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Weir v. Colvin

United States District Court, W.D. Wisconsin

August 1, 2016

MARIE WEIR, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Marie 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.


          JAMES D. PETERSON, District Judge.

         Plaintiff 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.

         As 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).

         A. Dr. Kirkhorn's limitations

         When 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.[1] 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.

         The ALJ 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 assistance.

         The 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.

         B. VE testimony

         At the 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.

         An ALJ 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[.]'").

         Here, 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 ...

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