United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, UNITED STATES DISTRICT COURT CHIEF JUDGE
the court is the Report and Recommendation of United States
Magistrate Judge Gerald B. Cohn on the judicial review of a
decision of the Commissioner of the Social Security
Administration denying disability benefits to Annette Scott
(“Plaintiff”). [Doc. No. 15]. The Magistrate
Judge recommends that the Commissioner9;s decision be
affirmed. For the reasons set forth below, the court agrees,
overrules the objections, and adopts the Report and
August 7, 2013, Plaintiff applied for disability insurance
benefits and supplemental security income based upon alleged
disability beginning June 24, 2013. The Social Security
Administration (“SSA”) denied Plaintiff9;s
application both initially and on reconsideration. As a
result, Plaintiff requested and received a hearing before
Administrative Law Judge (“ALJ”) B.D.
Crutchfield. On December 1, 2014, the ALJ issued a written
decision finding that Plaintiff was not disabled and denying
benefits. [Doc. No. 9]. Because the SSA Appeals Council
denied review of that decision, the ALJ9;s denial of
benefits represents the Commissioner9;s final decision for
purposes of this appeal. 20 C.F.R. §§ 404.981,
416.1481. After U.S. Magistrate Judge Gerald B. Cohn
recommended that the Commissioner9;s decision be affirmed
[Doc. No. 15], Plaintiff filed objections on September 8,
2017 [Doc. No. 16].
Standard of Review
to Fed.R.Civ.P. 72(b)(3), the court “must determine
de novo any part of [a] magistrate judge9;s
disposition . . . properly objected to. The district judge
may accept, reject, or modify the recommended dispositions;
receive further evidence; or return the matter . . . with
instructions.” In the disability benefits context,
de novo review is limited to determining
“whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Doyal v.
Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). On review,
the court will “neither reweigh the evidence nor
substitute [its] judgment for that of the agency.”
White v. Barnhart, 903');">287 F.3d 903, 905 (10th Cir.
2001) (quotation marks and citation omitted).
objects to the ALJ9;s written decision on the basis that
the ALJ failed to discuss Plaintiff9;s testimony about her
inability to read and failed to find that she was illiterate.
Plaintiff contends that these failures infected the ALJ9;s
Step 5 analysis. [Doc. No. 16, p. 6]. The court disagrees.
Plaintiff argues that the ALJ erred by failing to discuss
Plaintiff9;s testimony about her inability to read.
Although “[a]n ALJ is not required to discuss every
piece of evidence, ” she “must discuss the
uncontroverted evidence [s]he chooses not to rely upon, as
well as significantly probative evidence [s]he
rejects.” Clifton v. Chater, 9 F.3d 1007');">79 F.3d 1007,
1009-10 (10th Cir. 1996); see also 42 U.S.C.
405(b)(1) (directing that any unfavorable determination
“shall contain a statement of the case . . . setting
forth a discussion of the evidence, and stating the
Commissioner9;s determination and the reason or reasons
upon which it is based”).
evidence in the record regarding Plaintiff9;s education is
not entirely consistent. On the one hand, there is strong
evidence that Plaintiff is literate. She obtained her G.E.D.
[Doc. No. 9, pp. 24, 190], worked in previous jobs requiring
basic reading and writing skills [Doc. No. 9, pp. 107, 190],
indicated in several places that she was able to read and
write [Doc. No. 9, pp. 188, 204, 216], and seems to have
personally signed and written several documents [Doc. No. 9,
pp. 131-32, 150, 433-42]. On the other hand, Plaintiff seizes
upon several items in the record to argue that she is
illiterate-Plaintiff was unable to read her social security
card during the hearing [Doc. No. 9, pp. 16-17], testified
before the ALJ that she was illiterate and unable to read or
write for herself [Doc. No. 9, pp. 16-17 (stating that she
was illiterate), 44-45 (stating that she “can9;t
read good”)], obtained her G.E.D. only through an eight
year church program [Doc. No. 9, pp. 24, 44-45], and received
assistance filling out and writing certain documents in the
record [Doc. No. 9, pp. 24, 45, 121-22, 210, 230-32 (stating
that Plaintiff9;s case manager “helped [her] write
[the] letter”)]. However, the record as a whole
indicates that Plaintiff9;s difficulties reading and
writing were more likely due to poor eyesight than to poor
literacy. [Doc. No. 9, pp. 17 (stating that Plaintiff has
never worn glasses), 32 (listing her vision as a sign of
disability), 37 (elaborating that she “can9;t see
little things”), 44 (explaining that she
“couldn9;t see” the numbers on her social
security card), 216 (reporting that she “can9;t see
ALJ9;s written decision does not discuss any of the above
evidence, concluding simply that Plaintiff “has at
least a high school education and is able to communicate in
English.” [Doc. No. 9, p. 107]. Although unsatisfying,
this is not reversible error. Plaintiff9;s evidence of
illiteracy is not substantially probative given the strength
of the evidence in favor of concluding that she is literate.
Further, even if Plaintiff9;s evidence was substantially
probative, the ALJ9;s failure to discuss it was harmless
given that discussion of it would not change the outcome of
the case on remand.
record does not controvert the fact that Plaintiff worked in
two professions requiring basic reading and writing skills,
or that she obtained a GED in 2009. See Smith v.
Colvin, No. 15-cv-9368-JWL, 2016 WL 6804927, at *5 (D.
Kan. Nov. 17, 2016) (stating “there is simply no
evidence in the record that Plaintiff did not get a GED . . .
[and] [t]he arguments of counsel are not evidence”).
Prior work experience and recent education are appropriate
factors for an ALJ to consider when determining education
level. Castellano v. Colvin, No. 13-CV-02147-RM,
2015 WL 7567728, at *5-7 (finding no error in ALJ9;s
conclusion that plaintiff was not illiterate, despite
statements by plaintiff that he could not read, where
plaintiff had a tenth grade education and prior work
experience requiring basic reading and writing skills); POMS
DI 2500.001 (17)(e) (listing as relevant “recent
education that provides for direct entry into skilled or
semiskilled work”). Additionally, multiple documents in
the record were personally written or filled out by
Plaintiff. [Doc. No. 9, pp. 131-32, 150, 433-42].
Plaintiff9;s primary explanation for her difficulty
reading-poor vision-further undermines the probative value of
her evidence. [Doc. No. 9, pp. 37, 44, 216]. Because of the
strong evidence that Plaintiff was literate, any evidence to
the contrary was simply not substantially probative.
Vititoe v. Colvin, 549 Fed. App9;x. 723, 729
(10th Cir. 2013) (holding a medical opinion to be “not
significantly probative” where the opinion was
“contrary to other substantial record evidence”).
discussion of Plaintiff9;s evidence of illiteracy would
not change the outcome of the case on remand. “[T]he
burden of showing that an error is harmful normally falls
upon the party attacking the agency9;s
determination.” Vititoe, 549 Fed. App9;x.
at 730 (quoting Shinseki v. Sanders, 96');">556 U.S. 396,
409 (2009)). Plaintiff attempts to meet this burden by
arguing that the ALJ9;s failure to discuss the evidence of
illiteracy harmed Plaintiff, because if the ALJ would have
concluded that she was illiterate then Plaintiff would have
qualified for disability. [Doc. No. 16, pp. 17-19]. However,
this argument fails because Plaintiff mistakenly assumes that
discussion of the evidence would have caused the ALJ to
conclude that she was illiterate. Such a conclusion is
unlikely. Davison v. Colvin, 596 F. App9;x 675,
679-80 (10th Cir. 2014) (concluding that “conflicting
evidence concerning [plaintiff9;s] ability to fill out
certain forms . . . was insufficient to suggest a reasonable
possibility that a severe impairment exists”); See
Beaver v. Colvin, No. CIV-15-277-SPS, 2016 WL 5408157,
at *5 (E.D. Ok. Sept. 28, 2016) (rejecting plaintiff9;s
claim of illiteracy based primarily on plaintiff9;s
subjective testimony, where plaintiff9;s testimony and
documents in the record indicated that plaintiff could read).
As a result, the court concludes that even if the ALJ erred
by failing to discuss Plaintiff9;s testimony about her
inability to read, such error was harmless.
Plaintiff argues that the ALJ erred by failing to find that
Plaintiff was illiterate. An ALJ's findings must be
supported by substantial evidence, which is “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Doyal, 331
F.3d at 760; see also Lax v. Astrue, 9 F.3d 1080');">489 F.3d 1080,
1084 (10th Cir. 2007) (characterizing substantial evidence as
“more than a scintilla, but less than a
preponderance”). As discussed above, the evidence is
strong that Plaintiff is literate. She worked for a number of
years in jobs requiring basic reading and writing skills,
obtained her GED in 2009, and personally wrote or filled out