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. Doc. Nos. 15, 16.

The Magistrate Judge addressed 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

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plaintiff does not meet or equal Listing 12.05C. Plaintiff objects to

that conclusion. 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. Page ID# 279. In

concluding that plaintiff did not meet Listing 12.05C, 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 step 5 of the sequential evaluation is not

ordinarily harmless. 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, not to this Court on review of the

administrative record. 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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