
close and/or frequent or continuous” because the
“not” is a modifier that applies to each nominal
descriptor (physically close, frequent, or ...