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Gee v. Berryhill

United States District Court, D. Maine

December 12, 2017

BRIAN NEAL GEE, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          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, 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.

         Pursuant 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).

         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. 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).

         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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         The ALJ 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.

         Finding 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.

         The 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.

         The 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.

         On the 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 reasons:

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 ...


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