Can the ALJ Consider Part-Time Work at Step 5 with a Full-Time RFC?

Last week, we discussed the issue of part-time work for occupations in response to a full-time residual functional capacity.  Some have commented elsewhere that a limitation to part-time work results in a disability finding at step five of the sequential evaluation process. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989):

Accordingly, we hold that the Secretary has accepted as true Dr. Pettinger's uncontroverted opinion that Rodriguez can work a maximum of four hours per day. Because the capability to work only a few hours per day does not constitute the ability to engage in substantial gainful activity, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir.1980), remanding this case for further administrative proceedings would serve no useful purpose; rather, it would merely delay the award of benefits. Thus, as we did in Winans, we reverse and remand for the payment of benefits.

But that isn't the question.  Instead, we ask if the ALJ can rely on part-time job numbers when the claimant has a full-time residual functional capacity.  One district court case, affirmed on appeal without comment on this issue:

Even assuming the VE included part-time jobs in her job numbers, there is no case law stating that the ALJ cannot consider part-time work in the step five analysis. Although the Ninth Circuit has not directly addressed this issue, some Circuit Courts have found the ALJ may consider part-time work. See Brault v. Comm'r,683 F.3d 443, 450, n.6 (2d Cir. 2012) ("We decline to create a per se rule prohibiting an ALJ from considering part-time positions."); Liskowitz v. Astrue, 559 F.3d 736, 745 (7th Cir. 2009) ("[A] VE may . . . testify as to the number of jobs that a claimant can perform without specifically identifying the percentage of those jobs that are part-time."); see also King v. Astrue, 2011 WL 1791553, at *19 (N.D. Cal. May 10, 2011) (rejecting plaintiff's argument that the VE had to distinguish between full-time and part-time jobs because the regulations only require that a significant number of jobs exist).

Wright v. Colvin (affirmed Wright v. Berryhill).  In Wright, the vocational expert testified that she got job numbers from Job Browser Pro.  Counsel submitted the reports from Job Browser Pro that knocked the numbers of jobs down below significant.  The district court didn't care.  The court of appeal said that counsel must ask the vocational expert to reconcile the testimony to the foundation instead of just submitting rebuttal evidence.  I know, I was there.

So when we arm ourselves for battle, we must be ready for the ALJ that agrees with the district court decision in Wright and of course Brault and Liskowitz.