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Poleck v. Astrue

November 9, 2009


The opinion of the court was delivered by: DuBOIS, J.



This is an action seeking review of the Social Security Commissioner's final decision denying the plaintiff, Chester M. Poleck, Jr.'s, claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The Court referred the case to United States Magistrate Judge Jacob P. Hart for a Report and Recommendation. Magistrate Judge Hart issued a Report and Recommendation on September 16, 2009, granting in part and denying in part the plaintiff's Request for Review. Magistrate Judge Hart found no error in the Administrative Law Judge's ("ALJ") failure to order a second consultative examination. (Rep. & Rec. at 6). He also concluded that a July 23, 2009 MRI of Poleck's lumbar spine was not "new and material evidence." Id. at 7. Magistrate Judge Hart did, however, find error in the ALJ's failure to fully articulate his reasons for denying Poleck's claims regarding his alleged heart impairment and carpal tunnel syndrome and recommended that these claims be remanded for further consideration by the Commissioner. Id. at 8, 9.

Poleck filed timely Objections to the Report and Recommendation. For the reasons that follow, the Court overrules Poleck's Objections, and approves and adopts the Report and Recommendation as supplemented and amended in this Memorandum. Accordingly, the plaintiff's Request for Review of the September 26, 2008, final decision of the Commissioner is granted in part and denied in part. The matter shall be remanded pursuant to 42 U.S.C. § 405(g) for further review of the medical evidence with regard to the plaintiff's hart impairment and his carpal tunnel syndrome. Plaintiff's Request for Review is denied in all other respects.


The background of this case is set forth in detail in the Magistrate Judge's Report and Recommendation and will be recited in this Memorandum only as necessary to address the issues presented by Poleck's Objections.


"Judicial review of the Commissioner's final decision is limited. This Court is bound by the factual findings of the Commissioner if they are supported by substantial evidence and decided according to correct legal standards." Przegon v. Barnhart, 2006 WL 562966, at *2 (E.D. Pa. Mar. 6, 2006). "Substantial evidence does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). "Overall, the substantial evidence standard is deferential and includes deference to inferences drawn from the facts if they, in turn, are supported by substantial evidence. To determine whether a finding is supported by substantial evidence, we must review the record as a whole." Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999) (citations omitted).

A district court judge makes a de novo determination of those portions of a magistrate judge's report and recommendation to which objection is made. 28 U.S.C. § 636(b)(1)(c). The Court may "accept, reject or modify, in whole or in part, the magistrate's findings or recommendations." Brophy v. Halter, 153 F. Supp. 2d 667, 669 (E.D. Pa.2001).


Poleck raises two objections to Magistrate Judge Hart's Report and Recommendation. The first is that the ALJ erred by failing to order a second consultative examination at Poleck's hearing. The second is that Judge Hart should have considered the July 23, 2009 MRI of Poleck's lumbar spine because it is new and material evidence. The Court finds no merit in these objections and overrules them.

A. Objection: Failure to Order a Second Consultative Examination

Poleck obtained a consultative examination when his claim was initially reviewed. (Rec. 120-129). The real essence of his objection is that 20 C.F.R. § 1519a creates an independent duty on the part of the ALJ to order a second consultative examination even though Poleck had informed the ALJ that he had medical insurance and would see his doctors for further evaluation. (Rec. at 443). Poleck's reading of the regulation is incorrect. Section 1519a states that a consultative examination may be purchased when the record as a whole is insufficient to support a decision on a claim. It then lists five situations that normally require a consultative examination.*fn1 None of them apply in this case. Moreover, 20 C.F.R. ยง 404.1512 states that it is the claimant's ...

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