MENARD v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
REPORT AND RECOMMENDED DECISION re 13 Social Security Statement of Errors/Fact Sheet Objections to R&R due by 11/30/2020 By MAGISTRATE JUDGE JOHN H. RICH III (aks)
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 1 of 14
PageID #: 984
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TARYN R. M.,
ANDREW M. SAUL,
Commissioner of Social Security,
REPORT AND RECOMMENDED DECISION1
This Social Security Disability (SSD) and Supplemental Security Income (SSI) appeal
raises the question of whether the administrative law judge (ALJ) supportably found the plaintiff
capable of performing past relevant work as a cleaner/housekeeper. The plaintiff seeks remand on
the bases that the ALJ erred in (i) failing to find that her wrist fractures met Listing 1.07, Appendix
1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), for the period from the date of the fractures
through January 31, 2018, (ii) in the alternative, assessing a physical residual functional capacity
(RFC) for that time period that is unsupported by substantial evidence, (iii) assessing a physical
RFC for the period after January 31, 2018, that is unsupported by substantial evidence, (iv) making
a mental RFC determination unsupported by substantial evidence, and (v) failing to resolve a
conflict in the vocational evidence concerning her ability to perform her past relevant work. See
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 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.
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 2 of 14
PageID #: 985
Plaintiff’s Statement of Errors (“Statement of Errors”) (ECF No. 13) at 9-19. I find no reversible
error and, accordingly, recommend that the court affirm the commissioner’s decision.
Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. §§ 404.1520,
416.920; 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 September 30, 2020, Finding 1, Record at 28; that she had the severe impairments of
bilateral wrist fractures with pain, lumbar spine degenerative disc disease (DDD), post-traumatic
stress disorder, and attention deficit/hyperactivity disorder, Finding 3, id. at 29; that she did not
have an impairment or combination of impairments that met or medically equaled in severity one
of the Listings, Finding 4, id.; that she had the RFC to perform light work as defined in 20 C.F.R.
§§ 404.1567(b) and 416.967(b), except that she could frequently push and pull with her upper
extremities, never climb ladders, scaffolds, or ropes, never crawl, could no more than frequently
handle and use hand controls with both upper extremities, could not work in temperature extremes,
with vibrations, or with exposure to unprotected heights or in dangerous moving equipment,
needed to avoid tasks involving a variety of instructions or tasks but could understand sufficiently
to carry out simple one- to two-step instructions and “detailed but uninvolved” written or oral
instructions involving a few concrete variables in or from standardized situations, could not work
with the public but could work with coworkers and supervisors, could work in two-hour blocks of
time performing simple tasks over the course of a normal workday and workweek, and was able
to adapt to simple changes in the work setting, Finding 5, id. at 32-33; that she could perform past
relevant work as a cleaner/housekeeper, which did not require the performance of work-related
activities precluded by her RFC, Finding 6, id. at 41; that, in the alternative, considering her age
(30 years old, defined as a younger individual, on her alleged disability onset date, November 7,
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 3 of 14
PageID #: 986
2015), 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 she could
perform, id. at 41-43; and that she, therefore, had not been disabled from November 7, 2015, her
alleged onset date of disability, through the date of the decision, January 9, 2019, Finding 7, id. at
43. The Appeals Council declined to review the decision, id. at 1-4, making the decision the final
determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; 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), 1383(c)(3); 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 4 and, in the alternative, Step 5 of the sequential evaluation process.
At Step 4, 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 C.F.R. §§ 404.1520(f), 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in
West’s Social Security Reporting Service Rulings 1975-1982, at 813.
At Step 5, the burden of proof shifts to the commissioner to show that a claimant can
perform work other than her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 4 of 14
PageID #: 987
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.
The statement of errors also implicates Step 3 of the sequential evaluation process, at
which step a claimant bears the burden of proving that her impairment or combination of
impairments meets or equals a listing. 20 C.F.R. §§ 404.1520(d), 416.920(d); Dudley v. Sec’y of
Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant’s
impairment(s) must satisfy all criteria of that listing, including required objective medical findings.
20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3). To equal a listing, the claimant’s impairment(s) must
be “at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R.
§§ 404.1526(a), 416.926(a).
A. Failure to Find that Wrist Fractures Met Listing 1.07 through January 2018
To meet Listing 1.07, a claimant must demonstrate “[f]racture of an upper extremity with
nonunion of a fracture of the shaft of the humerus, radius, or ulna, under continuing surgical
management, as defined in 1.00M, directed toward restoration of functional use of the extremity,
and such function was not restored or expected to be restored within 12 months of onset.” Listing
The ALJ acknowledged that the plaintiff (i) sustained bilateral distal radius fractures when
she fell off of a ladder in November 2015, (ii) underwent open reduction internal fixation (ORIF)
of her wrist fractures later that month, and (iii) continued to have pain and loss of supination, with
a February 2017 CT scan of her left wrist revealing an incomplete solid fusion and a fixation plate
projecting beyond the medial cortex of the radius, possibly causing her restricted motion. See
Record at 34. The ALJ noted that in December 2017, following ongoing complaints of pain, the
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 5 of 14
PageID #: 988
plaintiff’s hardware in both wrists was surgically removed, following which, in January 2018, she
reported that, although she continued to have some limitation in her supination on the left, she “no
longer ha[d] any pain[.]” Id. at 34-35 (citation and internal quotation marks omitted).
The ALJ determined that the plaintiff’s wrist fractures did not meet Listing 1.07, explaining
that, “although the [plaintiff] did have nonunion of her left fracture, she did not have the requisite
loss of function lasting for 12 months or more, which requires an inability to perform fine and
gross movements effectively on a sustained basis.” Id. at 30. She elaborated:
Examples of functional loss showing this inability include inability to prepare a
simple meal and feed oneself, inability to take care of personal hygiene, inability to
sort and handle papers or files, and inability to place files in a file cabinet at or
above waist level. In this case, the [plaintiff] was independent with her personal
care and daily activities within 12 months of her left hand fracture, and also returned
to her job as a part-time housekeeper.
Id. (citations omitted).
The plaintiff contends that the ALJ erred in failing to find that her wrist fractures met the
criteria of Listing 1.07 for the period through January 2018, when consolidation of her left radius
was finally achieved. See Statement of Errors at 9-12. She argues that the “undisputed medical
facts satisfy the requirements” of the listing “as there was not a solid union of the broken radius in
the left wrist within twelve months and ongoing surgical interventions were required.” Id. at 10
(emphasis omitted). She seemingly cites Listing 1.00M for the proposition that loss of function is
not assessed until after a claimant has achieved maximum benefit. See id. at 9 n.11.
However, as the commissioner counters, see Defendant’s Opposition to Plaintiff’s
Statement of Errors (“Opposition”) (ECF No. 15) at 4-5, to meet Listing 1.07, a claimant must
demonstrate the requisite loss of functioning for a period of at least 12 months commencing on the
date of the injury.
Listing 1.00M provides:
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 6 of 14
PageID #: 989
Under continuing surgical management, as used in 1.07 and 1.08, refers to surgical
procedures and any other associated treatments related to the efforts directed toward
the salvage or restoration of functional use of the affected part. It may include such
factors as post-surgical procedures, surgical complications, infections, or other
medical complications, related illnesses, or related treatments that delay the
individual’s attainment of maximum benefit from therapy.
Listing 1.00M. In turn, Listing 1.00N states that, for purposes of Listings 1.07 and 1.08, maximum
benefit from therapy has been achieved when “there have been no significant changes in physical
findings or on appropriate medically acceptable imaging for any 6-month period after the last
definitive surgical procedure or other medical intervention,” at which point “[e]valuation . . . must
be made on the basis of the demonstrable residual limitations, if any, considering the individual’s
impairment-related symptoms, signs, and laboratory findings, any residual symptoms, signs, and
laboratory findings associated with such surgeries, complications, and recuperative periods, and
other relevant evidence.” Listing 1.00N.
These listings cannot fairly be read to dispense with a claimant’s need to show the requisite
functional loss prior to the achievement of maximum benefit from therapy. To the contrary,
Listing 1.00M contemplates measures aimed at the “restoration of functional use[,]” Listing
1.00M, and Listing 1.07 presumes the loss of “functional use of the extremity” as a result of upper
extremity fracture(s), Listing 1.07. Critically, Listing 1.00B defines functional loss of an upper
extremity as an “inability to perform fine and gross movements effectively on a sustained basis[,]”
Listing 1.00B(2)(a), “an impairment(s) that interferes very seriously with the individual’s ability
to independently initiate, sustain, or complete activities[,]” Listing 1.00B(2)(c).
To use their upper extremities effectively, individuals must be capable of sustaining
such functions as reaching, pushing, pulling, grasping, and fingering to be able to
carry out activities of daily living. Therefore, examples of inability to perform fine
and gross movements effectively include, but are not limited to, the inability to
prepare a simple meal and feed oneself, the inability to take care of personal
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 7 of 14
PageID #: 990
hygiene, the inability to sort and handle papers or files, and the inability to place
files in a file cabinet at or above waist level.
Id. The ALJ, hence, applied the correct standard in assessing whether the plaintiff’s wrist fractures
met Listing 1.07.
The plaintiff separately challenges the ALJ’s conclusion that the listing was not met
because she retained the ability to perform activities of daily living (ADLs), asserting that she
struggled with her ADLs but that, “even if she then could have, without significant difficulty,
managed to bathe, cook a meal, wash dishes, etc., these facts would not support an inference that
she did not sustain a significant loss of function when she fractured both wrists as the listing
requires.” Statement of Errors at 11-12 & n.14. She asserts that even agency nonexamining
consultant Robert Hayes, D.O., on initial review of her claim on October 19, 2017, acknowledged
a significant loss of function as of that time period. See id. at 12 n.14; Record at 125-27.
This argument, on its face, is unavailing. Listing 1.00B(2)(c) makes clear that an ability to
bathe, cook a meal, and wash dishes is inconsistent with a finding that a claimant has suffered the
functional loss required to meet Listing 1.07. Listing 1.00B(2)(c); see also, e.g., Goodwin v.
Astrue, Civil No. 10-cv-233-PB, 2011 WL 1630927, at *11 (D.N.H. Apr. 11, 2011) (rec. dec., aff’d
Apr. 29, 2011) (ALJ supportably found that claimant had not carried burden to show he had a
listing-level impairment of his wrists when, although he had some problems with personal hygiene,
he retained ability to drive, pay bills, use a checkbook, buy groceries, collect coins, take care of
laundry, cook, shop, and clean). In any event, the ALJ relied not only on the plaintiff’s ADLs
within 12 months of the fall in which she fractured her wrists but also on her ability to work parttime as a cleaner/housekeeper within that time period. See Record at 30.2
At oral argument, the plaintiff’s counsel pointed to his client’s testimony as further supporting a finding that she had
the requisite functional loss, asserting that she indicated that she had to drive with her knees and could not reach out
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 8 of 14
PageID #: 991
Remand, accordingly, is unwarranted on the basis of this point of error.
B. Failure to Assess Separate Physical RFC for Period through January 2018
The plaintiff argues, in the alternative, that even if the ALJ supportably found that her wrist
impairments did not meet Listing 1.07 for the period through January 2018, she erred in assessing
a uniform physical RFC for the entire period at issue. See Statement of Errors at 12-14. She
asserts that the ALJ’s approach was unsupported by substantial evidence, clashing not only with
the opinion of treating physician Elizabeth Robinson, M.D., but also with that of agency
nonexamining consultant Edward Ringel, M.D., who, on reconsideration of her claim on April 11,
2018, stated that Dr. Hayes’ assessment of greater restrictions at the time of his review (October
19, 2017) was entirely appropriate. See id.; Record at 125-27, 171-74, 857-66. Again, I find no
The ALJ explained that she gave “minimal weight” to the opinion of Dr. Robinson, “who
provided the [plaintiff] with a less than sedentary RFC based on the [plaintiff’s] DDD and bilateral
wrist conditions.” Record at 39 (citation omitted). She noted that Dr. Robinson had “provided a
check-the-box form with limited narrative, and her limitations are in excess of and inconsistent
with the evidence of record as a whole.” Id. As relevant here, she deemed Dr. Robinson’s “lifting
restrictions to accommodate the [plaintiff]’s hand grip/pain” and her finding that “the [plaintiff]’s
pain would frequently interfere with her attention and concentration . . . inconsistent with the
[plaintiff]’s significant improvement in pain and functionality in her wrists with hardware
removal.” Id. (citation omitted).
The ALJ gave “great weight” to the opinion of Dr. Ringel, whose “light RFC with postural,
manipulative, and environmental limitations . . . fully accommodate[d] [the plaintiff’s] wrist and
her hand to accept change at a drive-through given her loss of supination. However, the ALJ discredited the plaintiff’s
subjective allegations in part, see Record at 33-34, and the plaintiff did not separately challenge that determination.
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 9 of 14
PageID #: 992
back conditions,” and “conversely . . . less weight” to the Hayes opinion “in light of the [plaintiff]’s
improvement . . . with her hardware removal surgeries[.]” Id. at 38 (citations omitted). She
explained that she found “Dr. Hayes’s more restrictive RFC . . . not reflective of the [plaintiff]’s
longitudinal functioning” and Dr. Ringel’s “subsequent assessment . . . more consistent with the
evidence of record as a whole.” Id. (citation omitted).
As counsel for the commissioner noted at oral argument, despite Dr. Ringel’s comment
that the limitations assessed by Dr. Hayes were appropriate at that time, Dr. Ringel provided a
“Current Evaluation[,]” id. at 174, the descriptive label to be used “in cases when the evaluation
is for AOD [alleged onset date] through present and the duration requirement has been met[,]”
Social Security Program Operations Manual System (POMS) § DI 24510.050(C)(I)(f). Dr.
Robinson, as well, indicated that her evaluation spanned the entire period from the plaintiff’s
alleged onset of disability, November 7, 2015, through the date of her opinion, November 15,
2018. See Record at 857, 866. The ALJ, thus, resolved a conflict in the evidence between two
competing RFC assessments for the period from the plaintiff’s alleged onset date of disability
through the date of the expert’s opinion, which in the case of both Dr. Ringel and Dr. Robinson
postdated the plaintiff’s hardware-removal surgery.
The plaintiff, nonetheless, argues that the ALJ erred in assessing a single physical RFC for
the entire claimed period, which she contends constitutes clear error because it is inconsistent with
the undisputed medical facts. See Statement of Errors at 13.
The commissioner rejoins that (i) the court should hold that the plaintiff waived this point
by failing to raise any request for a “closed period” of disability before the ALJ, (ii), in any event,
this court has held that, even assuming arguendo that an ALJ has an obligation to consider a closed
period of disability sua sponte, ALJs implicitly did so in finding no disability for the entire period
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 10 of 14
PageID #: 993
at issue, and, (iii) the plaintiff has not shown that the ALJ’s adoption of the Hayes opinion for a
closed period would have mattered, in the sense that it would have resulted in a finding of disability
for a discrete period of time. See Opposition at 7-9, 15.
In response, at oral argument, the plaintiff’s counsel asserted that his client had never
sought and was not seeking a closed period of disability. Yet, the plaintiff argues that the ALJ
erred in failing to assess two discrete periods of RFC findings – a close relation to, if not a clone
of, a request for a closed period of disability. Critically, in both instances, a claimant seeks a
bifurcated analysis of his RFC. See Statement of Errors at 14 (asserting that “the found RFC, as
applied to the initial two plus years after the alleged onset, is not supported by substantial
evidence”); Bowman v. Astrue, Civil No. 09-161-B-W, 2009 WL 5216060, at *2 n.3 (D. Me. Dec.
29, 2009) (rec. dec., aff’d Jan. 19, 2010) (“In a ‘closed period’ case, the decision maker determines
that a new applicant for disability benefits was disabled for a finite period of time which started
and stopped prior to the date of his decision.”) (citation and internal quotation marks omitted).
The plaintiff, therefore, seeks what amounts to a closed period of disability.
“[T]his court has previously rejected a contention that an [ALJ] failed to consider a closed
period of disability when, as here, he found that a claimant was not disabled from her alleged onset
date through the date of the decision, a time frame that by definition included any closed 12-month
period of disability.” Parker ex. rel. Parker v. Comm’r, Soc. Sec. Admin., Civil No. 2:13-CV-19DBH, 2014 WL 220705, at *8 (D. Me. Jan. 21, 2014) (citation omitted). This, alone, is fatal the
plaintiff’s claim for remand on this basis. In any event, even assuming error, the plaintiff makes
no attempt to demonstrate that the adoption of the limitations assessed by Dr. Hayes would have
led to a finding of disability during for the period through January 2018, see Statement of Errors
at 12-14, rendering any error harmless, see, e.g., Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 11 of 14
PageID #: 994
(“[T]he burden of showing that an error is harmful normally falls upon the party attacking the
agency’s determination.”); Archer v. Colvin, Civil No. 1:13-cv-00018-NT, 2014 WL 457641, at
*3 n.3 (D. Me. Feb. 4, 2014) (“Remand requires a showing that the outcome of the claim for
benefits would likely be different if the [claimant]’s view of an issue is correct.”).
Remand, accordingly, is unwarranted on the basis of this point of error.
C. Failure to Assess a Supportable Physical RFC for Period after January 2018
The plaintiff next contends that the ALJ’s reliance on the Ringel assessment is misplaced
for the period after January 2018 because Dr. Ringel had the benefit of review only of her surgeon’s
operative report and two brief post-surgery follow-up notes dated December 27, 2017, and January
31, 2018. See Statement of Errors at 14. As a result, she reasons, Dr. Ringel’s RFC assessment
was more in the nature of a prediction than an assessment of her post-surgical limitations, and the
ALJ interpreted raw medical evidence in filling in the gap. See id. at 14-16. She asserts that, for
this period, the ALJ should have adopted the opinion of Dr. Robinson, the only expert who was
aware of her response to post-surgical physical therapy. See id. at 15.
As the commissioner notes, see Opposition at 17, the plaintiff’s premise that Dr. Ringel
did not have the benefit of review of records documenting her response to physical therapy is
erroneous. Dr. Ringel noted that he had reviewed records through February 2, 2018, in which the
plaintiff reported that she was doing much better, recovering without complications, and
continuing with physical therapy. See Record at 168. The ALJ did not derive the plaintiff’s
physical RFC by interpreting raw medical evidence postdating the Ringel opinion but, rather,
adopted the Ringel RFC assessment on the basis that it was not only well-supported but also
consistent with the longitudinal evidence of record, including that unseen by Dr. Ringel. See id.
at 38-39. In so doing, she did not exceed the bounds of her competence as a layperson. See,
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 12 of 14
PageID #: 995
e.g., Anderson v. Astrue, No. 1:11-cv-476-DBH, 2012 WL 5256294, at *4 (D. Me. Sept. 27, 2012)
(rec. dec., aff’d Oct. 23, 2012), aff’d, No. 13-1001 (1st Cir. 2013) (“While an [ALJ] is
not competent to assess a claimant’s RFC directly from the raw medical evidence unless such
assessment entails a common-sense judgment, he or she is perfectly competent to resolve conflicts
in expert opinion evidence regarding RFC by, inter alia, judging whether later submitted evidence
is material[.]”) (citation and internal quotation marks omitted).
Remand, accordingly, is unwarranted on the basis of this point of error.
D. Failure to Assess Mental Limitations in Working with Others
The plaintiff next faults the ALJ for omitting any limitation on her ability to interact with
coworkers and supervisors, in contravention of record evidence that she characterizes as
“uncontradicted.” Statement of Errors at 17-18.
Nonetheless, as the commissioner points out, see Opposition at 20, the plaintiff’s argument
relies almost entirely on her subjective allegations, and she does not challenge the ALJ’s detailed
discussion discounting them in part, see Statement of Errors at 17-18; Record at 36-38. Nor does
she challenge the ALJ’s reliance on the mental RFC assessment of agency nonexamining
consultant Brian Stahl, Ph.D., who assessed no such limitations, or her discounting of the opinions
of Claire Koenig, LCSW, and Francoise E. Paradis, Ed.D. See Statement of Errors at 17-18;
Record at 36, 39-41.
Remand, accordingly, is unwarranted on the basis of this point of error.
E. Failure to Resolve Asserted Conflict Between VE’s Testimony and DOT
The plaintiff next contends that the ALJ erred in failing to resolve a conflict between certain
testimony of the vocational expert (VE) at hearing and the Dictionary of Occupational Titles (U.S.
Dep’t of Labor 4th ed., rev. 1991) (DOT). See Statement of Errors at 19; Jessica O. v. Saul, No.
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 13 of 14
PageID #: 996
2:18-cv-00370-GZS, 2020 WL 601381, at *5 (D. Me. Feb. 7, 2020) (rec. dec., aff’d Feb. 25, 2020)
(Social Security Ruling 00-4p “imposes an affirmative obligation on [ALJs] to (i) inquire whether
there is any conflict” between VE testimony and the DOT, (ii) “elicit a reasonable explanation for
any apparent conflict, and (iii) resolve said conflict, regardless of how it was identified.”) (citation,
internal quotation marks, and emphasis omitted).
The plaintiff asserts that, although the VE testified that a person who could not work with
the public could perform the job of cleaner/housekeeper as it is generally performed, the DOT
indicates that such individuals “render personal assistance to patrons.” Statement of Errors at 19
(quoting DOT § 323.687-014)).
As the commissioner rejoins, see Opposition at 23-24, any error is harmless. The ALJ
made two alternative findings, neither of which the plaintiff challenges: that the plaintiff was
capable of returning to past relevant work as a cleaner/housekeeper as she actually performed it
and that she was capable of performing other work existing in significant numbers in the national
economy, see Record at 41-42.
Remand, accordingly, is unwarranted on the basis of this final point of error.
For the foregoing reasons, I recommend that the commissioner’s decision be AFFIRMED.
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
Case 2:19-cv-00567-JDL Document 20 Filed 11/15/20 Page 14 of 14
PageID #: 997
oral argument before the district judge shall be filed within fourteen (14) days after the filing of
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 15th day of November, 2020.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?