647 SYNOPSES OF BRIEFS FIRST CIRCUIT
Briefs 59 and 60 - Social Security Ruling 00-4p & VE Testimony Which Conflicts with the DOT - Plaintiff’s Brief, Plaintiff’s Reply
Brief - Mead v. Barnhart (New Hampshire district court)
In Mead v. Barnhart, Case No. 040139-JD, 2004 WL 2580744 (D.N.H. Nov. 15, 2004), plaintiff briefed the following three issues:
1) Whether the Commissioner failed to sustain her burden of establishing that there is other work in the national economy that Ms. Mead
2) Whether the Appeals Council was egregiously mistaken in refusing to grant review despite the submission of new evidence establish-
ing that Ms. Mead suffers from a somatoform disorder and is significantly more limited due to her mental impairment than determined
by the ALJ.
3) Alternatively, whether the Court should remand this case under the sixth sentence of 42 U.S.C. § 405(g) to consider the new and
material evidence submitted to the Appeals Council.
In Mead, the court held that it appeared that the VE’s testimony that a claimant who is limited to jobs requiring only simple, repetitive tasks
cannot perform the job of surveillance system monitor, which has a reasoning at level 3 and language at level 3. The court then noted that SSR
00-4p provides that the “adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and
information provided in the DOT.” The court surveyed the law regarding this issue, and concluded that 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.” Since the ALJ in Mead failed to inquire about a conflict between the VE’s testimony and the DOT, and since an “unexplained
conflict” existed, the court reversed and remanded the case for further proceedings.
Briefs 75 and 76 - Social Security Ruling 00-4p & VE Testimony Which Conflicts With the DOT - Plaintiff’s Brief and Plaintiff’s Reply
Brief - Whitzell v. Barnhart (Massachusetts district court)
In Whitzell v. Barnhart, 379 F. Supp.2d 204 (D. Mass. 2005), plaintiff briefed the following three issues:
1) Whether the ALJ’s residual functional capacity assessment is based on substantial evidence.
2) Whether the ALJ’s credibility finding is based on substantial evidence.
3) Whether the Commissioner sustained her burden of establishing that there is other work in the national economy that Ms. Whitzell
In Whitzell, the court held that the ALJ failed to resolve the conflict between the testimony of the vocational expert and the Dictionary of
Occupational Titles (“DOT”) as required by Social Security Ruling 00-4p, stating:
A reasoning level two position . . . requires an individual to be able to “carry out detailed but involved written or oral instructions.”
While the hearing officer did not conclude that Whitzell was able to maintain concentration required for more complex and detailed
tasks, he stated that this concentration could not be sustained for extended periods of time or on a continuous basis. Such a limitation is
inconsistent with a reasoning level two position which could possibly require sustained or extended periods of concentration or attention.
As such, the court remanded this case “in accordance with Social Security Ruling 00-4p, so that he may provide a reasonable explanation for
this apparent conflict.”
Brief 99 - Substance Abuse, Weight of Nurse Practitioner’s Opinion, RFC, Medication Side Effects - Plaintiff’s Brief - Zarilli v. Astrue
(Maine district court)
In Zarilli v. Astrue, Case No. 1:08-cv-00082-JAW, 2008 WL 4936613 (D. Me. Nov. 16, 2008), Plaintiff briefed the following four issues:
1) The ALJ’s implicit finding that Mr. Zarilli’s substance abuse is a contributing factor, material to a finding of disability, is not based
on substantial evidence.
2) The ALJ committed reversible error in failing to accord any weight whatsoever to the opinions and assessments of either Lisa Jacobs,
PMH-NP or to Sarah Roy, LSC, Mr. Zarilli’s treating mental health providers.
3) The ALJ failed to follow SSR 96-8p in finding that Mr. Zarilli has no physical limitations whatsoever.
4) The ALJ committed reversible error in failing to properly evaluate the side effects of Mr. Zarilli’s medications.
In the Report and Recommendation dated November 16, 2008, United States Magistrate Judge John H Rich, III recommended reversal and
remand of this case, finding that the ALJ committed reversible error in failing to properly evaluate the claimant’s complaints of side effects of
dizziness, drowsiness, fatigue, lethargy, and upset stomach from his medications. As the Magistrate Judge noted, the only evidence of a lack of
side effects cited by the ALJ was the Plaintiff’s disability reports, but he was only taking over the counter medications at that point which did
not cause any side effects. However, when the Plaintiff complained of side effects, he was taking prescription medications including Campral,
Valium, Risperdal, and Paxil, the known side effects of which include those of which the plaintiff complained. In so finding, the Magistrate
Judge rejected the Commissioner’s argument, stating he was not:
aware of any authority to support the assertion of counsel for the commissioner at oral argument that side effects are not sufficiently
severe to require the attention of the administrative law judge unless a treating physician found it necessary to change the claimant’s
medications for that reason. The administrative law judge’s treatment of this claim is insufficient. The claimant is entitled to remand
on this basis.