UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Bettylea Lydia Labrecque
v. Civil No. 14-cv-119-JL
Opinion No. 2015 DNH 098
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 42 U.S.C.
§ 423(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
42 U.S.C. § 405(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., 211 F.3d 652, 655 (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,
402
U.S. 389, 401 (1971) (quotations omitted). It is something less
than a preponderance but “more than a mere scintilla.” Id.;
Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966). The
possibility of drawing two inconsistent conclusions from the
evidence does not preclude a finding of substantial evidence.
Consolo,
383 U.S. at 620. 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., 819 F.2d 1, 2 (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 20 C.F.R. § 416.920. 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
20 C.F.R.
§ 416.1920(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
20 C.F.R. §§ 416.920(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, 274 F.3d 606, 608 (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, 2014 DNH 166, 15. Judge McAuliffe
approvingly cited cases in the Districts of Maine and
Massachusetts that adopted the reasoning of Meissl v. Barnhart,
403 F. Supp. 2d 981, 983-84 (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, 403 F. Supp. 2d at 985.
Hebert,
2014 DNH 166, 14-15 (quoting Lafrennie v. Astrue, No. 09-
40143,
2011 WL 1103278, *7-*9 (D. Mass. Mar. 23, 2011)); see also
Pepin v. Astrue, No. 09-464,
2010 WL 3361841 (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, 792 F. Supp. 2d 92, 95
(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,
2010 WL 5071193 *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. 2000 WL 1898704.
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 2012 DNH 002 (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., 955 F.2d 765,
769 (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, 497 F. App'x
81, 84 (1st Cir. 2012);
20 C.F.R. §§ 416.902, 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,
257 F. App'x 333, 334-35 (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., 842 F.2d 529, 535
(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
