                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2004

Brobst v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3368




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                                                  NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     No. 03-3368
                    ____________

               RICHARD C. BROBST,

                            Appellant

                             v.

          *JOANNE B. BARNHART,
     COMM ISSIONER OF SOCIAL SECURITY

            *(Pursuant to Rule 43(c), F.R.A.P.)
                   ____________

    On Appeal from the United States District Court
       for the Western District of Pennsylvania
                (D.C. No. 01-cv-02464)
    District Judge: Honorable William L. Standish
                    ____________

      Submitted Under Third Circuit LAR 34.1(a)
                   April 1, 2004

Before: ALITO, FISHER and ALDISERT, Circuit Judges.

                (Filed: April 27, 2004)
                     ____________

             OPINION OF THE COURT
                  ____________
FISHER, Circuit Judge.

       Richard Brobst appeals from the district court’s judgment affirming the

Commissioner of Social Security’s denial of his application for disability insurance

benefits for a closed period from October 1, 1998, through June 4, 2001. Brobst

challenges the Administrative Law Judge’s determinations that he had engaged in

substantial gainful activity (SGA) for the initial portion of the claimed benefits period,

that he retained a residual functional capacity (RFC) to perform sedentary work in a low-

stress environment, and that he was capable of performing jobs existing in significant

numbers in the national economy. We affirm the district court’s judgment as it was based

on substantial evidence.

       From 1969 through 1998, Brobst was continuously employed in various capacities.

On August 14, 1997, and without warning, Brobst became disoriented while driving to

work. He forgot where he was going and eventually had to call his wife to help him get

home. Following this incident, Brobst began treatment with a psychiatrist, Dr. Robert

Lanz. Dr. Lanz treated Brobst throughout the closed period, diagnosed him with clinical

depression, and deemed him unable to sustain employment. Brobst’s application for

disability benefits was denied initially and on reconsideration. The ALJ subsequently

found that Brobst was not disabled, a decision affirmed by the district court.

       We have jurisdiction under 28 U.S.C. § 1291. Our review “is identical to that of

the District Court, namely to determine whether there is substantial evidence to support



                                              2
the Commissioner’s decision.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). The

Commissioner applies the five-step analysis set forth in the regulations promulgated by

the Social Security Administration in assessing whether a claimant is disabled. See 20

C.F.R. § 404.1520.

       Brobst challenges the ALJ’s step one, four and five conclusions – that Brobst

engaged in SGA for part of the closed period (step one), retained a RFC to perform light

work (step four), and was capable of performing other jobs existing in significant

numbers in the national economy (step five). SGA is “work activity that involves doing

significant physical or mental activities” for pay or profit. 20 C.F.R. § 404.1572(a), (b).

Work performed will not demonstrate an ability to perform SGA “if, after working for a

period of 6 months or less, your impairment forced you to stop working or to reduce the

amount of work you do so that your earnings from such work fall below the [SGA]

earnings level in paragraph (b)(2) of this section.” Id. at § 404.1574(c). Earnings may

show that one has performed SGA; in Brobst’s case, had his average monthly earnings

through June 1999, and between July 1999 and September 1999, equaled or exceeded

$500 and $700, respectively, this would be strong evidence that he engaged in SGA.

       Substantial evidence supported the ALJ’s findings that Brobst had worked more

than six months prior to his impairment forcing him to stop or reduce working.

Moreover, even if we agree with Brobst that nearly $20,000 of the earnings reflected on




                                              3
his tax records should not be considered in computing his average monthly earnings, the

remaining amount of earnings comfortably exceeds the regulatory earnings thresholds.

       Brobst’s challenge to the ALJ’s step-four analysis – its decision that Brobst had

the RFC to perform light work – rests primarily on his contention that the ALJ erred in

refusing to give controlling weight to the opinion of his treating physician, Dr. Lanz, that

Brobst had been unable to hold sustained employment since 1997. There is no question

that an ALJ must give controlling weight to the medical opinion of a treating physician

where the opinion is “well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in [the]

case record.” 20 C.F.R. § 416.927(d)(2).

       The ALJ’s refusal to give controlling weight to Dr. Lanz’s opinion is not

reversible error. The ALJ noted that while Dr. Lanz reported on October 11, 2000, that

Brobst was unable to work and had not been able to hold sustained employment since

1997, Brobst had, in fact, returned to work at the time of the ALJ hearing. Still further,

several state agency medical experts had opined that Brobst was capable of performing

certain tasks in certain employment settings.

       Additionally, the ALJ found that Dr. Lanz’s opinion was inconsistent with his own

clinical findings. Although Dr. Lanz’s findings supported his view that Brobst was not

able to work in high-stress environments, a view accepted by the ALJ in its conclusion

that Brobst had a RFC to do low-stress, light work, the findings did not support Dr.



                                                4
Lanz’s conclusory determination that Brobst could not perform any sustained

employment. Dr. Lanz found among other things that Brobst’s behavior and psychomotor

activity were socially appropriate, that Brobst was well-spoken when not severely

stressed, and that Brobst had adequate intelligence, was fully oriented, had an adequate

memory, and had no language or communication deficits.

       Brobst further contends that the ALJ’s step-four analysis was flawed because he

failed to credit Brobst’s subjective complaints of pain and symptoms. Substantial

evidence in the form of Dr. Lanz’s findings that Brobst could engaged in SGA in a low-

stress environment and reports of Brobst’s relatively extensive daily activities (including

cooking, driving, shopping, vacuuming, walking, mowing the lawn and taking out the

trash) supported the ALJ’s refusal to credit Brobst’s subjective complaints. See 20 C.F.R.

§ 404.1529(a) (a claimant’s complaints must be supported by objective medical evidence

which could reasonably be expected to produce the alleged symptoms in order to support

the existence of a disability).

       Finally, Brobst challenges the ALJ’s step-five conclusion that Brobst could

perform other jobs existing in significant number in the national economy on grounds that

the ALJ improperly relied on the testimony of a vocational expert (VE) that Brobst had

the ability to perform low-stress, sedentary employment. The VE responded affirmatively

when asked by the ALJ whether a person of Brobst’s age, education, vocational profile,

and RFC could perform the jobs of a data processing clerk, audit clerk, and administrative



                                             5
detail clerk. Brobst argues that the ALJ’s crediting of the VE’s testimony was erroneous

because, when cross-examined by Brobst’s counsel, the VE testified that a person of

Brobst’s characteristics who was so affected by impairments that he could not stay on task

and complete assignments could not perform jobs in the national economy. We agree

with the district court that the ALJ’s decision not to credit the VE’s testimony on cross-

examination was not error because such testimony was elicited by a question depicting a

hypothetical person of lesser abilities and stamina than Brobst himself. See Roberts v.

Shalala, 66 F.3d 179, 184 (9 th Cir. 1995) (ALJ is free to accept or reject restrictions

presented in a hypothetical question propounded by a claimant’s counsel as long as

substantial evidence supports the decision) (citations omitted).

       Accordingly, we affirm the district court’s judgment.




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