GEE v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
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REPORT AND RECOMMENDED DECISION re 13 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 12/26/2017. By MAGISTRATE JUDGE JOHN H. RICH III. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRIAN NEAL GEE,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant
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No. 2:17-cv-00001-DBH
REPORT AND RECOMMENDED DECISION1
This Social Security Disability (“SSD”) appeal raises the question of whether the
administrative law judge (“ALJ”) supportably found the plaintiff, who alleges that he is disabled
by degenerative disc disease, irritable bowel syndrome (“IBS”), anxiety, and high blood pressure,
capable of performing work existing in significant numbers in the national economy. The plaintiff
seeks remand on the bases that the ALJ’s assessment of his residual functional capacity (“RFC”)
is not supported by substantial evidence, the ALJ erroneously evaluated his testimony regarding
his symptoms in determining his RFC, and the ALJ failed to incorporate all of the nonexertional
limitations from his RFC findings into his hypothetical questions to the vocational expert (“VE”).
See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 1-2. Without
reaching the first two points of error, I recommend that the court find for the plaintiff on his third
identified point of error concerning the ALJ’s hypothetical and remand this action.
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This action is properly brought under 42 U.S.C. § 405(g). The commissioner has admitted that the plaintiff has
exhausted his 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 he
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 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.
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Pursuant 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, 2015, Finding 1, Record at 13; that he had severe impairments of
degenerative disc disease, IBS, and anxiety, Finding 3, id.; that he had the RFC to perform less
than the full range of light work as defined in 20 C.F.R. § 404.1567(b) in that he could lift and/or
carry up to 20 pounds occasionally and 10 pounds frequently, sit for at least six hours and stand or
walk for six hours in an eight-hour day, occasionally climb, balance, stoop, kneel, crouch, and
crawl, might require an unscheduled break of up to five minutes in the morning and another such
break in the afternoon, was able to maintain concentration and attention sufficient to perform
uncomplicated work tasks over an eight-hour workday, assuming short (scheduled) work breaks
on average every two hours, was not able to interact with the public, could work in the presence
of co-workers and engage in appropriate occasional social interaction, but could not work in the
context of a work team where work-related interaction with co-workers was constant and
physically close, and could deal appropriately with supervisors on an occasional basis, but not in
circumstances in which monitoring and intervention by supervisors was physically close and/or
frequent or continuous, Finding 5, id. at 15; that, considering his age (47 years old, defined as a
younger individual, on his alleged disability onset date, October 16, 2010), 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 24-25;
and that he, therefore, had not been disabled from October 16, 2010, through the date of the
decision, November 30, 2015, Finding 11, id. at 25. The Appeals Council declined to review the
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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).
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); 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).
The ALJ 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).
I. Discussion
The ALJ included the following relevant nonexertional limitations in his RFC
determination:
The [plaintiff] can work in the presence of co-workers and engage in appropriate
occasional social interaction, but cannot work in the context of a work team where
work-related interaction with co-workers is constant and physically close; and can
deal appropriately with supervisors on an occasional basis, but not in circumstances
[w]here monitoring and intervention by supervisors is physically close and/or
frequent or continuous.
Finding 5, Record at 15 (emphasis added). At hearing, the ALJ asked the VE to consider a
hypothetical claimant who, inter alia, “would not be able to perform activities that require
interaction with the public; could work in the presence of coworkers and deal with them on an
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occasional social or casual basis but could not work on a work team where ongoing work-related
interaction is frequent or continuous[,]” and “could work with supervisors on an occasional basis,
not (phonetic) for monitoring or intervention is frequent or continuous.” Id. at 63 (emphasis
added). The VE testified that the posited limitations would rule out the plaintiff’s past work but
would permit the performance of the jobs of unskilled mail clerk, assembler, and package sorter.
See id. at 63-64. The ALJ relied on that testimony in determining, at Step 5, that the plaintiff could
perform work existing in significant numbers in the national economy. See id. at 25.
The plaintiff notes that “[t]he ALJ did not pose the limitation that [he] cannot work ‘in
circumstances where monitoring and intervention by supervisors is physically close and/or
frequent or continuous’ to [the VE].” Statement of Errors at 15 (quoting Finding 5, Record at 15)
(emphasis in Statement of Errors). He asserts that, because the VE did not consider the issue of
physically close supervision, and the issue is not addressed in the Dictionary of Occupational Titles
(“DOT”) (U.S. Dep’t of Labor 4th ed. 1991), it is unclear that the jobs identified by the VE could
be performed with that additional limitation. See id. Hence, he contends, the commissioner failed
to meet her Step 5 burden to demonstrate that there were jobs existing in significant numbers in
the national economy that he could perform, warranting remand. See id. I agree.
The commissioner construes the hypothetical question posed to the VE as consistent with
the ALJ’s RFC determination, arguing in the alternative that any error was harmless because the
DOT makes clear that a person with the omitted limitation could still perform two of the three jobs
at issue. See Defendant’s Opposition to Plaintiff’s Statement of Errors (“Opposition”) (ECF No.
15) at 18-20.
On the first point, the commissioner asserts that the phrase “physically close” need not
have been conveyed to the VE because “[t]he use of the phrase ‘and/or’ means that ‘either or both
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of the items connected by it are involved.’” Id. at 19 (quoting The American Heritage Dictionary
of the English Language 47 (4th ed. 2000)). She reasons:
Hence, based on the plain language of the RFC, the ALJ was free to limit Plaintiff
to supervision that satisfied any of the following: (1) supervision that was not
“physically close[”;] (2) supervision that was not “physically close and frequent or
continuous[;]” or (3) supervision that was not “frequent or continuous.” It is the
third permissible option that the ALJ used. This is not a situation where the ALJ
omitted any supervisory limitation; rather, the ALJ recited the supervisory
limitation in a way permitted by the plain language of the RFC.
Id. at 19 (citation omitted).
At oral argument, much to the same point, counsel for the
commissioner contended that the phrase “physically close” can be excluded from the longer phrase
“not . . . physically close and/or frequent or continuous” because the “not” is a modifier that applies
to each nominal descriptor (physically close, frequent, or continuous), none of which is separated
by a comma, and the “or” is disjunctive.
The plaintiff’s counsel rejoined that the word “not” modifies all of the descriptors that
follow, as a result of which the only reasonable reading of the restriction set forth in the RFC
determination is that the plaintiff could not perform a job requiring any of those types of
supervision.
The plaintiff has the better argument. As counsel for the commissioner acknowledged, the
RFC limitation is not well-worded. However, to adopt the commissioner’s argument would be to
read out of the ALJ’s RFC the conjunctive “and” in favor of the disjunctive “or.” In any event,
even if one could reasonably construe the language at issue to mean that the plaintiff had a
limitation against either supervision that was not physically close or supervision that was not
frequent or continuous, that reading makes little sense. The limitations differ in kind: a ban against
frequent or continuous supervision would not address the need for a ban against physically close
supervision.
The plaintiff either needed a limitation against physically close supervision,
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regardless of the frequency of its occurrence, or he did not. The ALJ included it in his RFC, and
the better reading is that the plaintiff required it.2
As to the commissioner’s alternative argument regarding harmless error, the commissioner
contends that any error in omitting to pose the limitation to the VE is harmless because the DOT
indicates that “People: . . . – Taking Instructions-Helping” is not a significant part of the jobs of
mail clerk or assembler. Opposition at 20; DOT §§ 209.687-026, 706.684-022.
As the plaintiff’s counsel noted at oral argument, however, the fact that taking instructions
is not a significant part of a job does not necessarily mean that it entails no physically close
supervision. It could entail infrequent physically close supervision, which would conflict with the
limitation set forth in the RFC determination as most reasonably construed.
An ALJ has “a duty to develop an adequate record from which a reasonable conclusion can
be drawn.” Heggarty v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991) (citation and internal quotation
marks omitted). As the plaintiff’s counsel asserted at oral argument, the ALJ lacked a sufficient
evidentiary basis, in the form of either the VE’s testimony or the DOT, to conclude that the plaintiff
was capable of performing any of the three jobs at issue. Remand, accordingly, is required. See,
e.g., Wiley v. Colvin, No. 13-2473, 2015 WL 9653048, at *1 (1st Cir. Feb. 11, 2015) (remand
required when ALJ’s flawed hypothetical to VE, omitting more substantial limitations that he
2
The commissioner attempts to distinguish Joseph v. Astrue, C.A No. 11–191S, 2012 WL 1397457, at *10 (D.R.I.
Mar. 30, 2012) (rec. dec., aff’d Apr. 23, 2012), in which remand was ordered because of an ALJ’s failure to convey
similar language to a VE, on the basis that, there, the ALJ omitted to convey the entirety of a limitation against dealing
with supervisors “in circumstances in which, because of product considerations or for other reasons, monitoring and
intervention by supervisors is physically close and/or frequent or continuous.” Opposition at 19; Joseph, 2012 WL
1397457, at *10. I perceive no material distinction. In Joseph, the ALJ had conveyed to the VE a separate but related
limitation that the claimant was able to deal appropriately with supervisors on an occasional basis. See id. The
commissioner had argued that, given “the fact that interaction with supervisors was limited in the hypothetical to no
more than an occasional basis, the lack of physical closeness [could] reasonably be presumed – and did not need to be
expressly included.” Id. The court was unpersuaded, reasoning that “the limitation to ‘occasional’ supervision, is one
of frequency, whereas the limitation to supervision which is ‘not physically close,’ is one of proximity.” Id. at *11.
The same flaw exists here.
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found in his RFC, was not harmless error); Arocho v. Sec’y of Health & Human Servs., 670 F.2d
374, 375 (1st Cir. 1982) (responses of a vocational expert are relevant only to the extent offered in
response to hypothetical questions that correspond to the medical evidence of record).
II. Conclusion
For the foregoing reasons, I recommend that the commissioner’s decision be VACATED
and the case REMANDED for proceedings consistent herewith.
NOTICE
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum
and request for oral argument before the district judge, if any is sought, within fourteen (14)
days after being served with a copy thereof. A responsive memorandum and any request for
oral argument before the district judge shall be filed within fourteen (14) days after the filing of
the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.
Dated this 12th day of December, 2017.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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