MARTELL v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 21

REPORT AND RECOMMENDED DECISION re 13 Social Security Statement of Errors/Fact Sheet. Objections to R&R due by 5/10/2021. By MAGISTRATE JUDGE JOHN H. RICH III. (slg)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CHRISTIN M.,
Plaintiff
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant

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No. 2:20-cv-00179-JAW

REPORT AND RECOMMENDED DECISION1
This Supplemental Security Income (SSI) 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 (i) erroneously concluded that she could perform certain representative jobs despite
vocational expert (VE) testimony that her verbal aptitude, as indicated by a Verbal Comprehension
Index test score, would preclude her from such performance, and (ii) inadequately addressed a
post-hearing vocational affidavit. See Plaintiff’s Itemized Statement of Errors (“Statement of
Errors”) (ECF No. 13) at 1, 4. I agree that the ALJ’s rejection of material VE testimony is
unsupported by substantial evidence and, on that basis, recommend that the court vacate the
commissioner’s decision and remand this case for further proceedings consistent herewith. I need

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This action is properly brought under 42 U.S.C. § 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.

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not and do not reach the plaintiff’s additional contention that the ALJ inadequately addressed a
post-hearing vocational affidavit.
Following two prior remands – one by this court and one by the Appeals Council, see
Record at 1052 – the ALJ found, in relevant part, pursuant to the commissioner’s sequential
evaluation process, 20 C.F.R. § 416.920; Goodermote v. Sec’y of Health & Human Servs., 690
F.2d 5, 6 (1st Cir. 1982), that the plaintiff had the severe impairments of patellofemoral
osteoarthritis of the right knee, depression, attention deficit hyperactivity disorder, an anxiety
disorder, obesity, and substance abuse, Finding 2, Record at 1056; that she had the residual
functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 416.967(b), except that
she could stand or walk for no more than two hours in an eight-hour workday, was unable to kneel,
crouch, crawl, or climb ladders, ropes, or scaffolds, needed to avoid tasks requiring detailed or
complex instructions or tasks but could understand to carry out short, simple instructions, needed
to avoid work involving making judgments on complex work-related decisions and work in crowds
or with the public, could work in environments with a small group of no more than seven or eight
coworkers, and could tolerate supervision that was not intense, with only occasional contact,
Finding 4, id. at 1059; that, considering her age (22 years old, defined as a younger individual, on
her application date, July 29, 2011), education (limited 10th-grade education), work experience
(transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in
the national economy that she could perform, Findings 6-9, id. at 1070-71; and that she, therefore,
had not been disabled from July 29, 2011, the date her SSI application was filed, through the date
of the decision, April 3, 2019, Finding 10, id. at 1073. The Appeals Council declined to assume
jurisdiction of the case following remand, id. at 1036-39, making the decision the final

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determination of the commissioner, 20 C.F.R. § 416.1484(a), (b)(2); 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. § 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 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 her past
relevant work. 20 C.F.R. § 416.920(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 plaintiff contends that the ALJ’s Step 5 finding cannot stand because she erroneously
rejected VE testimony elicited on cross-examination that the plaintiff’s verbal aptitude would
preclude the performance of jobs identified by the VE on which the ALJ relied at Step 5 to
conclude that the plaintiff was not disabled. See Statement of Errors at 4-9; Record at 1071-72,
1124-25. I agree that, because the ALJ did not clarify with the VE whether the plaintiff’s test
scores would alter the VE’s prior response that the plaintiff could perform the representative jobs
with certain limitations, the ALJ erroneously rejected uncontradicted VE testimony. As a result,
her Step 5 finding is not supported by substantial evidence, requiring remand.

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A. Relevant Background
On March 9, 2017, agency examining consultant Patricia Kolosowski, Ph.D., performed a
psychological evaluation of the plaintiff during which she administered the Wechsler Adult
Intelligence Scale-Fourth Edition (WAIS-IV) test, yielding a full-scale IQ of 83, in the 13th
percentile and “within the low-average range[,]” and, as relevant here, a score of 76 on the Verbal
Comprehension Index, in the 5th percentile and “within the borderline range[.]” Record at 158385. Dr. Kolosowski noted that the plaintiff “showed good motivation and persistence[,] and the
current results appear to be a representative sample of her cognitive abilities at this time.” Id. at
1585. She provided a medical source statement in which she stated, inter alia, that the plaintiff
“present[ed] as being able to do simple repetitive-type tasks and more complicated-type tasks for
which she was trained.” Id. at 1586.
The ALJ accorded Dr. Kolosowski’s opinions “great weight as they are supported by [her]
mental status and objective test results, and consistent with the record as a whole,” including the
testimony at hearing of psychological expert Ira Hymoff, Ph.D. Id. at 1069.
Dr. Hymoff testified that, based on the Kolosowski evaluation as well as an earlier
evaluation by a different expert, “it looks to me like . . . [the plaintiff is] capable at least of simple,
repetitive tasks.” Id. at 1098. The ALJ gave the Hymoff testimony “great weight[,]” noting that,
“[i]n response to questions posed by the [plaintiff’s] representative about the [plaintiff]’s low
average to borderline I.Q. scores and working memory index in the fourth percentile, Dr. Hymoff
testified that the [plaintiff] would manage and maintain pace for simple repetitive tasks.” Id. at
1066.
The ALJ asked the VE present at the hearing whether a person who, inter alia, could
“understand to carry out short, simple instructions” could perform work. Id. at 1113. The VE
testified that such an individual could perform the representative jobs of table worker, Dictionary
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of Occupational Titles (U.S. Dep’t of Labor 4th ed., rev. 1991) (DOT) § 739.687-182, 1991 WL
680217, printed circuit board assembly inspection touch-up screener, DOT § 726.684-110, 1991
WL 679616, and document preparer, DOT § 249.587-018, 1991 WL 672349. See id. at 1113-14.
On cross-examination, the plaintiff’s counsel asked the VE whether the plaintiff’s “serious
deficiencies in terms of reading” would preclude the job of document preparer. See id. at 1121.
The VE testified that he did not know, noting that the job had a reasoning skill level of 3 and a
language skill level of 2. See id. The plaintiff’s counsel then inquired whether, because the
plaintiff was “at the bottom 10 percent or so in terms of her test scores[,]” even a language skill
level of 2 would preclude her performance of the job. See id. The VE testified that he could not
“exclude someone based on that type of test score” and could “only use the functional limitations
I’m given.” Id.
The plaintiff’s counsel then pressed the VE as to whether he had taken the language skill
level of 2 into consideration, and the VE testified that he always looked at the “education needed
and aptitudes and those types of things.” Id. at 1121-22. The plaintiff’s counsel again asked
whether a language skill level of 2 would be above the plaintiff’s level, whereupon the ALJ
interjected, “He doesn’t know what her level is[,]” engaging in the following colloquy with the
VE:
ALJ: Let me ask you this, . . . did you consider all of that when you were posed the
three hypotheticals that I presented?
VE: Did I – all I went into was the hypothetical that I was given.
ALJ: And . . . would an individual with those hypothetical situations be able to
perform those occupations that you identified?
VE: As I stated, your honor, yes.

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Id. at 1122. The ALJ invited the plaintiff’s counsel to ask an additional hypothetical question if
he wished, noting, “right now, [the VE’s] testimony is that an individual with those restrictions
that were identified” in the ALJ’s hypothetical questions could perform those jobs. Id. at 112223.
The plaintiff’s counsel availed himself of that opportunity, informing the VE that the
plaintiff had a verbal IQ score of 76, in the 5th percentile. See id. at 1123. He inquired whether
the VE was “familiar with the aptitudes[,]” and the VE answered, “Yes.” Id. at 1124. The VE
then agreed with the plaintiff’s counsel that, per the DOT, all three jobs require a verbal aptitude
in the 10th percentile or above. See id. at 1124-25. The DOT, as published online, indeed describes
all three jobs as requiring a “Verbal Aptitude” of “Level 4 – Lowest 1/3 Excluding Bottom 10%[.]”
DOT §§ 739.687-182, 1991 WL 680217, 726.684-110, 1991 WL 679616, 249.587-018, 1991 WL
672349.2 The ALJ followed up with further questions of the VE, but none touched on the verbal
aptitude necessary to perform the jobs at issue. See Record at 1125-30.
At Step 5, in deeming the plaintiff capable of performing all three jobs, the ALJ explained:
The [plaintiff’s] representative has essentially argued that the [plaintiff]’s verbal
I.Q. score and low broad reading, math, and written language scores mean that she
is functioning in the bottom 10% of society; that according to the Revised
Handbook for Analyzing Jobs, the lowest 10% of the population possesses a
negligible degree of aptitude; and that low language skills below level 2 and
aptitudes below 10% would prevent the performance of any of the jobs cited by the
[VE]. However, the undersigned does not find this argument to be persuasive, as
the representative has been unable to make a nexus between the medical evidence
and his assertion that this [plaintiff] is functioning in the bottom 10% of society.
Id. at 1071-72 (citations omitted).

She elaborated, “Although the [plaintiff’s] verbal

comprehension index score and working memory index score were noted to be in the fourth and

While the aptitudes were “not included in the final published edition of the DOT[,]” they “have been included as
part of the DOT entries in online sources, and courts generally have treated [them] as a component of the DOT job
titles.” Jenkins v. Colvin, Civil No. 1:14-cv-285-DBH, 2015 WL 5093290, at *2 n.8 (D. Me. Aug. 28, 2015) (citations
omitted).
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fifth percentile, the extreme degree of impact of those scores asserted by the representative [is] not
reliably supported” and not consistent with (i) the statements of psychological experts, including
Dr. Kolosowski, (ii) “the [plaintiff]’s wide ranging and functional activities of daily living[,]” or
(iii) “an individual functioning in the bottom 10% of society.” Id. at 1072 (citations omitted).
She added that the plaintiff’s counsel “did not state any limitations arising from the scores
cited, and it is Agency policy that aptitudes reflect the personal interests, natural abilities, and
personality characteristics of job incumbents, rather than limitations or restrictions resulting from
a medically determined impairment(s) as required for SSA’s disability programs.” Id. She
concluded:
The undersigned has not found the [plaintiff] to be as limited as the representative
suggested, and for the reasons stated above does not find his arguments with respect
to this [plaintiff] functioning in the bottom 10% of society to be persuasive.
Furthermore, in response to a subsequent question by the undersigned, the [VE]
testified that he was convinced that an individual with the restrictions set forth in
the above-cited [RFC] would be able to perform the jobs he had identified.
Id.
B. Analysis
The plaintiff asserts that, in so finding, the ALJ missed the key point – that this was a
vocational issue with respect to which the VE was competent to testify, a proposition for which
she cites Jenkins, 2015 WL 5093290, at *3. See Statement of Errors at 9. As a result, she reasons,
“[t]he question was not whether [she] [wa]s capable of simple work as the psychologists opined[,]”
but, rather, “whether [she] was capable of performing the three particular jobs identified by [the
VE].” Id. On that front, she observes, the VE himself “testified that all three jobs require Verbal
Aptitude greater than the 10th percentile.” Id. She adds that the ALJ failed to cite any authority
for any agency policy forbidding the consideration of verbal aptitude, noting that the commissioner

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defines “basic work activities” as “the abilities and aptitudes necessary to do most jobs.” Id. at 8
(quoting 20 C.F.R. § 416.922) (emphasis added by plaintiff).3
In defense of the ALJ’s decision, the commissioner advances the same rationale articulated
by the ALJ for rejecting the VE’s testimony, arguing that the Hymoff testimony “severed the nexus
Plaintiff tries to make between IQ scores and aptitudes,” as a result of which the ALJ properly
rejected the VE’s testimony on the matter. Defendant’s Opposition to Plaintiff’s Statement of
Errors (“Opposition”) (ECF No. 17) at 4-9, 12-13; see also Record at 1071-72. He contends that,
in this case, in contrast to Gwendolyn L. v. Berryhill, No. 1:18-cv-00272-JDL, 2019 WL 2435673
(D. Me. June 11, 2019) (rec. dec., aff’d Sept. 4, 2019), “Dr. Hymoff’s testimony provided the
factual predicate needed to sufficiently address the ‘predicate legal question’ left unresolved in
Gwendolyn L.,” Opposition at 8, namely, “the type of evidence, if any, that a claimant must
produce to establish a link between her IQ and her aptitude,” Gwendolyn L., 2019 WL 2435673 at
*5. Finally, he disputes that the regulation cited by the plaintiff, 20 C.F.R. § 416.922(b), contains
a definition of “aptitude” consistent with the IQ testing on which the plaintiff relies, noting that it
describes the “abilities and aptitudes” necessary to do most jobs as including the ability to do
simple, repetitive work. Opposition at 10-12.
The plaintiff has the better argument.
In Gwendolyn L., the commissioner objected to a remand predicated on an ALJ’s error in
handling VE evidence “on the basis that the [claimant]’s theory that her IQ scores equate with her
aptitude is fundamentally flawed both as a legal and a factual matter[,]” rendering remand an empty
exercise. Gwendolyn L., 2019 WL 2435673 at *5. This court disagreed, observing that the
commissioner had cited “no case law of the Supreme Court, the First Circuit, or this court holding

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Both parties have cited regulations from Part 404 of the Code of Federal Regulations, which pertains to Social
Security Disability (SSD) cases. I have cited the parallel regulations from Part 416, which pertains to SSI cases.

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that, as a matter of law, IQ scores cannot serve as proxies for aptitudes.” Id. “Thus,” the court
reasoned, “it cannot fairly be said that, following remand in this case, there could only be one
conclusion on this point as a matter of law.” Id. (footnote omitted).
That, in turn, was “dispositive of the commissioner’s argument that the [claimant]’s posthearing evidence is fundamentally flawed as a factual matter” because, “[a]bsent resolution of the
predicate legal question of the type of evidence, if any, that a claimant must produce to establish a
link between her IQ and her aptitude, it cannot fairly be said that, on remand, there could be only
one conclusion as to the adequacy of the [claimant]’s showing.” Id. (emphasis added).
The same is true here. The commissioner cites case law from other jurisdictions – but not
controlling case law – for the proposition that IQ scores cannot serve as proxies for aptitudes. See
Opposition at 8 & n.1. A factual predicate (Dr. Hymoff’s testimony), standing alone, cannot
resolve the point in the commissioner’s favor.
Nor has the commissioner shown that agency policy forbids the consideration of verbal or
other aptitudes. While the regulation cited by the plaintiff provides six “[e]xamples” of “the
abilities and aptitudes necessary to do most jobs[,]” including “[u]nderstanding, carrying out, and
remember simple instructions[,]” it does not bar the vocational consideration of a claimant’s verbal
aptitude. 20 C.F.R. § 416.922(b).
In these circumstances, as the plaintiff argues, see Statement of Errors at 9, Jenkins is
controlling. In Jenkins, as here, the VE testified on cross-examination that all of the jobs he had
previously identified in response to the ALJ’s hypothetical questions would be eliminated if he
assumed the additional fact that the claimant was “in the bottom 10 percent of the population in
accordance with her full scale IQ[.]” Jenkins, 2015 WL 5093290, at *2. In Jenkins, as here, the
ALJ rejected that part of the VE’s testimony on the basis that it clashed with the conclusions of

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the psychiatric experts, “reason[ing] that her own [RFC] findings, as stated initially in her
questions to the [VE], trumped the [VE]’s later answers on cross-examination about the effects of
IQ or general learning ability on job availability.” Id.4 And in Jenkins, as here, “[f]or that
conclusion the ALJ needed the [VE]’s testimony, and she did not pose the necessary question to
obtain it.” Id.5
Indeed, in this case, the ALJ merely reconfirmed the VE’s prior response to the
hypothetical limitations she had already posed, which did not require him to consider the effect of
plaintiff’s verbal test score, as underscored by his response that he only “went into . . . the
hypothetical that [he] was given.” Record at 1122; see also id. at 1113-16. The ALJ herself
acknowledged the limited nature of this clarification, explaining that the VE testified “in response
to a subsequent question by the [ALJ], . . . that he was convinced that an individual with the
restrictions set forth in the above-cited residual functional capacity would be able to perform the
jobs he had identified.” Id. at 1072 (emphasis added). She never clarified whether the plaintiff
could perform the jobs identified if the VE assumed both the ALJ’s hypothetical RFC and the fact
that the plaintiff possessed a verbal aptitude score in the bottom 10 percent.
Accordingly, as in Jenkins, “the ALJ’s decision that the [plaintiff] is not disabled – in the
face of the [VE]’s testimony on cross-examination that no jobs would be available to someone

Judge Hornby explained that “the testimony was clearly within the scope of a [VE]’s expertise” and “was not
psychiatric testimony[,]” the VE having given “an opinion about whether there were available jobs in the national
economy for a person with specified characteristics, not about whether the claimant actually exhibited any particular
characteristic.” Jenkins, 2015 WL 5093290, at *2.
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Judge Hornby acknowledged that “[t]he case law demonstrates that there is disagreement over whether and to what
degree general learning ability” – one of the 11 aptitudes listed in online versions of the DOT – “and IQ are
interchangeable.” Jenkins, 2015 WL 5093290, at *2 nn. 8-9. However, he noted, “If the ALJ had a problem with the
lawyer’s use of ‘full scale IQ’ as equivalent to general learning ability or as part of the claimant’s [RFC], then the ALJ
should have asked a clarifying question to ascertain whether the [VE] really believed that the claimant’s IQ altered
the [VE]’s earlier answers that the claimant could do certain jobs.” Id. at *2 (footnote omitted). “Instead, while
accepting that the claimant’s IQ and general learning ability were both in the bottom 10%, the ALJ simply disregarded
the [VE]’s testimony on cross-examination about the effect of this characteristic on whether a significant number of
jobs were available.” Id. (footnote omitted). The same is true here with respect to verbal aptitude.
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with her characteristics – is therefore not supported by substantial evidence[,]” requiring remand.
Jenkins, 2015 WL 5093290, at *3.6
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,
within fourteen (14) days after being served with a copy thereof. A responsive memorandum
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 25th day of April, 2021.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

The commissioner further contends that accepting the plaintiff’s argument would be tantamount to “a holding that
an IQ score is per se disabling.” Opposition at 9-10 (quoting Davenport v. Berryhill, No. 1:16-cv-00420-NT, 2017
WL 2731304, at *6 (D. Me. June 25, 2017) (rec. dec., aff’d Sept. 29, 2017)). Yet, in Davenport, the ALJ relied on the
so-called “Grid,” the Medical-Vocational Guidelines at 20 C.F.R. Part 404, Subpart P, Appendix 2, rather than on VE
testimony. See Davenport, 2017 WL 2731304, at *5. The court distinguished Jenkins on the basis that, in that case,
“the court took issue with the ALJ’s failure to consider the testimony of a [VE] on how the claimant’s IQ, which
placed her in the bottom 10 percent of the population, affected the number of jobs available.” Id. That distinction
pertains here, as well.
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