Denny Givens v. Carolyn Colvin , 551 F. App'x 855 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 20, 2013
Decided December 17, 2013
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13-2000
DENNY R. GIVENS, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
New Albany Division.
v.
No. 4:12-cv-44-WGH-RLY
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, William G. Hussmann, Jr.,
Defendant-Appellee. Magistrate Judge.
ORDER
Denny Givens challenges the denial of Social Security benefits. The
Administrative Law Judge found that, although Givens’s impairments prevent him
from performing his past jobs, he can still perform other jobs available in the regional
economy. In this court Givens argues that the ALJ failed to (1) give appropriate weight
to the opinion of an examining physician, (2) properly account for his moderate
limitations in concentration, persistence, and pace in the hypothetical posed to the
vocational expert, and (3) resolve a perceived conflict between that expert’s testimony
No. 13-2000 Page 2
and the Dictionary of Occupational Titles. Because the ALJ did not err in any of those
ways, we uphold the ALJ’s decision.
Givens was born in 1967. During high school he attended special education
classes and earned mostly B grades. Although he dropped out before graduating,
Givens earned his high school diploma in 2005. Givens still has difficulty with reading
and writing.
Despite suffering from chronic lower-back pain since a 1988 car accident, Givens
worked as a truck driver for most of his adult life until 2002 or 2003 when, he says, the
pain became too much. As a truck driver he transported freight and was required to
complete log sheets.
In June 2004, Givens was diagnosed with lumbar degenerative disk disease when
magnetic resonance imaging revealed disc degeneration in his lower back and some
minor disc protrusion but no marked nerve root impingement. Dr. William Driehorst, a
spine specialist, reviewed the MRI and concluded that Givens did not have “major back
problems” but did seem “unmotivated or defeatist.” Later that year Givens began
cleaning vehicles to prepare them for sale at a car dealership but was fired in late 2005;
according to Givens, he had missed too many days of work because of back pain.
In late June 2006, Givens applied for Social Security benefits claiming to be
disabled by back pain, diabetes, arthritis, depression, numbness in his extremities, and
headaches.1 The next month, Dr. Chris Catt, a state-agency clinical psychologist,
1
The Commissioner asserts that Givens was seeking only Disability Insurance
Benefits. To qualify for disability insurance benefits, Givens was required to show that
he was disabled before his date last insured, June 30, 2009. See Shideler v. Astrue, 688
F.3d 306, 312 (7th Cir. 2012); Sienkiewicz v. Barnhart, 409 F.3d 798, 802 (7th Cir. 2005).
Thus the Commissioner insists that only medical opinions from before Givens’s insured
status expired are relevant. But Givens asserts that he also applied for Supplemental
Security Income, to which he would be entitled if presently disabled and of limited
means. See 42 U.S.C. §§ 1381a, 1382; Sienkiewicz, 409 F.3d at 802; Steed v. Astrue, 524 F.3d
872, 874 n.2 (8th Cir. 2008). The administrative record is unclear on this question. If
there was a claim for Supplemental Security Income, it apparently was overlooked. The
initial benefits determination, decision on reconsideration, Givens’s request for a
hearing, and the ALJ’s decision reference only his claim for Disability Insurance
Benefits. In the end, though, it really does not matter. The ALJ considered all of the
No. 13-2000 Page 3
examined Givens. Dr. Catt noted that Givens had no history of ongoing psychiatric
treatment and observed that he showed average intellectual functioning, exhibiting
basic spelling and math skills as well as normal attention, concentration, speech,
abstract thinking, and social skills. As a result Dr. Catt concluded that Givens had no
symptoms of mental illness. Later that month Dr. Anjali Leley completed a physical
examination for the state agency. Dr. Leley noted “no apparent acute distress” but did
observe that Givens had “slight difficulty” walking, climbing onto and down from the
exam table, and rising out of a chair and could not lay straight back on the exam table.
She also detected limitations in Givens’s range of motion in his left shoulder and knees.
And whether sitting or lying down, Givens could not extend and raise either leg above
45 degrees, a sign of a likely herniated disc. Dr. Leley further noted that Givens’s
speech, affect, and motor skills were normal and that he could squat to the ground
while holding the wall.
A few days later, in August 2006, another psychologist, Dr. J. Gange, reviewed
Givens’s medical records for the state agency and concluded that an “affective
disorder” (which the psychologist never further identified) was “not severe,” though
Givens had mild “difficulties in maintaining concentration, persistence, or pace.”
Dr. J.V. Corcoran also reviewed Givens’s records for the state agency and assessed his
physical residual functional capacity. Dr. Corcoran concluded that Givens could sit,
stand, or walk a total of 6 hours in an 8-hour workday. He could frequently balance,
stoop, or crouch, but could only occasionally climb, kneel, or crawl. Givens had no
communicative limitations. Dr. Corcoran also opined that Givens was overstating the
severity of his symptoms. Other reviewing doctors endorsed the opinions of both
Dr. Gange and Dr. Corcoran.
The Social Security Administration denied Givens’s application for benefits in
August 2006 and in November 2006 upheld that decision on reconsideration. Givens
requested a hearing before an ALJ, which was conducted in October 2008. In the
meantime Givens continued to complain of back and shoulder pain. At the October
2008 hearing, a vocational expert testified that, although Givens could not perform his
past work, he still had the residual functional capacity to perform other jobs available in
the regional economy as long as they had a sit/stand option. The expert’s testimony was
based on an industry article, but the expert could not produce it or even offer a citation
for it on cross-examination.
medical evidence, including the records from after Givens’s date last insured, and
found that Givens could perform sedentary work despite his impairments.
No. 13-2000 Page 4
Shortly after the hearing, Dr. Norman Mindrebo examined Givens and
diagnosed him with asthma, diabetes, carpal tunnel syndrome, and spina bifida—“[a]
birth defect in which there is incomplete closure in the spinal column.” AM. MED. ASS’N,
COMPLETE MEDICAL ENCYCLOPEDIA 1148 (2003). Dr. Mindrebo repeated the earlier
“straight leg raising test” and, like Dr. Leley, surmised that Givens might have a
herniated disc. The physician noted some hardening of the tissue around Givens’s discs,
which were otherwise “well preserved.” An electromyogram and nerve-conduction
study confirmed mild to moderate carpal tunnel syndrome. An MRI of Givens’s lumbar
spine showed multilevel lumbar spondylolysis, a defect in which soft tissue instead of
bone protects the spinal cord and connects the vertebral bone to the facet joint, which
was “slightly increased at L3-L4” compared to the previous MRI. AM. MED. ASS’N,
supra, at 1154. The MRI also showed “mild disc bulging.” But there was no “significant
malalignment” or “definite nerve root impingement.” And the MRI of Givens’s left
shoulder was normal.
Even though Givens’s attorney never got a chance to review the vocational
expert’s article, the ALJ denied Givens benefits in April 2009, and Givens sought
review. In the meantime, on June 30, 2009, Givens’s insured status for disability benefits
expired.
Givens filed a new claim for Disability Insurance Benefits on September 1, 2009,
alleging an April 12, 2009, onset date. The next month, Dr. Corcoran again reviewed
Givens’s medical records to assess his physical residual functional capacity. Like in his
previous assessment, Dr. Corcoran concluded that Givens could sit, stand, or walk for 6
hours in a workday and identified no communicative limitations. Dr. Donna Unversaw,
a consulting psychologist, also performed a psychiatric review of Givens’s records.
Dr. Unversaw defined Givens’s mental disorder as depression but, like Dr. Gange,
concluded that the condition was not severe and that Givens had only mild “difficulties
in maintaining concentration, persistence, or pace.”
After the Appeals Council declined to review the ALJ’s decision in December
2009, Givens sought judicial review in the district court, which in June 2010 remanded
his case to the Appeals Council on a joint motion by Givens and the Commissioner.
See Givens v. Astrue, No. 4:10-cv-00019-RLY-WGH (S.D. Ind. June 21, 2010). The Appeals
Council in turn remanded the case to a new ALJ because the first ALJ had not
determined whether the vocational expert’s testimony was reliable and the vocational
expert never provided the supporting article to Givens’s counsel.
No. 13-2000 Page 5
Givens continued to complain of shoulder pain to his family doctor, who ordered
an X-ray of Givens’s left shoulder. That X-ray revealed degenerative changes in the
acromioclavicular joint. A specialist surgically repaired the shoulder in July 2010;
additional surgeries were recommended but not scheduled.
In February 2011, Dr. Shuyan Wang, an anesthesiologist who specializes in
geriatric medicine, examined Givens for the state agency. Dr. Wang observed Givens’s
limp, difficulty getting up from sitting, difficulty with toe and heel walking, and
apparent pain during the exam, but also noted that he could sit for the duration of the
exam, could explain his medical history, and exhibited normal intellectual function and
affect. His hand functions were mostly normal, and though his back and shoulder were
tender, this time Givens could raise his extended leg 60 degrees while lying down and
90 degrees while sitting. Dr. Wang opined that Givens “may not be able to work full
time,” and could perform only light-duty jobs with “some restriction for standing and
walking” and the ability “to periodically change position from sitting.” On a separate
form, Dr. Wang limited Givens to sitting a total of 4 hours and standing or walking 1
hour each during a workday. He could sit continuously for 30 minutes, stand for 10
minutes, and walk for 5 minutes. Where the form requested the doctor to identify the
particular medical or clinical findings which supported that assessment, Dr. Wang
wrote: “He complains back pain with walking, standing and sitting. He has difficulty to
get up from sitting.”
The next month Dr. Jill A. Christopher performed a consultive psychological
examination. Although Dr. Christopher reported that Givens seemed depressed, she
also noted that his attention, activity level, memory, judgment, orientation, and speech
were normal. She determined that Givens “may have some difficulty attending,
concentrating and completing simple tasks due to significant depression.” But on a
form accompanying her assessment, she checked boxes indicating that Givens had no
marked impairments of his ability to understand, remember, and carry out instructions.
In fact, he had at most mild impairments of his ability to understand and carry out
complex instructions and make complex work-related decisions.
At the hearing before the second ALJ in October 2011, Givens’s counsel gave an
opening statement in which he stressed Dr. Wang’s findings that Givens could sit for
only 4 hours, stand for 1 hour, and walk for 1 hour in a given workday. Givens testified
that he suffers from lower-back pain, numbness in his legs, asthma, carpel tunnel
syndrome in both hands, shoulder pain, difficulty raising his arms over his head,
diabetes, neuropathy in his legs and feet, headaches, cartilage deterioration in his knees,
No. 13-2000 Page 6
and depression, which had only gotten worse since his last hearing in October 2008. He
testified that his depression causes him to “lose concentration pretty easy,” making it
difficult even to pay attention to a 30-minute television show. Givens explained that he
could sit only for 3 or 4 hours during an 8-hour day and usually sleeps 15 to 18 hours in
a given day. He also pointed out that, although he has obtained his diploma, he took
special education courses in high school and initially dropped out. Givens testified that
he does not read books, newspapers, or magazines, and had difficulty maintaining his
logs as a truck driver, but can order from a menu at a restaurant.
Next, the ALJ asked a vocational expert to consider a hypothetical claimant:
[A] hypothetical individual the claimant’s age, education, and prior work
experience who is restricted to performing sedentary level
work—sedentary work with the following additional restrictions: limited
to occasional crouching, crawling, kneeling, stooping, balancing, and
climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds;
no driving of automotive equipment; no work around hazards, such as
unprotected heights or dangerous machinery; limited to occasional
overhead reaching with upper extremities; limited to occasional operation
of foot controls; frequent use of the upper extremities for handling and
fingering; due to a moderate level restriction in concentration, persistence,
or pace the worker would be restricted to performing unskilled, simple,
repetitive tasks, which would not involve focused attention for more than
two hours at one time and which would not involve rapid production
paced work; and then due to a moderate level restriction in social
functioning, the worker would also be restricted in social functioning, the
worker would also be restricted to occasional contact with coworkers,
supervisors, and the public.
The vocational expert testified that a claimant with those characteristics and restrictions
could not perform his past work but could perform, among other jobs, inspector or
tester jobs, packaging and machine-filling jobs, or jobs in protective services such as
surveillance-system monitor. The ALJ next asked whether that hypothetical claimant
would be able to perform those jobs if he was restricted in the way Dr. Wang ‘s report
suggested—not sitting more than 30 minutes, standing for more than 10 minutes, or
walking for more than 5 minutes at a time. The vocational expert responded that these
restrictions would eliminate all unskilled sedentary work. Lastly the ALJ asked the
vocational expert if her testimony is consistent with the Department of Labor’s
No. 13-2000 Page 7
Dictionary of Occupational Titles, and she said yes. Givens did not object. On cross-
examination, the vocational expert testified that in order to work as a surveillance
monitor “one would have to have some ability to concentrate.”
After evaluating her claim under the five-step sequential process detailed in 20
C.F.R. § 404.1520(a)(4), the ALJ found Givens not disabled. First he found that Givens
had not engaged in substantial gainful activity since his alleged onset date. At the
second and third steps, he determined that the medical evidence established that
Givens suffers from severe medical impairments—degenerative disc disease of the
lumbosacral spine, carpal tunnel syndrome, degenerative joint disease of the left
shoulder, obesity, mild osteoarthritis of the knees, diabetes mellitus, and
depression—but that his impairments do not meet the criteria to show presumptive
disability. The ALJ then concluded that, although Givens cannot perform his past work,
he remains able to perform some sedentary work including inspector/tester,
packager/folding-machine operator, and security-system monitor. The ALJ gave “little
weight” to Dr. Wang’s report and “greater weight” to Dr. Corcoran’s 2009 assessment,
noting that Dr. Wang’s assessment of Givens’s residual functional capacity is “not
supported by the relatively modest level of change shown on the MRI studies” and
seemed to be based “entirely upon the claimant’s allegations and complaints.” The ALJ
also determined that Givens had moderate limitations in concentration, persistence, and
pace. A magistrate judge, presiding by consent, affirmed the decision.
Because the Appeals Council declined Givens’s request for review, the ALJ's
ruling is the final decision of the Commissioner of Social Security. See Schomas v. Colvin,
No. 13-1197, 2013 WL 5485143, at *4 (7th Cir. Oct. 3, 2013); Roddy v. Astrue, 705 F.3d 631,
636 (7th Cir. 2013); O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). We
review the ALJ’s decision directly, without reweighing the evidence, and will uphold
the ALJ so long as his ruling is supported by substantial evidence. Roddy, 705 F.3d at
636; O’Connor-Spinner, 627 F.3d at 618; Prochaska v. Barnhart, 454 F.3d 731, 734–35 (7th
Cir. 2006).
A. The ALJ’s consideration of the medical evidence.
Givens first accuses the ALJ of violating 20 C.F.R. § 404.1527(c)(1) by weighing
the opinion of a non-examining physician, Dr. Corcoran, over that of an examining
physician, Dr. Wang. After examining Givens, Dr. Wang opined that Givens could sit
continuously for only 30 minutes, stand for 10 minutes, and walk for 5 minutes. Because
No. 13-2000 Page 8
the vocational expert testified that a claimant with those limitations would not be able
to do even sedentary work, if Givens is correct, he would be considered disabled.
Although an ALJ generally affords “more weight to the opinion of a source who
has examined” a claimant than to the opinion of a source who has not, the weight
ultimately given to that opinion depends on its consistency with and objective medical
support in the record; the quality of the explanation the source gave for the opinion;
and the source’s specialization. 20 C.F.R. § 404.1527(c); see Roddy, 705 F.3d at 637.
Relying on Gudgel v. Barnhart, 345 F.3d 475 (7th Cir. 2003), Givens seems to argue that
the ALJ improperly relied on Dr. Corcoran’s contradictory opinion of Givens’s physical
residual functional capacity to discount Dr. Wang’s. Although an ALJ cannot reject an
examining physician’s opinion based solely on the contradictory opinion of a
non-examining physician, see Gudgel, 345 F.3d at 470, the ALJ here did not even mention
Dr. Corcoran’s opinion when deciding to discount Dr. Wang’s report. The ALJ gave two
reasons for discounting Dr. Wang’s opinion: it is (1) inconsistent with the MRIs, and (2)
appears to be based on Givens’s complaints rather than the examination.
The ALJ provided an adequate explanation for giving little weight to Dr. Wang’s
opinion. The ALJ determined that the opinion conflicts with the objective medical
evidence:
The limitations listed in the assessment are not supported by the relatively
modest level of change shown on the MRI studies of record. Neither of
these studies showed any nerve root compression or even contact. . . .
Even though Dr. Wang did note some significant neurological findings
such as a positive straight leg raising and some reflex loss, the level of
documented pathology shown on the imaging studies of record is
consistent with a physical ability to perform sedentary work within the
limitations described in the above finding.
An ALJ may discount even a treating physician’s opinion if it is inconsistent with the
medical record. See 20 C.F.R. § 404.1527(c)(2), (4); Roddy, 705 F.3d at 636; Ketelboeter v.
Astrue, 550 F.3d 620, 625 (7th Cir. 2008); Gudgel, 345 F.3d at 470. In Roddy, the ALJ
rejected the treating physician’s opinion that the claimant could not work full time
because the claimant’s earlier MRIs had been “unremarkable.” See Roddy, 705 F.3d at
637. In rejecting that explanation, we reasoned that the doctor had diagnosed the
claimant with degenerative disc disease, which by definition would worsen over time,
and the ALJ had failed to discuss the reasons the doctor gave for why the claimant’s
No. 13-2000 Page 9
condition had substantially deteriorated. Id. Like the claimant in Roddy, Givens was
diagnosed with degenerative disc disease, and, like the ALJ in Roddy, the ALJ here
discounted the doctor’s opinion based in part on its inconsistency with the MRIs in the
record.
But the ALJ here was not unreasonable. Unlike the doctor’s opinion in Roddy,
Dr. Wang’s opinion was given without benefit of spinal imaging or an extended treating
relationship. Furthermore, unlike the explanation given by the doctor in Roddy, the
record here does not reflect any reason for any change in Givens’s condition since the
last MRI. And the change in Givens’s condition between the two MRIs reflected slow
degeneration. Dr. Driehorst, the spine specialist who reviewed the 2004 MRI, did not
perceive major back problems. And the 2008 MRI showed only a “slightly increased”
lumbar spondylosis since 2004. Moreover, neither MRI showed any nerve root
impingement. In fact, Dr. Wang’s 2011 examination did not reflect degeneration. Givens
could now lift his extended legs to 60 degrees from the supine position, up from 45
degrees in 2006, and all the way to 90 degrees from sitting, also up from 45 degrees in
2006. Perhaps a more recent MRI would have been consistent with Dr. Wang’s
assessment, but there is no such MRI in the record.
It was also reasonable for the ALJ to discount Dr. Wang’s opinion because that
opinion appears to rest on Givens’s own assessment about how long he can
continuously sit, stand, or walk. An ALJ may give less weight to an opinion that
appears to rely heavily on the claimant’s subjective complaints, even if the source of
that opinion had examined the claimant. See 20 C.F.R. § 404.1527(c)(3) (“The more a
medical source presents relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give the opinion. The better
explanation a source provides for an opinion the more weight we will give that
opinion.”); Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012); Ketelboeter, 550 F.3d at 625;
Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004). Before affording “little weight” to
Dr. Wang’s opinion that Givens could not even perform sedentary work, the ALJ
discussed Dr. Wang’s examination notes and initial comment that Givens would be able
to perform light-duty jobs. But, as the ALJ noted, when it came time to support her
opinion about Givens’s inability to sit, stand, and walk for even short periods, Dr. Wang
cited no medical evidence and instead wrote only that Givens complained of pain when
performing those activities and had difficulty getting up from a seated position.
Therefore, the ALJ articulated two adequate explanations for giving little weight to
Dr. Wang’s opinion. See Skarbek v. Barnhart, 390 F.3d 500, 503–04 (7th Cir. 2004)
(concluding that ALJ did not err in discounting treating-physician’s opinion because it
No. 13-2000 Page 10
was inconsistent with X-rays and the physician had failed to identify other medical
evidence supporting his view).
B. The hypothetical posed to the vocational expert.
Givens next argues that the ALJ inappropriately accounted for his moderate
limitations in concentration, persistence, and pace in the hypothetical the ALJ posed to
the vocational expert by limiting the hypothetical claimant to jobs not requiring more
than 2 hours of continuously focused attention. This was a problem, Givens says,
because a maximum of 2 hours of focused attention “is what is normal or expected in
almost all employment,” and so a 2-hour limitation is “no limitation at all.”
An ALJ’s hypothetical must account for all of the claimant’s limitations,
including deficiencies of concentration, persistence, and pace. O’Connor-Spinner, 627
F.3d at 619, Simila v. Astrue, 573 F.3d 503, 520–21 (7th Cir. 2009). Sometimes the ALJ
attempts to accomplish this by limiting the hypothetical claimant to unskilled work,
simple, repetitive tasks, or other “restrictions that do not necessarily exclude from the
VE’s consideration those positions that present significant problems of concentration,
persistence and pace.” O’Connor-Spinner, 627 F.3d at 620. But the ALJ here followed best
practices and expressly included Givens’s moderate limitations in concentration,
persistence, and pace. Id. at 620–21.
The ALJ chose to further limit the hypothetical claimant to jobs that, among other
restrictions, would not require more than 2 hours of focused attention at a time. Givens
seems to assume that a functional limitation must coincide with a dwindling number of
jobs, and thus the ALJ’s restriction was “illogical” because most jobs would not require
more than 2 hours of concentration at a time. See Braithwaite v. Comm’r of Soc. Sec., No.
CIV S–09–2922–CMK, 2011 WL 1253395, at *5 n.4 (E.D. Cal. Mar. 31, 2011). Givens relies
on Warren v. Colvin, No. 12 C 3298, 2013 WL 1196603, at *5 (N.D. Ill. Mar. 22, 2013), in
which, he contends, the court remanded the case because it does not “make sense to
conclude . . . that an individual with moderate limitations in the ability to maintain
attention and concentration would require the same frequency of breaks as a typical
worker,” a break every 2 hours. This is a misreading of the decision. The judge already
was remanding the case for other reasons and simply directed the ALJ to explore that
issue on remand. See Warren, 2013 WL 1196603, at *5. And this case is distinguishable
because the ALJ here restricted Givens to less than 2 hours of concentration, not 2 hours.
Furthermore, as reflected on the form Dr. Christopher completed, Givens’s moderate
limitation still demonstrated satisfactory functioning. See Roberson v. Astrue, 481 F.3d
No. 13-2000 Page 11
1020, 1024 (8th Cir. 2007). So it is not illogical that Givens would be able to perform
most jobs despite his moderate limitations.
C. The vocational expert’s testimony and the Dictionary of Occupational
Titles.
Lastly, Givens insists that the ALJ erred in relying on the vocational expert’s
testimony that a hypothetical claimant with his characteristics could work as an
inspector/tester or surveillance-system monitor without resolving a conflict between
that testimony and the Dictionary of Occupational Titles. He contends that a
hypothetical claimant with his educational background—special education in high
school and not completing high school until he was almost 40 years old—would not be
able to perform inspector/tester or surveillance-system monitor jobs because they
required a General Educational Development language level of 3.
If a vocational expert’s testimony “appears to conflict with the dictionary,” SSR
00-4p requires an ALJ to obtain “a reasonable explanation for the apparent
conflict.”Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008); accord Weatherbee v. Astrue,
649 F.3d 565, 570 (7th Cir. 2011). But since Givens did not object at the hearing, “he
would have to show that the conflict was ‘obvious enough that the ALJ should have
picked up on [it] without any assistance.’” Terry v. Astrue, 580 F.3d 471, 478 (7th Cir.
2009) (quoting Overman, 546 F.3d at 463).
The perceived conflict appears to be illusory, and if the vocational expert’s
testimony does conflict with the dictionary, that conflict is not obvious. First, as the
Commissioner points out, the dictionary’s General Educational Development levels
focus on the worker’s educational background, not on on-the-job requirements:
General Educational Development embraces those aspects of education
(formal and informal) which are required of the worker for satisfactory job
performance. This is education of a general nature which does not have a
recognized, fairly specific occupational objective. Ordinarily, such
education is obtained in elementary school, high school, or college.
However, it may be obtained from experience and self-study.
See DEP’T OF LABOR, DICTIONARY OF OCCUPATIONAL TITLES, App. C (4th ed., Rev. 1991),
available at http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTAPPC.HTM.GED.
Thus workers satisfactorily performing jobs with a language development level of
No. 13-2000 Page 12
3—like the tester or surveillance-system monitor positions here—would be expected to
be able to read novels, magazines, atlases, encyclopedias, safety rules, and mechanical
instructions; “[w]rite reports and essays with proper format, punctuation, spelling, and
grammar, using all parts of speech;” and “[s]peak before an audience with poise, voice
control, and confidence, using correct English and well-modulated voice.” See DOT,
supra at App. C. Nowhere in the job descriptions for either position is a tester or monitor
required to read novels or magazines. See DOT, supra at 281, 396.
Second, it is not obvious from the record that Givens would not meet those
language development criteria. Givens never testified that he cannot read novels or
magazines, just that he does not. And his testimony that he participated in special
education in high school and dropped out early does not mean he obviously could not
perform a job with a language level of 3. Students are placed in special education for
myriad reasons ranging from minor learning disabilities to severe mental retardation,
and all Givens said about his placement is that he had learning disabilities which
hindered his ability to learn new tasks easily. Givens still received above-average grades,
however, and ultimately completed his high school degree. And there is no basis to
conclude from the record that Givens’s intellectual functioning and language skills have
declined because of his impairments. Throughout Givens’s treatment, doctors opined
that he had average intellectual functioning with no communicative difficulties.
But even if there was an obvious conflict, the ALJ’s procedural error was harmless
because his acceptance of the vocational expert’s testimony was based on substantial
evidence. See Massachi v. Astrue, 486 F.3d 1149, 1154 n.19 (9th Cir. 2007); Hillier v. Soc. Sec.
Admin., 486 F.3d 359, 366 n.3 & 367 (8th Cir. 2007). Even if Givens does not meet the
language standards for an inspector/tester or surveillance-system monitor (which is not
clear from the record), it appears that he could meet the lower language requirements for
packager/folding-machine operator. See Ketelboeter, 550 F.3d at 626; Clay v. Barnhart, 417
F.3d 922, 931 (8th Cir. 2005).
Accordingly, we AFFIRM the decision of the ALJ.