REPORT AND RECOMMENDED DECISION1
In this Social Security Disability ("SSD") and SupplementalSecurity Income ("SSI") appeal, the plaintiff challenges thehypothetical question posed to the vocational expert by theadministrative law judge. I recommend that the court affirm thecommissioner's decision.
In accordance with the commissioner's sequential evaluationprocess, 20 C.F.R. §§ 404.1520, 416.920, Goodermote v. Secretaryof Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), theadministrative law judge found, in relevant part, that theplaintiff suffered from depression with mild anxiety, a historyof polysubstance dependence then in remission, and moderatechronic obstructive pulmonary disease, impairments that weresevere but which did not, individually or in combination, meet ormedically equal the criteria of any of the impairments listed in Appendix 1to Subpart P, 20 C.F.R. Part 404 (the "Listings"), Findings 3 &5, Record at 29; that he was limited to the performance ofsimple, routine repetitive work not requiring close attention todetail and must avoid work involving more than occasional contactwith the public or with supervisors and co-workers but had nophysical limitations, Finding 8, id.; that his allegationsregarding pain, symptomatology and the functional limitationsimposed by his impairments were not fully credible, Finding 9,id. at 29-30; that his impairments prevented him form returningto his past relevant work, Finding 10, id. at 30; that givenhis age (38 at the alleged onset of disability), education (highschool equivalent), lack of transferable skills and residualfunctional capacity, use of Rule 203.29 of Appendix 2 to SubpartP, 20 C.F.R. part 404 (the "Grid") as a framework and reliance onthe testimony of a vocational expert resulted in the conclusionthat a significant number of jobs existed in the national economythat the plaintiff could perform, including vehicle washer,equipment cleaner, hand packer, truck driver and janitor/cleaner,Findings 6-7 & 11-12, id. at 29-30; and that the plaintiffaccordingly had not been under a qualifying disability at anytime since the alleged date of onset of his disability, Finding13, id. at 30. The Appeals Council declined to review thedecision, id. at 7-8, making it the final determination of thecommissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v.Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir.1989).
The standard of review of the commissioner's decision iswhether the determination made is supported by substantialevidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v.Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.1996). In other words, the determination made must be supportedby such relevant evidence as a reasonable mind might accept asadequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401(1971); Rodriguez v. Secretary of Health & Human Servs.,647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge reached Step 5 of the sequentialreview process, at which stage the burden of proof shifts to thecommissioner to show that a claimant can perform work other thanhis or her past relevant work. 20 C.F.R. §§ 404.1520(f),416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987);Goodermote, 690 F.2d at 7. The record must contain positiveevidence in support of the commissioner's findings regarding theplaintiff's residual work capacity to perform such other work.Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294(1st Cir. 1986).
The plaintiff first contends that the administrative law judgecommitted a reversible error because the residual functionalcapacity found in his decision "does not correspond with theactual RFC posed to the vocational expert at hearing." Statementof Specific Errors ("Itemized Statement") (Docket No. 12) at .
However, there is and can be no requirement that anadministrative law judge is bound by the limitations included inhis or her hypothetical questions posed to a vocational expertwho testifies before the administrative law judge. The purpose ofsuch questions is to determine whether jobs would be available tothe claimant given a certain set of physical and/or mentallimitations. An administrative law judge often will ask severalhypothetical questions, each containing different limitations.The ultimate decision is and must be based on the administrativelaw judge's evaluation of all of the evidence; it cannot be tiedto the information included in any given hypothetical question.The plaintiff takes nothing by this argument.
The plaintiff next asserts that the administrative law judge'sfailure to include the following specific mental limitations inhis hypothetical question requires reversal: moderate limitationson attention, concentration, the ability to complete a normalwork week, the ability to avoid psychologically based interruptions, the ability to perform at a consistent pace, andthe ability to respond appropriately to changes in the worksetting; and limitations on the ability to respond appropriatelyto criticism from supervisors, maintain regular attendance and bepunctual within customary tolerances and maintain activitieswithin a schedule. Id. at -. He cites the records of twostate-agency psychologist-reviewers in support of this argument.Id.
The administrative law judge's hypothetical question includedthe following relevant limitations: He would only be able to — the hypothetical person would only be able to do routine, repetitive work that did not require very close attention to detail and this person would only be able to have occasional contact with the public, coworkers and supervisors, and this person would only be able to work a job where the stress level was normal and also he would not be able to work at a job that required constant concentration, which is similar to the close attention to detail.Record at 56-57.
If there is substantial evidence to support the administrativelaw judge's decision to exclude a particular limitation from thehypothetical question posed to a vocational expert, the absenceof that limitation from the question does not provide a basis forremand Smith v. Barnhart, 222 F.Supp.2d 78, 82 (D. Me. 2002).Contrary to the plaintiff's representations, not all of thelimitations which he lists as omitted were "found to be moderatelimitations by both Dr. Hoch and Dr. Houston." Itemized Statementat . With respect to the limitations on the ability to respondappropriately to criticism from supervisors and to performactivities within a schedule, maintain regular attendance and bepunctual within customary tolerances, one of the two reviewingpsychologists in each case found the plaintiff to be "notsignificantly limited." Record at 303, 366. The administrativelaw judge was entitled to rely on the opinion of the reviewerfinding that that there were no significant limitations in thesecategories unless the medical evidence is uniformly inconsistent with those conclusions. The plaintiffhas not established that the evidence is in fact uniformlyinconsistent with those conclusions and accordingly is notentitled to remand on this basis.
The cited state-agency assessments do not contain separatecategories of limitations entitled "attention" and"concentration," Itemized Statement at , but both reviewersassigned a moderate limitation to "[t]he ability to maintainattention and concentration for extended periods," Record at 302,366. The hypothetical question states that the claimant "wouldnot be able to work at a job that required constantconcentration," id. at 57, which is a sufficient approximationof that limitation. The plaintiff breaks into three parts,Itemized Statement at , a single limitation included in theforms completed by the state-agency reviewers: "The ability tocomplete a normal workday and work week without interruptionsfrom psychologically based symptoms and to perform at aconsistent pace without an unreasonable number and length of restperiods," Record at 303, 367. Both reviewers indicated a moderatelimitation in this area, as they did with the remaininglimitation listed by the plaintiff, ability to respondappropriately to changes in the work setting. Id. Theadministrative law judge did include in his hypothetical questiona limitation to "routine, repetitive work that did not requirevery close attention to detail" and a limitation to "a job wherethe stress level was normal." Id. at 56-57. This limitationadequately addresses the reviewers' ranking on ability to respondappropriately to changes in the work setting.2
The administrative law judge's hypothetical cannot reasonablybe construed, however, to address the moderate limitation foundby both reviewers in question 11 on the Mental ResidualFunctional Capacity Assessment forms that they completed. Id.at 302-03, 366-67. When the vocational expert was asked bycounsel for the plaintiff whether her testimony would be affectedif the claimant in the hypothetical question had "difficulty getting out of the home and getting to work on,say, a two- to three-times-a-month basis, calling in because ofmentally just not wanting to go out the door," she said that "anemployer wouldn't probably allow that." Id. at 59. Counsel forthe plaintiff was unable at oral argument to cite any support inthe record for the choice of two to three days a month as thefrequency of absence, but the question does raise the issue posedby the state-agency assessments at issue. However, when asked atthe hearing to list any limitations imposed on the plaintiff byhis mental impairments, Dr. Tingley did not list any suchlimitation, id. at 54-55, and he was not asked any questions bycounsel for the plaintiff, id. at 55. The administrative lawjudge specifically said that he was "in agreement with" Dr.Tingley's opinion testimony and "finds it to be fully consistentwith the objective medical evidence of record." Id. at 24.Under these circumstances, the omission of the moderatelimitation at issue from the hypothetical question was supportedby substantial evidence. See Berrios Lopez v. Secretary ofHealth & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991)(commissioner [then secretary] may rely solely on testimony ofmedical advisor, depending on the circumstances).
For the foregoing reasons, I recommend that the commissioner'sdecision be AFFIRMED.
1. This action is properly brought under 42 U.S.C. §§ 405(g)and 1383(c)(3). The commissioner has admitted that the plaintiffhas exhausted his administrative remedies. The case is presentedas a request for judicial review by this court pursuant to LocalRule 16.3(a)(2)(A), which requires the plaintiff to file anitemized statement of the specific errors upon which he seeksreversal of the commissioner's decision and to complete and filea fact sheet available at the Clerk's Office. Oral argument washeld before me on August 20, 2004, pursuant to Local Rule16.3(a)(2)(C) requiring the parties to set forth at oral argumenttheir respective positions with citations to relevant statutes,regulations, case authority and page references to theadministrative record.
2. In addition, this statement of limitations is supported bythe testimony at hearing of Charles L. Tingley, Jr., a clinicalpsychologist, Record at 24, 54-55, on which the administrativelaw judge relied, id. at 24.