Perritt v. Commissioner of Social Security

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 2-20-12. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TINA L. PERRITT,
Plaintiff,
vs.

Civil Action 2:11-CV-70
Judge Smith
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff in this action seeks review of the decision of the
Commissioner of Social Security denying plaintiff’s applications for
disability insurance benefits and supplemental income.

On December 9,

2011, the United States Magistrate Judge recommended that the decision
of the Commissioner be reversed and that this action be remanded for
further

consideration

of

whether

plaintiff’s

residual

functional

capacity permits her to perform a significant number of jobs in the
national economy.

Report and Recommendation, Doc. No. 14.

This matter

is now before the Court on the objections to that recommendation, filed
by both plaintiff and the Commissioner.
The

Magistrate

Judge

addressed

Doc. Nos. 15, 16.
two

issues:

(1)

plaintiff’s

contention that her impaired cognitive functioning, combined with her
other significant impairments, qualifies as mental retardation under
Listing 12.05C and (2) plaintiff’s contention that the administrative
law judge improperly relied on the testimony of the vocational expert
because the hypothetical posed to the expert failed to include all of
plaintiff’s limitations as found by the administrative law judge.

In

addressing the first issue, the Magistrate Judge concluded that the
record provides substantial support for the Commissioner’s finding that

plaintiff does not meet or equal Listing 12.05C.
that conclusion.

Plaintiff objects to

In addressing the second issue, the Magistrate Judge

concluded that, because the administrative law judge failed to include
a limitation to low stress work in the hypothetical posed to the
vocational expert, it was error to rely on the testimony of that expert.
The Commissioner objects to the recommendation that the action be
remanded for further consideration in this regard, taking the position
that any error was harmless.

The Court will address the parties’

positions in turn.
Plaintiff contends that she meets or equals Listing 12.05C, which
requires a valid IQ score of 60 through 70, combined with another
significant physical or mental impairment and “significantly subaverage
general intellectual functioning with deficits in adaptive functioning
[that]

initially

manifested

during

the

developmental

period.”

Plaintiff’s contention in this regard relies primarily on the opinion
of the consultative psychologist, who reported qualifying IQ scores but
who declined to diagnose mental retardation because he had not been
provided plaintiff’s school records for his review.
concluding

that

plaintiff

did

not

meet

Page ID# 279.

Listing

12.05C,

In
the

administrative law judge relied on the opinions of the state agency
psychologists who, having reviewed the documentary evidence, including
plaintiff’s school records, opined that plaintiff did not meet the
Listing.

This Court agrees with the Commissioner and the Magistrate

Judge that the opinions of the state agency psychologists provide
substantial support in the record for the decision of the administrative
law judge.

Plaintiff’s objection to the Report and Recommendation is

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therefor DENIED.
The Commissioner objects to the recommendation that the matter be
remanded for further consideration of the vocational evidence.

The

administrative law judge expressly found that plaintiff’s residual
functional capacity included a limitation to low stress work.

However,

in posing the hypothetical to the vocational expert, the administrative
law judge failed to include that restriction.

Page ID# 81.

Plaintiff

argues that it was error for the administrative law judge to rely on the
testimony of the vocational expert under these circumstances. See Casey
v. Sec’y of H.H.S., 987 F.2d 1230, 1235 (6th Cir. 1993)(ALJ may rely on
testimony of a vocational expert where the hypothetical includes all
limitations in the claimant’s residual functional capacity as found by
the ALJ).

The Commissioner does not disagree that error occurred, but

relies on Shinseki v. Sanders, 556 U.S. 396 (2009), for the proposition
that remand is unwarranted because any such error was harmless.
Shinseki held, in the context of a decision under the Veterans
Claims Assistance Act of 2000, that reversible error must not be
harmless and that the party attacking the agency’s determination has the
burden of establishing prejudice.

Id. at 408-09.

Although the Sixth

Circuit has not addressed the issue, at least one Circuit has held that
Shinseki’s harmless error analysis also applies to Social Security
disability appeals. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011).
A number of district courts, however, have held that – even under
Shinseki

–

error

at

ordinarily harmless.

step

5

of

the

sequential

evaluation

is

not

See, e.g., Bode v. Astrue, 2011 WL 1304441 (W.D.

Okla. April 1, 2011); Crock v. Astrue, 2010 WL 264324 (W.D. Pa. July 1,

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2010).

But see Gorsich v. Astrue, 2010 WL 5932371, ** 9-10 (S.D. Ill.

July 19, 2010)(failure to include a limitation in the hypothetical was
harmless error.)
This Court declines to base its holding on a failure by plaintiff
to prove that the admitted error was harmless.

First, the Court notes

that, in determining whether a claimant can perform a significant number
of jobs in the national economy at step 5 of the sequential evaluation
of a Social Security claim, the burden is on the Commissioner, not the
claimant. Moreover, in making this argument, the Commissioner discusses
at length the requirements of different jobs as reflected in the
Dictionary of Occupational Titles.

Although the vocational expert

indicated in passing that her testimony was consistent with

that

publication, Page ID# 82, the administrative record does not expressly
discuss that publication or its description of those jobs.

In the view

of this Court, this vocational analysis is appropriately left to the
Commissioner

on

remand,

administrative record.

not

to

this

Court

on

review

of

the

Under these circumstances, the Court concludes

that the Commissioner’s objection is without merit and it, too, is
DENIED.
The Report and Recommendation is ADOPTED AND

AFFIRMED.

The

decision of the Commissioner is REVERSED and this action is hereby
REMANDED for further consideration of whether plaintiff’s residual
functional capacity permits her to perform a significant number of jobs
in the economy.
The Clerk shall enter FINAL JUDGMENT pursuant to Sentence 4 of 42
U.S.C. § 405(g).

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s/George C. Smith
George C. Smith, Judge
United States District Court

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