United States District Court, E.D. Pennsylvania
PATRICK J. KANE, JR.
NANCY A. BERRYHILL, Acting Commissioner of Social Security
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.
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. 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.
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.
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,
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.
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).
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).
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.
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.
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