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Frank-Digiovanni v. Colvin

United States District Court, Middle District of Pennsylvania

May 22, 2014

JENNIFER FRANK-DIGIOVANNI, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant

CARLSON, M.J.

MEMORANDUM

MALACHY E. MANNION, United States District Judge [1]

Pending before the court is a report, (Doc. 10), recommending that plaintiff’s appeal from the final decision of the Commissioner of Social Security be denied. A Magistrate Judge reviewed the record in this case pursuant to 42 U.S.C. §405(g) to determine whether there is substantial evidence to support the Commissioner’s decision denying the plaintiff’s claim for Disability Insurance Benefits (“DIB”) under the Social Security Act, (“Act”). 42 U.S.C. §§401-433, 1381-1383f. The plaintiff, Jennifer Frank-Digovanni, has filed objections to the report. (Doc. 23). For the following reasons, the court ADOPTS in part the report and recommendation. As such, the case will be remanded to the Commissioner for further proceedings consistent with this opinion.

I. STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of a magistrate judge, the district court must review de novo those portions of the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, “satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give some review to every report and recommendation)). Nevertheless, whether timely objections are made or not, the district court may accept, not accept, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31.

When reviewing the denial of disability benefits, we must determine whether the denial is supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). 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.” Pierce v. Underwood, 487 U.S. 552 (1988); Hartranft v. Apfel, 181 F.3d 358, 360. (3d Cir. 1999), Johnson, 529 F.3d at 200. It is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971).

To receive disability benefits, the plaintiff must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her], or whether [she] would be hired if [she] applied for work. For purposes of the preceding sentence (with respect to any individual), ‘work which exists in the national economy’ means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. §423(d)(2)(A).

II. RELEVANT MEDICAL EVIDENCE

The report and recommendation contains an exhaustive review of the plaintiff’s lengthy medical history. The plaintiff did not file any objection to these factual determinations, so they will be adopted. Given the limited nature of the plaintiff’s objections, only a brief discussion of the relevant medical background is necessary.

The plaintiff relies primarily on Dr. Gensemer’s determination that the plaintiff had “moderate” limitations in one social category: her ability to get along with other people without distracting them or showing behavioral extremes. (TR. 582). In all other categories, the plaintiff had no restrictions. In his explanation of findings, Dr. Gensemer specifically notes “The claimant can perform simple, routine repetitive work in a stable environment . . . Her frustration tolerance is low. She is socially isolated. She is capable of asking simple questions and accepting instructions.” (TR. 583). The ALJ adopted most of Dr. Gensemer’s conclusions, noting the plaintiff “has no more than moderate limitations in social functioning” and giving Dr. Gensemer’s opinion great weight when determining the plaintiff’s residual functional capacity. (TR. 21, 26).

There was also evidence from a Social Security Representative and the plaintiff’s husband that the ALJ did not discuss or acknowledge. The Social Security Representative, during their interview, noted the plaintiff was anxious, had visibly shaking hands, spoke softly, had to repeat herself, and was tearful when talking about her husband. (TR. 132). The letter from her husband details daily panic attacks, inability to leave her bed or home at times, her asking “a hundred” questions ...


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