Lora Liskowitz v. Michael Astrue ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1576
L ORA L ISKOWITZ,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE,
C OMMISSIONER OF S OCIAL S ECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 C 1229—Rudolph T. Randa, Chief Judge.
A RGUED O CTOBER 22, 2008—D ECIDED M ARCH 24, 2009
Before C UDAHY, M ANION, and W ILLIAMS, Circuit Judges.
C UDAHY, Circuit Judge. Lora Liskowitz applied for
disability insurance benefits more than eight years ago.
An administrative law judge initially denied her claim,
was reversed by the district court and subsequently
denied her claim following a second administrative
hearing. The district court affirmed the ALJ’s second
decision. Although this second decision is less clear than
it might have been, the decision was supported by sub-
stantial evidence. We affirm.
2 No. 08-1576
I.
Lora Liskowitz was born with a congenitally deformed
left hip. As a consequence of her hip condition, she under-
went multiple surgical procedures as a child, including a
procedure when she was twelve to equalize the length
of her legs by removing “growth material” from her
right tibia and femur plates. She reports that she has
experienced pain in her knee, hips and back ever since. In
spite of the pain, she was able to work for fifteen years in
her parents’ waterbed factory, splitting her time between
the upholstery shop and the factory office, where she
performed basic clerical tasks. However, she stopped
working in 1998 because, by her own account, her pain
grew progressively worse, and she became incapable
of performing even sedentary clerical tasks.
Liskowitz testified that since she stopped working, she
has been bedridden for all but a few hours each day and
that she can remain seated without discomfort only for
ten minutes at a time. Her assessment of her own con-
dition is at least partly corroborated by her rheumato-
logist, Doctor Joseph Bretza. Liskowitz began seeing
Bretza in 2003, after she initially tested positive for rheu-
matoid arthritis. In 2004, Bretza completed a question-
naire in which he indicated that Liskowitz can remain
seated only for an hour at a time, that she can use her
hands only for twenty percent of an eight-hour work-
day and that she has suffered from these limitations
since 1998.
The record shows, however, that prior to 2003, Liskowitz
was more functionally capable than she now admits. For
No. 08-1576 3
instance, in 2000 her examining physician noted, contrary
to Bretza’s retrospective assessment, that Liskowitz had
no significant upper extremity limitations. Between 2001
and 2003, multiple healthcare providers noted that she
was fully able to perform household and child care
duties, and was not otherwise limited in activities of
daily living. And in 2003, a healthcare provider—appar-
ently a nurse practitioner—noted that Liskowitz had
lost weight since giving birth to her third child, and that
her exercise regime included “some walking.”
Liskowitz’s own statements also belie her claim that
she has been incapable of sedentary activity since 1998. In
2000, she told her doctors at the Milwaukee Medical
Clinic that she does “a lot of squatting, kneeling and lifting
off the floor of her young children,” who were five and
seven months at the time.1 She expanded on this claim
at her initial administrative hearing in 2001, where she
admitted that she alone was responsible for the care of
her children, and testified that she walked or drove her
eldest daughter to school, changed diapers, made
lunch and occasionally dinner, did some vacuuming and
dusting, washed dishes, did laundry and shopped for
groceries. She also testified that she was able to control
her pain by taking Celebrex and Vicodin. (As she stated
at the time, “[t]he Celebrex is awesome.”)
Two state agency physicians concluded that Liskowitz
was capable of standing for two hours and sitting for six
hours in an eight-hour workday. The ALJ concurred,
1
In 2002, Liskowitz gave birth to a third child.
4 No. 08-1576
finding that she was capable of sedentary work and that
her testimony to the contrary was not credible. Liskowitz
appealed the ALJ’s decision, and in 2004 the district
court remanded the case for a new administrative
hearing based on problems with the testimony of an
expert witness. However, the district court affirmed the
ALJ’s findings regarding Liskowitz’s credibility. (Liskowitz
does not challenge, or indeed even mention, this aspect
of the district court’s 2004 decision on appeal.)
Following the remand, Liskowitz appears to have
changed her theory of the case. In the second hearing,
Liskowitz emphasized swelling and pain in her hands,
which she did not even mention in the first hearing, as
evidence of her disability. Based in part on her previous
factual findings, the ALJ refused to fully credit either
Liskowitz’s own testimony or the corroborating testi-
mony of her rheumatologist. Instead, the ALJ found that
Liskowitz remained capable of sedentary work through
December 2002, when her insured status expired. The
ALJ credited the testimony from an expert witness who
identified 4,000 unskilled jobs in the Milwaukee area
that a person with Liskowitz’s background and limita-
tions would have been capable of performing. The
Appeals Council denied review.
II.
The ALJ denied benefits initially in 2001, and again in
2005. Only the 2005 decision is at issue here. Because the
Appeals Council declined to review the ALJ’s second
ruling, this ruling constitutes the Agency’s final decision.
No. 08-1576 5
Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008). We
review this decision directly without giving deference to
the district court’s decision. Elder v. Astrue, 529 F.3d 408,
413 (7th Cir. 2008). We will uphold the ALJ’s decision if
it is supported by “substantial evidence,” see 42 U.S.C.
§ 405(g), which means “such relevant evidence as a rea-
sonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
To qualify for disability benefits, a claimant must be
“disabled,” 42 U.S.C. § 423(a)(1)(E), which the Social
Security Act defines as an “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.” Id. at § 423(d)(1)(A). Further, a claimant
must show that the disability arose while he or she was
insured for benefits. See 42 U.S.C. §§ 423(a)(1)(A), (c)(1);
Sienkiewicz v. Barnhart, 409 F.3d 798, 802 (7th Cir. 2005)
(per curiam).2
Social Security regulations prescribe a five-step test for
determining whether a claimant is disabled within the
meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. Only
the fifth step—which requires the ALJ to determine the
2
A claimant who cannot establish that she was disabled
while she was insured may still receive Supplemental Security
Income benefits if she can established that she is disabled
and has limited means. 42 U.S.C. §§ 1381a, 1382; Sienkiewicz,
409 F.3d at 802.
6 No. 08-1576
claimant’s residual functional capacity and to ascertain
whether there are a significant number of jobs that the
claimant could perform—is at issue here.
A.
In considering whether a claimant is capable of work,
an ALJ must determine the claimant’s “residual func-
tional capacity,” which is the work he or she can still do
despite her physical and mental limitations. 20 C.F.R.
§ 404.1545(a); Hickman v. Apfel, 187 F.3d 683, 688-89 (7th
Cir. 1999). In the present case, because the ALJ found
that Liskowitz was capable of sedentary work in
April 2001 and Liskowitz has not challenged this finding
on this appeal, our review is limited. The only question
that remains is whether there was substantial evidence
for the ALJ’s determination that Liskowitz’s condition
did not become dramatically worse in the roughly one
and one-half years between the ALJ’s first decision and
expiration of Liskowitz’s insured status.
Liskowitz argues that it was error for the ALJ to refuse
to credit her own testimony regarding her functional
limitations. We are not persuaded. First, and most obvi-
ously, the ALJ had found Liskowitz to be a non-credible
witness in the first hearing, and was entitled to rely on
this finding in the second hearing. See Berger v. Astrue,
516 F.3d 539, 546 (7th Cir. 2008) (an ALJ is entitled to
view the testimony of an applicant who has been decep-
tive with skepticism). This is not to say that having
found Liskowitz to have exaggerated her symptoms
once, the ALJ could automatically disregard her testi-
No. 08-1576 7
mony in the second hearing. But this is not what happened
here. Instead, the ALJ found that Liskowitz’s testimony
at the second hearing was inconsistent both with the
ALJ’s prior findings and with Liskowitz’s own testi-
mony during the first hearing. Having already found the
witness to have exaggerated her symptoms, and having
reasonably observed that the witness’s account of those
symptoms materially changed from the first hearing to
the second, there was nothing improper about the
ALJ’s adherence to her previous credibility determination.
But even if it were somehow improper for the ALJ to
adhere to her previous credibility assessment, this would
still not justify a second remand. A second problem with
Liskowitz’s argument is that her testimony at the second
hearing did not speak to the one narrow point regarding
her functional limitations that was still at issue in the
second hearing. Again, the ALJ had previously found that
Liskowitz was capable of sedentary work prior to 2001.
Liskowitz appealed this finding to the district court and
lost. She has not pursued her challenge to the ALJ’s 2001
findings in this appeal. Thus, to be entitled to disability
benefits, Liskowitz would have had to show that her
condition became dramatically worse between 2001, when
the ALJ rendered her initial decision, and 2002, when
Liskowitz’s insured status expired. However, Liskowitz
had practically nothing to say during the second hearing
about how her condition had changed. On the contrary,
although she stated that she has “gradually declined” over
the years, she also testified that her functional limitations
have remained the same since she initially applied for
8 No. 08-1576
benefits.3 Thus, even if the ALJ were somehow required
to credit Liskowitz’s testimony, this testimony did not
speak to a rapid deterioration in her condition between
2001 and 2002.
Liskowitz’s treatment records, including her
rheumatologist Dr. Bretza’s opinion, also evidence no
dramatic deterioration of her condition. Even without
more, this undermines Liskowitz’s somewhat more
plausible argument that the ALJ impermissibly “played
doctor” by refusing to credit the opinion of her treating
physician. “[A]n ALJ cannot play the role of doctor and
interpret medical evidence.” Murphy v. Astrue, 496 F.3d
630, 634 (7th Cir. 2007). Along the same lines, “an ALJ
cannot disregard medical evidence simply because it is
at odds with the ALJ’s own unqualified opinion.” Id.Here, there is at least a strong argument to be made
that the ALJ improperly substituted her own, non-profes-
sional opinion for that of Liskowitz’s treating physician.
What the ALJ said was:
There is no basis for relating back [Dr. Bretza’s] find-
ings from 2003 to the period from the alleged onset
date in 1998 to December 2002, the date last insured.
Dr. Bretz’s [sic.] assessment conflicts with the claim-
ant’s lack of treatment for a condition which could
3
Her testimony was as follows: “Question: Now, I had asked
you a mess of questions about limitations and your condi-
tion. And I just wanted to see if I’m clear about this. Is this
basically essentially the way your condition has been since
June 1 of 1998? Answer: Yes.”
No. 08-1576 9
be rheumatoid arthritis in the year 2002. It also con-
flicts with claimant’s infrequent treatment for hip
dysplasia during the period from 1998 to 2002. It is
noted that Dr. Bretz [sic] found in March 2003 that
the claimant had a full range of motion in all joints
with no synovitis.
We are troubled by this aspect of the ALJ’s decision. It is
quintessentially a matter for medical judgment whether
disabling rheumatoid arthritis is consistent with “a full
range of motion” or “joint synovitis.” Perhaps the ALJ
is right that disabling rheumatoid arthritis would result
in significant joint swelling. See Stedman’s Medical Dic-
tionary 1773 (27th ed. 2000) (defining “synovitis” as
inflamation, especially that of a joint). But we do not know
this; and the ALJ does not know either.
Standing alone, the ALJ’s remarks give us pause. Were
this the ALJ’s first decision on the matter, there would
be a strong case for reversal. However, when we con-
sider the above-quoted remarks together with the ALJ’s
findings following the first administrative hearing, we
conclude that there was substantial evidence for the
ALJ’s decision. Again, the ALJ made these remarks only
after she had already found that Liskowitz was capable
of certain forms of sedentary work. Liskowitz appealed
this aspect of the ALJ’s first decision, and lost.4 Because
the factual findings that furnished the basis for the ALJ’s
first decision to deny benefits were affirmed on appeal, the
4
Liskowitz has not pursued any further challenge to the
ALJ’s first set of factual findings on this appeal.
10 No. 08-1576
ALJ was entitled to rely on these findings in the second
hearing.
Indeed, even if the ALJ had elected to reconsider the
issue of Liskowitz’s functional limitations prior to 2001,
Bretza’s retrospective functional assessment does not
strike us as particularly strong evidence, especially in
the light of the contrary assessments of Liskowitz’s con-
temporaneous examining physicians. “A retrospective
diagnosis may be considered only if it is corroborated
by evidence contemporaneous with the eligible period.”
Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998); see also
Evangelista v. Sec. of Health & Human Servs., 826 F.2d 136,
140 (1st Cir. 1987); Adams v. Chater, 93 F.3d 712, 714 (10th
Cir. 1996); Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996);
Jones v. Chater, 65 F.3d 102, 103-04 (8th Cir. 1995). In the
present case, Bretza’s retrospective opinion was that
since 1998, Liskowitz has been able to use her hands for
one-fifth of an eight-hour workday. This opinion was
inconsistent, not only with the opinions of the two state
agency doctors, but also with the opinion of Liskowitz’s
examining physician, who noted in 2000 that Liskowitz
suffered from no significant upper extremity limitations.
Faced with competing opinions, the ALJ had to decide
which opinion to credit. We cannot say, as a matter of
law, that the ALJ made the wrong choice here. See Dona-
hue v. Barnhart, 279 F.3d 441, 444 (7th Cir. 2002) (“[T]he
resolution of competing arguments based on the record
is for the ALJ, not the court.”). There may be situations
where it would be appropriate for an ALJ to repudiate
previous factual findings in the light of new medical
No. 08-1576 11
evidence. However, it was not error for the ALJ to refuse
to credit a treating physician’s opinion four years after
the fact where this opinion was inconsistent with con-
temporaneous medical evidence that the ALJ had previ-
ously and properly credited.
This leaves Dr. Bretza’s retrospective opinion on rather
shaky footing. Like Liskowitz herself, Bretza did not say
that Liskowitz’s functional limitations became more
pronounced between 2001 and 2002. (Indeed, even this
claim would not have been supported by the record.
During this period, Liskowitz reported to her doctors
that she was experiencing decreased pain through her
knee and hips, and that she was capable of performing
all household and child care duties.) Because Bretza had
nothing to say on the one novel question concerning
Liskowitz’s functional limitations that was properly
before the ALJ, the ALJ’s findings concerning Liskowitz’s
residual functional capacity were supported by sub-
stantial evidence.
B.
We are also unpersuaded by Liskowitz’s claim that the
Commissioner did not properly show that there were a
significant number of jobs that she was capable of per-
forming. An individual is disabled only if he or she
“cannot, considering his age, education, and work experi-
ence, engage in any other kind of substantial gainful work
which exists in the national economy . . . in significant
numbers either in the region where such individual
lives or in several regions of the country.” 42 U.S.C.
12 No. 08-1576
§ 423(d)(2)(A).5 The Commissioner bears the burden of
showing that there are a significant number of jobs that
the claimant is capable of performing. See 20 C.F.R.
§ 404.1560(c)(2); Britton v. Astrue, 521 F.3d 799, 803 (7th
Cir. 2008) (per curiam). The Commissioner typically uses
a vocational expert (“VE”) to assess whether there are a
significant number of jobs in the national economy that
the claimant can do. Lee v. Sullivan, 988 F.2d 789, 793 (7th
Cir. 1993).6
5
Section 423(d)(2)(A) overturned the Kerner doctrine. See
Kerner v. Flemming, 283 F.2d 916 (2d Cir. 1960) (Friendly, J.). See
Lance Liebman, The Definition of Disability in Social Security
and Supplemental Security Income: Drawing the Bounds of Social
Welfare Estates, 89 Harv. L. Rev. 833, 853 (1976). Under Kerner,
once a claimant showed that she was unfit for her former work,
the burden shifted to the Secretary to prove that the claimant
had a realistic possibility of obtaining work that was near
her home. 283 F.2d at 921. In response to the Federal courts’
widespread adoption of the Kerner doctrine, Congress
amended the Social Security Act in 1967 to provide that an
impairment could not be considered a total disability unless
it rendered the claimant unable to perform any kind of sub-
stantial gainful work, “regardless of whether such work exists
in the immediate area in which he lives, or whether a specific
job vacancy exists for him, or whether he would be hired if
he applied for work.” Social Security Amendments of 1967,
Pub. L. No. 90-248, § 158(d)(2)(A).
6
In the past, we have expressed confusion over how a person
becomes a “vocational expert.” See Donahue, 279 F.3d at 446. We
note, therefore, that Liskowitz’s counsel stated in oral argu-
(continued...)
No. 08-1576 13
In the present case, the VE testified that there were
approximately 4,000 jobs in the Milwaukee area that a
person with Liskowitz’s functional limitations would be
capable of performing. Liskowitz does not argue that
4,000 jobs is insignificant; nor would such an argument
be plausible. As few as 174 jobs has been held to be sig-
nificant, see Allen v. Bowen, 816 F.2d 600, 602 (11th Cir.
1987), and it appears to be well-established that 1,000
jobs is a significant number. See Lee, 988 F.2d at 794; see
also Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988) (1,350
jobs); Barker v. Sec. of Health & Human Servs., 882 F.2d 1474,
1479 (9th Cir. 1989) (1,266 jobs); Trimiar v. Sullivan, 966
F.2d 1326, 1330-32 (10th Cir. 1992) (850-1,000 jobs); Jenkins
v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (500 jobs).
Although the VE indisputably identified a significant
number of jobs, Liskowitz argues that it was error for the
ALJ to credit the VE’s testimony for two reasons: first, the
VE was not able to testify as to the reliability of the
data she used to reach her conclusions; second, the VE
was unable to identify the number of part-time jobs that
were included in her data set.
As to this first argument, it is not entirely true that the
VE failed to vindicate the reliability of the data on
6
(...continued)
ment that vocational experts are typically job placement
specialists. In the present case, the VE for the first hearing had
worked as a consultant who recruited and evaluated job
applicants for corporate clients. There is no record of the
professional background of the VE for the second hearing.
14 No. 08-1576
which she relied. The VE initially admitted that she
could not assess the degree of accuracy of the data sources
on which she was relying. However, on follow-up ques-
tioning, she added that these sources were “widely recog-
nized as acceptable sources in the vocational rehabilita-
tion area.” Perhaps ideally the VE would have been able
to say a bit more, but this does not go without saying.
The witness was testifying as a vocational expert, not as
a census taker or statistician. Indeed, even if the VE had
happened to know something about the statistical basis
for her testimony, she arguably still would not be in a
position to fully vindicate her conclusions. After all,
statisticians use arithmetic operations, but few probably
have studied the foundations of arithmetic in set theory.
Is the statistician’s use of arithmetic therefore unjustified?
Clearly not. In administrative proceedings, no less than
in ordinary life, “explanations come to an end some-
where.” LUDWIG WITTGENSTEIN, § 1 PHILOSOPHICAL
INVESTIGATIONS (G.E.M. Anscombe trans., 1968).
In addition to testifying that her sources were widely
recognized as acceptable, the VE actually identified her
sources. Two of these sources were published by the
United States Department of Labor and the Wisconsin
Department of Workforce Development. These are gov-
ernment sources of which the ALJ was required to take
administrative notice. See 20 C.F.R. § 404.1566(d). Although
the record does not include information concerning the
nature of the VE’s third source, the Occupational Em-
ployment Quarterly (OEQ), we note that this does indeed
seem to be a source on which VEs customarily rely. See,
e.g., Britton, 521 F.3d at 802. Liskowitz argues for the first
No. 08-1576 15
time in her reply brief that the VE should not have relied
on the OEQ because it was published by a private com-
pany.7 But she forfeited this argument by failing to object
to the VE’s testimony during the hearing. See Barrett v.
Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004); Donahue,
279 F.3d at 447 (“Raising a discrepancy only after the
hearing . . . is too late.”). The VE had the OEQ with her
while she testified. Had Liskowitz actually objected to the
VE’s testimony, the VE could have said more about the
kind of information the OEQ contains. At the very least,
the VE could have identified which of her conclusions
were based on the OEQ. As it stands, however, the VE’s
testimony was both unobjected to and uncontradicted.
Thus, the ALJ was entitled to credit this testimony.
Finally, we are not persuaded by Liskowitz’s argument
that the VE was required to identify the number of part-
time jobs included in the approximately 4,000 jobs she
claimed Liskowitz was capable of performing. Liskowitz’s
argument is based on Social Security Ruling 96-8p,
which provides that
[o]rdinarily, RFC [residual functional capacity] is an
assessment of an individual’s ability to do sustained
7
She cites to the publisher’s website as authority for the
proposition that the OEQ is not a government source. Informa-
tion gleaned from a company website, of course, is not part of
the record on appeal. Further, it is not clear that the website
helps Liskowitz’s cause, as it states that “[a]ll data provided
by [the Publisher] is derived from government sources.” See
http://www.uspublishing.net/references.html (visited 2/6/09).
16 No. 08-1576
work-related physical and mental activities in a
work setting on a regular and continuing basis. A
“regular and continuing basis” means 8 hours a day,
for 5 days a week, or an equivalent work schedule.
In the present case, the VE testified that she had “no way
of knowing” if the jobs she had identified were full-time
or part-time. According to Liskowitz, this admission
renders the VE’s testimony unreliable.
As a threshold matter, it is far from clear, and
neither party addresses, the level of deference to which
Ruling 96-8p is entitled. Social Security Rulings “represent
precedent [sic] final . . . interpretations that we have
adopted.” 20 C.F.R. § 402.35(b)(1). We generally defer to
an agency’s interpretations of the legal regime it is
charged with administering. See Lauer v. Bowen, 818 F.2d
636, 639 (7th Cir. 1987) (per curiam); United Fire Ins. Co. v.
Commissioner of Internal Revenue, 768 F.2d 164, 169 (7th
Cir. 1985). However, we are not invariably bound by an
agency’s policy statements.8 Since neither party has
8
In Prince v. Sullivan, 933 F.2d 598 (7th Cir. 1991), we suggested
that Social Security Rulings are entitled to Skidmore deference. Id.
602 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
This is partially true, but incomplete. Where a policy statement
or ruling interprets an Agency’s authorizing statute, this will
typically be entitled to Skidmore deference. See Christensen v.
Harris County, 529 U.S. 576, 587 (2000). On the other hand,
where, as here, the Agency’s policy statement interprets an
Agency’s own regulations, the appropriate deference regime
is established by Seminole Rock. See Auer v. Robbins, 519 U.S.
(continued...)
No. 08-1576 17
briefed the issue of the appropriate level of deference to
apply to Social Security Rulings, we assume without
deciding that violations of Ruling 96-8p constitute
reversable error. What follows?
On its face, Ruling 96-8p applies to the ALJ’s functional
capacity determination, not to the VE’s testimony. Again,
having determined that a claimant has a severe impair-
ment, the ALJ must, inter alia, assess her residual func-
tional capacity and then determine whether there are a
significant number of jobs in the national economy that
she can perform. 20 C.F.R. § 404.1520. Ruling 96-8p pro-
vides that “capacity” means sustainable capacity. To take
an example: the fact that a person can run down the
block does not mean that she has the functional capacity
to be a professional runner.
Ruling 96-8p does not say, nor do we interpret it to
imply, that a VE may permissibly testify only as to the
availability of full-time jobs. On the contrary, to say that
the ALJ may deny benefits only if she finds the claimant
capable of some form of full-time work is quite different
from saying that only full-time jobs can constitute sig-
nificant work in the national economy. To return to our
previous example, a person who is functionally capable
of running professionally should not be deemed disabled
simply because some of the jobs that are available
for professional runners are part-time jobs.
8
(...continued)
452, 461 (1997) (reaffirming Bowles v. Seminole Rock & Sand Co.,
325 U.S. 410 (1945)).
18 No. 08-1576
Our conclusion is not at odds with the Eleventh Circuit’s
decision in Kelley v. Apfel, 185 F.3d 1211 (11th Cir. 1999)
(per curiam). In Kelley, on the Commissioner’s motion,
the Eleventh Circuit clarified its basis for affirming the
Commissioner’s denial of disability benefits, stating in
dicta that “if the government is correct in its interpreta-
tion [expressed in Ruling 96-8p], a claimant could pass
Step Five and be entitled to benefits even though capable
of working on a part-time basis.” Id. at 1214-15. However,
the Eleventh Circuit did not say that a VE may testify
only as to the existence of full-time jobs. Indeed, the
court explicitly observed that at step one of the Com-
missioner’s sequential analysis, “there is no per se rule
that part-time work cannot constitute substantial gainful
activity.” Id. at 1214 (citing 20 C.F.R. § 404.1572(a)).
Liskowitz’s interpretation of Ruling 96-8p also has
significant practical problems. Once again, the VE testi-
fied that she had “no way of knowing” how many of the
jobs that she had identified were part-time jobs. In the
colloquy that immediately preceded this remark, the VE
made it clear that the reason she had no way of knowing
was that this information was not contained in the data
sources on which she based her testimony. Indeed,
Liskowitz’s counsel conceded at oral argument that no
government data source contains this information.
Surely, this is a sign that Liskowitz expects too much.
We decline Liskowitz’s invitation to impose impossible
burdens on the VE. We hold instead that a VE may,
consistent with Ruling 96-8p, testify as to the numbers
of jobs that a claimant can perform without specifically
No. 08-1576 19
identifying the percentage of those jobs that are part-
time. The claimant, of course, may respond to the VE’s
testimony by offering evidence of her own that the jobs
the VE identified do not constitute “substantial gainful
work” within the meaning of Section 423(d)(2)(A). There
may even be circumstances in which a claimant can
accomplish this by showing that a substantial percentage
of the jobs that the VE has identified are part-time jobs.
However, Liskowitz made no effort to rebut the VE’s
testimony in this case. Where, as here, the VE identifies
a significant number of jobs the claimant is capable of
performing and this testimony is uncontradicted (and
is otherwise proper), it is not error for the ALJ to rely on
the VE’s testimony.
III.
It would have been better if the ALJ gave a better-
reasoned basis for rejecting Liskowitz’s treating
physician’s opinion. Be that as it may, the ALJ’s decision
was supported by substantial evidence.
A FFIRMED.
3-24-09