REIL v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 24

REPORT AND RECOMMENDED DECISION re 14 Social Security Statement of Errors/Fact Sheet, 1 Complaint, filed by ELLEN M REIL. Objections to R&R due by 10/30/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ELLEN M. REIL,
Plaintiff
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant

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2:17-cv-00033-NT

REPORT AND RECOMMENDED DECISION
On Plaintiff Ellen Reil’s application for disability insurance benefits under Title II
of the Social Security Act, Defendant, the Social Security Administration Acting
Commissioner, found that Plaintiff has severe impairments, but retains the functional
capacity to perform past relevant work. Defendant, therefore, denied Plaintiff’s request for
disability benefits. Plaintiff filed this action for 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 affirm the administrative decision.
The Administrative Findings
The Commissioner’s final decision is the December 9, 2015, decision of the
Administrative Law Judge (ALJ). (ECF No. 10-2.)1 The ALJ’s decision tracks the familiar

Because the Appeals Council found no reason to review that decision, Defendant’s final decision is the
ALJ’s decision.
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five-step sequential evaluation process for analyzing social security disability claims, 20
C.F.R. §§ 404.1520, 416.920.
The ALJ found that Plaintiff has severe, but non-listing-level impairments
consisting of attention deficit disorder/attention deficit hyperactivity disorder and anxiety
disorder, but that Plaintiff has the residual functional capacity (RFC) to perform a full range
of work at all exertional levels, provided the work involves only “simple tasks,” is “object
oriented,” and involves only occasional interaction with the public. (ALJ Decision ¶¶ 3 –
5.) The ALJ determined that Plaintiff’s RFC would enable her to perform past relevant
work as a maid/housekeeper. (Id. ¶ 6.) Alternatively, the ALJ concluded that Plaintiff
could perform other substantial gainful activity, including the representative occupations
of janitor, kitchen worker, packager, cleaner, and assembler. Accordingly, the ALJ found
Plaintiff was “not disabled” for the period starting with the alleged onset date of May 26,
2011, and ending on the date of decision, December 9, 2015. (Id. ¶ 7.)
Standard of Review
A court must affirm the administrative decision provided the correct legal standards
were applied and provided the decision is supported by substantial evidence. This is so
even if the record contains evidence capable of supporting an alternative outcome. MansoPizarro 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
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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
Plaintiff argues the ALJ ignored medical opinion evidence from Brian Stahl, Ph.D.,
a state agency consultant, that, if credited, would preclude Plaintiff’s interaction with the
general public. Plaintiff contends the ALJ erred when she omitted the limitation because
she relied on Dr. Stahl to support her RFC finding and did not explain the reasons she did
not follow Dr. Stahl’s opinion regarding Plaintiff’s ability to interact with the public.
(Statement of Errors at 8 – 9, ECF No. 14.) Plaintiff also argues her past relevant work
was part-time and thus cannot serve as a basis for denial at step 4. (Id. at 10.) Plaintiff
further maintains the ALJ’s alternative step 5 finding was error because the vocational
expert’s opinion upon which the ALJ relied was unreliable because the hypothetical
question from which the opinion was derived was flawed. (Id. at 11.) Finally, Plaintiff
contends the ALJ did not properly weigh treating source opinion evidence. (Id. at 12 – 16.)
On October 7, 2014, Disability Determination Services consultant Dr. Stahl, upon
reconsideration of the initial denial determination, found that Plaintiff had the capacity to
engage in substantial gainful activity in the form of “simple” work, but that she was not
able to work with the public. (Ex. 4A, R. 97 – 98.) Dr. Stahl considered, inter alia, the
report of consultative examination performed by Patricia Kolosowski, Ph.D. (Ex. 8F, R.
374), and the available treatment records of Donna Novelli, Ph.D. (Ex. 6F). (See Ex. 4A,
R. 89 – 91.) According to the ALJ, Dr. Stahl’s opinion “is consistent with the record.” (R.
30.)
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Plaintiff’s most recent mental health provider, Dr. Novelli, opined that due to
Plaintiff’s mental impairments, Plaintiff does not have the mental abilities and aptitudes
needed to do unskilled work. (Ex. 7F, R. 368; Ex. 11F.) Dr. Novelli also determined that
Plaintiff is “seriously limited, but not precluded” from interacting appropriately with the
general public. (Ex. 7F, R. 369.) The ALJ gave Dr. Stahl’s opinion “substantial evidentiary
weight” and Dr. Novelli’s opinion “minimal weight.” (R. 29.)
Plaintiff contends the ALJ did not sufficiently refute Dr. Novelli’s opinion, and
should have given the opinion more weight. Contrary to Plaintiff’s argument, the ALJ
provided sound reasons to reject or discount Dr. Novelli’s opinion, including the fact that
the longitudinal records fail to substantiate limitations assessed by Dr. Novelli. (R. 29.)
Furthermore, the ALJ’s determination is also supported by Dr. Kolosowski’s source
statement that Plaintiff “presents as having some abilities to work in some situations,” but
that “she might be more successful in situations with few people.” (Ex. 8F, R. 377.) The
ALJ also determined Plaintiff’s subjective report of symptoms was not particularly
credible, citing in part the progress report of a treating source (Laura Hancock, D.O.) who
declined Plaintiff’s request to support her claim of disability on the ground that Plaintiff
appeared to be capable of working.2 (R. 28 – 30; Ex. 2F, R. 278.) The ALJ’s credibility
assessment, which is supported by competent evidence on the record, reinforces the ALJ’s
decision to assign minimal weight to Dr. Novelli’s opinion. Moreover, the opinions of

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Although the source provided that assessment prior to the date Plaintiff alleges for onset of disability,
Plaintiff’s psychological symptoms are primarily described as sequelae of a brain aneurysm. The aneurysm
was of record at the time. (Id.; see also Tr. of Hr’g at 24, ECF No. 10-2, R. 60.)

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both Dr. Stahl and Dr. Kolosowski provide support for the ALJ’s finding that Plaintiff has
a residual functional capacity for substantial gainful activity. In short, the record evidence
supports the ALJ’s determination that Plaintiff has the capacity to perform a full range of
work at all exertional levels, with the ability to understand and carry out simple tasks.
The next issue is whether Plaintiff’s work capacity includes some interaction with
the public. The ALJ found that Plaintiff “has a limitation in social interactions requiring
an object oriented task with only occasional work related interactions with the general
public.” (R. 25.) Plaintiff argues in part that the ALJ erred because although she afforded
substantial weight to Dr. Stahl’s opinion, the ALJ’s conclusion is inconsistent with Dr.
Stahl’s determination that Plaintiff could not interact with the public.
Defendant argues that Dr. Novelli’s opinion demonstrates that the ALJ’s assessment
that Plaintiff can occasionally interact with the public is a fair assessment of Plaintiff’s
capabilities. (Response at 3, ECF No. 16.) In addition, Defendant argues that Dr. Stahl’s
preclusion of work with the public does not preclude all incidental contact with the public.
(Id. at 4.) Finally, Defendant argues that resolution of the debate regarding public
interaction is not determinative, because two of the jobs cited in support of the ALJ’s step
5 finding do not involve work with the public. (Id. at 8.)
First, the record evidence supports the ALJ’s finding that Plaintiff could have some
limited interaction with the public. Dr. Novell’s opinion directly supports the ALJ’s
determination. In addition, Plaintiff’s reports of her activity level confirm that she can
occasionally interact with members of the public.

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In addition, even if Plaintiff’s functional capacity were to exclude interaction with
the public, at step five, the ALJ found representative occupations that do not require
meaningful contact with the general public, which finding is supported by the record.3 The
occupations include cleaner/hospital (DOT # 323.687-010) and kitchen worker/dishwasher
(DOT # 318.687-010), for which jobs the occupational definition does not include
interaction with the public. This Court has held that a job definition that includes the
designation “People: 8—Taking Instructions—Helping,” and does not otherwise mention
public interaction will support a step 5 determination for a claimant capable of handling
“usual work situations not involving the public,” provided that the job exists in significant
numbers in the national economy. Gleason v. Colvin, No. 1:15-cv-00012-NT, 2015 WL
7013661, at *5 (Oct. 15, 2015), report and recommendation adopted, 2015 WL 7012739
(D. Me. Nov. 12, 2015).4 Here, the cleaner/hospital and kitchen worker/dishwasher
occupations include the “People: 8” designation, and neither job is defined to involve
public interaction. The vocational expert testified that the jobs exist in significant numbers,

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At step 5, claimants can be found disabled or not disabled by rule through application of the MedicalVocational Guidelines, 20 C.F.R. Part 404, Subpart P, App. 2, without the need to call any vocational
expert. If neither result is conclusively indicated, Defendant has “the burden of coming forward with
evidence of specific jobs in the national economy that [the claimant] can perform.” Arocho v. Sec’y of
HHS, 670 F.2d 374, 375 (1st Cir. 1982). Plaintiff suggests that her age is a factor important to the step 5
analysis, because under the Medical-Vocational Guidelines Plaintiff qualified as a person of “advanced
age” (56) on the date of her hearing before the ALJ. (Statement of Errors at 11 n.1.) However, because
Plaintiff has not made a case to support the existence of any exertional limitation, table 3 of the MedicalVocational Guidelines, § 203.14, does not require a finding of disabled by rule. Additionally, the vocational
expert was specifically asked to consider Plaintiff’s age when providing available jobs. (Tr. of Hr’g at 26,
R. 62.)
See Dictionary of Occupational Titles (4th ed., Rev. 1991) (“Parts of the Occupational Definition”), 1991
WL 645965, available at https://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTPARTS.HTM
(last visiting Oct. 13, 2017).
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i.e., 1.2 million and 230,000, respectively. (Tr. of Hr’g at 27, ECF No. 10-2, R. 63.)
Accordingly, even if the ALJ erred by failing to provide the vocational expert with a
hypothetical that precluded work with the public, the ALJ’s error was harmless because
Defendant’s step 5 burden is supported by substantial evidence of jobs existing in
substantial numbers that Plaintiff can perform without the need to interact with the public.
In sum, the record supports the ALJ’s RFC determination, and her determination
that jobs exist in significant numbers in the national economy that Plaintiff can perform.5
CONCLUSION
Based on the foregoing analysis, I recommend the Court affirm the administrative
decision.
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
of 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.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 16th day of October, 2017.

Because the step 5 finding is substantiated, the Court need not review the separate issue whether Plaintiff’s
past relevant work was full-time or part-time work.
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