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Sue M. v. Berryhill

United States District Court, D. Maine

August 3, 2018

SUE M., Plaintiff
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant



         This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) 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, in contravention of Social Security Ruling 00-4p (“SSR 00-4p”), the ALJ failed to identify and resolve a conflict between the testimony of a vocational expert (“VE”) and the Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed., rev. 1991) (“DOT”). See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 11) at 4-8. I conclude that the plaintiff fails to demonstrate that the purported conflict was sufficiently obvious that the ALJ, without any assistance, should have identified and resolved it. Accordingly, I recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; 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 116; that she had the severe impairments of post-traumatic stress disorder, dysthymia, bipolar II disorder, and attention deficit disorder, Finding 3, id.; that she had the residual functional capacity (“RFC”) to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except that she had to avoid concentrated exposure to extreme cold and irritants such as fumes, odors, dust, gases, and poorly ventilated areas, was limited to simple, routine, repetitive tasks and could not understand, remember, or carry out detailed instructions, was limited to working in a low-stress job, defined as one entailing occasional decision-making and occasional changes in the work setting, and could tolerate no more than occasional interaction with the public and co-workers, Finding 5, id. at 118-19; that, considering her age (41 years old, defined as a younger individual, on her alleged disability onset date, February 2, 2012, 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 she could perform, Findings 7-10, id. at 123; and that she, therefore, had not been disabled from February 2, 2012, through the date of the decision, June 10, 2016, Finding 11, id. at 124-25. 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, 416.1481; 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), 1383(c)(3); 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 her past relevant work. 20 C.F.R. §§ 404.1520(g), 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. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         SSR 00-4p provides, in relevant part:

The Responsibility To Ask About Conflicts
When a VE or VS [vocational specialist] provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT. In these situations, the adjudicator will:
• Ask the VE or VS if the evidence he or she has provided conflicts with information provided in the DOT; and
• If the VE's or VS's evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.
Explaining the Resolution When vocational evidence provided by a VE or VS is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE or VS evidence to support a determination or decision that the individual is or is not disabled. The adjudicator will explain in the determination or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified.

SSR 00-4p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2017), at 244.

         At the outset of the VE's testimony, the ALJ asked her to let him know if her “testimony diverge[d] in any respect” from the DOT, and she agreed to do so. Record at 41-42. The ALJ asked the VE whether a hypothetical claimant who, inter alia, was “limited to simple, routine and repetitive tasks” and “could not understand, carry out, or remember any detailed instructions” could perform jobs existing in significant numbers in the national economy. Id. at 43. The VE testified that such an individual could perform the jobs of laundry worker, DOT § 361.685-018, warehouse worker, DOT § 922.687-058, and dishwasher, DOT § 318.687-010. See id. She identified no conflict with the DOT. See id. at 43-46. The plaintiff's representative did not question the VE at hearing concerning any apparent conflict between her testimony and the DOT. See id. ...

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