United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. Nivison, U.S. Magistrate Judge.
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).
a review of the record, and after consideration of the
parties' arguments, I recommend the Court vacate the
Administrative Findings and Proceedings
Commissioner's final decision is the February 9, 2017,
decision of the Administrative Law Judge. (ALJ Decision, ECF
No. 10-2.) The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. §§ 404.1520,
416.920. At step 5, the ALJ found that a person of
Plaintiff's age, having Plaintiff's residual
functional capacity and vocational background, 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.
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.)
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.)
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.
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.
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.)
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).
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 ...