COLGAN v. ASTRUE

Filing 14

ORDER THAT THE PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. ( SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/6/12. ) 3/7/12 ENTERED AND COPIES E-MAILED AND FAXED BY CHAMBERS.(gn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEVIN CHARLES COLGAN
v
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY

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CIVIL ACTION NO. 09-0938

ORDER

AND NOW, this

6th day of

March

, 2012, upon consideration of Plaintiff Kevin

Charles Colgan’s Request for Review of the Administrative Law Judge’s Decision (ECF No. 1), and
careful and independent review of the full record including the comprehensive Report and
Recommendation of Magistrate Judge Jacob P. Hart (ECF No. 11), and after consideration of
Plaintiff’s Objections to the Report and Recommendation (ECF No. 12), it is ORDERED as
follows:
1.
1

Petitioner’s Objections to the Report and Recommendation are OVERRULED.1

Plaintiff brought this action to challenge a decision by Defendant Michael J. Astrue,
Commissioner of the Social Security Administration (SSA), denying Defendant’s application for
Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et
seq. An Administrative Law Judge (ALJ) denied Plaintiff’s DIB request, and the SSA’s Appeals
Council subsequently denied review. Plaintiff then timely filed this request for judicial review.
(ECF No. 1.) Plaintiff submitted a brief in support of his request for review. (Pl.’s Br., ECF No.
6.) We subsequently referred this matter to United States Magistrate Judge Jacob P. Hart. (ECF
No. 9.) Judge Hart prepared a Report and Recommendation (“R&R”), which recommended that
Plaintiff’s “motion be denied and judgment entered in favor of the Commissioner.” (R&R 1,
ECF No. 11.) Plaintiff filed Objections to the R&R. (Objections, ECF No. 12.)
When a party makes a timely and specific objection to a portion of a report and
recommendation by a United States Magistrate Judge, the district court is obliged to engage in de
novo review of the issues raised on objection. 28 U.S.C. § 636(b)(1). In so doing, 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). The court may also, in the exercise of sound judicial

2.

The Report and Recommendation is APPROVED and ADOPTED.

discretion, rely on the Magistrate Judge's proposed findings and recommendations. United States
v. Raddatz, 447 U.S. 667, 676 (1980).
Review of an ALJ's findings of fact is limited to determining whether or not substantial
evidence exists in the record to support the Commissioner's decision. Schaudeck v. Comm'r of
Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). “This Court is bound by the ALJ's findings
of fact if they are supported by substantial evidence on the record.” Plummer v. Apfel, 186 F.3d
422, 427 (3d Cir. 1999). “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).
Plaintiff’s sole objection to the R&R is that in making his decision, the ALJ relied in part
on the testimony of a vocational expert (“VE”) to determine whether Plaintiff could maintain
gainful employment in spite of his mental health disability. (Objections 2.) The VE had testified
that Plaintiff could perform certain jobs, notwithstanding “marked limitations,” and was thus
ineligible to receive DIB payments. Plaintiff claims that after the ALJ described Plaintiff’s ability
as “[s]everely limited but not precluded” from working, the ALJ never asked the VE to clarify
her understanding of the term “severely limited.” (Id.)
Defendant claims that Plaintiff’s argument is not, in fact, an objection to the R&R;
instead, it is a freestanding claim. (Def.’s Resp. 1, ECF No. 13.) Defendant also argues that
Plaintiff did not raise this claim in his original request for review. (Id. at 2.)
We agree with Defendant. Plaintiff does not point to any part of the R&R where Judge
Hart erred. Plaintiff’s Objections merely state his view that the ALJ improperly relied on the
VE’s testimony. (Objections 1.) “To obtain de novo determination of a magistrate's findings by
a district court, 28 U.S.C. § 636(b)(1) requires both timely and specific objections to the report.”
Goney v. Clark, 749 F.2d 5, 6 (3d Cir. 1984) (emphasis added). Plaintiff does not point to any
error in the Magistrate Judge’s recommendation that the ALJ’s decision was supported by
“substantial evidence.”
In addition, Plaintiff’s claim that the ALJ erred in not asking the VE to define “severely
limited” – a phrase that we note was used by the ALJ, not the VE – is not subject to our
consideration here because Plaintiff failed to raise it in his original briefing. See Warren G. v.
Cumberland Cty. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (“An issue is waived unless a party
raises it in its opening brief”); Wilson v. Astrue, No. 10-4517, 2011 U.S. Dist. LEXIS 55440, at
*13 (E.D. Pa. May 24, 2011) (“Issues raised for the first time in objections to a magistrate's
recommendations are deemed waived.”). Although Plaintiff did mention the ALJ’s consideration
of the VE’s testimony, Plaintiff in no way suggested that the VE’s failure to define “severely
limited” undermined the reliability of that testimony or the basis for the ALJ’s decision. (See
Pl.’s Br. 10-11.)
Plaintiff identifies no concrete issues on which Judge Hart erred in preparing the R&R.
We agree that the ALJ’s decision was supported by substantial evidence. Accordingly, Plaintiff’s
Objections are dismissed, and we adopt the R&R.

3.

Plaintiff’s Motion for Summary Judgment (ECF No. 6) is DISMISSED.2

4.

The Clerk of Court is directed to enter judgment in favor of Defendant, and mark this
matter as closed.

IT IS SO ORDERED.

BY THE COURT:

R. BARCLAY SURRICK, J.

2

Having reviewed Plaintiff’s request for review and finding it to be without merit,
Plaintiff’s Motion for Summary Judgment is dismissed as moot.