Turner v. Social Security Administration

Filing 24

OPINION AND ORDER by Judge Claire V Eagan - The Commissioner's decision to deny plaintiff's claim for disability benefits is affirmed ; accepting 20 Report and Recommendation (Re: 2 Social Security Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

KARL E. TURNER,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner, Social
Security Administration

Defendant.

Case No. 15-CV-0040-CVE-FHM

OPINION AND ORDER
Before this Court is the report and recommendation (Dkt. # 20) of Magistrate Judge Frank
H. McCarthy recommending that the Court affirm the decision of the Commissioner of the Social
Security Administration denying plaintiff Social Security disability benefits. Plaintiff has filed an
objection (Dkt. # 21) to the report and recommendation and seeks reversal of the Commissioner’s
decision, arguing that the Administrative Law Judge (ALJ) committed several errors in evaluating
plaintiff’s claim. Defendant responds that the magistrate judge’s report and recommendation should
be accepted because the ALJ committed no error in considering plaintiff’s claim. Dkt. # 22.
I.
On June 24, 2011 plaintiff protectively filed for Title XVI supplemental security income and,
on September 26, 2011, plaintiff filed a Title II application for disability benefits.1 Dkt. # 10, at 19.

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In the hearing before the ALJ, the ALJ noted that plaintiff’s protective filing date for
supplemental security income was before the date of his application for disability benefits
and verified with plaintiff’s attorney the dates of plaintiff’s applications. Dkt. # 10, at 37.
Plaintiff’s attorney explained that the discrepancy in the dates related to the processing of
the applications and that plaintiff submitted both applications on the same day. Id. at 37-38.

Plaintiff’s applications stated that he suffered from various physical impairments that left him unable
to work, including gastrointestinal issues, rectal bleeding, and severe fatigue. Id. at 171. Plaintiff’s
claims were denied initially on February 3, 2012 and upon reconsideration on June 4, 2012. Id. at
19. Plaintiff requested a hearing before the ALJ and that hearing was held on February 25, 2013.
Id.
Plaintiff appeared at the hearing and was represented by an attorney. Id. at 34. Plaintiff was
48 years old on the alleged onset of disability date and 50 on the date of the ALJ’s decision. Dkt.
# 20, at 2. Plaintiff testified that he lived in a house with his wife and adult stepson. Dkt. # 10, at
48. Plaintiff stated that he has a ninth grade education and did not earn a GED. Id. at 50. He
testified to a variety of physical complaints, including abdominal pain and cramps, frequent bowel
movements, rectal bleeding, and an overall low energy level. Id. at 63, 65. Plaintiff testified that
these ailments necessitated multiple naps a day and caused difficultly sleeping during the night. Id.
at 67-68. Plaintiff explained that he had trouble sitting or standing for long periods of time and
required frequent breaks from either position. Id. at 70-71. He also testified that he had trouble
walking long distances due to stomach cramps and that he could not lift items weighing over five
pounds because it would exacerbate his rectal bleeding. Id. at 72-73.
On April 9, 2013, the ALJ issued a written decision finding that plaintiff was not disabled.
Id. at 28-29. The ALJ found that plaintiff had not engaged in substantial gainful activity since the
alleged onset date. Id. at 21. The ALJ found that plaintiff had severe impairments affecting his
ability to work, including hypertension, hemorrhoids, obesity, and hepatitis C. Id. The ALJ further
found that these impairments or combination of impairments were not equivalent to one of those
listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. Id. at 22. The ALJ formulated plaintiff’s

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residual function capacity (RFC), taking into account the medical evidence and testimony. Id. The
ALJ determined that plaintiff could perform work that required him to occasionally lift and carry
up to 20 pounds and frequently lift and carry 10 pounds; stand and/or walk for 6 hours in an 8-hour
work day; sit for about 6 hours in an 8-hour work day, and push and/or pull with the upper and lower
extremities without limitation. Id.
After summarizing the evidence used to formulate plaintiff’s RFC, the ALJ stated that
plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged
symptoms; however, [plaintiff’s] statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible for the reasons explained in this decision.” Id.
at 24. The ALJ noted inconsistencies between plaintiff’s statements regarding his symptoms and
the objective medical evidence, specifically identifying the medical records that contradicted
plaintiff’s statements. Id. at 24-27. Considering plaintiff’s RFC, the ALJ found that plaintiff was
unable to perform any past relevant work as a metal mechanic/fabricator, but that he could perform
other occupations existing in significant numbers in the national economy. Id. at 27. These
occupations included sorting, laundry press, and hand packager positions. Id. at 28. The ALJ
included these occupations based upon the testimony of a vocational expert (VE) who identified
each position based on its Dictionary of Occupational Titles (DOT) identification number. Id.
Based on these determinations, the ALJ concluded that “[plaintiff] is not disabled under sections
216(I) and 223(d)” or “section 1614(a)(3)(A) of the Social Security Act.” Id. at 28-29.
On November 26, 2014, the Appeals Council denied plaintiff’s request for review of the
ALJ’s decision. Id. at 4. Plaintiff thereafter sought judicial review, arguing the ALJ’s RFC was
unsupported by substantial evidence, the ALJ’s credibility determination was unsupported by

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substantial evidence, and the Commissioner failed to sustain her burden at step five regarding
plaintiff’s ability to perform other work existing in significant numbers in the national economy.
Dkt. # 11, at 2. The Court referred the case to the magistrate judge, who entered a report and
recommendation recommending that the Court affirm the ALJ’s decision. Dkt. # 20. Plaintiff has
objected to the report and recommendation, asserting that the magistrate judge erred in concluding:
(1) that the ALJ’s decision was supported by substantial evidence in the form of medical opinions
offered by non-treating consultants; (2) that the ALJ properly developed the record regarding
plaintiff’s gastrointestinal issues; (3) that the ALJ’s failure to account for plaintiff’s inability to read
in formulating plaintiff’s RFC was not in error; (4) that the ALJ properly assessed plaintiff’s
credibility; and (5) that the ALJ did not err in his finding at step five. Dkt. # 21. Defendant
responds that the magistrate judge correctly reviewed the ALJ’s decision and affirmance is
appropriate. Dkt. # 22.
II.
Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim
to a magistrate judge for a report and recommendation. However, the parties may object to the
magistrate judge’s recommendation within fourteen days of service of the recommendation.2
Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d

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In addition to plaintiff’s objection to the magistrate judge’s report and recommendation,
plaintiff also filed what purports to be a reply to defendant’s response to plaintiff’s objection
(Dkt. # 23). In considering objections to a magistrate judge’s report and recommendation,
the Court considers only the objection and the non-objecting party’s response thereto. See
FED. R. CIV. P. 72(b)(2) (allowing a party to object to a magistrate judge’s report and
recommendation within fourteen days of service and allowing the non-objecting party to
respond to objection within fourteen days of service). As such, the Court does not consider
plaintiff’s reply to defendant’s response in this opinion and order.
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573, 579 (10th Cir. 1999). The Court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Court may accept, reject, or modify the report and recommendation of the
magistrate judge in whole or in part. FED. R. CIV. P. 72(b).
III.
The Social Security Administration has established a five-step process to review claims for
disability benefits. See 20 C.F.R. § 404.1520. The Tenth Circuit has outlined the five-step process:
Step one requires the agency to determine whether a claimant is “presently engaged
in substantial gainful activity.” [Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.
2004)]. If not, the agency proceeds to consider, at step two, whether a claimant has
“a medically severe impairment or impairments.” Id. An impairment is severe under
the applicable regulations if it significantly limits a claimant’s physical or mental
ability to perform basic work activities. See 20 C.F.R. § 404.1521. At step three, the
ALJ considers whether a claimant’s medically severe impairments are equivalent to
a condition “listed in the appendix of the relevant disability regulation.” Allen, 357
F.3d at 1142. If a claimant’s impairments are not equivalent to a listed impairment,
the ALJ must consider, at step four, whether a claimant’s impairments prevent her
from performing her past relevant work. See id. Even if a claimant is so impaired,
the agency considers, at step five, whether she possesses the sufficient residual
functional capability to perform other work in the national economy. See id.
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
The Court may not reweigh the evidence or substitute its judgment for that of the ALJ, but,
instead, reviews the record to determine if the ALJ applied the correct legal standard and if his
decision is supported by substantial evidence. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.
2008). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994). “A
decision is not based on substantial evidence if it is overwhelmed by other evidence in the record
or if there is a mere scintilla of evidence supporting it.” Hamlin v. Barnhart, 365 F.3d 1208, 1214

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(10th Cir. 2004). The court must meticulously examine the record as a whole and consider any
evidence that detracts from the Commissioner’s decision. Washington v. Shalala, 37 F.3d 1437,
1439 (10th Cir. 1994).
The ALJ decided the case at step five of the analysis, concluding that plaintiff could perform
other work existing in significant numbers in the national economy. Dkt. # 10, at 27. Having so
decided, the ALJ found plaintiff not disabled and denied his application for benefits. Id. at 28-29.
The magistrate judge recommended affirming the ALJ’s decision, concluding that the ALJ properly
assessed plaintiff’s claim. Dkt. # 20, at 15. The magistrate judge concluded that the ALJ’s
formulation of plaintiff’s RFC was supported by substantial evidence, including the ALJ’s decision
to give great weight to medical opinions from medical consultants who reviewed plaintiff’s records,
that the ALJ properly developed the record in assessing plaintiff’s gastrointestinal issues, and that
the ALJ properly accounted for plaintiff’s reading limitations in his formulation of plaintiff’s RFC.
Id. at 5, 7-9. The magistrate also concluded that the ALJ did not err in his credibility assessment of
plaintiff and that the Commissioner met her burden at step five even though the ALJ did not inquire
of the VE whether his testimony was consistent with the DOT. Id. at 11-12. Plaintiff has filed an
objection to the magistrate judge’s report and recommendation arguing that the ALJ’s decision
contains numerous errors requiring reversal. Dkt. # 21. Defendant responds that the ALJ correctly
assessed plaintiff’s claim and seeks affirmance. Dkt. # 22. The Court considers each of plaintiff’s
allegations of error in turn.
A.
Plaintiff first argues that medical opinions offered by non-examining and non-treating agency
consultants concluding that plaintiff could perform light work cannot be considered substantial

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evidence supporting the ALJ’s decision because the consultants issued these opinions without a
review of the entire record. Dkt. # 21, at 1. Plaintiff asserts that later records demonstrate the
severity of his gastrointestinal condition, including evidence of worsened bleeding, increased bowel
movements, and pain and cramping; thus, the ALJ’s reliance on medical opinions not based on the
entire record in formulating plaintiff’s RFC is in error. Id. Defendant responds that the ALJ did not
err in giving this evidence great weight because the ALJ considered the entire record and
specifically noted that the medical opinions were consistent with the entire record. Dkt. # 22, at 2.
The ALJ considered all of the medical evidence in the record before concluding that plaintiff
could perform light work. Dkt. # 10, at 24-27. This included medical opinions from the nonexamining consultants that the ALJ concluded supported the determination that plaintiff was capable
of performing light work. Id. at 26-27. But the ALJ also relied on other evidence, specifically
identifying medical records from the period after the state consultants issued their opinions. See
id. at 24-26. The ALJ discussed these records in detail, discussing the severity of the symptoms as
they were reflected in the medical records and identifying specific complaints of plaintiff that the
ALJ believed overstated the nature of plaintiff’s symptoms. Id. And, in deciding to give the
opinions of the state consultants great weight, the ALJ specifically noted that state consultants
opinions were consistent with the medical records from the later period. Id. at 27.
To the extent that plaintiff argues that the ALJ’s reliance on these medical opinions caused
the ALJ to rely on his own medical expertise in interpreting the later records about plaintiff’s
condition, this argument is unpersuasive. The ALJ, not a physician, determines a plaintiff’s RFC
based on the medical records. See Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004) (“[T]he
ALJ, not a physician, is charged with determining a claimant’s RFC from the medical record.”). The

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ALJ considered the record as a whole before concluding that plaintiff was capable of performing
light work. And plaintiff’s argument that the ALJ erred in relying on the medical opinion of a doctor
who was no longer a practicing physician is also unpersuasive. The magistrate judge dismissed this
argument, noting that plaintiff mentioned that one of the physicians who reviewed plaintiff’s
medical records was no longer a practicing physician, but concluded such an argument had no effect
on the merits of the physician’s opinion. Dkt. # 20, at 5 n.5. As plaintiff provides no authority
supporting his argument that the medical opinion should not be considered when it comes from a
physician who is no longer practicing, the Court agrees with the magistrate judge’s assessment.
In sum, substantial evidence supports the ALJ’s conclusion regarding plaintiff’s RFC based,
in part, upon the medical opinions of non-examining and non-treating state agents. The ALJ did not
err in giving great weight to these medical opinions.
B.
Plaintiff next asserts that the ALJ failed to adequately develop the record by either ordering
a consultative examination by a gastroenterologist or requesting additional information from
plaintiff’s treating physician.

Dkt. # 21, at 2. Plaintiff explains that he needed to see a

gastroenterologist but could not afford such a visit, nor could he afford additional tests or
medications. Id. He argues that, without such further tests and examination, the ALJ did not have
a sufficient record upon which to base his conclusions regarding plaintiff’s intestinal issues. Id.
Defendant responds that the ALJ adequately developed the record. Dkt. # 22, at 2-4.
An “ALJ should order a consultative exam when evidence in the record establishes the
reasonable possibility of the existence of a disability and the result of the consultative exam could
reasonably be expected to be of material assistance in resolving the issue of disability.” Hawkins

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v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997). Here, a consultative exam is unnecessary because
additional testing or diagnoses would not be of material assistance in resolving the issue of
disability. The ALJ considered the functional limitations that plaintiff’s gastrointestinal issues
caused rather than specific diagnoses. Dkt. # 10, at 25. The ALJ made this determination based
upon his consideration of evidence already in the record, rendering a consultative exam unnecessary.
See id. (discussing plaintiff’s abdominal plain and rectal bleeding). As the magistrate judge noted,
“there may be a question about the cause of Plaintiff’s intermittent abdominal pain[;] however the
focus of a disability determination is on the functional consequences of a condition, not the mere
diagnosis.” Dkt. # 20, at 7-8; see also Madrid v. Astrue, 243 F. App’x 387, 392 (10th Cir. 2007)
(unpublished)3 (“Our case law makes clear that a diagnosis of a condition does not establish
disability. The question is whether a person’s impairment significantly limits his ability to engage
in substantial gainful activity.”). Because other evidence in the record allowed the ALJ to determine
what functional limitations plaintiff’s abdominal pain caused, his decision not to request a
consultative exam to determine the cause of plaintiff’s condition was not in error.
C.
Plaintiff next argues that the ALJ failed to account for plaintiff’s illiteracy in his formulation
of plaintiff’s RFC. Dkt. # 21, at 4. Plaintiff asserts that he testified he could not read due to his
dyslexia, which the ALJ should have understood as rendering him essentially illiterate. Id. Plaintiff
argues that the ALJ’s failure to include plaintiff’s illiteracy in the RFC is a reversible error. Id. at
4-5. Defendant responds that the ALJ’s formulation of plaintiff’s RFC accounted for any limitations

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This and other unpublished decisions are not precedential, but they may be cited for their
persuasive value. See FED. R. APP. 32.1; 10TH CIR. R. 32.1.
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plaintiff experienced due to his reading difficulties, but that plaintiff is not illiterate. Dkt. # 22, at
6.
Although plaintiff argues that he is essentially illiterate due to his dyslexia, the record is
replete with evidence that, while plaintiff may experience difficulty reading, he is not illiterate.
Plaintiff testified that he completed the ninth grade and that he could read some, limited to a couple
of lines at a time. Dkt. # 10, at 50-51. He also testified that he has a driver’s license, for which he
had to take a written test. Id. at 52. Plaintiff also appears to have completed disability paperwork
himself in which he stated only that he cannot read or write well, not that he is illiterate. See id. at
162-69.
And, in the ALJ’s questioning of the VE, he considered whether plaintiff’s difficulty in
reading would be a hindrance to the occupations that the VE identified as potential employment
opportunities. Id. at 76-77. The ALJ questioned the need for reading instructions in the positions
the VE identified, and asked the VE whether a demonstration could be utilized to instruct plaintiff
for positions that would require reading basic instructions. Id. Plaintiff’s attorney also questioned
the VE regarding the requisite reading for positions he identified, and the VE responded that he
believed a person with a ninth grade education who could read only a couple of lines at a time would
be able to perform these jobs. Id. at 81-83. As these were the jobs the ALJ ultimately identified in
his written decision, it is apparent that the ALJ took into account plaintiff’s reading limitations when
considering other occupations. See id. at 28.
The only evidence of plaintiff’s alleged illiteracy is his testimony that he cannot read a
newspaper due to his dyslexia. See id. at 50. This alone, in the face of the evidence to the contrary,
is insufficient to support a finding that plaintiff is illiterate. And, in considering other occupations

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that plaintiff could perform, the ALJ considered whether plaintiff’s dyslexia would impact his ability
to perform these jobs. Because substantial evidence supports the ALJ’s determination regarding
plaintiff’s dyslexia, the ALJ did not err in failing to include plaintiff’s alleged illiteracy in his
formulation of plaintiff’s RFC.
D.
Plaintiff also argues that the ALJ erred in his credibility determination, asserting that the ALJ
improperly relied upon plaintiff’s receipt of unemployment benefits in assessing plaintiff’s
credibility. Dkt. # 21, at 5. Defendant responds that the ALJ’s credibility determination should be
upheld. Dkt. # 22, at 5. “Credibility determinations are peculiarly the province of the finder of
fact,” and such determinations are not to be upset “when supported by substantial evidence.” Diaz
v. Sec’y of Health and Human Servs., 898 F.2d 774, 777 (10th Cir. 1990). Nonetheless, “[f]indings
as to credibility should be closely and affirmatively linked to substantial evidence.” Hutson v.
Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988). Factors an ALJ may weigh in determining a
claimant’s credibility include:
the levels of medication and their effectiveness, the extensiveness of the attempts
(medical or nonmedical) to obtain relief, the frequency of medical contacts, the
nature of daily activities, subjective measures of credibility that are peculiarly within
the judgment of the ALJ, the motivation of and relationship between the claimant
and other witnesses and the consistency or compatibility of nonmedical testimony
with objective medical evidence.
Hutson, 838 F.2d at 1132. An ALJ must look beyond objective medical evidence in evaluating
claims of disabling pain. Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987). An ALJ must give
specific reasons for his findings and such findings must be closely linked to substantial evidence.
Kepler v. Chater, 68 F.3d 387, 390 (10th Cir. 1995). However, an ALJ does not need to provide a
“formalistic factor-by-factor review of the evidence”; an ALJ needs only to “set[] forth the specific
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evidence he relies on in evaluating the claimant’s credibility.” Qualls v. Apfel, 206 F.3d 1368, 1372
(10th Cir. 2000). Common sense should guide the review of an ALJ’s credibility determination and
technical perfection is not required. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir.
2012).
In concluding that plaintiff was not credible, the ALJ first summarized plaintiff’s testimony
before addressing specific objective medical evidence that contradicted plaintiff’s testimony. Dkt.
# 10, at 23-27. The ALJ specifically noted that unemployment benefits that plaintiff received
undermined plaintiff’s credibility because, to receive unemployment benefits, a person must certify
that he is able and available to perform work. Id. at 26. The ALJ noted that this was inconsistent
with plaintiff’s claims that his impairments created functional limitations. Id. In addition to the
ALJ’s discussion of unemployment benefits that plaintiff received, the ALJ detailed other reasons
for concluding that plaintiff was not credible, including evidence that plaintiff stopped working
because of a business-related layoff rather than disabling impairments and medical records that
demonstrated plaintiff did not suffer from limitations in his daily activities to the extent that he
testified. Id.
Plaintiff’s argument regarding the magistrate judge’s credibility determination centers on
plaintiff’s claim that the magistrate judge placed undue significance on plaintiff’s receipt of
unemployment benefits, which plaintiff asserts is an impermissible credibility factor. Dkt. # 21, at
5. But an ALJ may consider a plaintiff’s receipt of unemployment benefits as a credibility factor
when reciept of such benefits is inconsistent with a plaintiff’s claims of disabling symptoms
rendering him unable to work. See, e.g., Pickup v. Colvin, 606 F. App’x 430, 433 (10th Cir. 2015)
(unpublished) (finding that ALJ did not err in considering plaintiff’s receipt of unemployment

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benefits as a credibility factor because “[t]here is an obvious inconsistency between claiming an
ability to work for purposes of obtaining unemployment compensation and claiming an inability to
work for purposes of obtaining social security benefits”) Vigil v. Colvin, 623 F. App’x. 936, 938
(10th Cir. 2015) (unpublished) (finding plaintiff’s claims of disabling pain incredible when plaintiff
collected unemployment benefits and sought other employment during relevant time period); Lately
v. Colvin, 560 F. App’x 751, 755 (10th Cir. 2015) (unpublished) (upholding ALJ’s credibility
determination based, in part, on plaintiff’s collection of unemployment benefits during period in
which she claimed she experienced disabling impairments).4
Plaintiff’s receipt of unemployment benefits is inconsistent with his claims of disabling pain
because receipt of benefits required him to certify that he was able and available to work. The ALJ
did not err in considering this inconsistency in making his credibility determination. And, as noted
above, the ALJ relied on more in the record than plaintiff’s collection of unemployment benefits in
determining that he was not credible, identifying specific inconsistencies between plaintiff’s medical
records, employment history, and testimony at the hearing. The ALJ’s credibility assessment of
plaintiff is closely and affirmatively linked to the substantial evidence. As such, he did not error in
concluding that plaintiff was not credible.

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Plaintiff asserts that the magistrate judge cited only unpublished decisions in concluding
that the ALJ properly considered plaintiff’s collection of unemployment benefits as a
credibility factor. Dkt. # 21, at 5. Although unpublished cases may be used for their
persuasive value only, the persuasive value is significant when numerous cases address the
same issue and reach the same conclusion.
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E.
Plaintiff finally argues that the ALJ erred in its finding at step five because the ALJ failed
to inquire of the VE whether his testimony was consistent with the DOT, as the legal standard
requires, and asserts and the VE’s testimony about certain occupations conflicted with the DOT
descriptions regarding reading requirements. Dkt. # 21, at 6. Defendant responds the ALJ did not
err because the ALJ’s thorough questioning elicited responses demonstrating that the VE’s
testimony was consistent with the DOT and technical perfection with the legal standards in an ALJ’s
decision is not required. Dkt. # 22, at 7.
In considering the testimony of a VE, the ALJ must ask the VE how his testimony
corresponds with the DOT and obtain a reasonable explanation for any discrepancy between the
VE’s testimony and the DOT. Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005) (citing
Haddock v. Apfel, 196 F.3d 1084 (10th Cir. 1999)). Although the ALJ did not specifically ask the
VE whether his testimony was consistent with the DOT when the VE testified regarding potential
occupations plaintiff could perform, the VE provided DOT identifying numbers for each of the
occupations he discussed. Dkt. # 10, at 75-81. This is strong evidence that the VE’s testimony was
consistent with the DOT. Further, the ALJ asked the VE specific questions regarding consistency
with the DOT, including questions about the exertion and reasoning levels of each potential
occupation. See id.
Plaintiff argues that the VE’s testimony was inconsistent with DOT descriptions as it related
to the reading requirements for specific occupations, but the Court finds this argument unpersuasive.
Plaintiff argues that the VE’s testimony, explaining that the ability to read instructions was generally
not a part of the discussed occupations, conflicts with the DOT descriptions for those jobs that

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require reading at language level one. Dkt. # 21, at 6. As the magistrate judge explained, language
level one is the lowest level in DOT descriptions and is based upon a combination of reading,
writing, and speaking. See Dkt. # 20, at 13 (citing DOT Appendix C - Components of the Definition
Trailer). And, as the magistrate judge aptly noted, the descriptions for the occupations at issue do
not identify “whether it is the reading, writing, or speaking aspect of the job or some combination
that places it at language level one.” Id. Thus, nothing in the DOT descriptions conflicts with the
VE’s testimony regarding the requisite reading for potential occupations.
The magistrate judge concluded that “[i]n light of the thoroughness of the questioning of the
vocational expert, the record demonstrates that the vocational expert’s testimony was consistent with
the DOT.” Id. at 12. The Court agrees with the magistrate judge’s assessment. The record
sufficiently demonstrates that the VE’s testimony was consistent with the DOT, even if the ALJ’s
opinion does not perfectly comport with the standards for evaluating a VE’s testimony. See KeyesZachary, 695 F.3d at 1166 (explaining that technical perfection is not required in an ALJ’s decision).
As such, there is no reversible error at step five regarding the VE’s consistency with the DOT.
IT IS THEREFORE ORDERED that the report and recommendation (Dkt. # 20) is
accepted. The Commissioner’s decision to deny plaintiff’s claim for disability benefits is affirmed.
A separate judgment is entered herewith.
DATED this 22nd day of March, 2016.

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