EDWARDS v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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MEMORANDUM OF DECISION re 11 Social Security Statement of Errors/Fact Sheet By MAGISTRATE JUDGE JOHN H. RICH III. (jgw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DENISE MARIE EDWARDS,
Plaintiff
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant
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No. 2:13-cv-419-JHR
MEMORANDUM DECISION1
The plaintiff in this Social Security Disability (“SSD”) and Supplemental Security Income
(“SSI”) appeal contends that the administrative law judge committed reversible error when he
stated that he relied on evidence that did not exist, failed to include in the residual function capacity
(“RFC”) that he assigned to the plaintiff any limitations arising from one of her severe
impairments, and erred in evaluating her credibility. I affirm the commissioner’s decision.
In accordance with the commissioner’s sequential evaluation process, 20 C.F.R.
§§ 404.1520, 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir.
1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status
requirements of the Social Security Act through June 30, 2015, Finding 1, Record at 23; that she
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This action is properly brought under 42 U.S.C. §§ 405(g) and 1383(c)(3). The commissioner has admitted that the
plaintiff has exhausted her administrative remedies. The case is presented as a request for judicial review by this court
pursuant to Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon
which she seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s
Office, and the commissioner to file a written opposition to the itemized statement. Oral argument was held before
me on December 10, 2014, pursuant to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument
their respective positions with citations to relevant statutes, regulations, case authority, and page references to the
administrative record. The parties have consented to have me conduct all proceedings in this matter, including the
entry of judgment. ECF No. 15.
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suffered from a history of cerebral aneurysm and monocular exotropia in the left eye, impairments
that were severe but which, considered separately or in combination, did not meet or medically
equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the
“Listings”), Findings 3-4, id. at 24; that she retained the RFC to perform medium work except that
she could never climb ladders, ropes or scaffolds, must avoid tasks requiring good binocular vision,
and must avoid unprotected heights and dangerous machinery, Finding 5, id.; that she was capable
of performing her past relevant work as a presser and a cashier, Finding 6, id. at 28; and that,
therefore, she had not been under a disability, as that term is defined in the Social Security Act, at
any time from the alleged date of onset of disability, March 1, 2010, through the date of the
decision, August 14, 2012, Finding 7, id. at 29. The Appeals Council declined to review the
decision, id. at 1-3, making it the final determination of the commissioner, 20 C.F.R. §§ 404.981,
416.1981; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner’s decision is whether the determination made
is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Secretary
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. Secretary
of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge reached Step 4 of the sequential evaluation process, at which
stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R.
§§ 404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the
commissioner must make findings of the plaintiff’s RFC and the physical and mental demands of
past work and determine whether the plaintiff’s RFC would permit performance of that work. 20
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C.F.R. §§ 404.1520(f), 416.920(f); SSR 82-62, reprinted in West’s Social Security Reporting
Service Rulings 1975-1982, at 813.
I.
Discussion
A. Lack of Vocational Expert Testimony
The plaintiff first challenges, Itemized Statement of Errors Pursuant to Local Rule 16.3
Submitted by Plaintiff (“Itemized Statement”) (ECF No. 11), at 3, the administrative law judge’s
conclusion that she could return to her past relevant work as a presser and a cashier, because he
gave the following as the justification for that decision: “[i]n response to a hypothetical question
at the hearing that reflected the claimant’s residual functional capacity, the vocational expert
testified that the individual would be able to complete her past work as a presser and cashier II as
they were actually performed and as [they are] generally performed[.]” Record at 28. The parties
agree that the vocational expert gave no such testimony at the hearing. Itemized Statement at 2;
Defendant’s Opposition to Plaintiff’s Statement of Errors (“Opposition”) (ECF No. 12) at 2.
The plaintiff contends that the administrative law judge, therefore, had no basis for his
conclusion. Itemized Statement at 3. She adds that he did not make inquiry into the requirements
of her past work as “required by” Social Security Ruling 82-62, nor did he inquire about her
functional limitations. Id.2 The defendant responds that “[t]he fact that the VE did not testify that
Plaintiff could perform [her past relevant] work does not render the ALJ’s finding unsupported.”
Opposition at 3.
Vocational testimony is not required at Step 4. Lewis v. Barnhart, No. 05-3-B-W, 2005
WL 1923514, at *2 (D. Me. Aug. 9, 2005) (and cases cited therein). So long as there is other
The plaintiff also adds that “a finding that non-exertional limitations do not significantly erode the occupational base
must be supported by vocational testimony or other evidence[,]” Itemized Statement at 3-4, but that is an issue for
Step 5 of the sequential evaluation process, see generally Knapton v. Social Sec. Admin. Comm’r, No. 1:13-cv-00168GZS, 2014 WL 1608389, at *2 (D. Me. Apr. 22, 2014), which was not reached in this case.
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evidence in the record to support the administrative law judge’s Step 4 conclusion, the error of
relying on nonexistent testimony is harmless. Id. n2. As the defendant points out, Opposition at
3-4, the descriptions of the two jobs at issue presented in the Dictionary of Occupational Titles
(“DOT”) fit within the parameters of the RFC assigned to the plaintiff by the administrative law
judge.
The vocational expert testified that the presser job is defined at section 363.682-014 of
the DOT and the cashier II job at section 211.462-010. Record at 49.
The plaintiff argues that “[i]t is not apparent that the jobs do not require good binocular
vision, or any of the other conditions in” the RFC. Itemized Statement at 3. She also questions
whether the presser job requires the use of dangerous equipment. Id. However, the DOT
descriptions of the jobs answer these questions. The RFC specifies that the plaintiff can never
climb ladders, ropes, or scaffolds, must avoid tasks requiring good binocular vision,3 and must
avoid unprotected heights and dangerous machinery. Record at 24. The DOT describes the cashier
II job as not requiring climbing or far acuity or depth perception. Dictionary of Occupational
Titles § 211.462-010 (U.S. Dep’t of Labor, 4th ed. rev. 1991). No moving mechanical parts or
high exposed places are involved. Id.
The DOT describes the presser job as not requiring climbing or far acuity and only
occasional depth perception. DOT § 363.682-014. It does not involve moving mechanical parts
or high exposed places. Id. In addition, the state-agency physicians found that the assigned RFC
would not prevent the plaintiff from returning to her past work, Record at 59, 80, and this is
additional substantial evidence supporting the administrative law judge’s Step 4 finding.
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Jobs requiring full binocular vision are not available to individuals with limited far acuity and field of vision. See
Grindle v. Astrue, No. 1:10-cv-516-JAW, 2011 WL 4480680, at *2 (D. Me. Sept. 26, 2011). Work as a cashier is
consistent with a lack of binocular vision. Frizzell v. Astrue. No. 2:11-0052, 2012 WL 2871790, at *3 (M.D. Tenn.
July 12, 2012); Gould v. Astrue, Civil Action No. 08-3694, 2009 WL 537056, at *2-*3 (E.D. La. Mar. 3, 2009).
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The cashier II job, at least, is consistent with the RFC. That is sufficient to sustain the
administrative law judge’s Step 4 conclusion.4
B. Limitations Due to Cerebral Aneurysm
The plaintiff next complains of the administrative law judge’s failure to include in the RFC
that he assigned to her any limitations resulting from her history of cerebral aneurysm. Itemized
Statement at 4. She relies on her testimony that she suffered from fatigue resulting from the
aneurysm and that fatigue was the primary reason that she had problems with concentration and
could not work full time. Id.
The administrative law judge noted that “[t]he claimant[] apparently has some short-term
memory issues secondary to her past aneurysm, but these deficits [are] not significant and are
[addressed by] minor compensatory strategies, such as writing down reminders.” Record at 2728. The aneurysm was surgically repaired in 2004. Id. at 26.
Contrary to the plaintiff’s implication, failure to include in an RFC any limitations
specifically tied to an impairment found to be severe does not automatically result in remand. E.g.,
Courtney v. Colvin, Civil No. 2:13-cv-72-DBH, 2014 WL 320234, at *4 (D. Me. Jan. 29, 2014).
As the administrative law judge noted, the plaintiff’s medical records post-surgery and discharge
from the hospital show little treatment for any sequelae of the aneurysm.
Record at 26.
Furthermore, the plaintiff worked for several years after the surgical repair. See generally Leavitt
v. Apfel, No. 98-328-P-C, 1999 WL 33117107, at *2 (D. Me. May 12, 1999).
In addition, where, as here, a claimant relies only upon her own testimony to support an
argument that she is entitled to remand as a result of an administrative law judge’s failure to include
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Because the jobs are defined in the DOT as they are customarily performed in the national economy, there was no
need for the administrative law judge to inquire into the requirements of the plaintiff’s specific past work as she
performed it, if that is what the plaintiff means to contend. Itemized Statement at 3. See Social Security Ruling 8262, reprinted in West’s Social Security Reporting Service Rulings 1975-1982, at 811
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additional limitations in her RFC, the administrative law judge’s evaluation of her credibility
comes into play. In this case, the administrative law judge found that:
The claimant was able to continue working after her aneurysm and visual
deficits. There is no evidence of any significant change in her physical
condition at the time she stopped working or thereafter. . . . There is no
evidence that the claimant is physically or mentally unable to return to
her previous jobs. As the claimant’s medical[] history does not fully
support the claimant’s allegations as they relate to her alleged symptoms,
the undersigned finds the claimant’s allegations are not fully credible.
Record at 28.
However, on this point, the plaintiff challenges the administrative law judge’s finding with
respect to her credibility. Itemized Statement at 5. I address that final issue below.
C. Credibility
The plaintiff asserts that the administrative law judge’s evaluation of her credibility is
“selective and slanted.” Itemized Statement at 5. Specifically, she faults the administrative law
judge for failing to mention that she was fired from her last job for poor performance. Id. The
administrative law judge’s opinion does mention that this dismissal was “for stealing” and does
not mention, as the plaintiff points out, id., that the amount stolen was five dollars. Record at 45.
However, this is not the only reason given by the administrative law judge for discounting the
plaintiff’s credibility. Id. at 25-26. Under these circumstances, I fail to see how this omission
renders the assessment of her credibility invalid.
The plaintiff goes on to assert that “it is entirely conceivable that [the plaintiff’s] symptoms
could have continued and worsened without treatment.” Itemized Statement at 5. This is certainly
possible, but the point of the administrative law judge’s analysis is that there is no medical
evidence to support this “possibility.” The administrative law judge was entitled to infer from a
lack of treatment for any sequelae of the aneurysm or any other disabling impairment, when the
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plaintiff was regularly seeing her primary care provider for other medical problems, that there were
no such symptoms. E.g., Libby v. Astrue, No. 2:10-cv-265-GZS, 2011 WL 2531152, at *3 (D. Me.
June 24, 2011). The plaintiff did not testify that her condition worsened after she stopped working,
and, even if she had, he was not required to accept her testimony at face value.
The plaintiff has not demonstrated any reversible error as to credibility.
II.
Conclusion
For the foregoing reasons, the commissioner’s decision is AFFIRMED.
Dated this 2nd day of January, 2015.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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