SANCHEZ v. COLVIN

Filing 33

ORDER THAT THE REPORT AND RECOMMENDATION IS ADOPTED AS DESCRIBED HEREIN. THE PLAINTIFF'S REQUEST FOR REVIEW IS GRANTED IN PART. THE MATTER IS REMANDED TO THE COMMISSIONER FOR FURTHER CONSIDERATION OF THE ISSUE OF PLAINTIFF'S ABILITY TO COMM UNICATE IN ENGLISH, AND THE IMPACT OF A FINDING ON THIS ISSUE ON THE DETERMINATION AS TO WHETHER HE IS DISABLED UNDER THE SOCIAL SECURITY ACT. THE CLERK OF COURT IS DIRECTED TO CLOSE THIS MATTER STATISTICALLY. SIGNED BY HONORABLE EDMUND V. LUDWIG ON 9/17/14. 9/18/14 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTICT COUIRT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RAMON LIRIANO SANCHEZ

CIVIL ACTION

FILED

v.
No. 13-2010

SEP 1 8 2014

CAROLYN COLVIN

ORDER
AND NOW, this

MICHAELE. KUNZ. Clerk
Dep. Clerk

By,

day of September, 2014, upon consideration of

Magistrate Judge Marilyn Heffley's Report and Recommendation (doc. no. 26),
"Plaintiffs Objections to the Report and Recommendation of the United States
Magistrate Judge" (doc. no. 29), and "Defendant's Response to Plaintiffs
Objections to the Report and Recommendation of the Magistrate Judge" (doc.
no. 32), it is ordered that:
1. The Report and Recommendation is adopted as described herein. 1
1

Plaintiff's objections to the Report and Recommendation raise two issues: (1) whether the magistrate judge's
recommendation that the matter be remanded "for the limited purpose of obtaining additional testimony from
the Vocational Expert to determine if the jobs previously identified by the Vocational Expert remain available to
Plaintiff after considering his limited ability to communicate in English" is too narrow; and (2) whether the
magistrate judge conducted an improper independent review of the administrative record to find that the AU's
determination that plaintiff retained the residual functional capacity to perform medium work.
The court conducts a de novo review of the portions of the magistrate judge's report and recommendation to
which specific objections have been filed. 28 U.S.C. § 636(b)(l)(C). The court's role on review is to determine
whether substantial evidence supports the Commissioner's decision. 42 U.S.C. § 405(g); Richardson v. Perales, 402
U.S. 389, 401 (1971). "Substantial evidence" is relevant evidence that, viewed objectively, would be adequate to
support a decision. Richardson, supra.
With respect to remand, all interested parties - the court, the plaintiff and the Commissioner - agree that the AU's
finding that plaintiff can communicate in English was not supported by substantial evidence and that remand is
appropriate. Moreover, plaintiff and the Commissioner agree that the scope of inquiry on remand should be
broader than that proposed by the magistrate judge. As such, the matter will be remanded for further
consideration of the issue of plaintiff's ability to communicate in English, including a further hearing on this issue if
necessary, and for consideration of the effect a finding of an in ability to communicate in English might have on
whether plaintiff is disabled under the Social Security Act.
With respect to the second issue, plaintiff contends that the magistrate judge conducted an independent review of
the administrative record to find substantial evidence supported the AU's decision with respect to plaintiffs RFC,

2. The plaintiff's request for review is granted in part.
3. The matter is remanded to the Commissioner for further consideration
of the issue of plaintiff's ability to communicate in English, and the impact of a
finding on this issue on the determination as to whether he is disabled under
the Social Security Act.
4. The Clerk of Court is directed to close this matter statistically.

BY THE COURT:

ENTERED
SEP 1S2014

Cl.ERKOFCOURT

and that this was improper because the AU's decision "cannot be upheld upon the basis of the independent
analysis of evidence that the AU could have considered but did not." See objections, at 9-11, citing Fargnoli v.
Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001)(doc. no. 29). This is incorrect. "When determining whether the AU's
decision is supported by substantial evidence, the court may look to any evidence in the record, regardless of
whether the AU cites to it in his decision." Correa v. Astrue, 2009 WL 585500, at *2 (E.D. Pa., Mar. 4, 2009); see
also Esposito v. Apfel, 2000 WL 218119, at *6 (E.D. Pa., Feb. 24, 2000) (citing Richardson, supra) ("This Court's
review of the AU's findings must be based on the administrative record as a whole and, therefore, this Court may
rely on any evidence in the record, whether or not it is cited in the Commissioner's final decision."). Plaintiff's
objection on this point is, therefore, overruled.

2