GIVENS v. ASTRUE

Filing 28

ENTRY ON JUDICIAL REVIEW - The Commissioner's decision that givens is not disabled is AFFIRMED. Judgment consistent with this Entry shall now ensue. Signed by Magistrate Judge William G. Hussmann, Jr on 3/15/2013.(JLM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
DENNY R. GIVENS
(Social Security No. XXX-XX-9250),

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,1
Defendant.

4:12-cv-44-WGH-RLY

ENTRY ON JUDICIAL REVIEW
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, upon the Consents filed by the parties (Docket Nos. 8,
10) and an Order of Reference entered by Chief Judge Richard L. Young on
June 15, 2012 (Docket No. 12). Denny R. Givens (“Givens”) is seeking judicial
review of the final decision of the Commissioner of Social Security
(“Commissioner”), which found him not disabled and not entitled to Disability
Insurance Benefits (“DIB”) under the Social Security Act (“the Act”). 42 U.S.C.
§ 301 et seq.
For the reasons stated below, the Commissioner’s decision must be
AFFIRMED.

On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of the Social
Security Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Carolyn W. Colvin is automatically substituted as the Defendant in this
suit.
1

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I.

Background
A.

Procedural History

Givens was born on April 12, 1967. (R. at 14). During his school years,
he was in special education classes, and he dropped out of high school in
1985, when he was in eleventh grade. (R. at 33, 299). He finished high school
in 2005. (R. at 299). Givens applied for DIB on June 2, 2006, alleging a
disability onset date of October 10, 2005, at which time he was 38 years old.
(R. at 14, 70). His application was denied initially and upon reconsideration.
(R. at 54-57, 59-65). On October 20, 2008, an Administrative Law Judge
(“ALJ”) held a hearing at which Givens and a vocational expert (“VE”) testified.
(R. at 30-51). On April 15, 2009, the ALJ issued an opinion finding that Givens
was not disabled. (R. at 15). The Appeals Council denied review on December
11, 2009 (R. at 1-4), leaving the ALJ’s decision as the Commissioner’s final
decision. 20 C.F.R. §§ 404.955(a), 404.981.
Givens filed suit in the United States District Court for the Southern
District of Indiana on February 11, 2010, alleging that he was never provided
with the vocational literature upon which the VE’s opinion was based. He also
claimed that the VE’s testimony conflicted with SSR 83-12, and that the ALJ’s
decision was not supported by substantial evidence. (Plaintiff’s Brief “Pl’s
Brief” at 2). The Commissioner agreed, and the case was remanded to the
Social Security Agency on June 21, 2010. (R. at 342).
On September 29, 2010, the Appeals Council ordered a rehearing (R. at
349-50), which occurred on October 17, 2011, in front of a new ALJ (R. at 265).
2

Givens and a VE both testified at the rehearing. On December 20, 2011, the
new ALJ again found that Givens was not disabled.2 (R. at 274). The Appeals
Council denied his request for review on August 4, 2012, making the new ALJ
decision the final decision of the Commissioner. (R. at 252-55). Jurisdiction is
proper in this court. 42 U.S.C. § 405(g).
B.

ALJ Findings

The ALJ’s decision included the following findings: (1) Givens met DIB
insured status through June 30, 2009, and he had not engaged in any
substantial gainful activity since the alleged onset date of October 1, 2005 (R.
at 267); (2) Givens suffered from the following impairments: degenerative disc
disease of the lumbosacral spine, mild osteoarthritis of the knees, diabetes
mellitus, and depression (R. at 267-68); (3) none of the impairments met or
equaled the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
(R. at 268-70); (4) Givens had a residual functional capacity (“RFC”) to perform
sedentary work with the following limitations: he could only occasionally climb
ramps and stairs; he could only occasionally crouch, crawl, kneel, stoop, or
balance; he could not climb ladders, ropes, or scaffolds; he could not drive
equipment or work around hazards such as unprotected heights or moving
machinery; he could only occasionally reach overhead or operate foot controls;
he could frequently use his upper extremities for handling and fingering; and
he was limited to performing unskilled, simple, repetitive tasks which would

2

Any further reference to the ALJ or his decision refers to the decision dated
December 20, 2011.

3

not involve rapid production pace work, focusing his attention for more than
two hours at a time, or more than occasional interpersonal contact. (R. at 27071); (5) he could not perform past relevant work (R. at 271-72); and (6)
considering Givens’s age, education, work experience, and RFC, there existed a
significant number of jobs in the national economy he could perform. (R. at
273-74). Based on those findings, the ALJ concluded that Givens was not
disabled. (R. at 274).
II.

Legal Standards
In order to qualify for disability benefits, Givens must establish that he

suffered from a “disability” as defined by the Act. “Disability” is defined as the
“inability to engage in any substantial gainful activity by reason of a 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 twelve months.” 42 U.S.C. § 423(d)(1)(A). To establish disability,
the claimant must present medical evidence of an impairment that results
“from anatomical, physiological, or psychological abnormalities which can be
shown by medically acceptable clinical and laboratory diagnostic techniques. A
physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by [a
claimant’s] statement of symptoms.” 20 C.F.R. §§ 416.908, 404.1508.
The Social Security Regulations outline a five-step inquiry the ALJ is to
perform in order to determine whether a claimant is disabled. The ALJ must

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consider whether the claimant: (1) is presently employed; (2) has a severe
impairment or combination of impairments; (3) has an impairment that meets
or equals an impairment listed in the regulations as being so severe as to
preclude substantial gainful activity; (4) is unable to perform his past relevant
work; and (5) is unable to perform any other work existing in significant
numbers in the national economy. 20 C.F.R. § 404.1520(a)(4). The burden of
proof is on Givens during steps one through four, and only after Givens has
met his burden on these steps does the burden shift to the Commissioner for
step five. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
An ALJ’s findings are conclusive if they are supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is defined as “more than a
mere scintilla” and “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401, 91 S. Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation omitted); see
also Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997). This standard of
review recognizes that it is the Commissioner’s duty, not the court’s, to weigh
the evidence, resolve material conflicts, make independent findings of fact, and
decide questions of creditability. Richardson, 402 U.S. at 399-400.
Accordingly, the court may not re-evaluate the facts, reweigh the evidence, or
substitute its judgment for that of the Commissioner. See Butera v. Apfel, 173
F.3d 1049, 1055 (7th Cir. 1999).

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III.

Statement of Facts
The court concludes that the Statement of Facts proposed by the

Commissioner most accurately reflects the record in this case and adopts that
Statement of Facts in this opinion. (Defendant’s Brief at 2-6.)
IV.

Discussion
On appeal, Givens raises five issues: (1) whether the ALJ erred by

rejecting the examining physician’s opinions; (2) whether the ALJ improperly
evaluated his credibility by using boilerplate language; (3) whether the ALJ
violated SSR 02-1p by failing to discuss the effects Givens’s obesity might have
on his RFC; (4) whether the ALJ adequately accounted for his moderate
difficulties with regard to concentration, persistence, and pace; and (5) whether
the ALJ erred in evaluating the vocational evidence at step five.
A.

The ALJ properly weighed Dr. Wang’s opinion.

Givens claims the ALJ erred when he failed to include a proper sit/stand
option in his hypothetical to the VE because he assigned little weight to the
opinion of Dr. Shuyan Wang (“Dr. Wang”), a Disability Determination Services
(“DDS”) examining physician. (R. at 272). Givens contends that the ALJ
violated the “examining physician rule” because he gave greater weight to the
opinion of Dr. Jennifer Corcoran (“Dr. Corcoran”), a non-examining physician.
(R. at 271). The examining physician rule stands for the proposition that

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generally an examining medical source opinion is given greater weight than a
non-examining source. 20 C.F.R. § 404.1527(d)(1).3 Like the treating
physician rule,4 a contradictory opinion by a non-examining physician does not
suffice as substantial evidence for the ALJ to reject the examining physician’s
testimony. Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). An ALJ’s
decision to reject the opinion of an examining physician must be supported by
substantial evidence in the record. Id. Since he discounted Givens’s
credibility, the ALJ relied upon the medical evidence in the record to determine
the value of Dr. Wang’s and Dr. Corcoran’s opinions. (R. at 271).
Givens’s contention is erroneous. The ALJ did not ignore Dr. Wang’s
opinion, but rather considered it in light of all the other opinions and evidence
in the record. The ALJ concluded that Dr. Wang’s opinion was based only on
Givens’s allegations and complaints (R. at 272), and an ALJ may discount
medical opinions based solely on the patient’s subjective complaints. Filius v.
Astrue, 694 F.3d 863, 868 (7th Cir. 2012). The ALJ specifically noted that he
gave little weight to the assessment provided by Dr. Wang because “the
limitations listed in that assessment are not supported by the relatively modest
level of change shown on the MRI studies of record.” (R. at 272).

3

When the ALJ made his decision on December 20, 2011, the “examining physician
rule” was cited at 20 C.F.R. § 404.1527(d)(1). This opinion cites the regulations as
they existed when the ALJ made his decision.

4

The “treating physician rule” directs the ALJ to give controlling weight to the medical
opinion of a claimant’s treating physician if it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2).

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The ALJ also noted that neither of the MRI studies showed any nerve
root compression or contact. (R. at 272). One of Givens’s treating physicians,
Dr. William Driehorst, reviewed Givens’s MRI study from 2004, and found that
the degenerative changes from L3-L4 in his thoracic spine were not marked,
that he did not have marked nerve root impingement, and that the “underlying
level of pathology. . .is not major.” (R. at 160, 163-66). The results from
Givens’s MRI from 2008 only noted a “slight increase” in multilevel lumbar
spondylosis at L3-L4, and that no definite nerve root impingement was visible.
(R. at 496). Although Dr. Wang’s opinion essentially eliminated Givens’s ability
to perform sedentary work, the ALJ found that the level of documented
pathology shown on the imaging studies of the record is consistent with a
physical ability to perform sedentary work with some limitations. Id.
The ALJ’s decision not to give Dr. Wang’s opinion substantial weight was
not an improper medical determination, but rather the type of context
consideration that judges regularly make when assessing the weight to
attribute to conflicting evidence. Young v. Barnhart, 362 F.3d 995, 1001 (7th
Cir. 2004). The ALJ’s decision to disfavor the evidence submitted by Dr. Wang
is supported by substantial evidence, and is not contradictory to the
“examining physician rule.”
B.

The ALJ properly evaluated Givens’s credibility.

In evaluating Givens’s credibility, the ALJ used the following boilerplate
language:
After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairments could
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reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence
and limited effects of these symptoms are not credible to the extent
they are consistent with the above residual functional capacity
assessment.
(R. at 271). Givens contends that the ALJ erroneously used boilerplate
language in his evaluation of Givens’s credibility. Although such boilerplate
language can be meaningless and unhelpful to a reviewing court, the standard
of review remains that it “is only when the ALJ’s determination lacks any
explanation or support will [a court] declare it patently wrong and deserving of
reversal.” Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012)(citing Parker v.
Astrue, 597 F.3d 920, 922 (7th Cir. 2010)); Elder v. Astrue, 529 F.3d 408, 41314 (7th Cir. 2008). The ALJ is in a unique position to assess a claimant’s
credibility, and his credibility finding should be given considerable deference.
Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006). At the same time,
the ALJ must also consider the claimant’s level of pain, medication, treatment,
daily activities, and limitations, and must justify the credibility finding with
specific reasons supported by the record. Villano v. Astrue, 556 F.3d 558, 562
(7th Cir. 2009).
Despite using the boilerplate language, the ALJ also conducted a
thorough assessment of Givens’s credibility. (R. at 270-72). He determined
that Givens’s allegations were not fully credible and gave his testimony little
weight. He based this decision on numerous factors, including: (1) although

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Givens claimed he suffered from significant depression, he received no regular
mental health care5; (2) that contrary to Givens’s claims of chronic pain, the
imaging studies in the record reflected only mild to moderate changes in
Givens’s lumbosacral spine and wrists; (3) that Givens claimed he suffered
from severe back pain, but he refused lumbar epidural injections to relieve the
pain6; and (4) that contrary to Givens’s testimony, one treating physician’s
opinion was that his back problem is “not major”. (R. at 160, 271).
The ALJ also took into account the first ALJ’s finding that Givens lacked
credibility, which was supported by substantial evidence.7 (R. at 271). The
second ALJ did not err in relying upon the first ALJ’s credibility finding
because the first ALJ’s finding is supported by substantial evidence in the
record. Because the ALJ based Givens’s credibility determination on both the
objective medical record evidence and Givens’s subjective complaints, his
determination was not “patently wrong,” and the ALJ’s decision must be
affirmed.
5

Although Givens was taking a prescription medication for his depression, that
medication was prescribed by his general physician; he had not been seen by a
psychologist or psychiatrist on a regular basis. (R. at 293, 311).

6

Although Givens claimed he had not sought treatment because he lacked insurance,
he did not receive injections even after obtaining insurance. (R. at 143, 573, 604).
After considering the objective medical evidence of the record, the first ALJ based his
finding on the following factors: (1) that Givens complained he suffered from severe
back pain, but a June 2004 radiographic study showed “minimal” disk protrusion at
TI2-L1 on the left and L3-4 on the right, and “mild” disk degeneration L3-4, L2-3, and
T12-L1; (2) that contrary to Givens’s reports of pain in his back and shoulder, he
reported that he took no medication; (3) that Givens claimed his pain had a
detrimental effect on his ability to complete daily activities, but he was able to still
drive once or twice per week, concentrate on watching television or playing board
games, cook and clean around the house, go fishing, and do yard work. (R. at 13).

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C.

The ALJ did not violate SSR 02-1p.

Givens claims that the ALJ violated SSR 02-1p8 by failing to discuss the
issue of Givens’s obesity and any effect it may have on his RFC. Although SSR
02-1p instructs the ALJ to consider the effects of obesity, including when it is
combined with other impairments, the regulations do not strictly require that
the ALJ articulate in his written decision which functional limitations are
attributable to obesity. 2000 WL 628049, at *1 (Sept. 12, 2002). It is the
plaintiff who bears the burden of articulating how his obesity has limited his
functioning and how it has aggravated his other impairments. See Prochaska,
454 F.3d at 736-37.
The ALJ did not explicitly discuss the effects of Givens’s obesity on his
other limitations when arriving at his RFC. However, the ALJ factored Givens’s
obesity “indirectly” into his analysis by basing Givens’s RFC on the limitations
identified by doctors who had taken into account Givens’s obesity. See
Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004). At step two, the ALJ
noted that the objective medical record supports a finding that Givens has

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“…..we consider obesity to be a medically determinable impairment
and remind adjudicators to consider its effects when evaluating
disability. The provisions also remind adjudicators that the combined
effects of obesity with other impairments can be greater than the effects
of each of the impairments considered separately. They also instruct
adjudicators to consider the effects of obesity not only under the listings
but also when assessing a claim at other steps of the sequential
evaluation process, including when assessing an individual’s residual
functional capacity.”

2000 WL 628049, at *1 (Sept. 12, 2002).

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definite and measurable work limitations due to his obesity and other
conditions. (R. at 268). At least five doctors noted that Givens was overweight
or obese. (R. at 203, 223, 575, 596, 602). Dr. Wang noted that Givens was
obese and had a Body Mass Index of 40. (R. at 575). Dr. Corcoran listed
obesity as one of Givens’s alleged conditions, and she also included Givens’s
height (70’’) and weight (273.2 lbs.). (R. at 232). The ALJ relied on Dr. Wang’s
report and Dr. Corcoran’s opinion when making his RFC assessment. (R. at
270-72). Although both physicians noted Givens’s obesity, neither physician
identified any limitations that were directly attributable to Givens’s obesity or
its effects in their assessments. (R. at 231-38; 578).
Furthermore, Givens did not articulate how his obesity affected his
underlying conditions or further limited his functioning. Since Givens did not
show how explicitly addressing his obesity would restrict his RFC, the ALJ’s
failure to do so was harmless error. Hernandez v. Astrue, 277 Fed.Appx. 617,
624 (7th Cir. 2008); see Proschaka, 454 F.3d at 737. The court must therefore
affirm the ALJ’s finding.
D.

The ALJ properly assessed Givens’s issues regarding
concentration, persistence, and pace.

When assessing Givens’s mental RFC, the ALJ found that Givens has
“moderate” difficulties with regard to concentration, persistence, and pace. (R.
at 269). Because of this, the ALJ limited Givens “to performing unskilled,
simple, repetitive tasks which would not [involve] focused attention for more
than two hours at a time or involve rapid production pace work.” (R. at 270).

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Givens contends that the limitation to unskilled, simple, repetitive tasks did
not sufficiently account for his moderate difficulties with regard to
concentration, persistence, or pace. O’Connor-Spinner v. Astrue, 627 F.3d 614,
620 (7th Cir. 2010); see also Punzio v. Astrue, 630 F.3d 704, 711 (7th Cir.
2011). As a result, Givens’s RFC was flawed, and the VE’s testimony could not
constitute substantial evidence at step five.
The Seventh Circuit has noted that “the most effective way to ensure that
the VE is apprised fully of the claimant’s limitations is to include them all
directly in the hypothetical.” O’Connor-Spinner, 627 F.3d at 619. The Court
also noted that simply restricting a hypothetical individual to “unskilled work”
or “simple, repetitive tasks” would not necessarily limit the VE’s testimony to
only those jobs that appropriately account for the claimant’s difficulties
regarding concentration, persistence, or pace. Id. at 619-20. In most cases,
the ALJ should refer “expressly to limitations on concentration, persistence,
and pace in the hypothetical in order to focus the VE’s attention on these
limitations and assure reviewing courts that the VE’s testimony constitutes
substantial evidence of the jobs a claimant can do.” Id. at 620-21.
This case is distinguishable from O’Connor-Spinner because the ALJ did
not limit Givens to performing only “simple, unskilled, repetitive tasks. The
ALJ referred expressly to Givens’s limitations on concentration, persistence,
and pace in his hypothetical questions. At the hearing, the ALJ included the
following statement in his first hypothetical to the VE:

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I’d like you to assume the existence of a hypothetical individual the
claimant’s age, education, and prior work experience who is
restricted to performing sedentary level work . . . with the following
additional restrictions: . . . due to a moderate level restriction in
concentration, persistence, or pace the worker would not . . . involve
focused attention for more than two hours at one time and which
would not involve rapid production paced work . . . .
(R. at 318-19)(emphasis added). The hypothetical contained more information
for the VE than a limitation to unskilled, simple, repetitive tasks, and the VE’s
testimony in response to this hypothetical constitutes substantial evidence of
the jobs Givens can do and supports the ALJ’s step five determination.
O’Connor-Spinner, 627 F.3d at 621; Schmidt v. Astrue, 496 F.3d 833, 846 (7th
Cir. 2007).
Givens also argues that the ALJ limiting him to performing unskilled,
simple, repetitive tasks, which would not involve focused attention for more
than two hours at a time, is actually no limitation at all because most jobs do
not require two hours of concentration at a time. (Pl’s Brief at 4). However,
Givens provides no authority to support this argument.
Furthermore, at step three, the ALJ took into consideration the March
2011 opinion of examining physician Dr. Jill Christopher (“Dr. Christopher”).
(R. at 269). Although Dr. Christopher noted that Givens “may have some
difficulty attending, concentrating, and completing simple tasks due to
significant depression,” she did not find that Givens had any significant
restrictions on his ability to perform simple, unskilled work. (R. at 269, 591).
Dr. Christopher found that Givens has no restrictions on his ability to
understand, remember, and carry out simple instructions and to make
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judgments on simple work-related decisions, and only mild restrictions where
complex instructions or decisions were involved. (R. at 592). Dr. Christopher’s
opinion supports the ALJ’s finding that Givens was capable of focusing on
unskilled, simple, repetitive tasks for at least two hours at a time,
notwithstanding Givens’s limitations with concentration, persistence, and pace.
(R. at 270-72).
Consequently, the ALJ’s RFC finding and his hypothetical question to the
VE adequately accounted for Givens’s moderate limitations with concentration,
persistence, and pace.
E.

The ALJ properly evaluated the vocational evidence.
1.

Issues regarding the ALJ’s step five evaluation.

Relying on the VE’s testimony, the ALJ found that Givens could perform
the following jobs listed in the Department of Labor Dictionary of Occupational
Titles (20 C.F.R. Part 404, Subpart P, Appendix 2)(“DOT”): inspector/tester
(DOT 529.485-010), a security system monitor (DOT 3790.367-010), and a
packager/folding machine operator (DOT 731.685-014). (R. at 274). The ALJ
also found that due to Givens’s “moderate level limitation of concentration,
persistence, and pace,” he is limited to performing unskilled, simple, repetitive
work. (R. at 272-73). Although the positions qualify as “unskilled work,”9
Givens contends that the jobs of inspector/tester and security system monitor
are not consistent with “simple, repetitive work” because they require General

9

Both jobs have a Specific Vocational Preparation score of 2, which qualifies as
“unskilled work.” 20 C.F.R. § 404.1568(a); see DOT 379.367-010, 539.485-010; SSR
00-4p, 2000 WL 1898704, at *3.

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Educational Development (“GED”) reasoning and language levels of three. (Pl’s
Brief at 7).
A GED reasoning level of three requires that the claimant must be able to
“apply commonsense understanding to carry out instructions furnished in
written, oral, or diagrammatic form,” and “deal with problems involving several
concrete variables in or from standardized situations.” Terry v. Astrue, 580
F.3d 471, 478 (7th Cir. 2009)(citing DOT’s App’x C(III)). The Seventh Circuit has
held that there is no conflict between a VE’s identification of jobs requiring a
GED reasoning level of three and an ALJ’s finding that a plaintiff had the RFC
to perform only “simple, repetitive work”. Id. at 471.
During his hearing, Givens testified that most of his daily limitations
related to physical, as opposed to mental, limitations, although he did state he
had a hard time concentrating while watching television. (R. at 269).
Furthermore, the medical records in this case indicate that Givens can follow
“simple and straight [sic] forward instructions,” and that he has no restrictions
understanding, remembering, or carrying out simple instructions. (R. at 571,
592). Based on this evidence, the ALJ could have reasonably concluded that
Givens has the cognitive abilities to meet the requirements for a GED reasoning
level of three.

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On the other hand, the requirements for a GED language level of three
are somewhat more extensive. DOT App’x C(III).10 During his hearings, Givens
testified that his ability to read is “limited” and “not what it should be” because
he cannot understand all of the words he reads. (R. at 312, 462). He also
added that he does not read books, and only looks at the pictures in
newspapers and magazines. (R. at 312). When asked about the logs he was
required to keep when he worked as a truck driver, Givens testified that his
logs were sometimes incorrect because he had problems with reading, writing,
and spelling. (R. at 313).
SSR 00-4p places an affirmative duty on an ALJ to ensure that the VE’s
testimony is consistent with the DOT. 2000 WL 1898704, at *4 (Dec. 4, 2000).
This duty is two-fold. Prochaska, 454 F.3d at 735. First, the ALJ must ask if
the VE’s testimony conflicts with the DOT. Id. If there is an “apparent
conflict,” the ALJ must obtain “a reasonable explanation for the conflict” before
he can rely on that evidence to support a decision on whether an individual is
disabled. SSR 00-4p, 2000 WL 1898704, at *2; Terry, 580 F.3d at 478;
Prochaska, 454 F.3d at 735. However, an ALJ’s failure to ask the VE if her

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A GED language level of three requires that the claimant can perform the following
tasks:
“Reading: Read a variety of novels, magazines, atlases, encyclopedias.
Read safety rules, instructions in the use and maintenance of shop tools
and equipment, and methods and procedures in mechanical drawing and
layout work. Writing: Write reports and essays with proper format,
punctuation, spelling and grammar, using all parts of speech. Speaking:
Speak before an audience with poise, voice control, and confidence,
using correct English and well-modulated voice.”

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testimony conflicted with the DOT is harmless unless there actually was a
conflict that was “apparent.” Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir.
2007); see also Ketelboeter v. Astrue, 550 F.3d 620, 625-626 (7th Cir. 2008);
Keys v. Barnhart, 347 F.3d 990, 994-995 (7th Cir. 2003).
Here, the VE responded affirmatively when the ALJ said he would
assume that the VE’s testimony was consistent with the DOT unless the VE
advised him otherwise. (R. at 317). Because neither Givens nor his attorney
identified any conflict at the hearing, Givens would have to show that the
conflict was “obvious enough that the ALJ should have picked up on [it]
without any assistance.” Terry, 580 F.3d at 478 (citing Overman v. Astrue, 546
F.3d 456, 463 (7th Cir. 2008)). This did not happen in this case. At the
hearing, Givens’s attorney never questioned the VE about the applicable GED
language level of the jobs. In addition, no one asked the VE whether a person
with Givens’s reading abilities could perform jobs as an inspector/tester or as a
security system monitor. Although Givens attended special education classes
when he was in school, he was able to finish high school in 2005. The only
evidence of Givens’s alleged reading difficulties comes from his own testimony
at his hearings. Givens’s cognitive abilities, as demonstrated by his
performance of past relevant work as an over the road truck driver, support the
ALJ’s conclusion that Givens met the requirements of a GED language level of
three. Therefore, any conflict is not so obvious that the ALJ should have
pursued the question further.

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2.

Issues regarding the VE’s testimony.

Givens also claims that the VE’s testimony regarding his ability to work
as a packager/folding machine operator conflicted with the DOT in two
respects. First, he contends that the VE’s testimony should not have been
relied on by the ALJ because the VE supplied the wrong DOT number for the
packager/folding machine operator job, and because the job of packager/
folding machine operator is not classified as a sedentary, unskilled job. (Pl’s
Brief at 8; see also DOT p. 749). Second, he argues that the VE’s testimony
should not have been relied on because the VE testified that 150 of the
packager/folding machine operator jobs were available locally, which is not a
significant number of jobs.
It appears the VE misidentified the job of toy stuffer (DOT 731.685-014),
which is a sedentary, unskilled position, as the job of packager/machine
operator (DOT 920.685-078), which requires medium exertion. At the second
hearing, the VE testified that a hypothetical person with Givens’s RFC could
perform sedentary, unskilled “packaging and filling machine operation jobs
such as [DOT] 731.685-014.”11 (R. at 319). The unskilled toy stuffer position
falls within the broader category of “Packaging and Filling Machine Operators
and Tenders.” See DOT 731.685-014 (cross-referencing O*NET 92974). Thus,
it logically follows that the VE meant to cite to the less demanding toy stuffer

11

The DOT number 731.685-014 refers to three different occupational titles: (1)
“stuffer” (toy-sport equipment); (2) “blower”; or (3) “toy stuffer”. DOT 731.685-014.

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position, and referring to it as packager/machine operator was harmless
error.
Finally, at the hearing, the VE testified that there are 150 of the
packager/folding machine operator jobs locally. Although Givens argues that
this number does not constitute a significant number of jobs, he does not
provide any case law to support this assertion. (Pl’s Brief at 8). Regardless of
whether 150 jobs would constitute a significant number of jobs, the VE
testified that an individual with Givens’s limitations would be able to perform
two other jobs besides the packager/folding machine operator position, so any
error is harmless. The evidence in the record supports a finding that the ALJ’s
reliance on the VE’s testimony is not reversible error.
V.

Conclusion
For the foregoing reasons, the Commissioner’s decision that Givens is not

disabled is AFFIRMED. Judgment consistent with this Entry shall now ensue.
SO ORDERED the 15th day of March, 2013.

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Served electronically on all ECF-registered counsel of record.

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