United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III, United States Magistrate Judge.
Social Security Disability (“SSD”) 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 bases
that the ALJ erred in assessing his residual functional
capacity (“RFC”) and, even assuming the
correctness of that RFC, relying on two light jobs (cashier
and garment folder) that he was unable to perform.
See Plaintiff's Itemized Statement of Errors
(“Statement of Errors”) (ECF No. 11) at 4-7.
Finally, he argues that all of the job numbers provided by
the vocational expert (“VE”) present at his
hearing were “wildly inflated[, ]” separately
warranting remand. Id. at 8-12. I find no error
in the ALJ's RFC assessment or his reliance on the light
job of cashier, which exists in significant numbers in the
national economy, and, accordingly, recommend that the court
affirm the commissioner's decision. I need not and do not
reach the plaintiff's remaining points of error.
to the commissioner's sequential evaluation process, 20
C.F.R. § 404.1520; 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, 2019, Finding 1, Record at 12; that he
had the severe impairment of degenerative disc disease,
Finding 3, id. at 13; that he had the RFC to perform
light work as defined in 20 C.F.R. § 404.1567(b), except
that he was able to sit, stand, and walk for up to six hours
each out of an eight-hour workday, occasionally climb ramps,
stairs, ladders, ropes, or scaffolds, occasionally balance,
stoop, kneel, crouch, or crawl, needed to avoid concentrated
exposure to vibration (defined as vibratory tools) and
hazards (defined as unprotected heights), and needed to
frequently change positions throughout the course of an
eight-hour workday, alternating between sitting and standing,
Finding 5, id. at 15; that, considering his age (34
years old, defined as a younger individual, on his alleged
disability onset date, December 31, 2013), 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 he could
perform, Findings 7-10, id. at 19; and that he,
therefore, had not been disabled from December 31, 2013, his
alleged onset date of disability, through the date of the
decision, May 17, 2017, Finding 11, id. at 21-22.
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;
Dupuis v. Sec'y of Health & Human Servs.,
869 F.2d 622, 623 (1st Cir. 1989).
standard of review of the commissioner's decision is
whether the determination made is supported by substantial
evidence. 42 U.S.C. § 405(g); 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).
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 his past relevant
work. 20 C.F.R. § 404.1520(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).
plaintiff first contends that the ALJ erred in relying on the
opinion of agency nonexamining consultant Myron Watkins,
M.D., that he had the ability to stand and/or walk (with
normal breaks) for a total of about six hours in an
eight-hour workday, but “truncating Dr. Watkin[s']
opinion to eliminate the “/or.” Statement of
Errors at 4. He observes that “there is nothing in the
record to support the ALJ's finding that [he] can be on
his feet for twelve hours, i.e., stand and walk six
hours each.” Id.
commissioner rejoins, this interpretation of the RFC finding
“is overly formalistic and reads the RFC in a
vacuum.” Defendant's Opposition to Plaintiff's
Statement of Errors (“Opposition”) (ECF No. 16)
at 3. The ALJ did not find that the plaintiff could stand
and/or walk for 12 hours a day. Rather, “it is apparent
that [he] meant to rely on Dr. Watkins' opinion that
Plaintiff could stand or walk for a total of six
hours in an eight-hour day.” Id. at 4
(emphasis in original); see also Record at 16-17
(giving “great weight” to Dr. Watkins'
opinion that the plaintiff could perform light work with some
additional limitations); Social Security Ruling 83-10,
reprinted in West's Social Security Reporting
Service Rulings 1983-1991 (“SSR 83-10”), at
29 (“the full range” of light work
“requires standing or walking, off and on, for a total
of approximately 6 hours of an 8-hour workday”).
Further, the ALJ found, and conveyed to the VE at hearing,
that the plaintiff could sit, stand, or walk for six hours
each “out of an 8-hour workday[.]” Finding 5,
Record at 15; id. at 74. The VE testified that such
an individual could perform the job of cashier II, Dictionary
of Occupational Titles (U.S. Dep't of Labor 4th ed., rev.
1991) (“DOT”), § 211.462-010. See
Id. at 74; DOT § 211.462-010. While the plaintiff
separately challenges the ALJ's reliance on that job,
that challenge proves unavailing for the reasons discussed
plaintiff next asserts that, in violation of 20 C.F.R. §
404.1527(c), the ALJ failed to weigh the opinion of treating
neurosurgeon Anand Rughani, M.D. See Statement of
Errors at 4. While the ALJ did not characterize the weight
given to portions of that opinion, he discussed it in detail,
making clear that he rejected it to the extent that Dr.
Rughani implied that the plaintiff “could not perform
any full-time work through November 2015 (and possibly until
April 2016)[, ]” which he deemed “inconsistent
with the overall weight of the evidence, including Dr.
Rughani's own treatment notes[, ]” and adopted it
to the extent that Dr. Rughani indicated that the plaintiff
“require[d] the ability to frequently change positions
in the workplace.” Record at 17; see also id.
at 409. This comported with the requirement that adjudicators
“give good reasons . . . for the weight we give your
treating source's medical opinion.” 20 C.F.R.
Reliance on Jobs at Step 5
plaintiff, finally, challenges the ALJ's reliance on the
testimony of the VE present at hearing, Susan Howard, to
carry the commissioner's burden at Step 5. See
Statement of Errors at 6-7, 8-12. He does not dispute that
the job of cashier II exists in significant numbers in the
national economy, see id. at 9-12; however, he
contends that the ALJ's reliance on that job was
misplaced in that it “require[s] individuals to be on
their feet for their entire shift[, ] and there is no
affirmative evidence of record indicating that [he] is
capable of standing for eight hours in an eight-hour
workday.” Statement of Errors at 6.
plaintiff's source for the proposition that an individual
must stand on his feet for an entire workday to perform the
cashier II job is VE David W. Meuse, M.S., CRC, whose
affidavit he submitted in response to the testimony of Ms.
Howard. See Statement of Errors at 6-7; Record at
the ALJ considered the Meuse affidavit, explaining why he
declined to credit Mr. Meuse's opinion over that of Ms.
Howard. See Record at 20-21. While the plaintiff
discusses the Meuse affidavit in detail in his statement of
errors, he does not address the ALJ's discussion
rejecting it. See Statement of Errors at 6-7, 9-12.
Absent any reasoned argument why the ALJ erred in his
resolution of the conflicting VE ...