Jennifer B. v. Social Security Administration Commissioner

          REPORT AND RECOMMENDED DECISION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         On Plaintiff Jennifer B's application for disability insurance benefits under Title II of the Social Security Act, Defendant, the Social Security Administration Commissioner, found that Plaintiff has severe impairments but retains the functional capacity to perform substantial gainful activity. Defendant, therefore, denied Plaintiff's request for disability benefits. Plaintiff filed this action to obtain judicial review of Defendant's final administrative decision pursuant to 42 U.S.C. § 405(g).

         Following a review of the record, and after consideration of the parties' arguments, I recommend the Court affirm the administrative decision.

         The Administrative Findings

         The Commissioner's final decision is the October 12, 2017 decision of the Administrative Law Judge. (ALJ Decision, ECF No. 9-2.)^[1] The ALJ's decision tracks the familiar five-step sequential evaluation process for analyzing social security disability claims, 20 C.F.R. § 404.1520.

         The ALJ found that Plaintiff has severe, but non-listing-level impairments consisting of affective disorder, anxiety disorder, and post-traumatic stress disorder. (R. 17-19, ¶¶ 3-4.) The ALJ further found that Plaintiff has the residual functional capacity (RFC) to perform simple, routine tasks that do not involve working with the public. (R. 20, ¶ 5.) Based on the ALJ's RFC finding and the testimony of a vocational expert, at step 5, the ALJ determined that Plaintiff was not disabled because she is able to perform substantial gainful activity, including in representative jobs such as laundry worker, kitchen helper, and linen grader. (R. 24-25, ¶¶ 10, 11.)

         Standard of Review

         A court must affirm the administrative decision provided the decision is based on the correct legal standards and is supported by substantial evidence, even if the record contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ's findings of fact are conclusive when supported by substantial evidence, but they are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

         Discussion

         Plaintiff contends the ALJ erred when she (1) failed to address or consider an affidavit of a vocational expert (David Meuse); (2) failed to quantify the number of available jobs by reference to specific job title instead of census codes; (3) failed to weigh properly Plaintiff's Veterans Administration (VA) disability rating; (4) failed to consider appropriately the 2012 report of examination provided by Kerry Kimball, Ph.D.; (5) failed to address a source statement from Cindy Boyack, M.D.; and (6) found res judicata barred the reopening of a prior administrative decision.

         A. Affidavit of David Meuse/Failure to Quantify Jobs

         Plaintiff submitted an affidavit from David Meuse, a vocational expert, to address the testimony of the vocational expert who appeared at Plaintiff's hearing. (Affidavit of David W. Meuse, Ex. C17E, PageID # 327.) According to Mr. Meuse, when testifying to the number of jobs available in the national economy, the expert improperly relied on information contained in the publication “Occupational Employment Quarterly” (OEQ). (Id. ¶ 8.) Mr. Meuse maintains the methodology used in the publication to determine job estimates is “deceptively simple.” (Id. ¶ 8.)

         The First Circuit Court of Appeals has reasoned that a challenge to a vocational expert's reliance on the OEQ could raise a meritorious issue on appeal where the vocational expert testified at the hearing that “there was no way” to extract job numbers for particular jobs using the OEQ. Wiley v. Colvin, No. 13-2473, 2015 WL 9653048, * 1-2 (1st Cir. Feb. 11, 2015). Similarly, this Court has determined that it is appropriate to scrutinize vocational expert testimony to ensure that the vocational expert “gave job numbers for DOT-specific jobs, not aggregate groups of jobs of varying skill and exertional levels.” Small v. Colvin, No. 1:12-cv-236-GZS, 2013 WL 1912892, at *8 (Mar. 30, 2013), rec. dec. adopted, 2013 WL 1912862 (D. Me. May 8, 2013).

         Defendant does not necessarily dispute Plaintiff's contention that a vocational expert's reliance on the OEQ could be problematic. (Response at 4, ECF No. 18.) Defendant, therefore, argues whether the ALJ should have considered the Meuse affidavit is essentially moot. Defendant, however, contends that any error was harmless because the ALJ's RFC finding supports ...