NESTOR v. ASTRUE

Filing 23

ORDER THAT MAGISTRATE JUDGE LLORET'S REPORT AND RECOMMENDATION DATED AND FILED 9/15/14 IS APPROVED AND ADOPTED. IT IS FURTHER ORDERED THAT THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY IS AFFIRMED, AND THAT PLAINTIFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE LLORET ARE OVERRULED. IT IS FURTHER ORDERED THAT JUDGMENT IS ENTERED ON PLAINTIFF'S COMPLAINT SEEKING SOCIAL SECURITY DISABILITY INSURANCE BENEFITS AND SUPPLEMENTAL SECURITY INCOME IN FAVOR OF D EFENDANT CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY AND AGAINST PLAINTIFF ANNE M. NESTOR PURSUANT TO 42 U.S.C. 405(g) AND 1383(c)(3). IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL CLOSE THIS CIVIL ACTION FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 9/30/14. 9/30/14 ENTERED AND COPIES E-MAILED.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANNE M. NESTOR,
Plaintiff,
v.
CAROLYN W. COLVIN, 1
Acting Commissioner of
Social Security,
Defendant

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Civil Action
No. 13-cv-01098

O R D E R
NOW, this 30th day of September, 2014, upon consideration
of the following documents:
1)

Plaintiff’s Brief and Statement of Issues in Support
of Request for Judicial Review, which brief was
filed November 25, 2013;

2)

Defendant’s Response to Request for Review of
Plaintiff, which response was filed February 21,
2014;

3)

Report and Recommendation of United States
Magistrate Judge Richard A. Lloret dated and filed
September 15, 2014;

4)

Plaintiff’s Objections to the Report and
Recommendation of the Magistrate Judge, which
objections were filed September 26, 2014;

5)

plaintiff’s Complaint filed March 14, 2013; and

6)

defendant’s Answer filed May 18, 2013;

and after a thorough de novo review of the record in this matter;
it appearing that Magistrate Judge Lloert’s Report and
1

Carolyn W. Colvin became Acting Commissioner of the Social
Security Administration on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted as
the defendant in this suit for the former Commissioner, Michael J. Astrue,
whom she replaced. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g).

Recommendation correctly determined the legal issues presented in
this case,
IT IS ORDERED that Magistrate Judge Lloret’s Report and
Recommendation dated and filed September 15, 2014 is approved and
adopted. 2
IT IS FURTHER ORDERED that the decision of the
Commissioner of Social Security is affirmed.
IT IS FURTHER ORDERED that plaintiff’s objections to the
Report and Recommendation of Magistrate Judge Lloret are overruled. 3

2
The extent of review of a Magistrate Judge’s Report and
Recommendation is committed to the discretion of the district court. Jozefick
v. Shalala, 854 F.Supp. 342, 347 (M.D.Pa. 1994). However, the district court
must review de novo those portions of the Report and Recommendation to which
objection is made. 28 U.S.C. § 636(b)(1)(c). The court may “accept, reject,
or modify, in whole or in part, the magistrate’s findings or recommendations.”
Brophy v. Halter, 153 F.Supp.2d 667, 669 (E.D.Pa. 2001)(Padova, J.);
Rule 72.1(IV)(b) of the Rules of Civil Procedure for the United States
District Court for the Eastern District of Pennsylvania.

Furthermore, district judges have wide latitude regarding how
they treat recommendations of the magistrate judge. See United States v.
Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Indeed, by
providing for a de novo determination, rather than a de novo hearing,
Congress intended to permit a district judge, in the exercise of the court’s
sound discretion, the option of placing whatever reliance the court chooses
to place on the magistrate judge’s proposed findings and conclusions. I may
accept, reject, or modify, in whole or in part, any of the findings or
recommendations made by the magistrate judge. Id.
As more fully discussed below, I approve and adopt Magistrate
Judge Lloret’s Report and Recommendation and overrule plaintiff’s objections
to the Report and Recommendation.
3
Plaintiff raises two objections to Magistrate Judge Lloret’s Report
and Recommendation (“R&R”). First, she objects that the Administrative Law
Judge (“ALJ”) failed to find that plaintiff has a cognitive disorder which
amounts to severe impairment, and second, that the ALJ failed to incorporate
this severe impairment cognitive disorder into the hypothetical that the ALJ
posed to the vocational expert.

However, the ALJ’s decision not to find that plaintiff’s
cognitive disorder was a severe impairment was supported by substantial
(Footnote 3 continued):

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IT IS FURTHER ORDERED that judgment is entered on
plaintiff’s Complaint seeking social security disability insurance
benefits and supplemental security income in favor of defendant
Carolyn W. Colvin, Acting Commissioner of Social Security, and

(Continuation of footnote 3):
evidence. The ALJ acknowledged that Dr. Marija Petrovic, M.D.’s report
diagnosed plaintiff with cognitive disorder, and assessed a Global Assessment
of Functioning (“GAF”) score of 40. A GAF score “measures an individual's
psychological, social, and occupational functioning on a hypothetical
continuum of mental health/illness on a scale of one to a hundred.” Colon v.
Barnhart, 424 F. Supp. 2d 805, 808 (E.D.Pa. 2006) (Baylson, J.). The ALJ did
not credit the GAF score of Dr. Petrovic because it appeared “inconsistent
with the benign findings in the Northwest Human Services treatment notes and
represents only a snapshot in the claimant’s functioning.” See
Administrative Record at page 15.
Specifically, as noted in Magistrate Judge Lloret’s R&R, the ALJ
gave great weight to the psychiatric evaluation of Dr. Harold Graff of the
facility where plaintiff went for treatment, when Dr. Graff concluded that
plaintiff “may have some mild short term memory loss, but her mental status
does not show any severe problems”. The ALJ gave great weight to this
conclusion because it was consistent with the psychiatric treatment notes,
consistent with Dr. Graff’s assessed GAF score, consistent with plaintiff’s
activities of daily living, and consistent with the record as a whole. See
R&R at pages 5, 9; see also Administrative Record at pages 11-13, 15-16.
Accordingly, the ALJ’s decision that plaintiff’s cognitive
disorder was not a severe impairment is supported by substantial evidence.
“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 v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999).
Next, plaintiff objects to the ALJ’s reliance on a hypothetical
question posed to a vocational expert that did not include the functional
limitations which plaintiff argues should have been included based upon her
alleged severe cognitive disorder. However, the ALJ was aware of Dr.
Petrovik’s assessment, and was justified in not including her assessment in
the ALJ’s hypothetical to the vocational expert because, as discussed above,
the ALJ’s decision that plaintiff’s cognitive disorder was not a severe
impairment was supported by substantial evidence. See Rutherford v.
Barnhart, 399 F.3d 546, 554 (3d Cir. 2005).
Accordingly, I approve and adopt Magistrate Judge Lloret’s Report
and Recommendation and overrule plaintiff’s objections to it.

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against plaintiff Anne M. Nestor pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3).
IT IS FURTHER ORDERED that the Clerk of Court shall close
this civil action for statistical purposes.

BY THE COURT:

/s/ JAMES KNOLL GARDNER
James Knoll Gardner
United States District Judge

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