Borntrager v. Social Security Administration Commissioner
ORDER ADOPTING REPORT AND RECOMMENDATIONS 13 , affirming the decision of the Commissioner and dismissing case with prejudice. Signed by Honorable Jimm Larry Hendren on September 21, 2009. (copy to ALJ)(jn)
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION JULIE A. BORNTRAGER v. Civil No. 08-05059 PLAINTIFF
MICHAEL J. ASTRUE, Commissioner Social Security Administration JUDGMENT NOW on this 21st day of September 2009,
consideration the Magistrate Judge's Report and Recommendation, issued on June 18, 2009 (document #13). Plaintiff Julie Borntrager has filed objections to the Report and Recommendation (document #14). The Court has reviewed this case de novo and, being well and sufficiently advised, finds as follows: * Plaintiff's objections offer neither law nor fact requiring departure from the Report and Recommendation. * More specifically, Plaintiff's contention that the
Magistrate Judge engaged in impermissible post hoc justification in defense of the ALJ's determination finds no support in either law or the administrative record. As held by the Eighth Circuit in
HealthEast Bethesda Lutheran Hospital and Rehabilitation Center v. Shalala, 164 F.3d 415 (8th Cir. 1998), in cases where an agency fails to make a necessary determination of fact or policy, a reviewing court may not uphold said agency's decision based on reasons not articulated by the agency itself in its decision.
HealthEast, 164 F.3d at 418.
The instant case does not involve a
failure on the part of the Commissioner to make a necessary finding of fact or policy. without merit. Accordingly, the Court hereby adopts the Report and Thus, Plaintiff's arguments on this point are
Recommendation in toto; affirms the decision of the Commissioner; and dismisses Plaintiff's complaint with prejudice. IT IS SO ORDERED. /s/ Jimm Larry Hendren JIMM LARRY HENDREN UNITED STATES DISTRICT JUDGE
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