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Purdy v. Berryhill, 887 F.3d 7 (1st Cir. 2018).

Plaintiff sought judicial review of decision of Commissioner of Social Security denying her application for supplemental security income alleging disability due to a total knee replacement in April 2011; thoracic and lumbar spine degenerative disc disease; right shoulder rotator cuff bone spurs; severe migraines, nerve damage, and throat problems; attention deficit hyperactivity disorder (ADHD) and attention deficit disorder; post-traumatic stress disorder; panic disorder; substance abuse; and learning difficulties. The district court affirmed the ALJs denial. Plaintiff appealed arguing that the ALJ erred in that the ALJ assigned inadequate weight to the opinion of her treating orthopedic physician and that it was error for the ALJ to rely on the testimony of a VE to conclude that there were particular numbers of jobs that she could perform due to her reliance on a software program provided by Job Browser Pro called SkillTran.

The court rejected these arguments. First, the court noted the ALJ had found the treating physician’s opinion internally contradictory identifying the cause of the limitations as a 2013 accident but also opining that they had remained the same since 2011. Furthermore, the ALJ noted the submission consisted mostly of a checkbox form without explanation. The court also noted that the ALJ had considered the physician’s examination and treatment notes which were at odds with the conclusions contained in the opinion. The physician had repeatedly assessed her with a good prognosis and in the most recent notes had not recorded any pain at all. Therefore, substantial evidence supported the ALJs assignment of weight.

Turning to Plaintiff’s second assignment of error, Plaintiff argued that the vocational expert did not know what precise analysis SkillTRAN followed to produce the job-number estimates she gave for jobs that Plaintiff could perform. On the basis of that testimony, and the third-party source for all figures used in the computations, she argued that the VE’s testimony should not be treated as expert evidence, but simply as parroting numbers immune to effective challenge by an applicant for benefits. The court disagreed.

The court stated as a threshold matter that Plaintiff faced “high hurdles” in challenging the vocational expert’s testimony. The court noted that admissibility of evidence in a social security disability proceeding is not subject to the Federal Rules of Evidence and the ALJ is given express authority to assess the reliability of evidence. The court observed that there had developed two schools of thought for assessing the reliability of evidence in such proceedings. One, drawing inspiration from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and Federal Rule of Evidence 702 followed in the Seventh Circuit, “charged ALJs with a version of the gatekeeping role that federal courts must play when considering whether to admit expert testimony.” The court noted the Seventh Circuit has reasoned that “because an ALJ’s findings must be supported by substantial evidence, an ALJ may depend upon expert testimony only if the testimony is reliable.” McKinnie v. Barnhart, 368 F.3d 907, 910, 65 Fed. Appx. 80 (7th Cir. 2004). And “[i]f the basis of the vocational expert’s conclusions is questioned at the hearing . . . then the ALJ should make an inquiry (similar though not necessarily identical to that of Rule 702) to find out whether the purported expert’s conclusions are reliable.” Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (emphasis removed). Thus, in McKinnie, where the vocational expert’s proffered basis for her job-estimate figures was vague and unsubstantiated by documentation, the Seventh Circuit held that the ALJ erred by not enquiring into the reliability of the vocational expert’s opinion.

Alternatively, the court noted other circuits had rejected this approach. In particular, the court noted that the “Ninth Circuit has disclaimed any such standard for testing the reliability of a VE’s testimony regarding the number of relevant jobs in the national economy. Rather, that court has explained that “[a] VE’s recognized expertise provides the necessary foundation for his or her testimony.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).” The court also noted the Second Circuit had rejected the Seventh Circuit’s approach finding it “puzzling that the “the Seventh Circuit would acknowledge . . . that ALJs are not bound by the Rules of Evidence, but then turn around and require ALJs to hew so closely to Daubert’s principles.” Brault v. SSA, 683 F.3d 443, 449 (2d Cir. 2012).

Here, the court concluded it failed “to see an adequate answer to the Second Circuit’s argument. This is not to say that we could go to the extreme of approving reliance on evidence of the software numbers offered by a witness who could say nothing more about them than the name of the software that produced them. But that is not the case here. The VE, whose qualifications [Plaintiff] did not challenge, testified that the job numbers were from the Bureau of Labor Statistics and were stated in reference to job descriptions in the DOT; that is, they were specific to jobs, not to broad amalgams of jobs, some of which an applicant might be able to perform but not others. The VE testified that the software’s conclusions on the described basis were generally accepted by those who are asked to give the sort of opinions sought here. She testified, in other words, to a reliable and practical basis of fact on which analysis was performed, and to a wide reputation for reliability. Given the broad discretion on the part of an ALJ, and the complete lack of any competing evidence or critique, it is hard to see an abuse of discretion in the judge’s refusal to demand, say, that a VE perform her own data-gathering field work, or be a statistician capable of duplicating the software analysis of the basic material. The court affirmed the district court’s judgment.

Coskery v. Berryhill, 892 F.3d 1 (1st Cir. 2018).

Plaintiff sought judicial review of decision of Commissioner of Social Security denying his application for disability insurance benefits and supplemental security income. In the ALJs denial, he made mention of Plaintiff’s marijuana use at various points. Plaintiff appealed arguing the district court was required to follow SSR 16-3p, that superseded the SSR that the ALJ had applied, SSR 96-7p, even though SSR 16-3p, was published after the ALJ had ruled in his case. He further contended that, when reviewed under SSR 16-3p, the ALJ’s ruling was not supported by substantial evidence. The district court affirmed the ALJs denial.
The circuit court rejected Plaintiff’s argument. First, the court found that as a general matter, “administrative rules will not be construed to have retroactive effect unless their language requires this result.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988). Plaintiff nevertheless contended that the new SSR applied to his case on appeal because it merely clarifies the regulation that sets forth the five-step sequence for determining whether a claimant is disabled and thus effects no substantive change in the agency’s interpretation of either the statutory definition of “disabled” or the regulations governing the steps that an ALJ must undertake in assessing whether a claimant is “disabled.” The government countered that “the text of this SSR clearly provides both that it has an “effective date” of March 27, 2016 — which is after the ALJ ruled on [Plaintiff’s] case — and that “[w]hen a Federal court reviews our final decision in a claim, we expect the court will review the final decision using the rules that were in effect at the time we issued the decision under review.” Though “doubt[ing]” Plaintiff’s contention, the court found that it need not resolve the issue as Plaintiff’s contention under SSR 16-3p failed.

The court rejected Plaintiff’s second argument. In so resolving this issue, the court noted that the ALJ did not make reference to his marijuana use for the purpose of making a determination about his character but rather referenced it in the course of “making a finding that [Plaintiff], as part of his treatment for his pain, had been instructed to refrain from using marijuana and warned that, if he did not do so, he would not be prescribed narcotics for his pain. Thus, we read the ALJ to have referenced [his] marijuana use not for the purpose of making an assessment of [his] character or truthfulness but in order to explain the basis for its finding that [he] “was noncompliant with treatment.” So understood, the ALJ did not violate SSR 16-3p. The SSR does not preclude an ALJ, in assessing the claimant’s symptoms, from considering whether a claimant has complied with treatment for the pain that the claimant purports to be suffering. Likewise, the court rejected Plaintiff’s contention that the ALJs consideration of his daily activities was an improper assessment of character and truthfulness. The court found that SSR 16-3p expressly requires that the ALJ consider an applicant’s “[d]aily activities” to “evaluate the intensity, persistence, and limiting effects of an individual’s symptoms.”

Next, the court held that the ALJ complied with both SSR 96-7p and SSR 16-3p in fully addressing all the evidence both medical and nonmedical. The ALJ provided a lengthy description of the medical evidence and other portions of the record in conjunction with his noncompliance with treatment which led to a conclusion that his allegations were inconsistent with the overall evidence of record. The court affirmed the district court’s judgment.

Torres-Pagán v. Berryhill, 899 F.3d 54 (1st Cir. 2018).

Pro se recipient of Supplemental Security Income due to mental retardation had his benefits terminated in redetermination proceeding. Recipient appealed. After an ALJ denied his claim, Plaintiff appealed, and the district court affirmed the Agency’s decision. Plaintiff appealed arguing that the ALJ failed in a duty to develop the record by not obtaining records demonstrating his ongoing psychiatric treatment. He submitted at least four separate forms to the SSA informing it that he was receiving such services. Ultimately, Plaintiff contended the record before the ALJ was simply insufficient to conclude he was no longer disabled, particularly in light of the fact that the ALJ was on notice through both SSA filings and hearing testimony that he was being treated for psychiatric issues.

The court agreed recognizing Plaintiff’s pro se status and mental deficiencies created “without question the type of situation where we believe an ALJ has a heightened responsibility to develop the record.” Here, the ALJ was aware of addition records and “hardly inquired about the treatment.” Plaintiff “also attempted to inform the ALJ of his psychiatric treatment at the end of the hearing, but the court noted the ALJ seemed disinterested, answering “Mm-hmm” and responding with no follow-up.” The court remarked that this was “especially egregious” given the hearing transcript revealed Plaintiff’s struggles to fully explain his ailments. The court concluded “it should surprise no one that additional diligence is often warranted when the claimant suffers from alleged mental disability. It is incumbent upon the Commissioner to ensure that the records upon which benefits decisions are made are fully developed and that individuals with psychological problems are not given short shrift.” Vacated and remanded.