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Joe v. Colvin

United States District Court, D. South Dakota

August 4, 2014

DAVID JOE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


KAREN E. SCHREIER, District Judge.

Plaintiff, David Joe, appealed the denial of his application for social security benefits by the Social Security Administration. Docket 1. The case was referred to United States Magistrate Judge John Simko pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. Docket 41. On May 1, 2014, Magistrate Judge Simko submitted his report and recommendation for disposition of this case to the court and recommended that the Commissioner's decision be reversed and remanded to grant plaintiff benefits. Docket 42. The Commissioner filed a timely objection. Docket 43. For the reasons set forth herein, Magistrate Judge Simko's report and recommendation is adopted.


Joe filed his application for benefits on May 11, 2009. AR 12, 171, 575. He alleged he was disabled because he had "major depression, type I diabetes, ptsd, hyperthyroidism, vitamin B12 deficiency, self mutilation and chronic fatigue syndrome." AR 175. His claim was initially denied on September 9, 2009. AR 79-81.

On reconsideration, Joe's claim was again denied. AR 77-78. Joe requested and was given a hearing before an Administrative Law Judge (ALJ). AR 33-73. On March 17, 2011, the ALJ determined that Joe was not disabled. AR 12-27, 575-90.

On August 31, 2011, the Appeals Council denied Joe's timely request for review. AR 1. Thus, the unfavorable March 17, 2011, decision became the Commissioner's final decision. On October 14, 2011, Joe filed a timely civil action in this court. Docket 1. This court ordered that the case be remanded for consideration of new evidence. While pending, Joe made a second claim for disability benefits for the period of April 1, 2011, to present. On September 27, 2012, the ALJ held that Joe was disabled and awarded him benefits as of April 1, 2011. AR 605-13. Soon after, on June 18, 2013, the same ALJ denied Joe's first claim that requested disability benefits for the time period before his April 1, 2011, claim. AR 520-32.


This court's review of a magistrate judge's decision is governed by 28 U.S.C. § 636(b)(1); the court reviews de novo any objections that are timely made and specific. See Fed.R.Civ.P. 72(b) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").

An ALJ's decision must be upheld if it is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.'" Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971) (reasoning that substantial evidence means "more than a mere scintilla"). In determining whether substantial evidence supports the ALJ's decision, the court considers evidence that both supports and detracts from the ALJ's decision. Moore v. Astrue, 623 F.3d 599, 605 (8th Cir. 2010) (internal citation omitted). As long as substantial evidence supports the decision, the court may not reverse it merely because substantial evidence exists in the record that would support a contrary outcome or because the court would have determined the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).

The court reviews the Commissioner's decision to determine if an error of law has been committed, which may be a procedural error, the use of an erroneous legal standard, or an incorrect application of the law. Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are reviewed de novo with deference accorded to the Commission's construction of the Social Security Act. See Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).

In Joe's second claim for disability benefits, Joe was determined to be disabled by the ALJ, and he was awarded benefits commencing April 1, 2011. As a result, the only period in dispute in this pending claim for benefits is the period from November 24, 2008, through March 31, 2011. In essence, the issue boils down to determining "when" Joe became disabled.

The court has reviewed the lengthy fact section of Magistrate Judge Simko's report and recommendation. No objections to the facts have been filed by either party and the facts appear to accurately reflect the record. As a result, this court adopts the facts as set forth in pages 4 through 32 of the magistrate judge's report and recommendation.


The Commissioner disputes several legal conclusions in the report and recommendation. The Commissioner denies that the ALJ improperly ignored or weighed evidence in determining Joe's RFC. Specifically, the Commissioner denies that the ALJ failed to follow the court's order to incorporate the LaVelle report[1] and that he failed to consider Ms. Friest's treating notes and Joe's absenteeism. The Commissioner ...

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