Mead v. SSA CV-04-139-JD 11/15/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Julie Mead

v. Civil No. 04-139-JD Opinion No.

Jo Anne B. Barnhart, Commissioner, Social Security Administration

O R D E R

Julie Mead seeks review, pursuant to

(g) and

1383(c)(3), of the Commissioner's decision denying her

application for Supplemental Security Income ("SSI") benefits.

Mead challenges the Administrative Law Judge's ("ALJ") findings

that she is able to return to her previous work and that there is

other work she can do. Mead also argues that the case should be

remanded for consideration of the evidence submitted to the

Appeals Council. The Commissioner moves to affirm the decision

denying the application.

Discussion

The joint factual statement submitted by the parties

documents that Julie Mead has mental impairments which cause

learning disabilities, primarily as to reading and reasoning.

She also has been treated for a variety of physical ailments. including carpal tunnel syndrome, shoulder and knee pain, and

other orthopedic complaints. The ALJ found that she was limited

to light work with an option allowing her to sit or stand at

will, that she would have to avoid vibration, and that she could

do only simple, repetitive tasks with no stressful production

guotas or rate/pace reguirements. The ALJ concluded, based on

the vocational expert's hearing testimony, that Mead could return

to her prior work as a cleaner and housekeeper or, alternatively,

that jobs existed in the relevant economies that she could do.

Mead contends that because she stopped working as a cleaner

or housekeeper more than fifteen years before she applied for SSI

benefits, that job cannot be considered as prior work. See

(a); Rivera-Torres v. Sec'v of Health & Human

Serv.,

(1st Cir. 1986); Lyons v. Barnhart,

, at *2 (D. Me. Jan. 30, 2004). The Commissioner responds

that Mead testified she had done hotel cleaning throughout her

life so that her prior work as a cleaner did not end more than

fifteen years ago. Mead argues that any confusion in her

testimony about when she worked as a cleaner should have been

resolved by the ALJ so that no inference should be drawn against

her.

Mead was represented by counsel at the hearing and bore the

burden of proving that she could not return to her prior work.

2 See

; Freeman v. Barnhart,

, 608

(1st Cir. 2001). Having failed to raise the issue of the

fifteen-year limit before the ALJ, Mead may have waived it. See

Mills v. Apfel,

(1st Cir. 2001). The vocational

expert testified, however, that Mead could not return to any of

her prior work based on a hypothetical question that included a

sit/stand option.1 Therefore, the ALJ's conclusion to the

contrary was error.

The ALJ also considered the fifth step of the sequential

analysis, where the Commissioner bears the burden to come

"forward with evidence of specific jobs in the national economy

that the applicant can still perform." Seavey v. Barnhart,

(1st Cir. 2001). The ALJ concluded that Mead could

work as a surveillance system monitor, which is the only job the

vocational expert found she could do with all of the limitations

described by the ALJ and Mead's counsel.2 Mead argues that the

2In his decision, the ALJ found as part of Mead's residual functional capacity that she required an option to sit or stand at will. He failed to include that limitation in his hypotheticals posed to the vocational expert at the hearing. When Mead's counsel included that limitation in his hypothetical, the vocational expert testified that all of Mead's prior work, including work as a cleaner, would be excluded.

2In response to Mead's counsel's hypothetical, which included the sit/stand option, the vocational expert testified that only the surveillance system monitor job would not be excluded.

3 vocational expert's opinion that she could work as a surveillance

system monitor conflicts with the Dictionary of Occupational

Titles ("DOT") description of that job.

The DOT describes the surveillance system monitor job as

requiring reasoning and language, including reading and writing,

at level 3. U.S. Dep't of Labor, Dictionary of Occupational

Titles, 379.367-010 (rev. 4th ed. 1991). Level 3 requires a

worker to be able to carry out written, oral, or diagrammatic

instructions; to read safety rules; and to write reports and

essays. The ALJ's residual functional capacity finding, however,

limited Mead to jobs requiring only simple, repetitive tasks.

The Commissioner contends that because the surveillance system

monitor job has a specific vocational preparation ("SVP") level

of 2, which includes unskilled work, the vocational expert's

opinion does not conflict with the DOT.

Other courts have decided that, contrary to the

Commissioner's argument here, the SVP level in a DOT listing,

indicating unskilled work, does not address whether a job entails

only simple, repetitive tasks. See, e.g., Lucy v. Chater,

(8th Cir. 1997); Cooper v. Barnhart,

, at *4 (N.D. Okla. Oct. 15, 2004); Hall v. Barnhart,

, at *3 (D. Me. Aug. 25, 2004). Instead, the General

Educational Development ("GED") requirements in the DOT listing

4 are more pertinent to determining the complexity of the job, and

a "GED" reasoning level of 2, or higher, assumes that the

applicant is capable of more than simple or repetitive tasks.

See, e.g., Lucy,

; Cooper,

, at *4;

Hall,

, at *2-3. Because the job of surveillance

system monitor reguires GED reasoning at level 3 and language at

level 3, it appears that the vocational expert's opinion that the

job reguired only simple, repetitive tasks conflicts with the DOT

listing.

Social Security Ruling 00-4p provides:

When a VE or VS provides evidence about the reguirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT. In these situations, the adjudicator will: Ask the VE or VS if the evidence he or she has provided conflicts with information provided in the DOT; and If the VE's or VS's evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.

Courts are divided as to the import of SSR 00-4p. The Seventh

Circuit has limited its effect, putting the burden on the

applicant's counsel to raise an issue as to a conflict. Donahue

v. Barnhart,

(7th Cir. 2002). The Third

Circuit interprets SSR 00-4p more broadly, imposing an

affirmative duty on the ALJ to ask a vocational expert if a

conflict exists between his opinion and the DOT as a prereguisite

5 to relying on the opinion. Boone v. Barnhart,

, 208

n.14 (3d Cir. 2004). Courts in this circuit, like the Third

Circuit, have interpreted SSR 00-4p as requiring the ALJ to ask

if a conflict exists and to explain an apparent conflict. See,

e.g., Wilcox v. Barnhart,

, *5 (D.N.H. July 28,

2004); Slovak v. Barnhart,

, *7 (D.N.H. May 29,

2003) .

The ALJ in this case did not ask the vocational expert

whether his opinions conflicted with the DOT descriptions of the

jobs he suggested, and Mead's counsel did not raise the issue in

the administrative proceeding. The ALJ did not address the issue

of a conflict in his decision. The cases that interpret SSR 00-

4p as imposing an affirmative duty on the ALJ to inquire about

the possibility of a conflict and to explain a conflict that is

apparent or identified are persuasive. In this case, the ALJ

failed to inquire about a conflict between the vocational

expert's opinion and the DOT. His omission is not harmless

because an unexplained conflict appears to exist.

The ALJ's failure to inquire about and explain the apparent

conflict between the requirement in his hypothetical that jobs be

limited to simple, repetitious tasks and the DOT description of

the surveillance system monitor job precludes reliance on the

vocational expert's opinion that Mead could do that job. See

6 Hall-Grover v. Barnhart, 2 004 WL 1519183, at *4 (D. Me. Apr. 30,

2004). Therefore, the Commissioner's decision is reversed, and

the case is remanded for further administrative proceedings.

Conclusion

For the foregoing reasons, the plaintiff's motion to reverse

and remand (document no. 7) is granted. The Commissioner's

motion to affirm (document no. 10) is denied.

The decision of the Commissioner is reversed, and the case

is remanded for further administrative proceedings. As this is a

sentence four remand, the clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

November 15, 2 004

cc: Raymond J. Kelly, Esguire David L. Broderick, Esguire

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