United States District Court, M.D. Pennsylvania
Carlson Magistrate Judge
William J. Nealon United States District Judge
December 21, 2015, Plaintiff, Rodney Hartzell, filed a
complaint seeking review of the Commissioner of the Social
Security Administration's ("Commissioner")
denial of his applications for disability insurance benefits
and supplemental security income under Titles II and XVI of
the Social Security Act. (Doc. 1). On February 24, 2016,
Defendant filed an Answer and Transcript. (Docs. 8 and 9). On
April 8, 2016, Plaintiff filed a brief in support. (Doc. 13).
On May 5, 2016, Defendant filed a brief in opposition. (Doc.
14). On May 12, 2016, Plaintiff filed a reply brief. (Doc.
15). A Report and Recommendation, ("R&R"), was
issued by United States Magistrate Judge Martin Carlson on
December 14, 2016, recommending that the appeal be granted,
the decision of the Commissioner be vacated, and the matter
be remanded to the Commissioner for further consideration.
(Doc. 17). Objections were due by December 28, 2016, but were
not filed. Having reviewed the reasoning of the Magistrate
Judge, the R&R will be adopted, the appeal will be
granted, the decision of the Commissioner will be vacated,
and the matter will be remanded to the Commissioner for
neither party objects to a magistrate judge's report and
recommendation, the district court is not statutorily
required to review the report, under de novo or any
other standard. Thomas v. Am. 474 U.S. 140, 152
(1985); 28 U.S.C. § 636(b)(1)(C). Nevertheless, the
Third Circuit Court of Appeals has held that it is better
practice to afford some level of review to dispositive legal
issues raised by the report. Henderson v. Carlson.
812 F.2d 874, 878 (3d Cir. 1987), writ denied 484
U.S. 837 (1987); Garcia v. I.N.S.. 733 F.Supp. 1554,
1555 (M.D. Pa. 1990) (Kosik, J.) (stating "the district
court need only review the record for plain error or manifest
injustice"). In the absence of objections, review may
properly be limited to ascertaining whether there is clear
error that not only affects the rights of the plaintiff, but
also seriously affects the integrity, fairness, or public
reputation of judicial proceedings. Cruz v. Chater.
990 F.Supp. 375, 377 (M.D. Pa. 1998) (Vanaskie, J.).
review of the present appeal, it is concluded that there is
no clear error with the Magistrate Judge's finding that
substantial evidence does not support the administrative law
judge's ("ALJ") decision that Plaintiff was not
disabled. The Magistrate Judge appropriately sets forth the
background of the case, a review of the transcript, the
standard for reviewing a Social Security appeal, and the
sequential evaluation process used by an administrative law
judge to determine whether the claimant is disabled, all of
which are herein adopted. (Doc. 17, pp. 1- 15). Magistrate
Judge Carlson addresses Plaintiff s assertions, and
determines that the ALJ erred at Step Two of the Sequential
Evaluation Process, stating the following:
[T]he ALJ did not comment on whether [Plaintiff]'s
alleged back impairment met the twelve-month durational
requirement of the Social Security Act. Instead, he found
that it was not medically determinable for any period of
time. As such, we cannot accept the Commissioner's
post-hoc rationalization that the ALJ's error in this
regard is harmless because the alleged impairment may have
Moreover, unlike an error on the issue of severity, in most
cases where an ALJ errs by finding that an impairment alleged
by the claimant is not medically determinable[, ] that error
is not considered harmless. All medically determinable
impairments must be considered at [S]tep [T]wo and accounted
for in the RFC assessment. Case law is clear that an
ALJ's failure to find an impairment medically
determinable at [S]tep [T]wo, or to support a finding that an
impairment is not medically determinable, makes the ALJ's
finding at subsequent steps of the sequential evaluation
process defective and is cause for remand. Christenson v.
Astrue. Civil No. 4:10-CV-1192; 2011 U.S. Dist. LEXIS
150308[, ] at *25-26 (M.D. Pa. Sept. 14, 2011) ("The
failure of the administrative law judge to find that
condition as a medically determinable impairment, or to give
an adequate explanation for discounting it, makes his
decision at step four of the sequential evaluation process
defective."); Crayton v. Astrue. Civil No.
4:10-CV-01265, 2011 U.S. Dist. LEXIS 139414 (M.D. Pa. Sept.
27, 2011); Shedden v. Astrue. Civil No.
4:10-CV-2515, 2012 U.S. Dist. LEXIS 30467[, ] at *37 (M.D.
Pa. Mar. 7, 2012).
[Plaintiff]'s alleged back impairment was not present on
the date he filed his applications for benefits, and due to
its late onset[, ] was not expressly brought to the attention
of the Social Security Administration until July 2014, in
[Plaintiff]'s prehearing brief [in which] he alleges
disability due to degenerative disc disease. (Admin. Tr.
202). Review of the record reflects, however, that it was
noted that [Plaintiff]'s back pain was "likely due
to degenerative disc disease, " he was diagnosed with
the conditions of "low back strain, " "chronic
bak pain, " and "lumbago." (Admin. Tr. 288,
294, 351, 368). X-rays to confirm whether there was any
degeneration in [Plaintiff]'s spine were recommended, but
it is unclear whether x-rays were ever taken. (Admin. Tr.
371). No x-rays of [Plaintiff] *s spine were in the record
before the ALJ. The record does reflect that [Plaintiff] was
referred to Drayer Physical Therapy for treatment of chronic
lower back pain. (Id.). During his hearing[, ]
[Plaintiff] reported that hew as seeing a physical therapist
for sciatica. (Admin. Tr. 33). However, no treatment records
from [Plaintiff]'s physical therapist were included in
the record before the ALJ.
The ALJ concluded that [Plaintiff]'s alleged impairment
of back pain was not medically determinable during the
relevant period because:
A medically determinable impairment may not be established
solely on the basis of a claimant's allegations regarding
symptoms (20 CFR 404.1508, 404.1529, 416.908, and 416.929 and
SSR 96-4p). There must be evidence from an acceptable medical
source in order to establish the existence of a medically
determinable impairment that can reasonably be expected to
produce the symptoms. Thus, the claimant's alleged
"sciatic"/ low back pain is a symptom and not a
medically determinable impairment.
(Admin. Tr. 14). However, for the reasons stated herein[, ]
we find that the ALJ in this case improperly discounted the
opinion [of] a qualified medical expert when he rejected the
uncontradicted diagnosis of "chronic low back pain"
likely due to ...