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Reiger v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

September 30, 2014

SABRINA L. REIGER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

ENTRY ADOPTING IN PART AND REJECTING IN PART THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RICHARD L. YOUNG, Chief District Judge.

Plaintiff, Sabrina Reiger, appeals the Administrative Law Judge's decision denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Pursuant to 28 U.S.C. § 636, the court referred the matter to Magistrate Judge Dinsmore, who submitted a Report and Recommendation on June 17, 2014. (Filing No. 26). The Magistrate Judge recommended that the court reverse the Commissioner's determination and remand to the Administrative Law Judge ("ALJ") for further proceedings. The Commissioner now objects to the Report and Recommendation. (Filing No. 27). For the reasons set forth below, the court ADOPTS IN PART and REJECTS IN PART the Magistrate Judge's Report and Recommendation.

I. Background

Reiger applied for SSI on October 21, 2009, and DIB on December 11, 2009. The Commissioner denied both applications initially and upon reconsideration. An ALJ held a hearing on the applications and, on January 13, 2012, determined that Reiger is not disabled under Sections 216(i), 223(d), or 1614(a)(3)(A) of the Social Security Act ("the Act"), as amended, 42 U.S.C. §§ 416(i), 423(d), or 1382c(a)(3)(A), respectively.

On appeal, Reiger raises four arguments: (1) substantial evidence does not support the ALJ's finding that Reiger's impairments, or combination thereof, did not meet or medically equal the severity of an impairment listed in the social security regulations; (2) the ALJ erred by failing to obtain an updated medical opinion regarding whether Reigers's impairments met or medically equaled a listing; (3) the ALJ's credibility determination ran contrary to Social Security Ruling 96-7p, rendering it patently wrong; and (4) substantial evidence does not support the ALJ's determination that Reiger can perform past relevant work. The first two arguments challenge the ALJ's step three determination; the latter two arguments challenge the step four determination.

The Magistrate Judge made two principal findings. First, he found that the ALJ erred because he failed to contemplate the impact of Reiger's depression on her other impairments in determining her residual functioning capacity ("RFC"). Second, he found that the ALJ incorrectly concluded that Reiger can perform past relevant work as a cashier. The Magistrate Judge rejected Reiger's step three arguments. Furthermore, noting a series of derisive remarks in the ALJ's opinion, the Magistrate Judge also recommended that the court order the Commissioner to assign Reiger's applications to a different ALJ on remand.

II. Standard

When reviewing a magistrate judge's Report and Recommendation, "the district judge may accept, reject, or modify the recommended disposition." Fed.R.Civ.P. 72(b). The court reviews de novo any part of the magistrate judge's disposition to which a party has properly objected. Id. However, when "no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). Thus, the court will review the Commissioner's objections under the substantial evidence standard that applies to the ALJ's decision.

III. Discussion

The Commissioner concedes to the Magistrate Judge's finding that the ALJ improperly neglected to consider the impact of Reiger's depression on her other impairments. (Filing No. 27 at 1-2). Accordingly, the court ADOPTS that portion of the Report and Recommendation. (Filing No. 26 at 6-7). Reiger did not object to the Magistrate Judge's rejection of her step three arguments; thus the court ADOPTS that portion of the Report and Recommendation. ( Id. at 6).

The Commissioner raises two objections to the Report and Recommendation. First, the Commissioner objects to the Magistrate Judge's finding that substantial evidence did not support the ALJ's step-four determination that Reiger could perform her past work as a cashier. ( Id. at 2-3). Second, the Commissioner objects to the Magistrate Judge's recommendation that the Commissioner assign Reiger's applications to a different ALJ on remand. ( Id. at 3-4).

A. The ALJ's Step-Four Determination

The Magistrate Judge found that the ALJ erred in determining that Reiger can perform her past work as a cashier. (Filing No. 26 at 8). Reiger held past positions as a cashier and a cash account clerk. (R. at 20). Accepting the vocational expert's testimony, the ALJ found that a cash account clerk position, as generally performed in the economy, requires a sedentary exertional level but that Reiger had performed it at the medium level. (R. at 20-21). The vocational expert also testified that a cashier position, as generally performed, requires a light exertional level but that Reiger performed it at the medium level. (R. at 331). Although the ALJ determined that Reiger has the RFC to perform only sedentary work, he nonetheless concluded that she can perform both positions even though the light exertional level for a cashier position exceeds her RFC. (R. at 17, 20-21).

The Commissioner acknowledges the ALJ's error, but argues that the error is harmless because Reiger has the RFC to perform the cash account clerk position as generally performed in the economy-that is, sedentarily. (Filing No. 27 at 2-3). The court concludes that this issue is moot. On remand, the ALJ must incorporate into the RFC analysis Reiger's medically determinable impairment of depression. Therefore, because the ALJ must issue a new step four determination and ...


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