UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Bettylea Lydia Labrecque

v. Civil No. 14-cv-119-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

Bettylea Lydia Labrecque appeals the Social Security

Administration’s (“SSA”) denial of her application for disability

benefits. An Administrative Law Judge (“ALJ”) found that

Labrecque suffered from depression, borderline intellectual

functioning, and attention deficit disorder. The ALJ

nevertheless found that Labrecque was not disabled within the

meaning of the Social Security Act because she has sufficient

residual functional capacity (“RFC”) to work at jobs that exist

in significant numbers in the national economy. See

(d)(2)(A). The SSA Appeals Council subsequently denied

Labrecque’s request for review of the ALJ’s decision, rendering

the ALJ’s decision final. Labrecque timely appealed to this

court, pursuant to

(g). In due course, Labrecque

moved to reverse the SSA’s decision and SSA’s Acting Commissioner

moved to affirm the denial of benefits.

The gravamen of Labrecque’s argument is that the ALJ erred

in considering certain testimony from a vocational expert in determining Labrecque’s RFC and her ability to work. She also

claims the ALJ failed to question the expert about an alleged

conflict between the expert’s testimony and the Dictionary of

Occupational Titles. After careful consideration of the parties’

arguments and the administrative record, the court finds the

record evidence sufficient to support the ALJ's decision.

Therefore, Labrecque’s motion is denied and the Acting

Commissioner’s motion is granted.

I. Standard of Review

The court’s review of SSA’s final decision “is limited to

determining whether the ALJ used the proper legal standards and

found facts upon the proper quantum of evidence.” Ward v. Comm’r

of Soc. Sec.,

(1st Cir. 2000). The ALJ’s

decision will be upheld if it supported by substantial evidence,

that is, “such evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales,

(1971) (quotations omitted). It is something less

than a preponderance but “more than a mere scintilla.” Id.;

Consolo v. Fed. Mar. Comm’n,

(1966). The

possibility of drawing two inconsistent conclusions from the

evidence does not preclude a finding of substantial evidence.

Consolo,

. Accordingly, the ALJ’s resolution of

evidentiary conflicts must be upheld if supported by substantial

2 evidence, even if contrary results are supportable. Rodriguez

Pagan v. Sec’y of Health & Human Servs.,

(1st Cir.

1987). The court next turns to the ALJ’s decision.

II. Background1

In analyzing Labrecque’s application, the ALJ invoked the

required five-step process. See

. First, he

concluded that Labrecque had not engaged in substantial work

activity after the October 2011 benefit application filing date.

Next, the ALJ determined that Labrecque suffered from three

severe impairments: depression, borderline intellectual

functioning and attention deficit disorder.2 See

(c). At the third step, the ALJ concluded that

Labrecque’s impairments, either individually or collectively, did

not meet or “medically equal” one of the listed impairments in

the Social Security regulations. See

(d),

416.925, and 416.926. The ALJ next found that Labrecque had the

RFC to perform a full range of work at all exertional limits, but

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts is incorporated by reference. See L.R. 9.1(d). 2 The ALJ rejected Labrecque’s claims of disabling kidney disease and renovascular hypertension, finding them unsupported by the medical record. Labrecque has not challenged that portion of the ALJ’s ruling.

3 with several non-exertional limitations: she may only have

superficial interaction with the general public; she is limited

to performing simple, routine tasks with no detailed instructions

and only occasional decision-making; and she may be subject to no

more than occasional workplace changes. Given that the ALJ found

that Labrecque had no past relevant work history, the ALJ

proceeded to step five, at which the SSA bears the burden of

showing that a claimant can perform other work that exists in the

national economy. Freeman v. Barnhart,

(1st

Cir. 2001). Here, the ALJ, relying heavily on testimony from a

vocational expert, found that Labrecque’s RFC would permit her to

perform such jobs as photographic mounter (of which there

approximately 230 jobs in New Hampshire and 49,000 nationally),

touch-up screener (500/20,000); and optical goods polisher

(130/73,000). Accordingly, the ALJ found Labrecque not disabled,

within the meaning of the Social Security Act. The final step is

the focus of Labrecque’s appeal. The court addresses her

arguments seriatim.

III. Analysis

1. Reasoning Ability

Labrecque first argues that the job descriptions the ALJ

ultimately accepted require reasoning ability that exceeds

Labrecque’s RFC because they all require the capacity to execute

4 detailed instructions, yet the ALJ previously concluded that

Labrecque could not do so. The court disagrees. As Labrecque

correctly observes, the DOT assigns the three identified jobs a

General Education Development Reasoning Development (GED-R) value

of 2. And, Labrecque notes, that value requires a worker to be

able to “apply commonsense understanding to carry out detailed

but uninvolved written or oral instructions.” Labrecque argues

that this requirement is inconsistent with the hypothetical the

ALJ posed to the vocational expert, which asked him to consider

an individual limited to, among other things, “simple, routine

tasks [and] no detailed instructions; only occasional decision-

making.”

As Judge McAuliffe recently observed, however, a “majority

of district and circuit courts [have held] that an RFC limiting a

claimant to ‘simple instructions’ does not, standing alone,

eliminate positions identified in the DOT as requiring Level 2

reasoning.” Hebert v. Colvin,

. Judge McAuliffe

approvingly cited cases in the Districts of Maine and

Massachusetts that adopted the reasoning of Meissl v. Barnhart,

(C.D. Cal. 2005),

which contrasted the Social Security Administration's separation of a claimant's ability to understand, remember, and carry out instructions into merely two categories (“simple” and “detailed”) with the DOT's more graduated scale of six reasoning levels, and determined that the use of the terms “simple” and

5 “detailed” in the Social Security regulations cannot necessarily be equated with the use of the same words in the GED reasoning scale. The court in Meissl also highlighted the fact that the term “detailed” in the GED reasoning level 2 appears as part of the phrase “detailed but uninvolved” - “that is, not a high level of reasoning.” Meissl,

.

Hebert,

(quoting Lafrennie v. Astrue, No. 09-

40143,

, *7-*9 (D. Mass. Mar. 23, 2011)); see also

Pepin v. Astrue, No. 09-464,

(D. Me. Aug. 24,

2011).

Here, Labrecque's RFC limited her to simple instructions.

Given the “incongruity that exists between the Social Security

regulations and the DOT,” Augur v. Astrue,

(D. Mass. 2011), the court sees no inconsistency between the

ALJ's jobs finding and his RFC. The “uninvolved qualification in

Level 2 downplays the rigors of Level 2 instructions and brings

them in line with an ALJ's limitation of job duties to ‘simple’

tasks.” Thompkins v. Astrue, No. 09-C-1339,

*11

(N.D. Ill. Dec. 6, 2010).

2. ALJ's Failure to Inquire

Labrecque's second argument is that the ALJ failed to ask

the vocational expert about the purported conflict between his

opinion and the DOT, as required by SSR 00-4p.

.

While the ALJ did not so inquire, the court's previous finding

renders the error harmless. “Without any inconsistency [between

6 the expert’s testimony and the DOT] there was nothing for the

[expert] to explain.” Baker v. Astrue, (McCafferty, Mag. J.),

adopted by

(Jan. 3, 2012).

3. RFC and Social Functioning

Labrecque's final argument is that the ALJ erred by not

further limiting her RFC beyond “superficial interactions with

the general public.” The ALJ relied principally on the findings

of David Paris, Ph.D., a consulting examiner. On the issue of

social interaction, Dr. Paris concluded that Labrecque would be

able to “get along with supervisors, coworkers, the general

public . . . at least on the superficial level required for most

job situations.” Labrecque seeks to discount Dr. Paris's opinion

by noting that he also observed that she “seemed peculiar,”

laughed inappropriately on one occasion and “initially struck

[him] as possibly being mentally retarded.” Even if the court

assumes that Dr. Paris's conclusions are internally inconsistent,

resolution of such conflicts are the sole province of the ALJ.

Irlanda Ortiz v. Sec'y of Health & Human Servs.,

(1st Cir. 1991). The ALJ also placed considerable weight on

reports from Labrecque's primary care physician, Dr. Woo, who

treated Labrecque for depression and anxiety. But when asked to

write a letter supporting this disability claim, he declined,

7 observing that he believed that "she actually can" work and she

appears to be "without disability of any kind."

Labrecque's other arguments in support of a more restrictive

RFC are equally unavailing. Her reliance on reports from 2006

and 2009 are not especially probative of her condition as of her

October 2011 application and going forward.3 Moreover, their

findings that she was "immature" or "naive" neither contradict

Drs. Woo and Paris nor undercut the ALJ's social functioning

conclusion. Similarly, Dr. Wojcik's 2009 finding that she "might

have difficulty making decisions in a job setting and

communicating in simple terms with coworkers or supervisors" is

both stale and posits only a possibility of difficulties. It

was, therefore, appropriate for the ALJ not to give significant

weight to this evidence. Finally, Labrecque argues that the ALJ

gave too little weight to the Medical Impairment questionnaire

submitted by Kathryn Roger, a licensed family and marriage

therapist, who concluded that Labrecque had "substantial

deficits" in social functioning. But contrary to Labrecque's

assertion, Rodger was not an "acceptable medical source" and

therefore not a "treating source" whose opinions must ordinarily

3 The older reports were created in connection with Labrecque's 2008 disability application, which was denied in 2010. The ALJ in this matter denied Labrecque's motion to reopen the 2008 application, a decision which is not before this court.

8 be given controlling weight. See Ormon v. Astrue,

(1st Cir. 2012);

, 416.913(d)(1)

(Defining "treating source" as, inter alia, an "acceptable

medical source" and excluding therapists). While it would have

been improper for the ALJ to ignore the Rodger opinion, see

Alcantara v. Astrue,

(1st Cir. 2007),

the ALJ here "gave [the] opinion little weight," which he was

entitled to do.

IV. Conclusion

Ultimately, this court "must uphold the [SSA's final

decision], even if the record could justify a different

conclusion, so long as it is supported by substantial evidence."

Tsarelka v. Sec'y of Health and Human Servs.,

(1st Cir. 1988). Accordingly, while the record demonstrates that

Ms. Labrecque suffers from a variety of ailments, the ALJ's

decision is nevertheless supported by substantial evidence.

Claimant's motion to reverse4 is DENIED. Defendant's motion to

affirm5 is GRANTED. The clerk shall enter judgment accordingly

and close the case.

4 Document no. 9. 5 Document no. 10.

9 SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: May 13, 2015

cc: Daniel McKenna, Esq. Robert J. Rabuck, AUSA

10