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Kane v. Berryhill

United States District Court, E.D. Pennsylvania

July 17, 2017

PATRICK J. KANE, JR.
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security

          MEMORANDUM

          O'NEILL, J.

         Currently pending are plaintiff Patrick J. Kane, Jr.'s objections to the Report and Recommendation of Chief United States Magistrate Judge Linda K. Caracappa. As I find that the record has not been fully developed with respect to plaintiff's mental health impairment, I will adopt the Report and Recommendation in part, sustain plaintiff's objections in part and remand to the Commissioner of Social Security for further consideration.

         BACKGROUND

         On October 9, 2012, plaintiff-then forty-seven years old-filed for Disability Insurance Benefit and Supplemental Security Income under Titles II and XVI respectively of the Social Security Act, 42 U.S.C. § 401, et seq. R. 19, 152-59.[1] His claim alleged disability since March 31, 2004, due to herniated discs in his back, neck and shoulder; bipolar disorder; depression; diabetes; sleep apnea; enlarged prostate; and chronic pain. R. 19, 226, 237. The state agency denied plaintiff's application on March 29, 2013, and plaintiff timely requested a hearing before an administrative law judge (ALJ). R. 19, 91-100. ALJ Stuart Gauffreau conducted a hearing on December 5, 2014, during which plaintiff did not personally appear, but was represented by counsel. R. 34-63. Plaintiff's counsel requested a continuance given his inability to locate his client, but the ALJ proceeded with the hearing and took testimony from a vocational expert. Id. Nonetheless, the ALJ agreed that if counsel could show good cause for plaintiff's absence, he would hold a supplemental hearing to give plaintiff the opportunity to testify. R. 36.

         On December 18, 2014, the ALJ sent plaintiff a request to show cause for his failure to appear at the hearing. R. 146-47. In the absence of any response, the ALJ issued a decision on January 21, 2015, deeming plaintiff “not disabled.” R. 19-30. Subsequently, however, on March 6, 2015, counsel advised the ALJ that he had finally contacted plaintiff, who had been in treatment at an inpatient psychological facility, and requested a supplemental hearing to submit additional medical evidence. Id. at 15. On March 26, 2015, plaintiff filed a request for review with the Appeals Counsel. R. 9-14. Thereafter, on July 13, 2015, plaintiff's counsel sent a letter to the Appeals Counsel requesting a supplemental hearing to submit new and material evidence to the record. R. 7-8. Although plaintiff's counsel then requested that the appeal be withdrawn, counsel sent another letter on April 9, 2016, asking that the Appeals Council disregard his request and, instead, consider the new medical records when making its decision. R. 224-25.

         Upon consideration of both the original record and the additional medical evidence submitted by plaintiff, the Appeals Council denied plaintiff's request for review on July 21, 2016, id. at 1-6, making the ALJ's ruling the final decision of the agency. 20 C.F.R. §§ 404.1572, 416.972.

         Plaintiff initiated the present civil action on September 22, 2016, alleging multiple errors by the ALJ. On May 31, 2017, Chief United States Magistrate Judge Linda K. Caracappa issued a Report and Recommendation rejecting plaintiff's arguments. ECF No. 14. Plaintiff filed objections to the R&R on June 29, 2017, contending that the ALJ erred in failing to properly evaluate the opinions of the Commissioner's own consulting examiners, Dr. Ross and Dr. Orenstein. ECF No. 17. Defendant responded on July 13, 2017. ECF No. 19.

         STANDARD OF REVIEW[2]

         Judicial review of the Commissioner's decision is limited to determining whether “substantial evidence” supports the decision. Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir. 2000). “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), quoting Pierce v. Underwood, 487 U.S. 552, 564-65 (1988). When making this determination, a reviewing court may not undertake a de novo review of the Commissioner's decision and may not re-weigh the evidence of record. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). In other words, even if the reviewing court would have decided the case differently, the Commissioner's decision must be affirmed if it is supported by substantial evidence. Id. at 1190-91; see also Gilmore v. Barnhart, 356 F.Supp.2d 509, 511 (E.D. Pa. 2005) (holding that the court's scope of review is “‘limited to determining whether the Commissioner applied the correct legal standards and whether the record, as a whole, contains substantial evidence to support the Commissioner's findings of fact'”), quoting Schwartz v. Halter, 134 F.Supp.2d 640, 647 (E.D. Pa. 2001). In an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966).

         Where a United States Magistrate Judge has issued a report and recommendation in a social security case and a party makes a timely and specific objection to that report and recommendation, the district court is obliged to engage in de novo review of only those issues raised on objection. 28 U.S.C. § 636(b)(1); see also Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). 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. The court may “accept, reject, or modify, in whole or in part, the findings and recommendations” contained in the report. 28 U.S.C. § 636(b)(1). In the exercise of sound judicial discretion, the court may also rely on the Magistrate Judge's proposed findings and recommendations. See United v. Raddatz, 447 U.S. 667, 676 (1980).

         DISCUSSION

         Plaintiffs' sole objections in this case concern the ALJ's treatment of opinions from two state consultative physicians. While the first objection has no merit, I find that the second objection should be sustained.

         An ALJ in a disability benefits case has an “obligation to weigh the medical evidence and make choices between conflicting medical evidence.” Williams v. Sullivan, 970 F.2d 1178, 1187 (3d Cir. 1992). When presented with conflicting evidence, the ALJ “may choose whom to credit” so long as he does not “reject evidence for no reason or for the wrong reason.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999), quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993). ALJs should “accord treating physicians' reports great weight, especially ‘when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time.'” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000), quoting Plummer, 186 F.3d at 429. “An ALJ may reject a treating physician's opinion outright only on the basis of contradictory medical evidence, but may afford a treating physician's opinion more or less weight depending upon the extent to which supporting explanations are provided.” Plummer, 186 F.3d at 429.

         As to opinions from consultative examiners-those who have performed a one-time examination-the ALJ may give the opinion weight insofar as it is supported by evidence in the record “considering such factors as the supportability of the opinion in the evidence including any evidence received at the administrative law judge and Appeals Council levels that was not before the State agency, the consistency of the opinion with the record as a whole, including other medical opinions, and any explanation for the opinion provided by the State agency medical or psychological consultant or other program physician or psychologist.” SSR 96-6p, 1996 WL 374180, at *2. (July 2, 1996). As long an ALJ bases his or ...


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