Lora Liskowitz v. Michael Astrue

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