United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. NIVISON U.S. MAGISTRATE JUDGE.
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).
a review of the record, and after consideration of the
parties' arguments, I recommend the Court affirm the
Commissioner's final decision is the October 12, 2017
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 9-2.) The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. § 404.1520.
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.)
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).
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.
Affidavit of David Meuse/Failure to Quantify Jobs
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.)
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).
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 ...