United States District Court, W.D. Wisconsin
Weir, Plaintiff, represented by Dana W. Duncan, Duncan
Disability Law, SC.
Carolyn W. Colvin, Defendant, represented by Commissioner of
Social Security, Office of General Counsel.
Carolyn W. Colvin, Defendant, represented by Richard Davis
Humphrey, U.S. Attorney's Office.
D. PETERSON, District Judge.
Marie Weir seeks judicial review of a final decision of
defendant Carolyn W. Colvin, Acting Commissioner of Social
Security, finding her not disabled within the meaning of the
Social Security Act. The court heard oral argument on July
26, 2016. For reasons explained during oral argument and
summarized here, the court will deny Weir's motion for
summary judgment and affirm the Commissioner's decision.
discussed at oral argument, the ALJ made two errors, but both
were harmless. First, the ALJ did not adequately justify his
decision to reject a limitation that Weir's treating
physician, Steven R. Kirkhorn, MD, thought necessary. Second,
the ALJ did not reconcile a conflict between the vocational
expert's (VE's) testimony and the Dictionary of
Occupational Titles (DOT).
determining Weir's residual functional capacity (RFC),
the ALJ considered opinions from three physicians: Dr.
Kirkhorn (a treating physician), and Dr. Shaw and Dr. Byrd
(non-examining state agency consultants). R.
31. The ALJ afforded all three opinions
great weight. R. 32. The medical evidence in the record
demonstrated that Weir suffers from a disc herniation and an
L5 nerve root compression, impairments severe enough to limit
her to less than a full range of sedentary work with a
sit/stand option. Id. The ALJ explained that Dr.
Kirkhorn's specific postural limitations were redundant
because sedentary work would not require Weir to climb,
squat, crawl, bend, or twist beyond the tolerances that he
had noted. Id. But the ALJ explicitly rejected Dr.
Kirkhorn's opinion that Weir would need to use cane
because Weir's testimony regarding her daily activities
indicated that she does not need a cane. Id.
did not adequately justify his decision to drop Dr.
Kirkhorn's cane limitation. The ALJ rejected the cane
limitation with a quick reference to Weir's ability to
perform minor household chores without her cane. But the ALJ
misunderstood Weir's testimony. Weir testified that she
uses a cane to get around, every day. R. 66-67. She testified
that she does not use a cane in the house because she is able
to support herself by holding onto the walls and furniture.
R. 67. Weir did not testify that she is able to get
around the house and perform household work without any
record does not support the ALJ's decision to drop the
cane limitation. But Weir appears to concede that the error
is harmless. At the ALJ hearing, Weir's counsel posed
several of his own hypotheticals to the VE, one of which
mirrored Dr. Kirkhorn's opinion exactly, including the
cane limitations. R. 86. The VE considered the
limitations-including the cane-and testified that "the
jobs [she] identified in hypothetical one would be
appropriate within these limitations." R. 87.
Accordingly, even if the ALJ had adopted all of Dr.
Kirkhorn's limitations, the result would have been the
same. The court will affirm this aspect of the ALJ's
decision as harmless error.
hearing, the VE testified that a hypothetical individual with
Weir's RFC (and a hypothetical individual with an RFC
that accommodates all of Dr. Kirkhorn's limitations)
would be able to perform work as a telephone solicitor, a
routine office clerk, and a cashier. R. 82, 87. The VE
explicitly acknowledged that the DOT does not classify
"cashier" as sedentary work, but the VE stated that
the position is sedentary in several environments, including
in parking lots, dining rooms, cafeterias, and restaurants.
Although the VE explicitly identified a conflict between the
DOT and her testimony, she did not explain her reasons for
departing; she did not even vaguely reference her own
experience, and the ALJ did not inquire further. The ALJ
adopted the VE's opinions. R. 34.
is entitled to accept a VE's unchallenged conclusions
unless there are apparent conflicts between the VE's
testimony and the DOT. Overman v. Astrue, 546 F.3d
456, 463 (7th Cir. 2008). "Ruling 00-4p does not require
ALJs to wholly disregard a VE's testimony because part of
it disagrees with the DOT, but Ruling 00-4p does require ALJs
to resolve discrepancies between the two before relying on
the conflicting testimony." Weatherbee v.
Astrue, 649 F.3d 565, 569 (7th Cir. 2011); see
also Overman, 546 F.3d at 464 ("An ALJ is
free to accept testimony from a VE that conflicts with the
DOT when, for example, the VE's experience and knowledge
in a given situation exceeds that of the DOT's authors,
or when the VE's contrary testimony is based on
information in other reliable publications[.]'").
the VE explicitly flagged her departure from the DOT. But the
ALJ never asked the VE to explain her reasons for departing
before he adopted her conclusions. "When there is an
apparent conflict, ALJs are required to obtain reasonable
explanations for the conflict." Weatherbee, 649
F.3d at 570. And, to add to the oversight, the ALJ adopted
the VE's testimony as "consistent with the
information contained in the Dictionary of Occupational
Titles." R. 34. Even assuming that this line in the
ALJ's decision is an ...