# WRIGHT v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

> District Court, D. Maine · July 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10211457

## Case

- **Court:** District Court, D. Maine
- **Decided:** July 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

SHARON W., )
)
Plaintiff )
)
v. ) 2:21-cv-00287-NT
)
KILOLO KIJAKAZI, Acting Commissioner )
of Social Security, )
)
Defendant )

REPORT AND RECOMMENDED DECISION

On Plaintiff’s application for disability insurance benefits under Title II and
supplemental security income benefits under Title XVI of the Social Security Act,
Defendant found that Plaintiff has severe impairments but retains the functional capacity
to perform substantial gainful activity. Defendant, therefore, denied Plaintiff’s request
for disability benefits. Plaintiff filed this action to obtain judicial review of Defendant’s
final administrative decision pursuant to 42 U.S.C. § 405(g).
Following a review of the record, and after consideration of the parties’
arguments, I recommend the Court affirm the administrative decision.
THE ADMINISTRATIVE FINDINGS
The Commissioner’s final decision is the February 26, 2021, decision of the
Administrative Law Judge. (ALJ Decision, ECF No. 11-2).1 The ALJ’s decision tracks
the familiar five-step sequential evaluation process for analyzing social security disability

1 Because the Appeals Council found no reason to review that decision (R. 1), Defendant’s final decision
is the ALJ’s decision.
claims, 20 C.F.R. §§ 404.1520, 416.920.
The ALJ found that Plaintiff has severe, but non-listing-level impairments

consisting of degenerative disc disease, headaches, major depressive disorder, and an
anxiety disorder. (R. 18.) The ALJ further found that despite Plaintiff’s impairments,
Plaintiff has the residual functional capacity (RFC) to perform light work, except she can
climb ramps and stairs on an unlimited basis, but can never climb ladders, ropes or
scaffolds; she can kneel, crouch and crawl on an unlimited basis, but can stoop
occasionally; she can understand and remember simple one- to two-step instructions, and

sustain concentration, persistence and pace for simple tasks over the course of a regular
workday and workweek with regular breaks; can work alongside coworkers but should
avoid tandem tasks; can work alongside supervisors but should avoid social interaction
with the general public; and can avoid hazards and make simple plans. (R. 20-21.)
Based on the RFC finding, Plaintiff’s age, education and work experience, and the

testimony of a vocational expert (VE), the ALJ concluded that Plaintiff can perform
substantial gainful activity existing in the national economy, including the representative
occupations of cleaner/housekeeper, stock checker/scanner, and mailroom clerk. (R. 29-
30.) The ALJ determined, therefore, that Plaintiff was not disabled.
STANDARD OF REVIEW

A court must affirm the administrative decision provided the decision is based on
the correct legal standards and is supported by substantial evidence, even if the record
contains evidence capable of supporting an alternative outcome. Manso-Pizarro v. Sec’y
of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v. Sec’y of HHS,
819 F.2d 1, 3 (1st Cir. 1987). Substantial evidence is evidence that a reasonable mind
might accept as adequate to support a finding. Richardson v. Perales, 402 U.S. 389, 401

(1971); Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981). “The ALJ’s
findings of fact are conclusive when supported by substantial evidence, but they 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).
DISCUSSION
Plaintiff argues (1) the ALJ erred when he failed to find Plaintiff’s right arm injury

to be a severe impairment at step 2 of the sequential analysis; and (2) the ALJ’s
determination that Plaintiff can perform jobs which exist in the national economy in
significant numbers is not supported by reliable vocational evidence.
A. Step 2
Plaintiff alleges a disability based in part on chronic pain, tenderness, weakness,

and limited range of motion in her right arm resulting from an injury she sustained from a
dog bite in 2017. (R. 416-17.)
At step 2 of the sequential evaluation process, a social security disability claimant
must establish the alleged conditions are severe, but the burden is de minimis, and is
designed merely to screen out groundless claims. McDonald v. Sec’y of HHS, 795 F.2d

1118, 1123-24 (1st Cir. 1986). The ALJ may find that an impairment or combination of
impairments is not severe when the medical evidence “establishes only a slight
abnormality or combination of slight abnormalities which would have no more than a
minimal effect on an individual’s ability to work even if the individual’s age, education,
or work experience were specifically considered.” Id. at 1124 (quoting Social Security
Ruling 85–28). In other words, an impairment is severe if it has more than a minimal

impact on a claimant’s ability to perform basic work activities on a regular and
continuing basis. Id.
Medical evidence is required to support a finding of severe impairment. 20 C.F.R.
§ 404.1521. See also Social Security Ruling 16-3p, 2017 WL 5180304, at *3 (“An
individual’s symptoms, such as pain, fatigue, shortness of breath, weakness, nervousness,
or periods of poor concentration will not be found to affect the ability to do basic work-

related activities for an adult … unless medical signs or laboratory findings show a
medically determinable impairment is present.”) A diagnosis, standing alone, does not
establish that the diagnosed impairment would have more than a minimal impact on the
performance of work activity. Dowell v. Colvin, No. 2:13-cv-00246-JDL, 2014 WL
3784237, at *3 (D. Me. July 31, 2014). Moreover, even severe impairments may be

rendered non-severe through the ameliorative influence of medication and other forms of
treatment. Parsons v. Astrue, No. 1:08-cv-218-JAW, 2009 WL 166552, at *2 n.2, aff'd,
2009 WL 361193. In addition, an impairment must meet the 12-month durational
requirement to be considered “severe.” 20 C.F.R, § 404.1509; Mulero v. Comm’r of Soc.
Sec., 108 F. App’x 642, 644 (1st Cir. 2004) (to be severe, impairment must satisfy

durational requirement).
In support of her argument, Plaintiff relies principally on the opinion of
consultative examiner Mark Nash, PA-C, who examined Plaintiff on February 15, 2019. 2
PA-C Nash reported that Plaintiff exhibited intermittent hyperesthesia and decreased

sensation in her right upper extremity, with reduced range of motion in her shoulder, and
that she had difficulty performing fine dexterous movement with her right hand. (R. 522-
23.) He rated her right upper extremity strength at 4/5. (R. 523.) PA-C Nash concluded
the symptoms might be consistent with nerve injury and assessed limitations that Plaintiff
could occasionally lift no more than ten pounds, could occasionally feel with her right
hand, and could “never” handle, finger, reach, push, or pull with her right upper

extremity “with any sort of regularity.” (R. 524.)
Although the ALJ did not address Plaintiff’s claimed right arm impairment at Step
2, the ALJ discussed the condition extensively in his RFC assessment. The ALJ found
PA-C Nash’s opinion “less than fully persuasive,” noting that it was inconsistent with the
mild strength deficits and neurological abnormalities in her right upper extremity

documented by PA-C Nash and other providers, and it was inconsistent with her reports
of her daily activities.
Plaintiff also cites the records of her primary treating physician, Dieter Kreckel,
M.D., and the limitations on her daily activities as support for her contention that the ALJ
erred. In July 2019, Plaintiff’s primary care physician, examined Plaintiff and noted

tenderness and chronic changes in her right arm, weakness with her right hand grip and
with flexion/extension, and pain in her shoulder and right arm. (R. 540.) Dr. Kreckel

2 PA-C Nash’s report was reviewed and approved by Fred Fridman, D.O.
observed that Plaintiff had “diffuse” joint problems, “with probable arthritis and also
exacerbated by her weight;” he advised her to take ibuprofen for her discomfort. (R.

541.) Plaintiff testified she sometimes has difficulty gripping with her right hand, that
her right arm swells, with numbness, tingling and sharp feelings from her right fingertips
to her neck and down her right side, and that she has difficulty attending to her personal
grooming with her right arm. (R. 46, 48.)
State agency medical consultant at reconsideration, James Hall, M.D., who
reviewed both PA-C Nash’s consultative report and Dr. Kreckel’s records, stated that no

right arm impairment was documented and consequently assessed no limitations in the
use of the arm. (R. 93.) The ALJ found Dr. Hall’s opinion persuasive, concluding that it
was “consistent with and supported by the medical evidence of record in its entirety,”
including treatment notes submitted after Dr. Hall performed his review. (R. 28.) The
ALJ found that Plaintiff’s statements regarding the intensity, persistence and limiting

effects of her symptoms were “not entirely consistent with the medical evidence and
other evidence in the record ….” (R. 21.)
Plaintiff essentially asks the Court to re-weigh the evidence. The Court, however,
is not to substitute its judgment for the ALJ’s judgment. Irlanda Ortiz v. Sec’y Health &
Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (“[T]he resolution of conflicts in the

evidence is for the [ALJ], not the courts.”); see also, Brown v. Astrue, No. 2:10-cv-27-
DBH, 2010 WL 5261004, at *3 (D. Me. Dec. 16, 2010) (aff’d, Jan. 4, 2011) (ALJs are
entitled to resolve conflicts in the medical evidence). The ALJ supportably discounted
PA-C Nash’s opinion and supportably relied on the assessment of Dr. Hall, who reviewed
both PA-C Nash’s consultative report and Dr. Kreckel’s records. The ALJ also
adequately discounted Plaintiff’s statements regarding the severity of her symptoms and

their effect on her functioning. The ALJ, therefore, did not err at Step 2.
Even if the ALJ erred because he failed to find Plaintiff’s right arm condition to be
a severe impairment, the error would be harmless. The ALJ plainly considered the
symptoms and limitations allegedly resulting from the arm condition in his RFC
assessment. The ALJ’s RFC assessment is supported by substantial evidence on the
record and thus Plaintiff has failed to establish that additional restrictions are necessary.

See Socobasin v. Astrue, 882 F. Supp. 2d 137, 142 (D. Me. 2012) (citing Bolduc v.
Astrue, No. 09–CV–220–B–W, 2010 WL 276280, at *4 n. 3 (D. Me. Jan. 19, 2010)
(“[A]n error at Step 2 is uniformly considered harmless, and thus not to require remand,
unless the plaintiff can demonstrate how the error would necessarily change the outcome
of the plaintiff’s claim.”)); see also McDonald v. Soc. Sec. Admin. Comm’r, No. 1:09-cv-

473-JAW, 2010 2680338, at *5 (D. Me. June 30, 2010).
B. Vocational Evidence
At step 5 of the evaluation process, the Commissioner has the burden to establish
that the jobs a claimant can perform exist in the national economy in significant numbers,
giving particular attention to the claimant’s age, education, work experience, and RFC.

20 C.F.R. § 404.1520(a)(4)(v), (g)(1); Goodermote v. Sec’y of HHS, 690 F.2d 5, 7 (1st
Cir. 1982). This burden is typically addressed through a combined reliance on the
Medical-Vocational Guidelines, 20 C.F.R. Part 202, Subpart P, Appendix 2, and the
testimony of a vocational expert, who is asked to consider one or more hypothetical RFC
findings. Goodermote, 690 F.2d at 7; Arocho v. Sec’y of HHS, 670 F.2d 374, 375 (1st
Cir. 1982). The Supreme Court noted that when offering such testimony, vocational

experts “may invoke not only publicly available sources but also ‘information obtained
directly from employers’ and data otherwise developed from their own ‘experience in job
placement or career counseling.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1152-53 (2019)
(quoting SSR 00-4p, 65 Fed. Reg. 75760 (2000)). The Court further observed that the
sufficiency of the evidence threshold necessary to support an ALJ’s factual
determinations, including the assessment of vocational expert testimony, “is not high.”

Id. at 1154.
Plaintiff submitted a post-hearing vocational affidavit from vocational consultant
David Meuse, MS, CRC, challenging the testimony of the VE at the hearing. (Meuse
Affidavit, R. 376-77.) Mr. Meuse asserts that two of the jobs identified by the VE,
mailroom clerk and stock checker, exceed the RFC adopted by the ALJ:

Occupations in the DOT are rated for their required General Educational
Development (GED) Reasoning level on a scale of 1 (lowest) to 6 (highest).
The Revised Handbook for Analyzing Jobs (RHAJ) Ch. 7 defines level 1 as
“Apply commonsense understanding to carry out simple one-or-two-step
instructions….” Thus, the RFC limitation to 1- to 2-step instructions limits
the individual to Reasoning level 1 occupations. Stock Checker is
described with a Reasoning level 2 and Mail Clerk with Reasoning level 3,
and so both are precluded by the RFC.

(Meuse Affidavit ¶ 11, R. 377.)
Plaintiff argues that the ALJ did not acknowledge or discuss the alleged conflict
between the DOT and the VE’s testimony. Social Security Rule 00-4p “imposes an
affirmative obligation on [ALJs] to (i) inquire whether there is any conflict between [VE]
testimony and the DOT, (ii) elicit a reasonable explanation for any apparent conflict, and
(iii) resolve said conflict, regardless of how it was identified.” Burton v. Astrue, No.

2:11-cv-174-GZS, 2012 WL 1184425, at *4 (D. Me. Apr. 6, 2012), rec. dec. adopted,
2012 WL 1415616 (D. Me. Apr. 24, 2012) (emphasis in original). The obligation to
inquire, however, “pertains only to apparent conflicts, [and] a claimant waives a claim of
failure to identify and resolve [such] a conflict … unless he or she ‘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) (quoting Burton, 2012 WL 1184425, at *4 n.3) (emphasis in original).
This Court has repeatedly found no conflict with the GED reasoning level of the
jobs here and the RFC limitation to simple instructions. See Brett J. v. Saul, No. 1:19-cv-
00270-DBH, 2020 WL 3567155, at *5 (D. Me. June 30, 2020) (aff’d, Aug. 17, 2020) (no
conflict with limitation to simple one- or two-step instructions and GED reasoning level

2); Allison P. v. Berryhill, No. 2:18-cv-00061-JHR, 2019 WL 1373646, at *5 (D. Me.
Mar. 24, 2019) (same); Welch, 2012 WL 3113148, at *3-7 (no conflict between limitation
to simple work and GED reasoning level 3). Moreover, as noted in Welch, “even if there
was a conflict between the limitation to simple, repetitive instructions at issue in this case
and GED reasoning level 3, the plaintiff falls short of showing that it was ‘apparent’ for

purposes of SSR 00-4p.” 2012 WL 3113148, at *7.
Mr. Meuse also opined that the VE’s job numbers were unreliable because the VE
relied upon the Occupational Employment Quarterly (OEQ) without any adjustments.3
(R. 377 ¶¶ 13-14.) Mr. Meuse maintains that the use of OEQ data without adjustment or

analysis is contrary to the publisher’s instructions. (Id. ¶ 14.) He also asserts that the
OEQ uses “an assumption regarding job distribution that is arbitrary, that has no
relationship to actual labor market conditions.” (Id. ¶ 13.) He contends the OEQ
aggregates multiple DOT Code jobs with differing requirements as to reasoning and other
factors. (Id.)
The VE testified as follows regarding the basis of his job numbers:

Q …. And how do you estimate the job numbers?

A Well, I usually start with the United States Department of Labor and at
the starting point because oftentimes it’s a grouping of jobs. Then, I take
that number and I cross reference it with the Occupational Employment
Quarterly, which does a more detailed breakout of the jobs by skill level,
exertion level, so on and so forth. I also use the Occupational Employment
Handbook.

And then, if there’s a discrepancy say percentage-wise, sometimes I would
reference the New York State Department of Labor just to see if, for
instance, if – I’ll give you an example. You get a wrong number for
security guards. And then you look for a breakout for how many of those
guards are gate guards, in other words, signing in NSV (PHONETIC) or
vehicle traffic versus doing patrols. If there was a big discrepancy there, I
would go to the New York State Department of Labor and see if a
(INAUDIBLE) is involved.

Q Okay. Now, if you said you would also use the Occupational
Employment Handbook. What do you use that for?

A It’s the quarterly, it’s actually like a newsletter. Well, I use that,
again, to get a more detailed breakout. Let me use another example,

3 Mr. Meuse states that he “consider[s] SkillTrans Job Browser Pro vocational software to be a reliable
source of job numbers,” but he does not provide job numbers from that source for the three positions the
ALJ identified. (R. 376-77 ¶¶ 8, 13-14.)
cashiers, for –

Q I’m sorry. Pardon me for interrupting. I didn’t mean the
Occupational Employment Quarterly. You made reference to the
Occupational Employment Handbook.

A Oh, the Occupational Employment Handbook.

Q Oh okay.

A Yeah. Those are two different things. The handbook is actually
similar in size to the DOT.

Q Yes.

A Yeah. Well, that one I use – again, a good example of utilizing
that one would be, for instance, cashiers. Well, half of all cashiering
positions are part-time. And they would identify that, and you would
eliminate those numbers. Then, there’s cashiers in a gift shop. Those are
two different cashiering positions.

Q Yeah.

A And one is SVP: 3, the one is SVP: 2. So, that book can clarify
that as well as so can the Occupational Employment Quarterly.

Q Okay. In these instances, the numbers you’ve cited today, have
you made any adjustments from the results you get from the OEQ, the
Occupational Employment Quarterly?

A No. Actually, I haven’t updated the numbers since prior to the
Coronavirus because, of course, those numbers are going to be very skewed
for the time being. My hope is those numbers will return, be more valid,
going forward.

(R. 63-64.)
First, an ALJ can permissibly consider information from the OEQ.4 Although the

4 See Dishman v. Colvin, No. 2:16-cv-00082-JAW, 2016 WL 7477540, at *5 (D. Me. Dec. 29, 2016),
clarified, 2017 WL 238419 (D. Me. Jan. 19, 2017), aff’d, 2017 WL 499892 (D. Me. Feb. 7, 2017), where
the Court noted that the plaintiff in that case “repeats an argument that has been made several times in this
OEQ is not subject to administrative notice as a government source under 20 C.F.R. §§
404.1560(b)(2), 404.1566(d), 416.960(b)(2), and 416.966(d), it is not excluded as a

source for job information. The regulations provide that ALJs can rely on “other
publications” for such information. 20 C.F.R. §§ 404.1566(d), 416.966(d). Moreover,
the OEQ data is itself drawn from government census data. Under 20 C.F.R. §§
404.1560(b)(2), 404.1566(d), an ALJ is permitted to take judicial notice of Census
Bureau reports.
Furthermore, the record does not support Plaintiff’s contention that the ALJ relied

solely on the OEQ job data. The VE explained the process he follows, which includes
referencing other sources, such as the United States Department of Labor and the
Occupational Employee Handbook. A fair and reasonable interpretation of the VE’s
testimony is that after consulting other reliable sources, he concluded the job numbers
derived from the OEQ were reasonable. The ALJ, who cited the VE’s “methodology”

and his “professional knowledge and experience in job placement,” supportably relied on
the VE’s testimony.
CONCLUSION
Based on the foregoing analysis, I recommend the Court affirm the administrative

court, without success: that the [VE]’s use of the … OEQ … as a source for estimating the numbers of
particular jobs available nationally renders his testimony about those numbers invalid.” (citing Small v.
Colvin, No. 1:12-cv-236, 2012 WL 1912892, at *7-8 (D. Me. Mar. 309, 2013); see also Hardin v.
Berryhill, No. 8:18-CV-84-T-AEP, 2019 WL 927173, at *5 (M.D. Fla. Feb. 26, 2019) (VE properly relied
on the OEQ); Swincki v. Astrue, No. 07-13596, 2009 WL 728544, at *19 (E.D. Mich. Mar. 19, 2009)
(holding that, because the OEQ “is based on other government publications or data, of which the Agency
generally takes administrative notice,” VE testimony reliable); Pritchett v. Astrue, No. 5:09-CV-
155(CAR), 2009 WL at 4730326, *6 (M.D. Ga. Dec. 4, 2009) (same) (collecting cases).
.
decision.
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 of 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.

/s/ John C. Nivison
U.S. Magistrate Judge

Dated this 14th day of July, 2022.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10211457. Public record. Not legal advice.