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Smith v. Commissioner of Social Security

United States District Court, W.D. Michigan, Southern Division

March 21, 2018

KENNETH SMITH, o.b.o. S.K.W., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         The Court has reviewed Magistrate Judge Carmody's Report and Recommendation in this matter (ECF No. 12) and the Commissioner's Objection to it. (ECF No. 13). Under the Federal Rules of Civil Procedure, where, as here, a party has objected to portions of a Report and Recommendation, “[t]he district judge . . . as a duty to reject the magistrate judge's recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 Wright, Miller & Marcus, Federal Practice and Procedure § 3070.2, at 451 (3d ed. 2014). Specifically, the Rules provide that:

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Fed R. Civ. P. 72(b)(3). De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).

         The Magistrate Judge recommends vacating the Commissioner's decision and remanding the matter because the ALJ's decision that S.K.W. experienced less than marked limitations with respect to the domains of acquiring and using information, and attending and completing tasks, is not supported by substantial evidence. The Commissioner objects to the Magistrate Judge's recommendation with respect to both domains, and insists that the ALJ's decision as to these domains is supported by substantial evidence. After its review, the Court finds that Magistrate Judge Carmody's Report and Recommendation is factually sound and legally correct and accordingly adopts its conclusion.

         THE COMMISSIONERS' OBJECTION

         A. Acquiring and Using Information

         As the Magistrate Judge described, the domain of acquiring and using information refers to how well a child acquires or learns information. Examples of limitation in this domain include:

(i) You do not demonstrate understanding of words about space, size, or time; e.g., in/under, big/little, morning/night.
(ii) You cannot rhyme words or the sounds in words.
(iii) You have difficulty recalling important things you learned in school yesterday.
(iv) You have difficulty solving mathematics questions or computing arithmetic answers.
(v) You talk only in short, simple sentences and have difficulty explaining what you mean.

20 C.F.R. ยง 416.926(a)(g)(2)(iv). The ALJ found S.K.W. experienced less than marked ...


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