Lavoie v. US Social Security Administration, Acting Commissioner

Filing 23

///ORDER granting 18 Motion to Affirm Decision of Commissioner; denying 13 Motion to Reverse Decision of Commissioner. So Ordered by Judge Paul J. Barbadoro.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jennifer Lavoie
v.

Case No. 17-cv-49-PB
Opinion No. 2018 DNH 035

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration

MEMORANDUM AND ORDER

Jennifer Lavoie challenges the denial of her claim for
social security disability insurance (SSDI) benefits and
supplemental security income (SSI) under Title II of the Social
Security Act, 42 U.S.C. § 423.

She argues that the

administrative law judge (ALJ) erred by not finding that she had
severe mental impairments at step two, by determining that her
residual functional capacity (RFC) was greater than the evidence
showed, and by finding that she could still perform some work at
step five.

The Acting Commissioner moves for an order affirming

the decision.

For the following reasons, I affirm.

I.
A.

BACKGROUND

Facts
In accordance with Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts.

Doc. No. 21.

Because that joint statement is part of the court’s record, I
only briefly discuss the facts here.

I discuss further facts

relevant to the disposition of this matter as necessary below.
Lavoie was a 37 year-old woman at the time of her alleged
onset date.

Id. at 2.

She had worked as “an automobile

mechanic, heavy equipment operator, truck driver, volunteer
firefighter, environmental driller, office helper, and hardware
store clerk,” prior to her application for benefits.

Id.

Lavoie’s first documented health problem was back pain,
which she first reported in April, 2009.

Id.

In April, 2011,

Lavoie underwent a magnetic resonance imaging (MRI) procedure,
which showed abnormalities in her spinal column, including a
bulging disk.

Id. at 3.

Lavoie complained of back and leg pain

to multiple doctors from 2009 to 2011. Id.

Despite her

significant back, leg, and ankle pain, Lavoie could walk
normally, move from the seated to standing position, perform a
single leg squat, and touch her toes.
morbidly obese.

Id. at 4.

Lavoie is also

Administrative Transcript (“Tr.”) 493-494.

Lavoie received treatment for her back pain on various
occasions.

Doc. No. 21 at 5.

She received steroid injections

in August and September 2011, but these did not relieve her
2

pain.

Id. at 5.

She was also prescribed various pain

medications, including Vicodin.

Id. at 7.

In 2013, Lavoie

underwent back surgery to fuse two of her vertebrae.

Id. at 29.

About six months after surgery, during a follow-up visit, she
stated that her back pain was a zero out of 100.

Id. at 30.

She later complained of continued back pain even after surgery.
Id. at 30-31.

She has continued to complain of back pain

through 2016.

Id. at 36.

Lavoie also claimed to have been anxious and depressed, at
least partially due to her physical pain.

Id. at 4.

She was

evaluated by psychologist Edouard Carignan, to whom she
complained of “depression, irritability, and stress.”

Carrigan

nevertheless noted that Lavoie was not suicidal, had average
intelligence, and did not have any deficit in attention or
concentration.

Id. at 9.

Carignan opined that she had an

“adjustment disorder with depressed mood.”

Id. at 10.

Doctor

Stephen Moran also evaluated Lavoie, and diagnosed her with
major depressive disorder.

Id. at 16.

In June, 2012, Lavoie

was hospitalized with suicidal thoughts, but had not attempted
suicide.

Id. at 10.

Lavoie also reports that she has post-

traumatic stress disorder (PTSD), brought on when, as a
volunteer firefighter, she responded to a car crash and
3

discovered that the deceased victim was her best friend.

Id. at

14.
B.

Procedural history
Lavoie filed claims for both SSDI and SSI on March 6, 2012,

alleging that she has been disabled since August 22, 2009.
139, 141.

Tr.

Later, she amended her alleged disability date to
Doc. No. 21 at 1.

October 29, 2011.

Her claims progressed to a

hearing before the ALJ, who denied them in a written decision
issued on June 6, 2013.

Tr. 23.

Lavoie appealed the denial of

her claims to the district court.

Lavoie v. Colvin (“Lavoie

I”), 2015 DNH 236.
I reviewed her claims and reversed and remanded because the
ALJ ignored the opinion of Dr. Francis Milligan, a treating
source, without “specifically address[ing his] various
conclusions, cit[ing] contradictory medical opinions or
evidence, or otherwise explain[ing] why [his] findings were
unsupported by the record.

Lavoie I, 2015 DNH 236, *4; see

Jenness v. Colvin, 2015 DNH 167, *7.
The same ALJ who evaluated Lavoie’s claims in 2013
conducted another hearing on August 30, 2016.

Tr. 483.

The ALJ

denied Lavoie’s claims in a written decision issued on November
28, 2016.

Tr. 499.

In the decision, the ALJ applied the five4

step analysis required by 20 C.F.R. § 404.1520 (for SSDI claims)
and 20 C.F.R. § 416.920 (for SSI claims).

At step one, the ALJ

determined that Lavoie had not engaged in substantial gainful
activity since her alleged onset date.

Tr. 486.

At step two,

the ALJ determined that Lavoie had the following severe
impairments: “degenerative disc disease (lumbar spine, status
post L5-S1 fusion) and obesity.”

Tr. 486.

At step three, the

ALJ determined that Lavoie did not have any of the impairments
listed in 20 C.F.R., Subpart P, Appendix 1, which would render
her disabled per se.

Tr. 489.

At step four, the ALJ determined

that Lavoie’s RFC allowed her to do “light work as defined in
[§] 404.1567(b) and [§] 416.967(b).”

Tr. 490.

The ALJ further

limited her RFC by specifying that she could “occasionally
crouch, stoop, and climb ladders, ropes, and scaffolds;
frequently balance, kneel, climb ramps and stairs; but must
avoid all crawling.”

Tr. 490.

The ALJ determined that, in light of this RFC, Lavoie could
not return to any past relevant work.

Tr. 497.

At step five,

after considering the opinion of a vocational expert, the ALJ
determined that Lavoie could work in a number of other jobs that
existed in the national economy, including, “assembler of
plastic hospital products,” “deli cutter/slicer,” and “toll
5

collector.”

Tr. 498.

The ALJ found that Lavoie was not

disabled and denied her claims for both SSDI and SSI.

Tr. 499.

Lavoie did not seek review of the ALJ’s decision before the
Appeals Council, and the Appeals Council did not review the
decision on its own.

Doc. No. 21 at 2.

Instead, Lavoie filed a

complaint for judicial review under 42 U.S.C. § 405(g) and 42
U.S.C. § 1383(c)(3) on February 8, 2017.

II.

Doc. No. 1.

STANDARD OF REVIEW

I am authorized under 42 U.S.C. § 405(g) to review the
pleadings submitted by the parties and the administrative record
and enter a judgment affirming, modifying, or reversing the
“final decision” of the Commissioner.

That review is limited,

however, “to determining whether the [ALJ] used the proper legal
standards and found facts [based] upon the proper quantum of
evidence.”

Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st

Cir. 2000).

I defer to the ALJ’s findings of fact, as long as

those findings are supported by substantial evidence.

Id.

Substantial evidence exists “if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate
to support his conclusion.”

Irlanda Ortiz v. Sec’y of Health &

Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam)
6

(quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d
218, 222 (1st Cir. 1981)).
If the ALJ’s factual findings are supported by substantial
evidence, they are conclusive, even where the record “arguably
could support a different conclusion.”

Id. at 770.

If,

however, the ALJ “ignor[ed] evidence, misappl[ied] the law, or
judg[ed] matters entrusted to experts,” her findings are not
conclusive.
(per curiam).

Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
The ALJ determines issues of credibility and

draws inferences from evidence in the record.
955 F.2d at 769.

Irlanda Ortiz,

The ALJ, and not the court, must resolve

conflicts in the evidence.

Id.

III. ANALYSIS
Lavoie moves to reverse the decision of the ALJ because the
ALJ erroneously found that she did not have severe mental
impairments at step two, determined that her residual functional
capacity (RFC) was greater than the evidence showed, and
incorrectly found that she could still perform some work at step
five.
A.

Severe Impairments (Step Two)
Lavoie argues that the ALJ failed at step two by not
7

recognizing that her anxiety and depression were severe mental
impairments.

She argues that the ALJ arrived at this erroneous

conclusion by applying the incorrect legal standard for “severe
mental impairment,” improperly considering her failure to seek
treatment for her mental impairments without also considering
whether she could afford the treatment, failing to properly
consider Dr. Moran’s opinion that she had anxiety and
depression, and improperly considering the fact that she had not
noted these mental impairments when she initially applied for
benefits.

I decline to reverse the ALJ’s decision on this basis

because I determine that the ALJ did not commit the abovementioned errors, substantial evidence supports a finding that
Lavoie did not have any severe mental impairments, and even if
substantial evidence did support a finding of severe mental
impairments, a failure to include these at step two is not
reversible error.
1.

Specific Claims of Step Two Error

Lavoie claims that the ALJ erred at step two by applying
the incorrect standard for determining whether an impairment is
“severe.”

For a mental impairment to be “non-severe,” it must

not prevent the claimant from participating in substantial
gainful activity, even if the claimant “were of advanced age,
8

had minimal education, and a limited work experience.”

McDonald

v. Sec’y of Health & Human Servs., 795 F.2d 1118, 1125 (1st Cir.
1986).

In other words, for an impairment to be non-severe, it

must have “no more than a minimal effect on an individual’s
ability to work.”

Id. at 1124.

Here, the ALJ stated, “I find that the claimant’s medically
determinable mental impairments of depression and anxiety do not
cause more than minimal limitation in the claimant’s ability to
perform basic mental work activities, and are therefore
nonsevere.”

Tr. 486.

Because the ALJ found that Lavoie’s

anxiety and depression had “no more than [a] minimal limitation”
on her ability to work, he applied the correct standard.

Tr.

487.
Lavoie also argues that the ALJ erred by justifying his
finding that her mental impairments were non-severe by noting
that she did not receive medical treatment for them, without
considering whether she could afford treatment.

Social Security

Ruling 16-3P allows the ALJ to rely on the fact that a claimant
did not seek treatment for a particular impairment as evidence
that the impairment was not severe, as long as the ALJ
considered that other factors, such as the ability to pay, could
have been the reason why the claimant did not seek treatment.
9

See SSR 16-3P, 2016 WL 1119029, at *9 (Mar. 16, 2016).
Here, the ALJ did consider whether Lavoie could afford
treatment for her anxiety or depression.

Tr. 487.

3P, 2016 WL 1119029, at *9 (March 16, 2016).

See SSR 16-

He nonetheless

found that her inability to pay did not fully account for her
minimal treatment history.

Tr. 487.

Therefore, he permissibly

cited her lack of treatment as evidence of a lack of severe
impairments of depression and anxiety.

Id.

Lavoie also claims that the ALJ erred by rejecting Dr.
Moran’s opinion because the ALJ had given it “great weight” in
his 2012 decision and because it was a medical opinion.
at 4.

Doc. 13

There is no requirement that an ALJ must accord a source

the same weight when evaluating that source for a second time,
on remand.

“The responsibility of weighing conflicting

evidence, where reasonable minds could differ as to the outcome,
falls on the Commissioner and his designee, the ALJ.”
Barnhart, 276 F.3d 1, 10 (1st Cir. 2001).

Seavy v.

Even when I remand a

case to the ALJ, it is rarely appropriate for me to dictate how
to weigh the evidence, and I did not do so here.
DNH 236.

Lavoie I, 2015

Here, the ALJ remained free to give the evidence the

weight he deemed appropriate, as long as that weight was
supported by substantial evidence.
10

See id.

Moreover, while it is true that the “ALJ must evaluate all
medical opinions from all sources,” the ALJ did so in this case.
See Shaw v. Sec’y of Health & Human Servs., 25 F.3d 1037, 1994
WL 251000 at *4 (1st Cir. 1994).

The ALJ considered the opinion

of Doctor Stephen Moran by citing the “treatment notes at
Riverbend counseling,” where Dr. Moran worked.

Tr. 486.

The

ALJ cited to the treatment notes from Dr. Moran and social
worker Hannah Chassie, exhibit 15F, several times throughout his
step-two determination.

Tr. 487-488.

Far from rejecting Dr.

Moran’s opinion with no justification, the ALJ evaluated, and
credited, much of what he said about Lavoie’s mental state, but
did not adopt his ultimate conclusion.
Lavoie further argues that the ALJ’s statement that her
depression and anxiety were non-severe because she “did not even
allege mental health limitations in her Disability Report” in
2012 was error because her mental disabilities did not arise
until 2012.

An ALJ can discount a claim of disability that

arises after a claimant’s alleged onset date.
Astrue, 2011 DNH 097, *7.

See Mills v.

Therefore, the ALJ properly

discounted her claims of depression and anxiety because she
failed to make them before her alleged onset date of April 11,
2011.
11

The ALJ’s determination that Lavoie’s anxiety and
depression caused no “more than minimal limitation” is supported
by substantial evidence.

Lavoie “was able to work full-time

jobs without significant functional limitations” despite
claiming to have had “depression and anxiety for many years.”
Tr. 487.
state.”

She testified that “work helped her mental health
Tr. 487.

She maintained a social schedule, Tr. 487,

and has remained able to complete the “activities of daily
living.”

Tr. 489.

See Berrios-Lopez v. Sec’y of Health & Human

Servs., 951 F.2d 427, 429 (1st Cir. 1991).

Additionally, Dr.

Laura Landerman evaluated Lavoie’s medical records and opined
that Lavoie did not have any severe mental impairments.

Tr. 57,

67, 489.
2.

Step Two Reversible Error

At step two, the ALJ is required to determine whether a
claimant has a severe impairment or combination of severe
impairments.

20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c).

Step two is a threshold inquiry, meant only to weed out
unsubstantiated claims.

See Hines v. Astrue, 2012 DNH 121, *9

(2012) (“The determination at step two as to whether an
impairment is severe is a de minimis test, designed to ‘screen
out groundless claims.’” (quoting McDonald v. Sec’y of Health &
12

Human Servs., 795 F.2d 1118, 1123 (1st Cir. 1986))).

Step two

is not where the ALJ makes determinations about what,
specifically, the claimant is capable of doing at work.

See id.

The full analysis of the claimant’s limitations occurs later in
the analysis, when the ALJ formulates the RFC.

Therefore, the

ALJ only commits reversible error at step two if he finds the
claimant has no severe impairments, but there is substantial
evidence in the record of at least one severe impairment.

See

Hines, 2012 DNH 121, *9.
Here, at step two, the ALJ found that Lavoie had two
“severe impairments” -- “degenerative disc disease . . . and
obesity,” but not anxiety or depression -- and moved on to step
three.

Tr. 486.

Because the ALJ found that there was at least

one severe impairment and proceeded to step three, he did not
commit reversible error in his step two analysis.

See Hines,

2012 DNH 121, *9.
B.

Residual Functional Capacity
Lavoie argues that the ALJ’s RFC finding was not supported

by substantial evidence because it improperly discredited her
subjective pain complaints and improperly ignored the opinion of
her treating physician, Dr. Milligan.
1.

Subjective Pain Complaints
13

Pain is not a disability in and of itself, but, rather, a
symptom of a disability.

20 C.F.R. § 404.1529(a); Anderson v.

Astrue, 682 F.Supp.2d 89, 97 (1st Cir. 2010).

“The regulations

. . . plainly require that the claimant demonstrate a medically
determinable ailment that would give rise to symptoms [of pain]
in order to obtain benefits.”

Anderson, 682 F.Supp.2d at 97.

Social Security Regulation 16-3P makes clear that the ALJ cannot
rely on a claimant’s pain complaints to support a finding that
the claimant is disabled, unless that pain is caused by a
“medically determinable impairment,” shown by either “medical
signs” or “laboratory findings.”

SSR 16-3P, 2016 WL 1119029, at

*3; see Irlanda Ortiz v. Sec’y of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991).
Substantial evidence supports the ALJ’s determination that
Lavoie’s back pain was not as significant as she claimed because
objectively verifiable medical evidence supported a finding of
only moderate pain, because Lavoie was able to participate in
daily activities despite her pain, because Lavoie’s levels of
self-reported pain were inconsistent, and because Lavoie did not
receive medical treatment for her pain.

Tr. 490-495.

See Avery

v. Sec’y of Health & Human Servs., 797 F.2d 19, 21 (1st Cir.
1986) (“[A]s a primary requirement, there must be a clinically
14

determinable medical impairment that can reasonably be expected
to produce the pain alleged.”); Cookson v. Colvin, 111 F.Supp.3d
142, 154 (D. R.I. 2015) (other factors that an ALJ can use to
evaluate subjective pain complaints include “claimant’s daily
activities” and “treatment . . . received for relief of pain”).
2.

Opinion of Treating Physician Dr. Milligan

The ALJ is required to give particular attention to medical
evidence from a “treating source.”

20 C.F.R. § 404.1527(c)(2). 1

A “treating source” is the claimant’s “own acceptable medical
source who provides [the claimant] . . . medical treatment or
evaluation and who has . . . an ongoing treatment relationship
with [the claimant] . . . .”

Benton v. Barnhart, 331 F.2d 1030,

1035 (9th Cir. 2003); 20 C.F.R. § 404.1527(a)(2).
An ALJ must give the “treating source’s” opinion
“controlling weight” if that opinion is well-supported and
consistent with substantial evidence.

Foley v. Astrue, 2010 WL

2507773 (D. Mass. June 17, 2010); 20 C.F.R. § 404.1527(c)(2).
Even if the treating source’s opinion does not satisfy the
requirements to be considered “controlling evidence,” it should
still be given some “deference.”

1

Douglas v. Colvin, 2016 DNH

This is a consideration mandated by 20 C.F.R. § 404.1527, which
governs all claims filed before March 27, 2017, a time period
that includes this claim.
15

176, *6.
If the ALJ rejects the opinion of a treating source, the
ALJ must give “good reasons” for his determination, which must
be “both specific and supportable.”

Jenness, 2015 DNH 167, *6.

As long as the ALJ gives good reasons for resolving
inconsistencies between a treating source and other evidence in
favor of the other evidence, I will uphold the decision of the
ALJ.

Costa v. Astrue, 565 F.Supp.2d 265, 271 (D. Mass. 2008).
As set out in my previous decision on Lavoie’s application

for SSI and SSDI, Dr. Francis Milligan was her “treating
source.”

Lavoie I, 2015 DNH 236, *2.

In his opinion after

remand, the ALJ did not err because he gave specific,
supportable reasons for rejecting Dr. Milligan’s opinion.
495-497.

Tr.

First, the ALJ gave Dr. Milligan’s opinion “little

weight” because he is a general practice physician, not a
specialist.

Tr. 496. 20 C.F.R. § 404.1527(c)(5), 20 C.F.R. §

416.927(c)(5) (an ALJ should give more weight to a specialist
than general practice physician).

Second, the ALJ noted that

much of Dr. Milligan’s opinion that Lavoie had debilitating back
pain was based on examinations that took place before her
surgery, which vastly improved her condition.

Tr. 496.

See

Blackette v. Colvin, 52 F.Supp.3d 101, 115 (D. Mass. 2014) (“If
16

there is an indication in more recent records that there has
been a significant change in the claimant’s condition, older
medical reports now inconsistent with that evidence may not be
used to support an RFC determination.” (internal citations
omitted)).

Third, the ALJ noted that much of Dr. Milligan’s

opinion is based not on his own examinations, but on the
examinations done by physical therapist Christopher Herd.
496.

Tr.

This physical therapist is not a medical source, and so

his opinion is not entitled to the same level of deference that
Dr. Milligan’s would be.

See 20 C.F.R. § 404.1527.

Moreover,

Herd’s own evaluations are entitled to little deference because
he evaluated Lavoie only one time and mostly relied on her selfreported pain levels.

Tr. 496-497.

See 20 C.F.R. § 404.1527.

Lavoie’s subjective pain reports, upon which Herd and Dr.
Milligan relied, are contradicted by the objective physical
evidence (including evaluations of her strength and reflexes
during in-person exams).
at 97.

Tr. 496.

See Anderson, 682 F.Supp.2d

Fourth, the ALJ noted that Dr. Milligan’s opinion is

internally inconsistent, as he stated that she can lift up to
ten pounds and sit for two hours per day, but denied that she
can even work for one hour per day.

Tr. 496.

See Arruda v.

Barnhart, 314 F.Supp.2d 52, 72 (D. Mass. 2004) (“The relevant
17

regulations . . . permit the ALJ to downplay the weight afforded
a treating physician’s assessment . . . where . . . it is
internally inconsistent or inconsistent with other evidence in
the record including treatment notes and evaluations by
examining and non-examining physicians.”).
C.

Vocational Expert Opinion (Step Five)
Lavoie argues that the ALJ erred by relying upon the

vocational expert’s testimony because it was based on a
hypothetical that did not include all of Lavoie’s relevant
severe impairments.

Lavoie also argues that the vocational

expert’s opinion was invalid because the vocational expert did
not explicitly state that his opinion was consistent with the
directory of occupational titles (DOT).
An ALJ can rely on the opinion of a vocational expert to
determine whether a claimant is disabled only if the vocational
expert’s opinion is based on a hypothetical question that
“accurately portray[s] the claimant’s physical and mental
impairments.

Ealy v. Comm’r of Social Sec., 594 F.3d 504, 417

(6th Cir. 2010); Rose v. Shalala, 34 F.3d 13, 19 (1st Cir.
1994); Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374,
375 (1st Cir. 1982) (“[I]n order for a vocational expert’s
answer to a hypothetical question to be relevant, the inputs
18

into that hypothetical must correspond to the conclusions that
are supported by the outputs from the medical authorities.”).
At step two, Lavoie claimed that she had two “severe mental
impairments”: anxiety and depression.

The ALJ examined the

evidence of Lavoie’s anxiety and depression, and determined that
these mental limitations were “non-severe.”

Tr. 487.

Nevertheless, the ALJ concluded that Lavoie’s depression and
anxiety were “mild limitations” on her ability to work, and
stated, “I considered these impairments upon assessing her
[RFC], and the [RFC] includes a limitation to simple, unskilled
work.”

Tr. 487.

The ALJ’s statement that Lavoie’s RFC is limited to
“simple, unskilled work” is supported by substantial evidence.
Psychologist Edouard Carignan, who personally examined Lavoie
and whose opinion the ALJ gave “great weight,” stated that
Lavoie had minimal difficulty in activities of daily living and
diagnosed her with some depression and anxiety symptoms.
488.

Tr.

Dr. Laura Landerman, whose opinion the ALJ also credited,

stated that Lavoie had “mild limitations in activities of daily
living, social functioning, and maintaining concentration[,]
persistence[,] and pace . . .”

Tr. 488.

Moreover, Lavoie’s own

testimony about her difficulties working, carrying out the
19

activities of daily life, and maintaining a normal social
schedule all support a finding of some limitation on her mental
capacity.

Tr. 488-489.

These “minimal” and “mild” mental

limitations support a finding that Lavoie was capable of
performing unskilled work.

See Ortiz v. Sec’y of Health & Human

Servs., 890 F.2d 520, 526 (1st Cir. 1989).
Despite the ALJ’s statement at step two that Lavoie could
only engage in “simple, unskilled work,” the ALJ omitted that
limitation from Lavoie’s RFC and from the hypothetical question
posed to the vocational expert at step five.

Tr. 490 (the RFC

limited Lavoie to “light work,” with further limits on
crouching, stooping, climbing, balancing, kneeling, and
crawling, but no limit to simple, unskilled work); Tr. 509, 547
(the ALJ asked the vocational expert whether a claimant “of
similar age, education, and vocational background[;] who is
limited to light work[;] . . . can occasionally climb ladders,
frequently climb stairs and ramps[;] sit, stand, or walk for six
hours of an eight-hour workday, six hours each[;] frequently
balance and kneel[;] occasionally crouch or stoop[; and] who
should avoid all crawling” can perform any jobs in the national
economy; notably omitting any reference to simple, unskilled
work).

Thus, the ALJ determined that the claimant had a
20

relevant limitation (to simple, unskilled work), that limitation
was supported by substantial evidence, but the limitation was
not included in the hypothetical question presented to the
vocational expert.
This failure to include a relevant limitation in the
hypothetical question put to the vocational expert would usually
require me to reverse the ALJ’s finding that the claimant was
not disabled.

See Arocho v. Sec’y of Health & Human Servs., 670

F.2d 374, 375 (1st Cir. 1982) (“for a vocational expert's answer
to a hypothetical question to be relevant, the inputs into that
hypothetical must correspond to conclusions that are supported
by the outputs from the medical authorities”).

The Acting

Commissioner, however, argues the error was harmless because the
vocational expert’s opinion would have been no different if the
limitation to “simple, unskilled work” had been included in the
hypothetical.
If an ALJ errs by posing an incomplete hypothetical
question to the vocational expert, the error is harmless if the
vocational expert’s opinion would have been the same even with
the omitted impairment.

See Dorman v. Astrue, No. 12-50023-TSH,

2013 WL 4238315, *6 (D. Mass. May 21, 2013) (ALJ’s omission of a
mental limitation from claimant’s RFC was harmless error because
21

the vocational expert’s opinion would not have changed even if
the RFC had included the limitation); see also Bickford v.
Barnhart, 242 F.Supp.2d 39, 42 (D. Me. 2002) (failure to include
a relevant limitation in the hypothetical question put to the
vocational expert did not require reversal where omission was
harmless).
Here, the vocational expert testified that an individual
limited to “light work” with additional limitations on
crouching, stooping, climbing, balancing, kneeling, and
crawling, but not with a limitation to “simple, unskilled work,”
could work as an “assembler of plastic hospital products,”
“delicatessen cutter/slicer,” and “toll collector.”

Tr. 498.

The Dictionary of Occupational Titles (DOT) classifies each of
these jobs as requiring “level two reasoning.”

A job which

requires “level two reasoning” under the DOT requires a claimant
who is capable of “simple and routine work.”

Auger v. Astrue,

792 F.Supp.2d 92, 96 (D. Mass. 2011) (citing Hackett v.
Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005)).

The vocational

expert’s testimony that the hypothetical claimant can perform
jobs that require level two reasoning is equivalent to testimony
that the hypothetical claimant can perform jobs that require
simple, unskilled work.

As a result, even if the ALJ had
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included the limitation to “simple, unskilled work” in the
hypothetical question put to the vocational expert, the
vocational expert would have listed the same jobs in response.
Therefore, the failure to include this limitation in the
hypothetical question was harmless error.
Lavoie also claims that the hypothetical was incomplete
because the ALJ did not ask the vocational expert whether his
opinion was consistent with the DOT.

Doc. No. 13 at 35.

While

the ALJ did not ask the vocational expert whether his testimony
conflicted with the DOT, the ALJ did ask the vocational expert
whether he understood that “if [he] gave an opinion which
conflicts with the information in the Dictionary of Occupational
Titles, [he] need[ed] to advise [the ALJ] of the conflict . . .”
Tr. 546.

The ALJ answered that he did understand, and did not

subsequently inform the ALJ of any conflicts between his opinion
and the DOT.

This question satisfied the requirements of Social

Security Ruling 00-4P.

See SSR 00-4P, 2000 WL 1898704 (Dec. 4,

2000).

IV.

CONCLUSION

For the aforementioned reasons, I grant the Acting
Commissioner’s motion to affirm (Doc. 18) and deny Lavoie’s
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motion to reverse (Doc. 13).

The clerk is directed to enter

judgment accordingly and close the case.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge

February 16, 2018
cc:

Raymond J. Kelly, Esq.
Robert J. Rabuck, Esq.

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