DIPIETRANTONIO v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 18

MEMORANDUM DECISION Re: 10 Social Security Brief. By MAGISTRATE JUDGE KAREN FRINK WOLF. (CSA)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
VICTORIA D.,
Plaintiff
v.
LELAND DUDEK,
Acting Commissioner of
Social Security,
Defendant

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No. 2:24-cv-00180-KFW

MEMORANDUM DECISION 1
The Plaintiff in this Social Security Disability appeal seeks remand on the
bases that the Administrative Law Judge (ALJ) (1) erroneously evaluated medical
opinion evidence of record and her subjective-symptom testimony in determining her
residual functional capacity (RFC) and (2) failed to resolve an apparent conflict
between the hearing testimony of the vocational expert (VE) and the Dictionary of
Occupational Titles (DOT). See Plaintiff’s Brief (ECF No. 10) at 1. For the following
reasons, I discern no error and affirm the Commissioner’s decision.
I. Background
The Plaintiff applied for benefits in January 2019. See Record at 173-74. After
her claim was denied at the initial and reconsideration levels, the Plaintiff requested
a hearing before an ALJ. See id. at 88-91, 93-96, 113. That hearing took place in
March 2020, see id. at 29-86, after which the ALJ issued an unfavorable decision
1 The parties have consented to me presiding over all proceedings in this action including the entry of

judgment. See Declaration Regarding Consent (ECF No. 9).

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finding that the Plaintiff was not disabled during the relevant period,
see id. at 13-23. The Appeals Council denied the Plaintiff’s request to review the
ALJ’s decision, following which she appealed to this Court. See id. at 1-3, 1018-19.
At the Commissioner’s request, this Court remanded the case for further proceedings,
and the Appeals Council then remanded the case to the ALJ. See id. at 1020-21,
1026-27. The remand hearing took place in February 2023, see id. at 955-91, following
which the ALJ issued a decision finding that the Plaintiff, during the relevant period,
suffered from the severe impairments of degenerative disk disease, depressive
disorder, anxiety disorder, and an eating disorder, see id. at 841. Considering those
impairments, the ALJ found that the Plaintiff had the RFC to perform light work
except that she could occasionally lift and carry twenty pounds and frequently carry
ten pounds; could frequently climb, stoop, crouch, crawl, and bounce; could perform
simple and repetitive one-to-three step tasks; could engage in occasional contact with
coworkers, supervisors, and the public; could not complete tasks with fast-paced
production requirements; needed to work independently with no close-knit or tandem
work; and could adapt to routine workplace changes. See id. at 843. The ALJ found
that the Plaintiff could not have performed any past relevant work but that she could
have performed other jobs existing in significant numbers in the national economy
and was thus not disabled from January 1, 1999, her alleged disability onset date,
through September 30, 2004, her date last insured. See id. at 847-49. The Plaintiff
filed exceptions to the ALJ’s decision with the Appeals Council, which declined to

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assume jurisdiction; hence, the ALJ’s May 2023 decision is the Commissioner’s final
determination after remand. See id. at 828-30; 20 C.F.R. §§ 404.981, 404.984(b)(2).
II. Standard of Review
A final decision of the Commissioner is subject to judicial review to determine
whether it is based on the correct legal standards and supported by substantial
evidence. See 42 U.S.C. § 405(g); Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).
Substantial evidence in this context means evidence in the administrative record that
a reasonable mind could accept as adequate to support an ALJ’s findings.
See Biestek v. Berryhill, 587 U.S. 97, 102-03 (2019). If an ALJ’s findings are supported
by substantial evidence, they are conclusive even if the record could arguably support
a different result. See Irlanda Ortiz v. Sec’y of Health & Hum. Servs., 955 F.2d 765,
769 (1st Cir. 1991). But an ALJ’s findings “are 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).
III. Discussion
The Plaintiff first contends that in determining her RFC, the ALJ erroneously
evaluated her subjective-symptom testimony as well as the medical opinions of
testifying independent medical expert Ira H. Hymoff, Ph.D., and treating provider
Tara Pelletier, D.O. See Plaintiff’s Brief at 9-13.
Dr. Hymoff testified, in relevant part, that the Plaintiff could not work under
“timed production standards,” could not work as part of a “close knit” team, and could
only occasionally interact with coworkers, supervisors, and the public (though this

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social restriction would limit her on an unpredictable basis). Record at 979-81. The
ALJ ultimately found Dr. Hymoff’s opinion “reasonable and persuasive.” Id. at 846.
The Plaintiff argues that the ALJ inaccurately altered the no “timed
production standards” limitation Dr. Hymoff assessed by changing it to a “lesser
limitation” of no “fast-paced production requirements” in a hypothetical posed to the
VE at hearing. Plaintiff’s Brief at 10; see Record at 987. This error is not harmless,
the Plaintiff contends, because an inability to perform jobs with “timed production
requirements,” a limitation unqualified by speed or pace, “may well have been
inconsistent” with an ability to perform the jobs identified by the VE and adopted by
the ALJ. Plaintiff’s Brief at 10. The Plaintiff argues without support that the jobs
the VE identified, like “most unskilled occupations in competitive employment,” are
“likely to involve ‘timed production requirements.’” Id.
However, the Plaintiff cites no authority to support a material difference
between “timed production standards” and “fast-paced production requirements,” and
even if I assume that the ALJ erred in making that translation, the Plaintiff similarly
fails to establish that it resulted in prejudice. See id. at 10-11. This is also precisely
the type of concern that the Plaintiff’s counsel is expected to explore with the VE at
hearing instead of reserving “such matters to technical challenges before the courts.”
Fallon v. Soc. Sec. Admin. Comm’r, No. 1:10–cv–00058–JAW, 2011 WL 167039, at *9
(D. Me. Jan. 14, 2011) (rec. dec.), aff’d, 2011 WL 703590 (D. Me. Feb. 18, 2011).
The Plaintiff further contends that the ALJ failed to incorporate into the RFC
Dr. Hymoff’s opinion that her ability to occasionally interact with others was

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unpredictable

or

explain

why

he

rejected

that

portion

of

testimony.

See Plaintiff’s Brief at 11-12. The error is harmful, the Plaintiff insists, because the
VE testified that someone with the Plaintiff’s RFC could not perform the jobs that the
VE identified and the ALJ adopted if they were “unpredictably unable to interact
appropriately with their supervisors and their co-workers for basically two-thirds of
the workday,” whereas “occasional is one-third.” Id. at 12; Record at 990.
To the contrary, the ALJ thoroughly considered Dr. Hymoff’s opinion about the
unpredictable nature of the Plaintiff’s social limitations, see Record at 844-46, 981,
and then found, consistent with the VE’s testimony, that the Plaintiff would not be
precluded from performing the identified representative occupations even if she were
unpredictably unable to occasionally interact with others, see id. at 849, 989;
see also 20 C.F.R. § 416.945(a)(1) (defining RFC as “the most [a Plaintiff] can still do
despite [their] limitations”).
Moreover, the Plaintiff’s suggestion that her ability to “occasionally” interact
with others means that she could only interact with others one-third of the workday
and, conversely, that she would be unable to interact with others the other two-thirds
of the workday, is based on a flawed premise. “[T]he DOT definition” of the word
“occasional” “does not refer to interactions with others; instead, it refers to the
frequency with which an employee would have to exert various amounts of physical
force.” Reynolds v. Kijakazi, 25 F.4th 470, 474 (7th Cir. 2022) (citing Appendix C,
§ III to DOT, 1991 WL 688702) (highlighting how illogical it would be to interpret
“occasional interaction” to mean that a claimant would be required to interact with

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others for “up to two hours and forty minutes out of an eight-hour workday”).
Accordingly, there is no merit to Plaintiff’s attempt to undermine the ALJ’s Step 5
findings by pointing to the VE’s testimony about a hypothetical person who could not
interact with others for a full two-thirds of the workday—as the ALJ noted, the
Plaintiff’s “framing and line of questioning” to the VE on this issue “obfuscated the
premise” of being limited to occasional interactions with others. See Record at 849.
The Plaintiff also challenges the ALJ’s evaluation of Dr. Pelletier’s written
opinion statements, which the ALJ acknowledged at hearing were consistent with a
finding of disability. See id. at 802-12, 988; Plaintiff’s Brief at 12-13. Dr. Pelletier
did not begin treating the Plaintiff until she started practicing medicine at Intermed
in 2006, where the Plaintiff was already an established patient. See Record at 802,
846, 958. The ALJ found Dr. Pelletier’s opinion unpersuasive “through the date last
insured and in subsequent years when the [Plaintiff] was not engaged in regular
treatment” because she did not personally treat the Plaintiff during the alleged
disability period—January 1, 1999, through September 30, 2004—or provide medical
documents to address that time span, and she herself stated that it was “difficult to
estimate an onset” because the Plaintiff’s “emotional trauma from home/marriage
was ongoing or continuous until separation and divorce.” Id. at 846. The ALJ also
found Dr. Pelletier’s more restrictive assessment of the Plaintiff’s functional
limitations inconsistent with the opinion of Dr. Hymoff—who had reviewed all of the
available, relevant medical records from the alleged period of disability—that the
Plaintiff was only moderately limited during that earlier period overall. See id.

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The Plaintiff contends that ALJ erred because “the premise that the
opportunity to review [the Plaintiff’s earlier] records distinguished” Dr. Pelletier’s
opinion from that of Dr. Hymoff—which she alleges is the sole reason the ALJ rejected
Dr. Pelletier’s opinion—is unfounded. Plaintiff’s Brief at 13. In support of this point,
the Plaintiff notes that Dr. Pelletier was offered copies of the earlier records but did
not indicate that she needed them, and instead attached a summary of the Plaintiff’s
treatment history at Intermed to her opinion statements and referenced her
knowledge of those records as a basis for her opinion. 2 See id; Record at 802-27.
This argument is unavailing. The ALJ plainly found Dr. Pelletier’s opinion
unpersuasive for reasons beyond its inconsistency with the functional limitations
Dr. Hymoff assessed. See id. at 846; 20 C.F.R. § 404.1520c(c)(2) (stating that a
medical opinion’s persuasiveness is relative to its consistency with other record
evidence).

The ALJ also considered Dr. Pelletier’s explanation of her difficulty

pinpointing the onset date for her assessed limitations, see id. § 404.1520c(c)(1), her
treatment relationship with the Plaintiff, see id. § 404.1520c(c)(3), and her familiarity
with the evidence relevant to the Plaintiff’s claim, see id. 404.1520c(c)(5). Thus, as
the Commissioner correctly points out, the Plaintiff’s argument essentially asks the
Court to intrude upon the ALJ’s role by “reweigh[ing] the relative value of the
opinions based on the evidence Dr. Pelletier considered.”

Commissioner’s Brief

(ECF No. 14) at 8; see also Becky K. G. v. Saul, No. 1:20-cv-00089-GZS,
2020 WL 7418974, at *5 (D. Me. Dec. 17, 2020) (rec. dec.) (“That the record could
2 Notably, the treatment history Dr. Pelletier attached to her opinion statements reflects that the

Plaintiff was first seen in 2008, well after the alleged disability period ended. See Record at 813-27.

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arguably support a different conclusion does not entitle [a claimant] to remand; it is
for the ALJ, not the court, to draw conclusions from the evidence and to resolve any
conflicts therein.”), aff’d, 2021 WL 66609 (D. Me. Jan. 7, 2021).
Next, the Plaintiff alleges that the ALJ overemphasized the objective medical
evidence of record and, correspondingly, neglected to properly consider her testimony,
in evaluating her subjective-symptom reports. 3

See Plaintiff’s Brief at 13-16;

see also SSR 16-3p, 2017 WL 5180304, at *6 (Oct. 25, 2017) (“If [an ALJ] cannot make
a [fully favorable] decision . . . based solely on objective medical evidence, then [the
ALJ] carefully consider[s] other evidence in the record in reaching a conclusion about
the intensity, persistence, and limiting effects of an individual’s symptoms . . .
includ[ing] statements from the individual, medical sources, and any other sources
that might have information about the individual’s symptoms, including agency
personnel, as well as the factors set forth in our regulations.”).
The Plaintiff’s argument on this point neglects to consider the record as a whole
and once again improperly asks the Court to reweigh the evidence. See Becky K. G.,
2020 WL 7418974, at *5; see also West v. Berryhill, No. 17-1170, 2017 WL 6499834,
at *1 (1st Cir. Dec. 11, 2017) (“[T]he court considers the ALJ’s decision as a whole
when determining whether substantial evidence supported the ALJ’s findings.”). The

3 The Plaintiff offhandedly notes that both Dr. Hymoff and the ALJ referenced her daily activities as

a “homemaker/parent” during the alleged disability period and advises that “ALJs must be especially
cautious in concluding that daily activities are inconsistent with testimony about pain, because
impairments that would unquestionably preclude work and all the pressures of a workplace
environment will often be consistent with doing more than merely resting in bed all day.”
Plaintiff’s Brief at 14 (quoting Sacilowski v. Saul, 959 F.3d 431, 440 (1st Cir. 2020)). But the Plaintiff
does not contend that such a result occurred in this case; thus, the argument is waived for being
undeveloped. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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ALJ found that the Plaintiff’s statements about the intensity, persistence, and
limiting

effects

of

her

symptoms

were

inconsistent

with

the

evidence.

See Record at 844. In reaching that determination, the ALJ considered the Plaintiff’s
testimony about being a homemaker and raising children while experiencing spousal
abuse that impacted her mental and physical health. See id. The ALJ also considered
the Plaintiff’s physical examination findings and that she attended weekly therapy
to combat the impact of her abuse but was ultimately hospitalized for an eating
disorder and prescribed medication to treat her mental health symptoms. See id.
Finally, the Plaintiff claims that the ALJ’s Step 5 finding is unsupported by
substantial evidence because the ALJ failed to resolve an apparent conflict between
the DOT and the VE testimony that he relied upon in determining the Plaintiff’s RFC.
See Plaintiff’s Brief at 16-18. The ALJ found that an individual with the Plaintiff’s
RFC could perform at least three representative occupations—collator operator,
DOT No. 208.685-010, router, DOT No. 222.587-038, and silver wrapper,
DOT No. 318.687-018—all of which fall within level two of the DOT General
Educational Development (GED) reasoning spectrum.

See Record at 848;

Appendix C, § III to DOT, 1991 WL 688702. The Plaintiff insists that an apparent
conflict exists between the VE’s testimony and the DOT because a limitation to
“one to three step tasks” rules out GED reasoning level two occupations.
See Plaintiff’s Brief at 17; Record at 843.
Social Security Ruling (SSR) 00-4p affirmatively obligates ALJs to “(i) inquire
whether there is any conflict between VE testimony and the DOT, (ii) elicit a

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reasonable explanation for any apparent conflict, and (iii) resolve said conflict,
regardless of how it was identified.”

Sharon W. v. Kijakazi, 2:21-cv-00287-NT,

2022 WL 2751645, at *4 (D. Me. July 14, 2022) (rec. dec.) (cleaned up), aff’d,
2022 WL 3042984 (D. Me. Aug. 1, 2022). However, “because SSR 00–4p pertains only
to apparent conflicts, a [plaintiff] waives a claim of failure to identify and resolve a
conflict between [VE] testimony and the DOT unless [they] can show that the conflicts
were obvious enough that the ALJ should have picked up on them without any
assistance.” Welch v. Astrue, No. 1:11–cv–384–GZS, 2012 WL 3113148, at *7 (D. Me.
July 11, 2012) (rec. dec.) (cleaned up), aff’d, 2012 WL 3113144 (D. Me. July 31, 2012).
No such apparent conflict exists here. The DOT does not dictate a maximum
number of steps for tasks in GED reasoning level two jobs. Appendix C, § III to DOT,
1991 WL 688702. While the DOT states that such jobs might require individuals to
“[d]eal with problems involving a few concrete variables in or from standardized
situations,” it does not specify how many steps are considered “standardized.” Id.
Consequently, a job involving “a few concrete variables,” id., may well involve “one to
three step tasks,” Record at 843, and such a limitation is therefore not in clear conflict
with GED reasoning level two occupations, see Fallon, 2011 WL 167039, at *9.
In fact, a number of courts have held that a limitation to one-to-three step tasks
is not inconsistent with GED level two reasoning jobs. See, e.g., Surprise v. Saul,
968 F.3d 658, 662-63 (7th Cir. 2020) (finding “no conflict, obvious or otherwise,”
between GED reasoning level two jobs and a limitation to one-to-three step
instructions). While a limitation to one-to-two step instructions fits soundly within

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the definition of GED reasoning level one occupations, see Appendix C, § III to DOT,
1991 WL 688702, one-to-three step tasks inherently require a higher mental ability
that “appears to be precisely within the scope” of GED reasoning level two,
Ryan Y. v. O’Malley, No. 23-540-PAS, 2024 WL 3329755, at *8 (D.R.I. July 8, 2024). 4
Here, the VE supplied three representative occupations in response to the
ALJ’s hypothetical and, critically, testified that his response was consistent with the
DOT. See Record at 987-88. That testimony constitutes substantial evidence to
support the ALJ’s Step 5 finding. Moreover, even if there is a question about whether
an individual with the Plaintiff’s RFC is capable of performing a particular GED
reasoning level two job, the Plaintiff was represented at hearing and the ALJ
permitted her counsel to question the VE, but the Plaintiff’s counsel neither identified
nor inquired about any conflicts. See id. at 988-90. Once again, counsel is expected
to “explore these concerns with the [VE] at hearing, not leave such matters to
technical challenges before the courts.” Fallon, 2011 WL 167039, at *9. Because any
conflict, if one existed, was not apparent, SSR 00-4p does not require remand.
IV. Conclusion
For the foregoing reasons, the Commissioner’s decision is AFFIRMED.
Dated: March 10, 2025

/s/ Karen Frink Wolf
United States Magistrate Judge

4 The Plaintiff’s reliance on Linwood C. is misplaced.

See Plaintiff’s Brief at 17-18 (citing Linwood C.
v. Kijakazi, 1:22-cv-00013-LEW, 2022 WL 10337867, at *4 (D. Me. Oct. 18, 2022) (rec. dec.), aff’d,
2022 WL 17454017 (D. Me. Dec. 6, 2022)). In that case, this Court held that a limitation to “tasks with
‘short’ instructions” conflicted with GED reasoning level two, which involves “‘detailed’ (i.e., longer)
instructions.” Linwood C., 2022 WL 10337867, at *4. Importantly, the case did not discuss tasks in
terms of the number of steps involved, which is the pivotal issue here. See Surprise, 968 F.3d at 663
(rejecting an analogous case on the same ground).

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