2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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w . v i l l a no va . e du/thir dc ir c uit_2004/768NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

____________ No. 03-3368

____________ RICHARD C. BROBST, Appellant
v. *JOANNE B. BARNHART, COMM ISSI ONER OF SOCIAL SECURITY *(P ursu ant to Ru le 43 (c), F .R.A .P.)

____________ On A ppeal from the Un ited States District Co urt for the We stern D istrict of P enns ylvania (D.C. No. 01-cv- 02464) District J udge: Honorable W illi am L. Standish

____________ Submitte d Under Third Circ uit LAR 34.1(a)

April 1, 2004 Be for e: A LIT O, F ISH ER and AL DI SE RT , Circu it Judges
.

(Fil ed: April27, 2004)

____________ OPINI ON OF THE COURT

____________2

FIS HE R, Circu it Judge
. Richard Brobst

appeals f

rom the dis tri ct court ’s judgment affirmi ng the Commissioner of Soci al Security ’s deni al of hi s appli cati on for dis ability insurance benefits for a closed period from October 1, 1998, through June 4, 2001. Brobst challe nges the A dm inistrative Law Judg e’s de termin ations th at he h ad en gage d in substantial ga inful a ctivity (SGA) for the i niti al portion of the clai med benefits period, th at he re ta in eda r es idua l f unc ti ona l c ap ac it

y(RF C) to pe rf

orm se de nt arywork i n a lo wstre ss environment, and t hat he was capabl e of performi ng jobs exi sti ng in si gnific ant numbers in t

he nati onal economy . We affirm t he dist rict court’ s judgment as it was bas ed on substantial e vidence. Fro m 1 969 thro ugh 199 8, B rob st w as c ont inu ous ly emp loyed in v ario us c apa cities
. On Au gust 1 4, 199 7, and with out w arning , Brob st beca me d isorien ted w hile driv ing to work. He forgot where he was going and event ually had to cal l his wife to help him get hom e. Follow ing this incident, Bro bst began treatment w ith a psychiatrist, Dr. Robert Lanz. Dr. Lanz t

reate d Brobst throughout t he closed pe riod, diagnosed hi m with cli nical depressi on, and deemed hi m unable to sus tain e mployment . Brobst ’s appl icat ion for disab ility benefits w as de nied in itially and on recon sidera tion. T he A LJ su bseq uently fou nd th at Bro bst w as no t disable d, a de cision a ffirm ed by the district co urt. We have juris dicti on under 28 U.S.C. § 1291. Our revi ew “is identicalto that of the District Cou rt, namely to determine w hether there is sub stantial evidence to su pport3

the Commissione r’s dec isi on.” Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999). The Commissioner appl ies t he five- step analysi s set f orth i n the regul ations promulgate d by the S ocia l Se cur ity Ad min istrati on i n as sess ing wh ethe r a cla ima nt is d isab led. 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 cl osed peri od (ste p one), r etai ned a RFC to perform li ght work (step f

our), and was capable of per forming othe r jobs e xist ing in s ignifi cant numbers in t

he nati onal economy

(ste p five). SGA is “work activi ty that involves doi ng sign ifica nt p hysica l or m enta l activ ities” for pay o r pro fit. 20 C.F .R. § 404 .157 2(a ), (b). Wo rk perform ed w ill not demon strate an ability to perform SG A “if, after w orking fo r a period of 6 months or le ss, your impair ment forced you to st op working or t o reduce the
amo unt of work y ou d o s o tha t your ea rn in gs fr om s uc h wo rkfa llbe lo w th e [ SGA] earnings levelin paragr aph (b)( 2) of thi s sect ion.” Id. at § 404. 1574(c). Earnings may show that one has performed SGA; in Brobst ’s case , had hi s average monthly earnings through June 1999, and bet ween July

1999 and September 1999, equaled or exceeded $50 0 a nd $ 700 , r es pe ct iv el y , t hi s wo ul d be st

ro ng e vi de nc e tha t h e e nga ge d i n SGA. Substan tial evidence sup ported the A LJ’s finding s that Brobs t had w orked m ore than six m ont hs p rior to his im pair me nt fo rcin g hi m to stop or re duc e w ork ing
. Moreover, even i f we agree with Brobst that ne arly

$20,000 of the earnings refle cted on4

his t ax records should not be consider ed in computi ng his aver age monthly earnings , the remaining amount of earnings com fortably exceeds the regulatory

earnings thresholds. Brobst’s chall enge to the ALJ’s step- four anal ysi s – it s decis ion that Brobst had the R FC to perform light w ork – rests prim arily on his c onten tion tha t the A LJ er red in refusi ng to give c ontrol ling weight to the opinion of his treating phy sici an, Dr. Lanz, that Brobst had been una

ble to hol d sustained employment since 1997. There i s no questi on that an ALJ must give controlling weight to t he medical opinion of a treating physi cian whe re the opinion is “well-supp orted by med ically acceptable clinical and labo ratory diagnost ic te chniques and i s not i nconsist ent with t he other s ubstant ial e vidence i n [the] case record .” 20 C.F .R. § 416 .927(d)(2). The ALJ’s refusalto give c ontrol ling weight to Dr. Lanz’ s opini on is not
revers ible e rror. The ALJ noted that whil e Dr. Lanz repor ted on October

11, 2000, t

hat Brobst was unabl e to work and had not been able t o hold sust ained employ ment since 1997, B robst had, in fac t, returned to wo rk at the time of the AL J hearing. Still further, severalstat e agencymedical expe rts ha d opined that Brobst was capable of per forming certain tas ks in certain employment settings. Add itio na lly , t

he ALJ fo und

th at Dr. Lan z’ s o pi ni on w as in co ns is te ntwit h hi s o wn clini cal fi ndings. Although Dr. Lanz’ s findi ngs support ed his vi ew that Brobst was not able t o work in high- stre ss environments, a view accepte d by t

he ALJ in its conclusi on that Brobst h ad a R FC to d o low-stress, light w ork, the finding s did not sup port Dr.5

Lanz ’s con cl uso ry

det ermin at io n that

Bro bst cou ld not per for m any sustained employment . Dr. Lanz found among ot her things that

Brobst’s behavior and psyc homotor activity w ere so cially appro priate, tha t Bro bst w as w ell-spo ken w hen n ot sev erely stressed , and th at Bro bst ha d ade quate intelligen ce, w as fu lly oriented , had a n ade quate memory, and had no language or com munication deficits. Brobst further cont ends that the ALJ’s st ep-four analysi s was flawed because he fail ed to cre dit Brobs t’s s ubject ive complaints of pai n and symptoms. Subst antia l
ev id en ce inth e f

orm of Dr. Lan z’ s f

in di ngs th at

Bro bs t c oul d e nga ge d i n SGA in a lo wstre ss environment and repor ts of Brobst ’s rel ative ly extensi ve dail y activities ( including cooking, drivi ng, shoppi ng, vacuuming, walking, mowing the lawn and taking out the trash ) sup por ted th e A LJ’ s ref usa l to cr edit B rob st’s s ubj ectiv e co mp laint s. See 20 C. F. R. § 404.1529(a) (a cla imant’s complaint s must be suppor ted by object ive medicalevidence which could reaso nably be expe cted to prod uce the allege d symptom s in order to sup port the existence o f a disability). Fina lly, Brobst c hallen ges th e A LJ’s s tep-fiv e con clusion that B robst c ould perform othe r jobs e xist ing in s ignifi cant number i n the nat ional e conomy on grounds that the ALJ improperly r elie d on the te sti mony of a vocational e xpert ( VE) that Brobst had the ab ility to perfor m low -stress, se denta ry emplo yment. T he V E res pon ded a ffirm atively when asked by t

he ALJ whether a person of Brobs t’s a ge, education, voc ationa l profi le, and RFC could perform the j obs of a dataprocessing clerk, audit c lerk, and administ rati ve6

detai l cle rk. Brobs t argues that t he ALJ’s credi ting of t

he VE’s test imony was er roneous because, when cross-examined by Brobs t’s c ounsel, the VE test ifie d that a person of Brobst’s characteris tics who was so affected by impairments that he could not stay on task and complete a ssignment s could not perform jobs in the nationaleconomy. We agree with the distri ct court that the ALJ’s decision not to credit t he VE ’s testimony on crossexaminati on was not err or because s uch testimony was el icit ed by a que sti on depict ing a hypo theti cal p erso n of

lesse r ab ilities a nd s tam ina th an B rob st him self
. See Roberts v. Sha lala , 66 F.3d 1 79, 184 (9 th Cir. 1995) (ALJ is fre e to accept or rej ect re stri ctions present ed in a hy

potheti cal question propounded by a clai mant’s couns el as l ong as substantial eviden ce supp orts the decision) (citations om itted). Ac cord ingly, we affirm the distric t court’s judg men t.