Murray B. v. Social Security Administration Commissioner

          REPORT AND RECOMMENDED DECISION

          John C. Nivison, U.S. Magistrate Judge.

         On Plaintiff Murray B's application for disability insurance benefits under Title II, 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 vacate the administrative decision.

         The Administrative Findings and Proceedings

         The Commissioner's final decision is the February 9, 2017, decision of the Administrative Law Judge. (ALJ Decision, ECF No. 10-2.)^[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, 416.920. At step 5, the ALJ found that a person of Plaintiff's age, having Plaintiff's residual functional capacity and vocational background, ^[2]would be able to perform substantial gainful activity, including representative jobs such as parts cleaner (Dictionary of Occupational Titles # 709.687-010), and that approximately 130, 000 parts cleaner jobs exist in the national economy. (R. 28.)

         Plaintiff's appeal concerns the reliability of the vocational expert (VE) testimony and the failure of the ALJ to consider evidence Plaintiff submitted after the hearing to challenge the VE testimony. At Plaintiff's hearing, the VE testified that a person with Plaintiff's residual functional capacity and vocational background would be able to perform light exertion jobs. (Hr'g Tr., R. 44 - 45.) The VE identified the parts cleaner job as one Plaintiff could perform, and testified there are approximately 130, 000 such jobs in the national economy. (R. 45.)

         The ALJ inquired of Plaintiff's non-attorney representative whether he had any issues regarding the VE testimony, and the representative stated he did not. (Id.) Subsequently, the representative had the opportunity to question the VE. After obtaining additional testimony about the nature of the parts cleaner job, and the types of businesses that employ parts cleaners, the representative asked how the vocational expert obtained the job numbers. (R. 56.) The VE explained that his methodology for obtaining job numbers consists of looking at a publication of the Department of Labor, Bureau of Statistics, and a computer application called SkillTRAN. (Id.) According to the VE, he provides the ALJ with the more conservative number from the two sources. (Id.)

         On January 4, 2017, less than two weeks after the hearing, Plaintiff provided the ALJ with a 38-page document entitled Post-Hearing Memorandum and Objections to the Vocational Witness' Testimony. (Ex. 22E, ECF No. 10-7.) Through the document, Plaintiff attempted to challenge the vocational expert's testimony on multiple grounds. In particular, Plaintiff objected to the VE's use of OES group job incidence data or a SkillTRAN software application called Job Browser Pro. (R. 282 - 85.) Plaintiff included certain exhibits through which he purported to substantiate his claim that the numbers from the sources are unreliable.

         In his February 9, 2017, decision, the ALJ recognized that Plaintiff had submitted additional evidence for the ALJ's consideration. The ALJ, however, applied the five-day rule, which rule requires that evidence be provided to an ALJ no later than five days before the scheduled hearing, subject to limited exceptions. 20 C.F.R. § 404.331(a) (2016). The ALJ found that none of the exceptions applied, and declined to consider the additional evidence. (R. 19 - 20.) The ALJ ultimately relied on the testimony of the VE to support his step 5 finding on job numbers.

         Plaintiff reasserted his objection with the Appeals Council (Ex. 23E), but the Appeals Council found no reason to review the decision. The Appeals Council, however, did not entirely disregard the issue regarding the VE testimony. The Council explained that it reviewed what Plaintiff described as the ALJ's “refusal to allow the claimant to respond to [a] complex vocational issue post-hearing, ” and concluded the ALJ did not abuse his discretion. (R. 4.)

         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

         When a claimant maintains that the administrative decision should be vacated based on the failure of the ALJ or Appeals Council to consider new evidence, the Court must consider whether the failure to consider the evidence was the product of a supportable exercise of administrative discretion. Raymond v. Astrue, No. 1:12-cv-92-DBH, 2012 WL 6913437, at *2 (Dec. 31, 2012), rec. dec. adopted, 2013 WL 214569 (D. Me. Jan. 18, 2013). Pursuant to 20 C.F.R. § 404.331(c) (2016), Defendant has instructed that an ALJ “will accept” evidence submitted after a hearing if (1) there is a “reasonable possibility ...