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Liszka v. Colvin

United States District Court, M.D. Pennsylvania

June 17, 2015

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant

Cohn, M.J.


MALACHY E. MANNION, United States District Judge

Pending before the court is the report and recommendation of Judge Cohn, (Doc. 20), recommending that plaintiff's appeal from the final decision of the Commissioner of Social Security be remanded to the Commissioner. Judge Cohn 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. Defendant filed objections to the report.[1] (Doc. 21). Plaintiff did not object to the report and did not respond to defendant’s objections. For the following reasons, the report and recommendation is ADOPTED and, the plaintiff’s appeal is GRANTED. The decision of the defendant Commissioner will be VACATED and the case will be REMANDED.


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.


As set forth more fully in Judge Cohn’s report, plaintiff Stefan Liszka applied for DIB alleging he was disabled due to musculoskeletal injuries sustained in an automobile accident on December 30, 2010. A hearing was held before an administrative law judge (“ALJ”) on September 28, 2012. Plaintiff and a vocational expert (‘VE”) testified at the hearing. On October 17, 2012, the ALJ determined that plaintiff was not disabled within the meaning of the Act. The ALJ found that while plaintiff’s musculoskeletal disorder was a severe impairment which prevented him from doing his previous medium exertional work as a carpenter, he maintains the residual functional capacity (“RFC”) to do unskilled sedentary work, to lift and carry ten pounds occasionally and three pounds frequently, to sit six hours in an eight-hour day, and to stand and walk for two hours in an eight-hour day, but only 10 to 15 minutes at a time near his immediate work station.

Judge Cohn recommends that ALJ’s decision to deny plaintiff’s application for DIB be remanded for further proceedings since ALJ did not address a witness statement of plaintiff’s brother, Mark Liszka, that corroborated plaintiff’s claims regarding his limitations, including his use of a cane every day, how he tired very easily, how he was off balance, how he lacked motivation, how he seemed depressed and, how he could not lift heavy things. Judge Cohn also indicates that the statement of plaintiff’s brother contradicted findings of the ALJ, such as those regarding limitations in plaintiff’s RFC which were not restricted to jobs that could be performed with a cane and which did not include restrictions in concentration, persistence or pace with respect to fatigue, motivation or depression and, those regarding limitations in plaintiff’s daily activities. Further, Judge Cohn points out that while the ALJ did not have to afford full credibility to the statement of plaintiff’s brother, he did have to acknowledge it and discuss why he either credited it or rejected it.

As Judge Cohn's report explains, when reviewing the denial of disability benefits, the court 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).

Judge Cohn's report also details the five-step process that is required to determine if an applicant is disabled under the Act. The Commissioner must sequentially determine: (1) whether the applicant is engaged in substantial gainful activity; (2) whether the applicant has a severe impairment; (3) whether the applicant's impairment meets or equals a listed impairment; (4) whether the applicant's impairment prevents the applicant from doing past relevant work, and; (5) ...

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