MEMORANDUM DECISION AND ORDER OVERRULING OBJECTION and ADOPTING REPORT AND RECOMMENDATION

DAVID NUFFER, District Judge.

Plaintiff Gino F. Bennett ("Bennett") filed an Objection1 to the Report and Recommendation ("R&R") issued on September 8, 2014.2 The R&R recommends that this court affirm the Commissioner's decision in this case.3 For the reason discussed below, the court OVERRULES the objection, ADOPTS the R&R, and AFFIRMS the Commissioner's decision denying benefits.

BACKGROUND

Bennett's appeal of the Commissioner's final decision determining that Bennett was not entitled to Disability Insurance Benefits ("DIB") under Title II of the Social Security Act4, and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act5 was referred to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).6 After Magistrate Judge Warner issued his R&R recommending that this court affirm the Commissioner's decision, Bennett filed his Objection, which is limited to a single issue. The Commissioner filed a response to Bennett's Objection, urging the court to adopt the R&R and deny Bennett's appeal.

STANDARD OF REVIEW

When an objection to the R&R is filed, the court, pursuant to 28 U.S.C. § 636(b)(1)(C), "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions."7 The court shall "review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied."8 However, the Court "will not reweigh the evidence or substitute [it's] judgment for the Commissioner's."9

ANALYSIS

Bennett argues, and there is no dispute, that "the ALJ failed to fulfill a critically important responsibility at the administrative hearing by failing to inquire into any conflicts between the function requirements of jobs identified in hearing testimony of the V[ocational] E[expert ("VE")] and how such jobs are described in the D[ictionary] [of] O[ccupational] T[itles ("DOT")]."10 Bennett's single issue of contention is "the Magistrate Judge[`s] hold[ing] that while the ALJ did fail to inquire about such conflicts, such failure was harmless because Mr. Bennett did not `identify any actual conflicts.'"11 Bennett contends that it is not his burden to identify conflicts between the testimony of the VE and the DOT.12

There is no dispute that the ALJ failed to ask the VE if her testimony was consistent with the DOT. This was procedural error. The ALJ's decision, however, will not be reversed if the error was harmless.13 "[T]the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination."14 The United States Supreme Court defined the burden on the party attacking the agency's determination:

As the Magistrate Judge pointed out, Bennett "does not identify any actual conflicts [between the VE's testimony and the DOT]; instead, he argues that the ALJ's failure to inquire about conflicts is a basis for reversal."16 Bennett's contention that remand is necessary simply because of the ALJ's failure to ask the VE whether her testimony was consistent with the DOT is unavailing. Bennett relies on Massachi v. Astrue17 to claim that such an error is a per se ground for remand.

The Court in Massachi, on an issue of first impression, decided whether "an ALJ may rely on . . . [VE] . . . testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the" DOT.18 The Court held that "SSR 00-4p unambiguously provides that `[w]hen a [vocational expert] . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that [VE] . . . evidence and information provided in the [DOT].'"19 In a footnote, however, the Court indicated that "[t]his procedural error could have been harmless, were there no conflict, or if the vocational expert had provided sufficient support for her conclusion so as to justify any potential conflicts . . . . Instead, we have an apparent conflict with no basis for the vocational expert's deviation."20 Bennett's reliance on Massachi is misplaced. Massachi does not support a per se remand. Instead, Massachi holds that when there is an apparent conflict with no basis for the VE's deviation, the court cannot determine whether the ALJ properly relied on the VE's testimony and whether substantial evidence supports the ALJ's finding that a claimant can perform other work.21

Although Bennett is correct that he generally does not have the burden to identify conflicts between the testimony of the VE and the DOT, he does, as the party attacking the ALJ's determination, have the burden of showing that he was prejudiced by the ALJ's failure to ask the VE if her testimony was consistent with the DOT.22 Bennett has failed to meet his burden on appeal. This claim of error does not require remand.

CONCLUSION

IT IS HEREBY ORDERED that Bennett's Objection23 to the R&R is OVERRULED.

IT IS FURTHER ORDERED THAT the R&R is ADOPTED, and the Commissioner's decision denying benefits is AFFIRMED.