Etheridge v. Commissioner of Social Security

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION 17 and affirming the decision of the Acting Commissioner. Signed by Honorable Vicki Miles-LaGrange on 3/31/2015. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KENNETH D. ETHERIDGE,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-13-904-M

ORDER
On January 30, 2015, United States Magistrate Judge Shon T. Erwin issued a Report and
Recommendation in this action in which plaintiff seeks judicial review of the final decision of
defendant Acting Commissioner of Social Security Administration (“Acting Commissioner”),
denying plaintiff’s applications for benefits under the Social Security Act. The Magistrate Judge
recommended the Commissioner’s decision in this matter be affirmed. The parties were advised of
their right to object to the Report and Recommendation by February 13, 2015. On February 12,
2015, plaintiff filed his objection.
In his objection, plaintiff contends that the Magistrate Judge did not adequately consider his
argument that the Administrative Law Judge (“ALJ”) relied on incompetent vocational evidence to
support his denial of benefits at step five of the sequential analysis. Specifically, plaintiff asserts
that the Magistrate Judge never addressed his argument that the vocational expert’s (“VE”) failure
to recognize that his testimony conflicted with the Dictionary of Occupational Titles calls into
question the competency and credibility of the VE’s entire testimony and that the Magistrate Judge
failed to address his argument that his visual limitations identified by the ALJ as a practical matter
would preclude all of the jobs including lens inserter because that job requires frequent near acuity.

Plaintiff further contends the Magistrate Judge did not adequately consider his argument that the
ALJ erred by failing to make a proper credibility assessment.
Having carefully reviewed this matter de novo, the Court finds that while it appears the VE
may have erred in relation to the job of optical goods assembler and the job of cutter and paster, that
error would not have so affected his competency and credibility as to his testimony regarding the
job of lens inserter to alter the ALJ’s determination to deny benefits at step five. Further, the Court
finds that based upon the ALJ’s specific residual functional capacity determination that plaintiff
should not be required to work with objects smaller than 2 centimeters, a more specific requirement
than that of frequent near acuity, and one supported by the record, would not preclude the job of lens
inserter. Finally, the Court finds that the ALJ made a proper credibility assessment, specifically
relying on evidence that in March 2009, plaintiff was released for medium duty work and was
discharged from medical care, that plaintiff reported that he was independent in activities of daily
living on August 22, 2011, and that despite reporting eye problems at the hearing, plaintiff wrote
that he read daily, very well, and that he could lift 20 to 25 pounds and could walk 45 to 60 minutes,
as well as mow the grass with a riding mower.
Accordingly, the Court:
(1)

ADOPTS the Report and Recommendation [docket no. 17] issued by the Magistrate
Judge on January 30, 2015, and

(2)

AFFIRMS the decision of the Acting Commissioner.

IT IS SO ORDERED this 31st day of March, 2015.