# Couch v. Berryhill

> District Court, D. Massachusetts · June 3, 2019

URL: https://www.frixlaw.com/law-library/cases/10197752

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** June 3, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10197752

## How later opinions describe it (automated extraction)

- holding “no conflict existed between the VE’s testimony that [plaintiff] could work as a surveillance system monitor despite being limited to ‘simple and unskilled’ work, and the DOT’s level-three classification.”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

_______________________________________
)
LISA COUCH, )
)
Plaintiff, ) Civil Action No.
) 18-11023-FDS
v. )
)
NANCY A. BERRYHILL, Acting )
Commissioner of Social Security, )
)
Defendant. )
_______________________________________)

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO REVERSE AND
DEFENDANT’S MOTION TO AFFIRM DECISION OF COMMISSIONER
SAYLOR, J.
This is an appeal of a final decision of the Commissioner of the Social Security
Administration (“SSA”). On July 25, 2017, the Administrative Law Judge (“ALJ”) issued a
decision concluding that plaintiff Lisa Couch is not disabled. The SSA Appeals Council
declined review on March 16, 2018. Couch then filed an action with this Court.
Couch seeks reversal of the Commissioner’s decision on two grounds. The
Commissioner has moved to affirm the decision. For the reasons stated below, the decision will
be affirmed.
I. Background
A. Factual Background
1. Personal History
Lisa Couch is 38 years old. (A.R. 45). She is a high-school graduate, having completed
school in a special-education program. (A.R. 46-57). She initially alleged that her disability
began June 1, 2007, but subsequently amended the alleged onset date to September 21, 2015.
(A.R. 49-50). She has not worked since the onset date and has no relevant past employment.
(A.R. 29, 49).
At the time of the hearing, Couch lived in a rooming house and spent her time watching

television, playing on her phone, and socializing with friends. (A.R. 62-63). She participated in
an arts and crafts class four to five times per week for twenty to forty minutes at a time. (A.R.
62). She also shopped for clothes, cooked simple meals, did laundry, and shopped for groceries.
(A.R. 63-64).
2. Medical History
Couch has reported a variety of medical issues, including hypertension, gastroesophageal
reflux disease, asthma, hypothyroidism, restless leg syndrome, diabetes, and pulmonary emboli,
that are controlled with medication and treatment. (A.R. 19-20). In addition, she had a bunion
repair on her right foot in April 2015. (A.R. 21). She also has a history of attention-
deficit/hyperactivity disorder (“ADHD”), depressive disorder, and anxiety disorder. (A.R. 24).
She has taken Adderall to treat her ADHD symptoms. (Id.). She reported that her depression

affected her every few days and that her anxiety affected her daily and she experienced frequent
panic attacks. (Id.).
In April 2016, Couch began treatment with Dr. Yousef Abou-Allaban. (A.R. 702). He
noted obesity, loud speech, irritable affect, anger, rage, poor body image, and poor impulse
control. (A.R. 702-03). Dr. Abou-Allaban diagnosed ADHD, combined presentation, at the
initial visit. (A.R. 703). He continued to treat her through February 2017, and her symptoms
and diagnoses remained consistent throughout treatment. (A.R. 688-704).
In May 2016, Couch was treated on four occasions at the UMass Memorial Medical
Center for lower extremity pain. (A.R. 955-86). An x-ray on May 14, 2016, showed mild
prepatellar edema and a small joint effusion. (A.R. 960).
On June 7, 2016, Dr. Nosheen Ishaque completed a medical source statement concerning
Couch’s back pain and arthritis. (A.R. 37-40). She concluded that Couch could stand or walk
for only two hours in an eight-hour workday; would have to have her legs elevated; and could

not lift twenty pounds, twist, stoop, crouch, climb stairs, or climb ladders. (A.R. 37-39). In
addition, Dr. Ishaque concluded that Couch would be absent from work more than four days per
month, would be unable to do even “low stress” work, and would be off-task at least 25 percent
of the day. (A.R. 40). That statement was not submitted to the ALJ but was submitted to the
Appeals Council. (A.R. 4).
Nicole Gilson, a nurse practitioner at UMass Memorial Medical Center, began seeing
Couch at the orthopedic clinic in July 2016. (A.R. 993). A musculoskeletal exam completed by
Gilson revealed weak inversion and eversion, tenderness, and reduced plantar flexion. (Id.).
On July 11, 2016, Dr. Abou-Allaban diagnosed generalized anxiety disorder and panic
disorder. (A.R. 700). He completed a medical source statement concluding that Couch suffered

from mood disorder, generalized anxiety disorder, and ADHD, and had depressed mood and
daily panic attacks that responded only partially to treatment. (A.R. 517-21). He further
concluded that she was unable to carry out short and simple instructions, maintain attention for
two hours, maintain a routine without supervision, work with others without distraction, and
perform consistently without unreasonably frequent rest periods. (A.R. 519). In addition, he
found that she would be unable to maintain consistent attendance at work and would be absent
more than four days per month, and that she would unable to deal with normal work stress.
(A.R. 520).
On August 19, 2016, Couch was seen at UMass Memorial for back pain not responding
to oxycodone. (A.R. 1278). An examination revealed bilateral paraspinal lumbar tenderness.
(A.R. 1282). She presented again later that month with body aches and in October 2016 for low-
back pain. (A.R. 1343, 1579). In February 2017, she was seen at UMass for anxiety and at St.
Vincent Hospital for pain, tenderness, and swelling in her left ankle. (A.R. 1791).

II. Procedural History
Couch filed a claim for disability benefits on September 21, 2015, alleging disability
beginning June 1, 2007. (A.R. 17, 172-80). The SSA denied her application on February 19,
2016. (A.R. 73-113). On June 1, 2016, she requested a hearing, which was held on April 6,
2017. (A.R. 128). At the hearing, she amended her alleged onset date to September 21, 2015.
(A.R. 54). On July 2, 2017, the ALJ found her to be not disabled. (A.R. 14-36).
Couch requested a review of the ALJ’s decision. (A.R. 14). On March 16, 2018, the
Appeals Council declined to review the decision and adopted it as the final decision of the
Commissioner. (A.R. 8-11). Couch filed this complaint on December 14, 2018, to review the
Commissioner’s decision. The Commissioner has moved to affirm the decision.

III. Analysis
A. Standard of Review
Under § 205(g) of the Social Security Act, this Court may affirm, modify, or reverse the
Commissioner’s decision, with or without remanding the case for a rehearing. 42 U.S.C.
§ 405(g). The ALJ’s finding on any fact shall be conclusive if it is supported by “substantial
evidence,” and must be upheld “if a reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion,” even if the record could justify a
different conclusion. Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.
1981).
In applying the “substantial evidence” standard, the Court must bear in mind that it is the
province of the ALJ, not the courts, to find facts, decide issues of credibility, draw inferences
from the record, and resolve conflicts of evidence. Ortiz v. Sec’y of Health & Human Servs., 955
F.2d 765, 769 (1st Cir. 1991). Reversal is warranted only if the ALJ committed a legal or factual
error in evaluating the claim, or if the record contains no “evidence rationally adequate . . . to

justify the conclusion” of the ALJ. Roman-Roman v. Comm’r of Soc. Sec., 114 F. App’x 410,
411 (1st Cir. 2004); see also Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 16
(1st Cir. 1996). Therefore, “[j]udicial review of a Social Security claim is limited to determining
whether the ALJ used the proper legal standards and found facts based on the proper quantum of
evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
B. Standard for Entitlement to Disability Benefits
In order to qualify for SSI benefits, the claimant must demonstrate that he or she is
“disabled” within the meaning of the Social Security Act. The Social Security Act defines a
“disability” as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A). The impairment must be severe enough to prevent the
claimant from performing not only his or her past work, but also any substantial gainful work
existing in the national economy. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c)(1).
An applicant’s impairment is evaluated under a five-step analysis set forth in the
regulations promulgated under the statute. See 20 C.F.R. § 404.1520. The First Circuit has
described the analytical sequence as follows:
First, is the claimant currently employed? If he is, the claimant is automatically
considered not disabled.

Second, does the claimant have a severe impairment . . . mean[ing] an impairment
‘which significantly limits his or her physical or mental capacity to perform basic
work-related functions[?]’ If the claimant does not have an impairment of at least
this degree of severity, he is automatically considered not disabled.

Third, does the claimant have an impairment equivalent to a specific list of
impairments contained in . . . Appendix 1 [of the Social Security regulations]? If
the claimant has an impairment of so serious a degree of severity, the claimant is
automatically found disabled. . . . If, however, his ability to perform basic work-
related functions is impaired significantly (test 2) but there is no ‘Appendix 1’
impairment (test 3), the [ALJ] goes on to ask the fourth question:

Fourth, does the claimant’s impairment prevent him from performing work of the
sort he has done in the past? If not, he is not disabled. If so, the agency asks the
fifth question.

Fifth, does the claimant’s impairment prevent him from performing other work of
the sort found in the economy? If so, he is disabled; if not, he is not disabled.

Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982).

The burden of proof is on the applicant as to the first four inquiries. See 42 U.S.C.
§ 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he
furnishes such medical and other evidence of the existence thereof as the [ALJ] may require.”).
If the applicant has met his or her burden as to the first four inquiries, then the burden shifts to
the Commissioner to present “evidence of specific jobs in that national economy that the
applicant can still perform.” Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). In
determining whether the applicant is capable of performing other work in the economy, the ALJ
must assess the applicant’s residual functional capacity (“RFC”) in combination with vocational
factors, including the applicant’s age, education, and work experience. 20 C.F.R. § 404.1560(c).
C. The ALJ’s Findings
In evaluating the evidence, the ALJ conducted the five-part analysis called for by Social
Security Act regulations.
At step one, the ALJ found that Couch had not engaged in substantial gainful activity
during the period since her alleged onset date of September 21, 2015. (A.R. 19).
At step two, the ALJ found that degenerative disc disease, osteoarthritis, obesity, ADHD,
anxiety disorder, depressive disorder, and personality disorder were severe impairments. (A.R.
19-24). He found that hypertension, gastroesophageal reflux disease, asthma, hypothyroidism,
and restless leg syndrome were non-severe and did not limit her ability to work. (A.R. 25). In

addition, he found that Couch’s history of diabetes, pulmonary emboli, and bunion repair did not
limit her ability to work. (Id.).
At step three, the ALJ found that Couch did not have an impairment or combination of
impairments that met, medically equaled, or functionally equaled the severity of an impairment
listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (A.R. 19, 21). The ALJ evaluated her impairments
under listings 1.00 (musculoskeletal system) and 12.00 (neurological disorders) and concluded
that the evidence did not support a finding that met the severity listed in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. (A.R. 26). As to the musculoskeletal system, the ALJ found that, viewed in
conjunction with her obesity, Couch did not have joint or spinal impairments that limited her
ability to ambulate effectively as defined in 1.00(B)(2)(b). (Id.). As to mental disorders, the

ALJ found that she had moderate limitations in all four “paragraph B” criteria (B1: understand,
remember, or apply information; B2: interact with others; B3: concentrate, persist, or maintain
pace; B4: adapt or manage oneself). (A.R. 27). He found that she did not have any marked or
extreme limitation in any of the “paragraph B” criteria, as shown by her intact orientation, linear
thought process, normal speech, ability to socialize on a daily basis, sustaining concentration for
up to forty minutes at a time, and adaptability. (Id.). He further found that the mental
impairments do not satisfy the “paragraph C” criteria because the record does not show that her
capacity to adapt to environmental changes is limited. (A.R. 28).
At step four, the ALJ found that Couch had no relevant past work experience. (A.R. 34).
At step five, the ALJ found that Couch had the RFC to perform simple routine tasks for
two hours at a time over an eight-hour workday and forty-hour workweek with standard breaks.
(Id.). She could lift and carry ten pounds frequently and twenty pounds occasionally, and could
occasionally balance, stoop, kneel, crouch, crawl, and climb. (Id.). She could not interact with

the public and could interact with coworkers only on a superficial basis. (Id.). The ALJ found
that she could understand and remember simple instructions and deal with routine work-setting
changes. (Id.).
In considering Couch’s symptoms, the ALJ followed a two-step process. In step one, he
found that her medical impairments could not reasonably be expected to produce the pain and
physical symptoms that she claimed. (A.R. 29). He found that despite her repeated visits to the
emergency department for pain and muscle weakness, examinations and x-rays consistently
yielded normal results and findings of full strength in her extremities and back. (A.R. 29-30).
He also found that while her mental-health treatment records showed depression, anxiety, panic
disorder, and ADHD, there was no evidence of psychiatric hospitalization or instances of

decompensation, and her treatment record also showed that her conditions had been treated
somewhat successfully. In addition, he found that she had good eye contact, normal rate of
speech, linear thought process, and intact orientation. (A.R. 31-32).
In step two, the ALJ evaluated how the intensity, persistence, and limiting effects of the
symptoms limited Couch’s work-related activity. (A.R. 28). He found that her daily activities
were not consistent with her allegations concerning the severity of her mental impairments.
(A.R. 32). She could participate in arts and crafts, socialize with family and friends, prepare
meals, do laundry, clean, attend appointments, and grocery shop. (Id.). The ALJ gave little
weight to the opinion of Dr. Abou-Allaban on the ground that the opinion was inconsistent with
the record as a whole. (A.R. 33). The ALJ concluded that Dr. Abou-Allaban’s assertions that
Couch would be unable to complete unskilled work and adapt to work-setting changes conflicted
with his medical assessments that showed her mental impairments to be well-controlled and that
she had normal speech, linear thought processes, and intact orientation. (Id.). The ALJ also

gave considerable weight to the State Disability Determination Service medical and
psychological consultants’ opinions, which were consistent with the record and indicated that her
impairments have remained stable. (A.R. 34).
The ALJ concluded that considering Couch’s RFC, age, education, and work experience,
there were a significant number of jobs in the national economy that she could perform. (A.R.
35). He relied on the testimony of the vocational expert (“VE”) that someone with her same
characteristics could work in representative occupations such as merchandise marker, photocopy
machine operator, and package sorter. (Id.). The ALJ determined that Couch’s limitations to
simple tasks and instructions was not inconsistent with reasoning level 2 jobs that have
“uninvolved written or oral instructions.” (Id.).

In summary, the ALJ found that Couch did not suffer from a disability between the
alleged onset date of September 21, 2015 and July 28, 2017, under § 1614(a)(3)(A) of the Social
Security Act. (A.R. 36).
D. Couch’s Objections
Couch raises two objections to the ALJ’s decision.
1. Inconsistencies in the Vocational Opinion
First, Couch contends that the ALJ did not resolve conflicts between the VE’s testimony
and the Dictionary of Occupational Titles (“DOT”), in violation of Social Security Ruling 00-4p.
Specifically, she contends that the ALJ's finding that she is limited to simple, unskilled work is
inconsistent with a higher reasoning level attributed to the jobs of merchandise marker,
photocopy machine operator, or package sorter, according to the General Educational
Development (“GED”) reasoning scale in the DOT issued by the Department of Labor.
The DOT assigns a GED reasoning level to listed occupations, ranging from Level 1 (the
lowest level) to Level 6 (the highest). U.S. Dep't of Labor, Dictionary of Occupational Titles,

App. C (4th ed. 1991). Level 1 requires the ability to “carry out simple one- or two-step
instructions” and “deal with standardized situations with occasional or no variables in or from
these situations encountered on the job.” Id. Level 2 requires the ability to “carry out detailed
but uninvolved written or oral instructions” and “deal with problems involving a few concrete
variables in or from standardized situations.” Id. The jobs suggested by the VE all require
level 2 reasoning. See DOT No. 209.587-034, 1991 WL 680249 (1991) (merchandise marker);
DOT No. 207.685-014, 1991 WL 680249 (1991) (photocopy machine operator); DOT No.
222.687-022, 1991 WL 680249 (1991) (package sorter).
Couch has not demonstrated a conflict between a limitation to simple and unskilled work
and reasoning level 2 jobs. “Courts regularly have found that DOT reasoning levels two and

three are consistent with an RFC limitation to simple and unskilled tasks.” Hargrow v. Colvin,
2014 WL 1153782, at *17 (D. Mass. Mar. 19, 2014); see also Lafrennie v. Astrue, 2011 WL
1103278 (D. Mass. Mar. 23, 2011) (holding that an RFC limitation to simple work is not
inconsistent with a DOT reasoning level 2 job because the “DOT definitions, created by the
Department of Labor, are not necessarily totally compatible with regulations created by the
Social Security Administration”); Hurlburt v. Colvin, 2017 WL 1206397, at *8 (D. Mass. Mar.
30, 2017); Auger v. Astrue, 792 F. Supp. 2d 92, 97 (D. Mass. 2011) (holding “no conflict existed
between the VE’s testimony that [plaintiff] could work as a surveillance system monitor despite
being limited to ‘simple and unskilled’ work, and the DOT’s level-three classification.”).
Accordingly, the first objection does not warrant reversal.
2. Opinion of Dr. Ishaque
Couch next contends that the Appeals Council erred in failing to consider the opinion of
Dr. Ishaque. She contends that had it done so, it would have changed the outcome of the
decision, because she would be limited to 25 percent time off-task and more than four absences

per month.
When new and material evidence is submitted to the Appeals Council, it will only
consider the evidence if “there is a reasonable probability that the additional evidence would
change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5). The Appeals Council's
decision to decline to review a case is only reviewable to the extent that it rests on an “explicit
mistake of law or other egregious error.” Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001).
It is well-established that when reviewing the ALJ's decision, the court should not
consider additional evidence that was never presented to the ALJ. Mills, 244 F.3d at 4 (“To
weigh the evidence as if it were before the ALJ would be . . . a very ‘peculiar’ enterprise . . . and
to us one that distorts analysis.”) (quoting Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994)).

The court may, however, consider the additional evidence to determine whether the Appeals
Council was “egregiously mistaken” in refusing to review the ALJ's decision. Mills, 244 F.3d
at 5.
Couch contends that when Dr. Ishaque’s opinion is added to the mix, the ALJ's decision
clearly becomes contrary to the weight of the evidence. However, Dr. Ishaque’s medical source
statement from June 7, 2016, is no more than a check-box assessment, and a doctor’s opinion
“provid[ing] no discussion or analysis . . . goes a long way toward supporting the ALJ’s
determination to accord [the] opinion little weight.” Greene v. Astrue, No. 11-30084, 2012 WL
1248977, at *3 (D. Mass. Apr. 12, 2012); (A.R. 37). In addition, Dr. Ishaque’s assessment is
contradicted by Couch’s own testimony. (Compare A.R. 39 (Dr. Ishaque indicates Couch can
“never” lift twenty pounds) with A.R. 60-61 (Couch’s testimony that she can “comfortably” lift
twenty pounds)). Thus, it is reasonable to assume that the ALJ would have discounted or even
rejected Dr. Ishaque’s opinion had Couch given him the opportunity to consider it.

Furthermore, under 20 C.F.R. § 416.1470(b), the Appeals Council should only consider
additional evidence that was not submitted to the ALJ if the plaintiff makes a showing of good
cause. Here, Couch has not attempted to demonstrate good cause for not producing Dr.
Ishaque’s testimony earlier.
Accordingly, the Appeals Council's assessment of the additional evidence and its
decision to decline review of Couch's case was not an error requiring reversal or remand.
IV. Conclusion
For the foregoing reasons, the motion of defendant to affirm the decision of the
Commissioner is GRANTED.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
Dated: June 3, 2019 United States District Judge

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