WILLIS v. ASTRUE

Filing 18

ORDER THAT THE CLERK IS DIRECTED TO REMOVE THIS ACTION FROM THE SUSPENSE DOCKET AND RETURN IT TO THE ACTIVE DOCKET. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED WITH MODIFICATION. PLAINTIFF'S REQUEST FOR REVIEW IS GRANTED. THE CASE IS R EMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THE REPORT AND RECOMMENDATION AS MODIFIED BY THIS ORDER. THE CLERK OF COURT IS DIRECTED TO CLOSE THIS ACTION FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 7/18/12. 7/19/12 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
DOUGLAS R. WILLIS, III,
:

:
:
:
MICHAEL J. ASTRUE,
:
Commissioner of the
:
Social Security Administration.
:
__________________________________________:

CIVIL ACTION

v.

NO. 10-6876

ORDER
AND NOW, this 18th day of July 2012, after careful review and independent
consideration of Plaintiff’s Brief and Statement of Issues in Support of Request for Review [Doc.
No. 8], Defendant’s Response thereto [Doc. No. 12], and Plaintiff’s Reply [Doc. No. 16], as well
as the Report and Recommendation of United States Magistrate Judge Arnold C. Rapoport [Doc.
No. 17], 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 is APPROVED AND ADOPTED with
modification;1

1

In this action, brought pursuant to 42 U.S.C. § 405(g), Plaintiff seeks review of the final decision of the
Commissioner of Social Security denying his claim for disability insurance benefits. United States Magistrate Judge
Arnold C. Rapoport issued a Report and Recommendation (“R&R”) in which he found three errors requiring
remand: (1) the Administrative Law Judge (“ALJ”) erred by improperly relying on the Medical-Vocational
Guidelines to direct a finding that Plaintiff was not disabled; (2) the ALJ erred by failing to include twisting and
reaching limitations in making his findings regarding Plaintiff’s Residual Functional Capacity (“RFC”) despite his
acceptance of the physicians’ medical opinions which included these limitations; and (3) the ALJ erred by failing to
properly develop evidence of Plaintiff’s mental limitations, in that he should have ordered a psychiatric consultative
examination.
The Court agrees with Judge Rapoport’s first finding that the ALJ improperly relied on the Medical-

3.

Plaintiff’s Request for Review is GRANTED;

4.

The case is REMANDED in accordance with 42 U.S.C. § 405(g) for further
proceedings consistent with the Report and Recommendation as modified by this
order. Specifically, upon remand, the Administrative Law Judge should: (1)
properly develop evidence of Plaintiff’s mental limitations; (2) consider nonexertional as well as exertional limits, consistent with Social Security
Acquiescence Ruling 01-1(3), in evaluating Plaintiff’s Residual Functional
Capacity (“RFC”); and (3) reevaluate Plaintiff’s RFC determination after either
accepting and including, or rejecting and explaining, Plaintiff’s twisting and
reaching limitations.

Vocational Guidelines to direct a finding of not disabled, and remands the matter to determine the extent to which
Plaintiff’s exertional and non-exertional limitations affect his ability to work. However, on remand, the Court directs
the ALJ to comply with Social Security Acquiescence Ruling 01-1(3), 2001 W L 65745 at *4 (2001) (prior to
denying disability benefits to a claimant with non-exertional limitations, the ALJ must either: (1) obtain vocational
evidence; (2) provide administrative notice and give Plaintiff an opportunity to respond; or (3) cite to an applicable
SSR and give sufficient explanation), which may (and likely should), but not must as the R&R suggests, include
consulting a vocational expert. See Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 93-94 (3d Cir. 2007).
The Court agrees with Judge Rapoport’s second finding that the ALJ’s failure to include Plaintiff’s twisting
and reaching limitations in his findings was an error, and remands the matter consistent with the R&R as to this basis.
Finally, with respect to the third basis for remand, the Court agrees with Judge Rapoport’s finding that the
ALJ erred by failing to properly develop evidence of Plaintiff’s alleged mental limitations. However, the Court
disagrees with the finding that the ALJ erred by failing to order a psychiatric consultative examination. W hen a
record contains “a suggestion of mental impairment,” an “ALJ has a duty to develop the record . . . by inquiring into
the present status of impairment and its possible effects on the claimant’s ability to work.” Plummer v. Apfel, 186
F.3d 422, 434 (3d Cir. 1999); see 20 C.F.R. § 404.1520a(a) (2011). This obligation is heightened where as here, the
Commissioner fails “to satisfy his obligation under 42 U.S.C. § 421(h) . . . to have a qualified psychiatrist or
psychologist evaluate” an applicant’s claim before making an initial determination that they are not disabled.
Plummer, 186 F.3d at 434. However, “an ALJ is not required to employ the assistance of a qualified psychiatrist or
psychologist in making a determination of mental impairment.” Id. at 433. The ALJ was not required to order a
psychiatric consultative examination, and the Court does not find that the ALJ’s failure to do so was, in itself, error.
Rather, the Court finds that the ALJ erred in failing to “inquir[e] into the present status of impairment and its
possible effects on the claimant’s ability to work.” Id. at 434. Accordingly, the Court grants Plaintiff’s request for
review on this issue and remands the matter to the ALJ to determine the status of Plaintiff’s mental impairment and
its effect on Plaintiff’s ability to work, an inquiry which may, and probably should, include a psychiatric consultative
examination.

2

5.

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

BY THE COURT:
/s/ Cynthia M. Rufe

CYNTHIA M. RUFE, J.

3