BROWN v. ASTRUE

Filing 21

ORDER THAT THE CLERK OF COURT IS DIRECTED TO REMOVE THIS ACTION FROM THE SUSPENSE DOCKET AND RETURN IT TO THE ACTIVE DOCKET; THE REPORT AND RECOMMENDATION OF US MAGISTRATE JUDGE CAROL SANDRA MOORE WELLS, IS APPROVED AND ADOPTED IN FULL; THE PLAINTIFF 'S REQUEST FOR REVIEW IS GRANTED IN PART AND DENIED IN PART; THE CASE IS REMANDED IN ACCORDANCE WITH THE FOURTH SENTENCE OF 42 U.S.C 405(g) FOR FURTHER PROCEEDINGS; THE CLERK OF COURT IS DIRECTED TO CLOSE THIS ACTION FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 7/14/2009. 7/16/2009 ENTERED AND COPIES E-MAILED.(ap, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA VANESSA R. BROWN, ) ) Plaintiff, ) ) CIVIL ACTION v. ) NO. 08- cv-613 ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security Administration. ) ) Defendants. ) ______________________________________________________________________________ ORDER AND NOW, this 14th day of July, 2009, upon consideration of careful review of Plaintiff's Request for Review [Doc. No. 10], Defendant's Response in Opposition [Doc. No. 15], and Plaintiff's Reply [Doc. No.16], as well as the attached Report and Recommendation of Magistrate Judge Carol Sandra Moore Wells [Doc. No. 20], to which no objection has been filed, and the Record herein, it is hereby ORDERED as follows: 1. The Clerk of Court is directed to remove this action from the suspense docket and return it to the active docket; 2. The Report and Recommendation of United States Magistrate Judge Carol Sandra Moore Wells, dated January 29, 2009, is APPROVED AND ADOPTED in full;1

In this action, brought pursuant to 42 U.S.C. § 405(g), Plaintiff seeks reviews of the final decision of the S o c i a l Security Administration denying her claim for disability insurance benefits under Title II of the Social S e c u r ity Act. Plaintiff challenges the Administrative Law Judge's ("ALJ") decision that she is not disabled, arguing th a t the ALJ failed to take into consideration several aspects of the evidence before him regarding Plaintiff's mental s ta t e and improperly relied on M e d ic a l -V o c a t io n a l Guidelines. The Court wholly agrees with the thorough Report a n d Recommendation ("R & R") of U.S. Magistrate Judge Carol Sandra Moore W e lls as to the proper disposition of th e Plaintiff's request. The R & R details how the ALJ, in his written findings and decisions, improperly relied on g u i d e l i n e s and failed to consider certain evidence put forth by the Plaintiff in support of her claim for disability. Specifically, in his written findings and statements, the ALJ relied solely on Rule 202.20 of the Medical-Vocational G u i d e l i n e s despite a finding that Plaintiff suffered from depression, a non-exertional impairment, in addition to

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3.

The Plaintiff's Request for Review is GRANTED IN PART AND DENIED IN PART;

4.

The case is REMANDED in accordance with the fourth sentence of 42 U.S.C. § 405(g) for further proceedings consistent with the Report and Recommendation of Magistrate Judge Wells. Specifically, upon remand, the Administrative Law Judge ("ALJ") should: (a) obtain additional, suitable evidence (vocational expert testimony, use of a learned treatise, or administrative notice with Plaintiff's opportunity to rebut) to determine whether Plaintiff is able to work; (b) include in the residual functional capacity assessment and in posing a hypothetical question to the vocational expert, Plaintiff's deficiency in concentration, persistence, and pace and; (c) reconsider the findings of Janet Horowitz, Psy. D., acknowledging Plaintiff's testimony that her mental impairment limits her daily functioning.

5.

The Clerk of court is directed to CLOSE this action for statistical purposes. It is so ORDERED.

exertional impairments. W h e n a Plaintiff suffers from both exertional and non-exertional impairments the ALJ may n o t rely solely upon the Medical-Vocational Guidelines, therefore, the case should be properly remanded so that the A L J may obtain additional evidence that the Plaintiff is able to work. See Sykes v. Apfel, 228 F.3d 259, 267 (3d Cir. 2 0 0 0 ). The Court also agrees with Magistrate Judge W e l ls ' determination that the ALJ failed to account for the P la i n tiff's pace limitations when setting Plaintiff's "residual functional capacity" ("RFC"), making the assessment in c o m p le t e and remand necessary. See Ramirez v. Barnhart, 372 F.3d 546, 551 (3d Cir. 2004). Additionally, the C o u r t concurs with the finding that the ALJ did not give proper weight to the assessment of the Plaintiff by a C o n s u ltiv e Psychologist and misconstrued the testimony of the Plaintiff, thereby discounting evidence for "no reason o r the wrong reason." See Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993). As the Commissioner has elected not to object to any of the findings or recommendations in the R&R, this C o u r t will not elaborate further on the matter. The R&R will be approved and adopted as provided in this Order.

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BY THE COURT: s/Cynthia M. Rufe _________________________ CYNTHIA M. RUFE, J.