Roseann Zirnsak v. Commissioner Social Security

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1168
_____________
ROSEANN ZIRNSAK,
Appellant
v.
CAROLYN W. COLVIN,
COMMISSIONER SOCIAL SECURITY
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2:13-cv-00303)
District Judge: Honorable David Stewart Cercone
_______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 9, 2014
Before: VANASKIE, COWEN and VAN ANTWERPEN,
Circuit Judges.
(Opinion Filed: December 9, 2014)
_______________
Sarah H. Bohr, Esq.
Bohr & Harrington, LLC
2337 Seminole Road
Atlantic Beach, FL 32233
Counsel for Appellant Roseann Zirnsak
Elizabeth A. Smith, Esq.
129 S. McKean Street
Butler, PA 16001
Counsel for Appellant Roseann Zirnsak
Nora Koch, Esq.
Taryn Jasner, Esq.
Social Security Administration
Office of the General Counsel
PO Box 41777
Philadelphia, PA 19101
Counsel for Appellee Carolyn W. Colvin, Commissioner
Social Security
David J. Hickton, Esq.
Rebecca R. Haywood, Esq.
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee Carolyn W. Colvin, Commissioner
Social Security
Beverly H. Zuckerman, Esq.
Social Security Administration
Office of General Counsel SSA/OGC/Region III
300 Spring Garden Street
2
6th Floor
Philadelphia, PA 19123
Counsel for Appellee Carolyn W. Colvin, Commissioner
Social Security
_______________
OPINION OF THE COURT
_______________
VAN ANTWERPEN, Circuit Judge.
Appellant Roseann Zirnsak brings this action to appeal
the final decision of the District Court for the Western
District of Pennsylvania, dated December 5, 2013, affirming
the denial of her claim for Social Security Disability Income
benefits. Zirnsak v. Colvin, No. 2:13cv303, 2013 WL
6622925 (W.D. Pa. Dec. 5, 2013). For the reasons that follow
we will affirm the decision of the District Court.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
In October of 2001, Ms. Roseann Zirnsak (“Zirnsak”
or “the claimant”) was involved in a motor vehicle accident in
which she sustained head and lung injuries and skeletal
fractures. Zirnsak v. Colvin, No. 2:13cv303, 2013 WL
6622925, at *3 (W.D. Pa. Dec. 5, 2013). She was hospitalized
following that incident from October 8, 2001 through
November 14, 2001. Id. While hospitalized, she was
temporarily on life support. Id. Upon her discharge, she was
sent to a rehabilitation facility. Id. Four days after entering the
rehabilitation facility, she returned to the hospital for a
3
procedure to have her gangrenous gallbladder removed. Id.
After her discharge following that procedure, she again
returned to the rehabilitation facility. Id. Zirnsak continued to
be treated at a rehabilitation facility from January 16, 2002
through October 18, 2005. Id. In February of 2003, she
suffered a seizure and sought treatment immediately
thereafter. Id. She was prescribed medication, and she did not
suffer any further seizures. Id. Between January 5, 2005 and
August 11, 2006, Zirnsak underwent plastic surgery
treatments for lipoma reductions. Id. at *4.
In the years following her accident, Zirnsak sought
treatment from several medical professionals. Zirnsak
received the following treatment relevant to her mental
condition. Zirnsak was treated by Dr. Thomas Franz, M.D.,
from February 22, 2003 through February 3, 2010. Id. Dr.
Franz treated Zirnsak for “traumatic brain injury, left
hemiparesis cognitive impairments with short-term memory
deficits, organic affective changes[,] and a seizure disorder.”
Id. Dr. Kevin Kelly, M.D., Ph.D., treated Zirnsak from
February 14, 2003 through February 4, 2010. Id. He
diagnosed Zirnsak with a seizure disorder. Id. Dr. David
Newman, Ph.D., evaluated Zirnsak over a three-day period—
from April 4–6, 2010. Id. His report summarizing that
evaluation noted “a suggestion of mild short-term memory
loss and a concentration deficit.” Id. Finally, on April 8, 2010,
Michelle Santilli, Psy. D., performed a mental residual
functional capacity (“RFC”) assessment of Zirnsak. Id. She
concluded that Zirnsak could perform competitive work on a
sustained basis. Id.
On January 6, 2010, Zirnsak applied for Social
Security Disability Insurance (“SSDI”) benefits alleging a
4
disability commencing on May 11, 2006. Id. at *1. 1 The
parties agree that Zirnsak’s date last insured was December
31, 2007. (Transcript (“Tr.”) at 32). 2 Accordingly, the
relevant period for Zirnsak’s disability determination is the
period from May 11, 2006 to December 31, 2007. The Social
Security Administration (“SSA”) denied Zirnsak’s application
on May 17, 2010. (Id.). On June 14, 2010, Zirnsak requested
a hearing, which was subsequently held on June 22, 2011.
(Id.). At the hearing, Administrative Law Judge (“ALJ”)
James P. Pileggi heard testimony from Zirnsak, her husband,
and a vocational expert. (Id. at 30–59). On July 15, 2011, ALJ
Pileggi issued a decision denying Zirnsak’s application for
benefits. Zirnsak, 2013 WL 6622925, at *1. He found that
Zirnsak was “not under a disability, as defined in the Social
Security Act, at any time from May 11, 2006, the amended
alleged onset date, through December 31, 2007, the date last
insured.” (Tr. at 22). As part of that finding, ALJ Pileggi
found that Zirnsak was capable of performing certain jobs
available in the national economy, so long as those jobs were
sedentary and routine. (Id. at 16). He based that finding, in
part, on testimony from a vocational expert who opined that
Zirnsak was capable of working as an order clerk (food and
1
Zirnsak’s initial application asserted a disability onset
date of October 8, 2001. Zirnsak, 2013 WL 6622925, at *1.
However, at the June 22, 2011 hearing, the parties agreed to
amend the onset of disability date to May 11, 2006.
(Transcript at 31–32). May 11, 2006 is the day immediately
following the date on which a prior application for SSDI
benefits for Zirnsak was denied. (Id. at 32).
2
“Tr. at _” refers to the administrative transcript filed
in this case on February 27, 2014.
5
beverage), charge account clerk, telephone clerk, or sedentary
subassembler. (Id. at 21–22).
That decision became final on January 9, 2013, when,
after reconsideration, the Appeals Council affirmed the prior
determination. Zirnsak, 2013 WL 6622925, at *1. On March
1, 2013, Zirnsak filed a complaint pursuant to 42 U.S.C. §
405(g) seeking review of the Commissioner’s final
determination. Id. On August 12, 2013, United States
Magistrate Judge Robert C. Mitchell filed a Report and
Recommendation indicating that the decision of the
Commissioner should be affirmed. Id. On December 3, 2013,
United States District Judge David Stewart Cercone filed an
Order adopting the Magistrate Judge’s Report and
Recommendation as the opinion of the district court,
affirming the denial of Zirnsak’s claim for SSDI benefits, and
entering judgment for the Commissioner. Id. Zirnsak timely
filed this appeal on January 21, 2014.
II. DISCUSSION3
1. Standard of Review
3
The District Court had jurisdiction to review a final
administrative decision by the Social Security Commissioner
pursuant to 42 U.S.C. § 405(g). We have jurisdiction to
review the District Court’s December 3, 2013 Order denying
Zirnsak’s motion for summary judgment and granting the
Commissioner’s motion for summary judgment pursuant to
28 U.S.C. § 1291 and 42 U.S.C. § 405(g).
6
This Court reviews any findings of fact made by an
ALJ under the deferential “substantial evidence” standard. 42
U.S.C. § 405(g); Schaudeck v. Comm’r, 181 F.3d 429, 431
(3d Cir. 1999). We must affirm the ALJ so long as his
conclusions are supported by substantial evidence. Craigie v.
Bowen, 835 F.2d 56, 57 (3d Cir. 1987). Substantial evidence
is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Rutherford v. Barnhart,
399 F.3d 546, 552 (3d Cir. 2005). It is “more than a mere
scintilla but may be somewhat less than a preponderance of
the evidence.” Id. We review the record as a whole to
determine whether substantial evidence supports a factual
finding. Schaudeck, 181 F.3d at 431. When performing that
review, we are mindful that we must not substitute our own
judgment for that of the fact finder. Rutherford, 399 F.3d at
552. We exercise plenary review over the District Court’s
determination of legal issues. Schaudeck, 181 F.3d at 431.
2. The Administrative Law Judge’s Assessment of
Zirnsak’s Mental Residual Functioning
Capacity
The core issue in this case is whether Zirnsak was
disabled within the meaning of the Social Security Act at any
point during the period from May 11, 2006 through
December 31, 2007. Section 423(d)(1)(A) of the Social
Security Act defines disability as the “inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). An individual is disabled
if her impairments are severe enough that not only is she
7
incapable of performing her previous work, but she is also
incapable of engaging in “any other kind of substantial
gainful work which exists in the national economy.” Id. §
423(d)(2)(A). It is the claimant’s burden to establish that she
is disabled. See id. § 432(d)(5)(A) (“An individual shall not
be considered to be under a disability unless [s]he furnishes
such medical and other evidence of the existence thereof as
the Commissioner of Social Security may require.”). The
claimant must also establish that the onset date of disability
occurred prior to the expiration of the claimant’s insured
status. 20 C.F.R. § 404.131 (2014).
A five-step, sequential evaluation process is employed
to determine whether a particular claimant has met the burden
of establishing disability. Id. § 404.1520(a). The five-step
inquiry proceeds as follows. First, the Commissioner
considers whether the claimant is “engaging in substantial
gainful activity.” Id. § 404.1520(a)(4)(i). If yes, then the
claimant is not disabled. Id. Second, the Commissioner
considers the severity of the claimant’s impairment(s). Id. §
404.1520(a)(4)(ii). If the claimant’s impairment(s) are either
not severe or do not meet the duration requirement, the
claimant is not disabled. Id. Third, the Commissioner
considers whether the claimant’s impairment(s) meet or equal
the requirements of one of the Commissioner’s listed
impairments. Id. § 404.1520(a)(4)(iii). If the claimant’s
impairment(s) meet the requirements of a listed impairment,
then the claimant is disabled. Id.
If not, then the inquiry proceeds to the fourth step,
where the Commissioner considers whether the claimant can
return to her past work. Id. § 404.1520(a)(4)(iv). To
determine whether the claimant can perform her past work,
8
the Commissioner assesses the claimant’s residual functional
capacity (“RFC”). Id. § 404.1520(e). A claimant’s RFC
measures “the most [she] can do despite [her] limitations.” Id.
§ 404.1545(a)(1). The Commissioner examines “all of the
relevant medical and other evidence” to make its RFC
determination. Id. § 404.1545(a)(3). If the Commissioner
finds that the claimant can still perform her past work, she is
not disabled. Id. § 404.1520(a)(4)(iv). It is important to note
that during steps two through four of the inquiry, the claimant
always bears the burden of establishing (1) that she is
severely impaired, and (2) either that the severe impairment
meets or equals a listed impairment, or that it prevents her
from performing her past work. Wallace v. Sec’y of Health &
Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983).
If the claimant meets those burdens by a
preponderance of the evidence, then the inquiry proceeds to
step five, where the Commissioner bears the burden of
establishing the existence of other available work that the
claimant is capable of performing. 20 C.F.R.
§ 404.1520(a)(4)(v) (2014); Kangas v. Bowen, 823 F.2d 775,
777 (3d Cir. 1987). To meet this burden, the Commissioner
must produce evidence that establishes that “work exists in
significant numbers in the national economy that [the
claimant] can do.” 20 C.F.R. § 404.1560. The Commissioner
uses the RFC assessment, Id. at § 404.1520(e), and the
testimony of vocational experts and specialists, Id. §
404.1566(e); 416.966(e), to make this determination.
“Ultimately, entitlement to benefits is dependent upon finding
the claimant is incapable of performing work in the national
economy.” Provenzano v. Comm’r, Civil No. 10–4460 (JBS),
2011 WL 3859917, at *1 (D.N.J. Aug. 31, 2011).
9
Zirnsak’s first argument on appeal is that the ALJ’s
assessment of her mental RFC is not supported by substantial
evidence. Specifically, Zirnsak argues that the ALJ erred in
(1) rejecting evidence from certain lay witnesses and (2)
according “little weight” to the opinion of Dr. Newman, the
doctor who evaluated Zirnsak on April 4–6, 2010.
(Appellant’s Brief (“Br.”) at 24–25). Zirnsak contends that
both categories of testimony provide objective evidence of a
memory impairment that was not accounted for in the ALJ’s
RFC finding, and that therefore the ALJ should have afforded
them more weight. (Id. at 26).
A. Lay Testimony
It is the claimant’s burden to establish that she became
disabled at some point between the onset date of disability
and the date that her insured status expired. In Zirnsak’s case,
this period ranges from May 11, 2006 through December 31,
2007. As part of the five-step disability inquiry, an ALJ can
consider evidence from non-medical sources to determine the
severity of a claimant’s impairments and how those
impairments impact the claimant’s ability to work. 20 C.F.R.
§ 404.1513(d) (2014). Non-medical sources include “spouses,
parents and other caregivers, siblings, other relatives, friends,
neighbors, and clergy.” Id. § 404.1513(d)(4). The
Commissioner has issued a policy interpretation ruling “to
clarify how [to] consider opinions from sources who are not
‘acceptable medical sources.’” SSR 06-03p, 2006 WL
2329939, at *1 (Aug. 9, 2006). This ruling states that ALJs
should consider “such factors as the nature and extent of the
relationship, whether the evidence is consistent with other
evidence, and any other factors that tend to support or refute
10
the evidence” when evaluating evidence from non-medical
sources such as family or friends. Id.
To properly evaluate these factors, the ALJ must
necessarily make certain credibility determinations, and this
Court defers to the ALJ’s assessment of credibility. See Diaz
v. Comm’r, 577 F.3d 500, 506 (3d Cir. 2009) (“In
determining whether there is substantial evidence to support
an administrative law judge’s decision, we owe deference to
his evaluation of the evidence [and] assessment of the
credibility of witnesses . . . .”). However, the ALJ must
specifically identify and explain what evidence he found not
credible and why he found it not credible. Adorno v. Shalala,
40 F.3d 43, 48 (3d Cir. 1994) (citing Stewart v. Sec’y of
Health, Education and Welfare, 714 F.2d 287, 290 (3d Cir.
1983)); see also Stout v. Comm’r, 454 F.3d 1050, 1054 (9th
Cir. 2006) (stating that an ALJ is required to provide “specific
reasons for rejecting lay testimony”). An ALJ cannot reject
evidence for an incorrect or unsupported reason. Ray v.
Astrue, 649 F. Supp. 2d 391, 402 (E.D. Pa. 2009) (quoting
Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)).
In 2011, several members of Zirnsak’s family and
friends submitted letters to the ALJ on her behalf. (Tr. at 19).
Each letter stated that Zirnsak “suffer[ed] from substantial
difficulties.” (Id.). The ALJ found that these letters were only
“partially credible” and therefore accorded them “little
weight.” (Id. at 20). The ALJ specifically referenced the three
SSR 06-3p factors in explaining this decision. (Id.). First, the
ALJ acknowledged that Zirnsak’s friends and family each
clearly had an established relationship with her. (Id.). Second,
he explained that the letters’ references to Zirnsak’s
significant limitations were inconsistent with her limited
11
medical treatment during the relevant period. (Id.). Finally,
the ALJ noted that the letters did not directly address
Zirnsak’s condition during the relevant period—from May
11, 2006 through December 31, 2007. (Id.). The ALJ used the
same process to evaluate the testimony of the claimant’s
husband, Donald Zirnsak. (Id.). The ALJ noted that Donald
Zirnsak and the claimant had an established relationship.
(Id.). However, the ALJ ultimately found Donald’s testimony
not credible because of its inconsistencies with Zirnsak’s
limited treatment and her reported activities of daily living.
(Id.).
In evaluating the lay testimony of Zirnsak’s family,
friends, and husband, the ALJ explicitly followed the
guidance set forth in SSR 06-03p. He evaluated the relevant
factors, assessed the credibility of certain evidence, and
explained why he found certain evidence to be not credible.
Ray, 649 F. Supp. 2d at 402. His reasons for rejecting the
evidence are supported by substantial evidence, as the
evidence did not relate to the narrow question presented to the
ALJ: whether Zirnsak was disabled at any point between May
11, 2006 and December 31, 2007. We therefore defer to the
ALJ’s credibility assessments. Diaz, 577 F.3d at 506.
In her brief, Zirnsak argues that two Social Security
Rulings and a series of other cases compel a contrary result.
(Appellant’s Br. at 30–32, 43). This reliance is misplaced.
First, the two Social Security Rulings relied on by Zirnsak are
not designed to provide guidance for how to evaluate lay
opinion testimony. The purpose of the first ruling cited, SSR
83-20, is to “describe the relevant evidence to be considered
when establishing the onset date of disability,” not whether
disability exists. SSR 83-20, 1983 WL 31249, at *1 (1983)
12
(emphasis added). The second ruling cited by Zirnsak, SSR
96-7p, lists its purpose as “to clarify when the evaluation of
symptoms, including pain, . . . requires a finding about the
credibility of an individual [claimant’s] statements.” SSR 96-
7p, 1996 WL 374186 (July 2, 1996). Therefore, SSR 96-7p
does not address lay witnesses’ accounts of the claimant’s
symptoms, but rather the claimant’s description of her own
pain. Id. Accordingly, the claimant’s arguments based upon
these rulings and certain cases interpreting those rulings are
inapposite. Therefore, the record is insufficient to establish
that the ALJ erred in according little weight to the testimony
of Zirnsak’s friends and husband.
B. Dr. Newman’s Testimony
Zirnsak also argues that the ALJ erred in according the
opinion of Dr. Newman, the consultative psychologist who
examined Zirnsak in 2010, little weight. (Appellant’s Br. at
46). Under 20 C.F.R. § 404.131, a claimant is required to
prove that she became disabled prior to the expiration of her
insured status. 20 C.F.R. § 404.131 (2014); Matullo v. Bowen,
926 F.2d 240, 244 (3d Cir. 1990). Here, the parties do not
dispute that Zirnsak’s insured status expired on December 31,
2007. To determine whether a claimant became disabled prior
to the expiration of her insured status, the ALJ must consider
all relevant evidence, including medical evidence, in the
record. Adorno, 40 F.3d at 48 (citing Stewart, 714 F.2d at
290). However, the ALJ is free to accept some medical
evidence and reject other evidence, provided that he provides
an explanation for discrediting the rejected evidence. Id.; see
also Stout, 454 F.3d at 1054 (emphasizing that it is the role of
the ALJ, and not the reviewing court, to articulate specific
reasons for rejecting evidence).
13
Here, the ALJ did articulate a specific reason for
giving Dr. Newman’s evaluation little weight—“because it
was completed considerably outside of the relevant period.”
(Tr. at 18). We must therefore evaluate whether substantial
evidence supports that determination. We find that it does. As
stated many times in this opinion, the inquiry in this case is
limited to the narrow question of whether Zirnsak was
disabled within the meaning of Section 423(d)(1)(A) of the
Social Security Act during the period of May 11, 2006
through December 31, 2007. Dr. Newman’s examination was
conducted on April 6, 2010, over two years after the
expiration of Zirnsak’s insured status. (Tr. at 884). At no
point does the report assert that it is a retroactive evaluation
of Zirnsak’s condition. (Id. at 884–87). The report refers to
Zirnsak’s “current complaint[s].” (Id. at 884 (emphasis
added)). It provides a summary of her current daily living
activities. (Id.). It then goes on to provide an assessment of
Zirnsak’s current mental status—as of April 6, 2010. (Id. at
885). In short, the report never explicitly addresses Zirnsak’s
condition during the period from May 11, 2006 through
December 31, 2007. Accordingly, the report has little, if any,
relevance to whether Zirnsak was disabled during that time.
For that reason, the ALJ did not err in giving the report little
weight.
3. The Hypothetical Question Posed to the
Vocational Expert
Zirnsak next argues that the ALJ’s decision is not
supported by substantial evidence because the hypothetical
question posed to the vocational expert (hereinafter “VE”)
was deficient for failure to fully reflect Zirnsak’s limitations.
14
(Appellant’s Br. at 49). Specifically, Zirnsak argues that the
hypothetical should have addressed her short-term memory
impairment and her “task problems” impairment. (Id. at 50).
“Testimony of vocational experts in disability determination
proceedings typically includes, and often centers upon, one or
more hypothetical questions posed by the ALJ to the
vocational expert.” Podedworny v. Harris, 745 F.2d 210, 218
(3d Cir. 1984). Usually, the ALJ will ask whether a
hypothetical claimant with the same physical and mental
impairments as the claimant can perform certain jobs that
exist in the national economy. Id. The hypothetical must
“accurately portray” any impairments of the claimant.
Rutherford, 399 F.3d at 554. This Court has held that to
accurately portray a claimant’s impairments, the ALJ must
include all “credibly established limitations” in the
hypothetical. Id. (citing Plummer v. Apfel, 186 F.3d 422, 431
(3d Cir. 1999)).
Our decision in Rutherford v. Barnhart explains the
framework employed by this Circuit to determine whether a
limitation is credibly established. 399 F.3d 546, 554 (3d Cir.
2005). First, limitations that are supported by medical
evidence and are “otherwise uncontroverted in the record”
must be included in the ALJ’s hypothetical for us to rely on
the VE’s response to that hypothetical. Id. However, where a
limitation is supported by medical evidence, but is opposed
by other evidence in the record, the ALJ has discretion to
choose whether to include that limitation in the hypothetical.
Id. This discretion is not unfettered—the ALJ cannot reject
evidence of a limitation for an unsupported reason. Id.
Finally, the ALJ also has the discretion to include a limitation
that is not supported by any medical evidence if the ALJ finds
the impairment otherwise credible. Id.
15
Zirnsak’s assertions that she suffered from short-term
memory and task problem impairments fall into the second
category of the framework explained in Rutherford: they are
supported by medical evidence, but that evidence is
controverted by other evidence in the record. Rutherford, 399
F.3d at 554. Two medical examinations support Zirnsak’s
contention that she suffered from both impairments during the
relevant period. Doctor Franz’s July 14, 2006 medical
examination of Zirnsak noted a short-term memory problem.
(Tr. at 826–27). His July 20, 2007 medical examination of
Zirnsak similarly noted short-term memory and task
problems. (Id. at 830–31).
However, this medical evidence is disputed by other
evidence in the record. First, Zirnsak’s responses to an
“Activities of Daily Living” questionnaire contradict the
notion that she had short-term memory or task problems. (Tr.
at 167–78). One section of the questionnaire addresses
“problems you [the claimant] might have thinking or
concentrating.” (Id. at 171–73). In that section, Zirnsak noted
that she did not require special help to take care of her
personal needs. (Id. at 171). She also responded that she did
not have any problems going out in public or getting along
with family, friends, or neighbors. (Id. at 172). She further
stated that she was able to “start and complete projects or
activities such as reading a book, putting a puzzle together,
sewing/needlepoint, fixing things around the house, etc.”
(Id.). She also responded that she did not have trouble
understanding instructions and carrying them out. (Id. at 173).
However, Zirnsak’s testimony at the hearing before the ALJ
16
contradicts her own questionnaire responses. 4 Second,
Zirnsak testified during her hearing that she regained her
driver’s license in May of 2007. (Id. at 36).5 She testified that
while she usually drove with her husband, she was only able
to drive herself short distances alone during the relevant
period. (Id. at 37).
This Circuit does “not require an ALJ to submit to the
[VE] every impairment alleged by a claimant.” Rutherford,
399 F.3d at 554. Rather, the ALJ is only required to submit
credibly established limitations. Id. Where, as here, a
limitation is supported by some medical evidence but
controverted by other evidence in the record, it is within the
ALJ’s discretion whether to submit the limitation to the VE.
Id. While the record in this case is not conclusive as to
whether Zirnsak had short-term memory or task problem
limitations, there is substantial evidence to support a finding
that she did not—namely, her lack of demonstrated problems
with activities of daily living and her ability to drive. The
ALJ therefore appropriately exercised his discretion when
determining which limitations to submit to the VE. In making
credibility determinations like this one, this Court will “not
substitute our own judgment for that of the fact finder.” Id. at
552. Accordingly, we find that the hypothetical question
4
When asked at the hearing about her thinking ability
during the relevant period, Zirnsak responded, “I don’t
remember a lot.” (Tr. at 43). She testified that she was unable
to pay attention for a full thirty-minute sitcom episode and
that she struggled with addition and balancing a checkbook.
(Id. at 46–47).
5
Zirnsak temporarily lost her driver’s license after her
seizure.
17
posed to the VE was not deficient for failure to fully reflect
Zirnsak’s limitations.
4. Conflict Between VE Testimony and Dictionary
of Occupational Titles
Zirnsak’s final argument is that the ALJ’s failure to
resolve conflicts between the VE’s testimony and the
Dictionary of Occupational Titles (“DOT”) warrants remand
of her case. (Appellant’s Br. at 51). In step five of the
disability inquiry, the Commissioner bears the burden of
establishing the existence of jobs in the national economy that
an individual with the claimant’s impairments is capable of
performing. 20 C.F.R. § 404.1520(a)(4)(v), § 404.1560
(2014); Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987).
To determine what type of work (if any) a particular claimant
is capable of performing, the Commissioner uses a variety of
sources of information, including the DOT, the SSA’s own
regulatory policies and definitions (found in the Code of
Federal Regulations (“CFR”)), and testimony from VEs.
“The DOT is a vocational dictionary that lists and
defines all jobs available in the national economy and
specifies what qualifications are needed to perform each job.”
McHerrin v. Astrue, No. Civil Action No. 09–2035, 2010 WL
3516433, at *3 (E.D. Pa. Aug. 31, 2010) (citing SSR 00-4p,
2000 WL 1898704 (Dec. 4, 2000)). The qualification
categories listed by the DOT for each job include the job’s
Strength level, General Educational Development (“GED”)
level, and its Specific Vocational Preparation (“SVP”) level.
Appendix C, Dictionary of Occupational Titles, available at
www.occupationalinfo.org/ appendxc_1.html. Strength level
“reflects the estimated overall strength requirement of the
job.” Id. GED measures the “those aspects of education
18
(formal and informal) which are required of the worker for
satisfactory job performance.” Id. GED is broken into three
categories: (1) reasoning development, (2) mathematical
development, and (3) language development. Id. Reasoning
levels in the DOT range from level 1 to level 6. Id. Important
to this case, jobs with a reasoning level of 3 require that an
employee be able to “[a]pply commonsense understanding to
carry out instructions furnished in written, oral, or
diagrammatic form [and d]eal with problems involving
several concrete variables in or from standardized situations.”
Id.
SVP levels, on the other hand, measure the skill level
necessary to perform a particular job. SSR 00-4p, 2000 WL
1898704, at *3 (Dec. 4, 2000). “A skill is knowledge of a
work activity that requires the exercise of significant
judgment that goes beyond the carrying out of simple job
duties.” Id. SVP levels in the DOT range from level 1 to level
9. Id. The DOT skill levels correspond with the second source
of information relied on by the Commissioner: the CFR.
Section 404.1568 of the CFR classifies occupations into three
categories: unskilled, semi-skilled, and skilled. 20 C.F.R.
§ 404.1568(a)–(c) (2014). Unskilled work is defined as “work
which needs little or no judgment to do simple duties that can
be learned on the job in a short period of time.” Id. §
404.1568(a). Unskilled work corresponds to an SVP level of
1–2; semi-skilled work corresponds to an SVP level of 3–4;
and skilled work corresponds to an SVP level of 5–9. SSR
00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000).
The Commissioner can also rely on testimony from a
VE to meet its step-five evidentiary burden. 20 C.F.R. §
404.1566(e). VEs are most commonly used to provide
19
evidence at hearings before ALJs to resolve complex
vocational issues. SSR 00-4p, 2000 WL 1898704, at *3 (Dec.
4, 2000). However, a common issue—and the one argued by
Zirnsak on appeal—arises when a VE’s testimony conflicts
with other sources of information relied on by the
Commissioner, namely the DOT. As a general rule,
occupational evidence provided by a VE should be consistent
with the occupational evidence presented in the DOT. Id. at
*2. To ensure consistency, courts have imposed an obligation
on ALJs to “[i]dentify and obtain a reasonable explanation for
any conflicts between occupational evidence provided by VEs
. . . and information in the [DOT].” Id. at *1; Rutherford, 399
F.3d at 556. Specifically, an ALJ is required to (1) ask, on the
record, whether the VE’s testimony is consistent with the
DOT, (2) “elicit a reasonable explanation” where an
inconsistency does appear, and (3) explain in its decision
“how the conflict was resolved.” Burns v. Barnhart, 312 F.3d
113, 127 (3d Cir. 2002). An ALJ’s failure to comply with
these requirements may warrant remand in a particular case.
Rutherford, 399 F.3d at 557. However, this Circuit has
emphasized that the presence of inconsistencies does not
mandate remand, so long as “substantial evidence exists in
other portions of the record that can form an appropriate basis
to support the result.” Id. (citing Boone v. Barnhart, 353 F.3d
203, 209 (3d Cir. 2004)).
Zirnsak alleges that the VE’s testimony at her hearing
conflicted with the DOT in two ways. The first inconsistency
involves the VE’s testimony that Zirnsak was capable of
working as an order clerk, charge account clerk, or telephone
quotation clerk. Zirnsak argues that the reasoning level
required for these three jobs—all three occupations have a
GED reasoning level of 3—is inconsistent with the ALJ’s
20
finding that Zirnsak is “limited to simple and repetitive tasks
involving routine work processes and settings.” (Appellant’s
Br. at 51–52). The second inconsistency involves the VE’s
testimony that Zirnsak was capable of working as a sedentary
subassembler with a sit/stand option. Zirnsak argues that the
strength requirements for a subassembler conflict with the
ALJ’s finding that Zirnsak should be limited to sedentary
work. (Id. at 54–56). For the following reasons, we find that
neither of these inconsistencies warrants remand.
A. Reasoning Level Conflict
As a threshold matter, we must first note that the ALJ
met his affirmative obligation to inquire about inconsistencies
in this case. At the end of the VE’s testimony, the ALJ
specifically asked: “Is the testimony that you did provide
consistent with the information I’d find in the [DOT] and
other relevant vocational sources?” (Tr. at 59). The VE
responded that her testimony was consistent except for the
fact that the DOT does not address a sit/stand option for
subassembler positions. (Id.). The VE did not note the
inconsistencies in strength or reasoning level now argued by
Zirnsak on appeal. Importantly, neither Zirnsak nor her
attorney “challenged the VE on th[ese] point[s] or otherwise
identified any apparent inconsistency between the VE’s
testimony and the DOT.” Clawson v. Astrue, Civil Action No.
11–294, 2013 WL 154206, at *6 (W.D. Pa. Jan. 15, 2013).
Because the VE did not identify the reasoning level
inconsistency at the hearing, the ALJ did not elicit an
explanation for that inconsistency or explain in its decision
how the conflict was resolved. Burns, 312 F.3d at 127.
Therefore, we must determine whether there is substantial
21
evidence in the record that still supports the ALJ’s
determination. Boone, 353 F.3d at 209. There is a split of
authority as to whether an inherent conflict exists between a
job requiring level 3 reasoning and a finding that a claimant
should be limited to simple, routine tasks and unskilled work.
Several courts have held that a finding limiting a claimant to
simple, repetitive tasks is inconsistent with a job requiring a
reasoning level of 3. E.g., Hackett v. Barnhart, 395 F.3d
1168, 1176 (10th Cir. 2005); McHerrin, 2010 WL 3516433,
at *5. These courts have found that claimants limited to
simple, repetitive tasks are better suited for jobs that require
level 2 reasoning. E.g., Hackett, 395 F.3d at 1176. Further,
they have held that an SVP classification of a job as unskilled
does not neutralize the conflict between a limitation to simple
tasks and a job requiring level 3 reasoning. McHerrin, 2010
WL 2516433, at *6 (citing Lucy v. Chater, 113 F.3d 905, 909
(8th Cir. 1997)).
On the other hand, several courts have found that there
is not a “per se conflict between a reasoning level 3 job and
[a] limitation to simple, routine tasks/unskilled work.” E.g.,
Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009); Renfrow v.
Astrue, 496 F.3d 918, 921 (8th Cir. 2007); Clawson v. Astrue,
Civil Action No. 11–294, 2013 WL 154206, at *6 (W.D. Pa.
Jan. 15, 2013); Simpson v. Astrue, Civil Action No. 10–2874,
2011 WL 1883124, at *7 (E.D. Pa. May 17, 2011). These
courts have focused on whether a failure to inquire about or
reconcile a conflict caused any harm to the claimant when
determining whether remand is necessary. Simpson, 2011 WL
1883124, at *5. These courts have found that any error
stemming from an ALJ’s failure to ask about a conflict was
harmless where the record established that the claimant in
question could perform a level 3 reasoning job, despite a
22
limitation to simple work. Terry, 580 F.3d at 478; Renfrow,
496 F.3d at 921; Simpson, 2011 WL 1883124, at *7. These
courts have identified certain factors that influenced their
reasoning. First, in Terry, the Seventh Circuit noted that the
claimant in that case “[did] not argue that she [could not]
perform these skills, perhaps because the record suggest[ed]
she [could].” Terry, 580 F.3d at 478. Next, it emphasized that
because the claimant did not point out the conflict at trial, she
was required to show that the conflict was “obvious enough
that the ALJ should have picked up on [it] without any
assistance.” Id. (alteration in original) (quoting Overman v.
Astrue, 546 F.3d 456, 463 (7th Cir. 2008)). Finally, these
courts noted that the jobs listed by the VE were only
representative examples—not an exhaustive list—of jobs that
the claimant was capable of performing. Simpson, 2011 WL
1883124, at *8 (citing Rutherford, 399 F.3d at 557).
The review of the aforementioned cases demonstrates
that there is no bright-line rule stating whether there is a per
se conflict between a job that requires level 3 reasoning and a
finding that a claimant should be limited to simple and
routine work. Without controlling precedent on this issue, this
Court finds that the decisions in the Terry and Simpson cases
are most applicable to the facts of Zirnsak’s case. First, as in
Terry and Simpson, Zirnsak does not seriously argue that she
is incapable of performing the jobs—order clerk, charge
account clerk, or telephone quotation clerk—recommended
by the VE.6 The record establishes that Zirnsak could perform
6
Instead, she dedicates only one line of her brief to
this issue, stating that: “The record does not indicate any
explanation as to how a hypothetical claimant limited to only
simple, repetitive, routine work could perform the
23
these jobs. Zirnsak completed tenth grade and testified that
she received her GED or further education. (Tr. at 33).
Zirnsak also had previous experience working as both a clerk
and a bookkeeper. (Id. at 34). Further, the “objective medical
record [was deemed] unsupportive of the claimant’s
allegations of disabling mental impairments.” (Id. at 18). At
numerous evaluations during the relevant period, Zirnsak was
noted to be “oriented,” “calm,” and “psychologically
appropriate.” (Id.). She received only conservative
treatment—primarily medication—during the relevant period.
(Id. at 19). Finally, Zirnsak’s own account of her daily
activities was “relatively full and independent.” (Id.).
Second, as in Terry and Simpson, Zirnsak’s counsel
did not identify any inconsistencies between the VE’s
testimony and the DOT at her hearing. (Tr. at 59). In fact,
Zirnsak’s counsel did not question the VE regarding
inconsistencies at all. (Id.). Finally, as in Simpson, the
occupations listed by the VE were only “a couple examples”
of jobs available to Zirnsak. (Id. at 57); Simpson, 2011 WL
1883124, at *8 (citing Rutherford, 399 F.3d at 557).
Accordingly, the combination of these factors compels our
finding that “any conflict [was] not so obvious that the ALJ
should have pursued the question.” Simpson, 2011 WL
1883124, at *7 (alteration in original) (quoting Terry, 580
F.3d at 476).
occupations of order clerk, charge account clerk, and
telephone quote clerk, as described by the DOT.”
(Appellant’s Br. at 53–54).
24
B. Strength Level Conflict
Zirnsak also argues that the strength requirements for a
subassembler conflict with the ALJ’s finding that Zirnsak
should be limited to sedentary work. The SSA and DOT both
assign “physical exertion requirements” to each job available
in the national economy. See 20 C.F.R. § 404.1567 (2014)
(“To determine the physical exertion requirements of work in
the national economy, we classify jobs as sedentary, light,
medium, heavy, and very heavy. These terms have the same
meaning as they have in the [DOT].”). Sedentary work
requires the lowest level of physical exertion. Id. The ALJ
found that Zirnsak was only capable of performing sedentary
work. (See Tr. at 16 (“After careful consideration of the entire
record, I find that . . . the claimant had the [RFC] to perform
sedentary work . . . except she would have been limited to
sedentary work that did not require the operation of foot
controls or the operation of dangerous machinery.”)). At
Zirnsak’s hearing, the VE testified that Zirnsak could work as
a subassembler. (Id. at 57–58). The VE characterized this job
as “sedentary.” (Id. at 57). However, the DOT has assigned
the job of subassembler a physical exertion level of “light.”
Thus, there is an inconsistency between the VE’s and the
DOT’s characterization of the physical exertion level required
for subassembler positions. This inconsistency was identified
at the hearing. (Id. at 59).
Therefore, our inquiry focuses on whether the ALJ (1)
“elicit[ed] a reasonable explanation” for this inconsistency
and (2) explained in his decision “how the conflict was
resolved.” Burns, 312 F.3d at 127. Here, the VE did provide
an explanation for the inconsistency. She noted that the
subassembler job could be performed with a sit/stand option.
25
(Tr. at 58). However, she noted that the DOT does not discuss
or address this option. (Id. at 59). She explained that she was
aware of subassembler jobs with a sit/stand option from her
“work in the field.” (Id.). The ALJ relied on this explanation
to resolve the conflict. (Id. at 21). However, neither the ALJ
nor the VE explained how a sit/stand option would transform
a subassembler job from a job requiring “light” exertion level
to a “sedentary” job. Thus, we cannot say that the ALJ
elicited a reasonable explanation for this inconsistency or
resolved this conflict. However, the ALJ’s failure to comply
with the requirements of SSR 00-4p in this instance is not
fatal. Substantial evidence supports Zirnsak’s ability to
perform three other jobs widely available in the national
economy: order clerk, food and beverage (35,000 jobs
nationally); charge account clerk (40,000 jobs nationally);
and telephone clerk (80,000 jobs nationally). (Tr. at 57).
Therefore, the erroneous inclusion of the subassembler
position as an example of a job available to Zirnsak did not
cause her any harm. Accordingly, we find that the existence
of these minor conflicts does not warrant remand of the ALJ’s
decision.
III. CONCLUSION
For the foregoing reasons, we will affirm.
26