Zirnsak v. Colvin – 3d Cir. – December
9, 2014
The Third Circuit affirmed the denial
of benefits. The opinion was published
on motion of the defendant.
Lay
testimony properly discounted
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).
The ALJ’s 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.
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)
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.
Hypothetical question to VE not deficient
“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)).
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 posed to the VE was not deficient for
failure to fully reflect Zirnsak’s limitations.
Conflict
between VE testimony and 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)).
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. E.g., Terry
v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009). See, 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) VERSUS 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).
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 - 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 limitation to simple work.
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. Finally, as in Simpson, the occupations
listed by the VE were only “a couple examples” of jobs available to Zirnsak. ....Accordingly,
the combination of these factors compels our finding that “any conflict [was]
not so obvious that the ALJ should have pursued the question.”
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