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Joel Lance Neiman v. Michael J. Astrue

March 7, 2011


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



This is an action seeking review of the final decision of the Social Security Commissioner ("Commissioner") denying the plaintiff, Joel Lance Neiman's, claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The Court referred the case to United States Magistrate Judge Elizabeth T. Hey for a Report and Recommendation. Magistrate Judge Hey issued a Report and Recommendation ("R & R") on September 21, 2010, recommending that Plaintiff's Motion for Summary Judgment and Request for Review be denied and that the Administrative Law Judge's ("ALJ") findings of fact and conclusion of law be affirmed. Plaintiff filed Objections to the R & R on October 8, 2010. For the reasons that follow, plaintiff's objections to the R & R are sustained, the R & R is rejected, and the case is remanded to the Commissioner pursuant to the fourth and sixth sentences of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum.


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

Plaintiff suffers from Asperger's syndrome, a lifelong developmental disorder characterized by impairment of social interactions and restricted interests and behaviors. See Diagnostic Statistical Manual of Mental Disorders, Text Revision at 80-84 (4th ed. 2000) (hereinafter "DSM-IV-TR"). Plaintiff was born on August 28, 1963, and was 44 years old on his alleged onset date of December 27, 2007. (R. 11.) He has not worked since 2007. (R. 11.) Before that time he was variously employed as an autobody mechanic, bicycle assembler, warehouse worker, and part deliverer. (R. 38.)

Plaintiff filed an application for Social Security benefits on August 18, 2008. After his claim was denied, plaintiff requested a hearing before an ALJ. Following a hearing on April 14, 2009, the ALJ denied plaintiff's claim on May 7, 2009. Plaintiff then filed a request for review with the Appeals Council on July 9, 2009. This request was denied on July 30, 2009, making the ALJ's decision the final decision of the Commissioner.


This Court reviews the Commissioner's final decision to determine whether it is supported by substantial evidence and applies the correct legal standards. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999); Przegon v. Barnhart, No. 04-CV-5313, 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 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 findings or recommendations made by the magistrate judge." Id.; see also Brophy v. Halter, 153 F. Supp. 2d 667, 669 (E.D. Pa. 2001).


Plaintiff filed objections to the R & R on October 8, 2010. As an initial matter, the Court addresses the Commissioner's contention that plaintiff's objections were filed late and should not be considered. Plaintiff's objections were filed seventeen days after the issuance of the R & R. While the time limit for filing objections to a report and recommendation of a magistrate judge is fourteen days, Fed. R. Civ. P. 72(b)(2), the Court concludes that plaintiff was entitled to an additional three days under Federal Rule of Civil Procedure 6(d) because the R & R was served on him by mail. See Fed. R. Civ. P. 6(d); Fed. R. Civ. P. 72(b) advisory committee's note; Vandenberg v. Donaldson, 259 F.3d 1321, 1325 (11th Cir. 2001). Thus the plaintiff's objections were timely filed and will be considered.

Plaintiff raises two objections to Magistrate Judge Hey's R & R. First, plaintiff contends that the ALJ erred by improperly disregarding the consistent testimony of two examining doctors and one treating psychologist. Second, he argues that there is good cause to allow the introduction of two new pieces of evidence, a report prepared by the treating psychologist and a letter from Traci Plunkett who has assisted plaintiff with benefits applications and other tasks since December 2006. These objections will be addressed in turn.

A. Objection: The ALJ Erred by Improperly Disregarding Medical Evidence Plaintiff argues that the ALJ improperly rejected the three expert reports submitted by examining health care professionals in this case -- Dr. Christine Blaine, Dr. Karen Saporito, and Judith Hammet-Kelly. (Pl.'s Obj. 1-3.) Prior to the hearing before the ALJ, plaintiff underwent two in-person consultative examinations with Drs. Blaine and ...

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