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Karen J. Mcnemar v. Commissioner of Social Security

November 15, 2011

KAREN J. MCNEMAR,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Judge John Adams

ORDER AND DECISION

This matter comes before the Court on objections filed by Plaintiff Karen McNemar and Defendant Commissioner of Social Security ("the Commissioner") to the Report and Recommendation ("R&R") of the Magistrate Judge. This action was referred to the Magistrate Judge for a R&R on McNemar's Appeal of the Social Security Administration's decision to deny her request for disability insurance benefits and supplemental security income. On August 29, 2011, Magistrate Judge McHargh issued his R&R recommending that the Commissioner's decision be reversed and the matter be remanded for a new hearing. Both parties filed timely objections.

For the reasons stated below, the objections are overruled. The R&R is adopted and the findings of the Commissioner are REVERSED and the matter REMANDED for a new hearing.

I. Standard of Review

District courts conduct de novo review of those portions of a magistrate judge's R & R to which specific objections are made. 28 U.S.C. § 636(b)(1). However, in social security cases, judicial review of a decision by the Commissioner is limited to determining whether the decision is supported by substantial evidence based upon the record as a whole. Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). The substantial evidence standard is met if "a reasonable mind might accept the relevant evidence as adequate to support a conclusion." Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). If substantial evidence supports the Commissioner's decision, this Court will defer to that finding "even if there is substantial evidence in the record that would have supported an opposite conclusion." Id.

II. Commissioner's Objections

In his first objection, the Commissioner contends that the Magistrate Judge erred when he found that that the ALJ's questioning of the vocational expert failed to properly take into account all of McNemar's impairments. This Court finds no error in the R&R.

In his opinion, the ALJ found that "[w]ith regard to concentration, persistence or pace, the claimant has moderate difficulties." Utilizing McNemar's other impairments, the ALJ posed the following hypothetical to the vocational expert:

I would like you to consider the following hypothetical worker. This person, as of the alleged onset date, is 38 years old and has a 12th grade Special Education. .

This person would have the following exertional and non-exertional limitations.

They could lift and carry up to 20 pounds occasionally. They could lift and carry ten pounds frequently. They could stand and walk for two hours out of the eight-hour day. They could sit for at least six hours out of the eight-hour day, and they could push or pull up to 20 pounds occasionally and they could push or pull 10 pounds frequently.

Finally, this person would be limited to simple, routine work.

The Commissioner contends that this final sentence adequately reflects McNemar's moderate limitations regarding concentration and persistence or pace. The Court acknowledges that this is a close call, but precedent from the Sixth Circuit and ...


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