FIERRO v. COLVIN

Filing 15

REPORT AND RECOMMENDATIONS THAT THE COMMISSIONER'S UNCONTESTED MOTION FOR REMAND BE GRANTED AND THE MATTER BE REMANDED; ETC.. SIGNED BY HONORABLE EDWARD G. SMITH ON 4/21/16. 4/22/16 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ONSTANTINO FIERRO,
Plaintiff,

v.

CIVIL ACTION

N0.14-6777

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant.

FILED
16

REPORT AND RECOMMENDATION

LYNNE A. SITARSKI
UNITED STATES MAGISTRATE JUDGE

April 21, 2016

Constantino Fierro ("Plaintiff') brought this counseled action pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), seeking review of the Commissioner of the Social Security
Administration's decision denying his claims for Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 401-433, 1382-1383 (the "Act"). The Commissioner has filed an uncontested motion
for remand pursuant to the fourth sentence of 42 U.S.C. § 405(g), arguing that the case would
benefit from additional evaluation. (ECF No. 15). For the reasons set forth below, I recommend
that Defendant's unopposed Motion for Remand be GRANTED, Plaintiffs request for review
be DENIED AS MOOT, and that final judgment be ENTERED.

I.

PROCEDURAL HISTORY1

On March 13, 2009, Plaintiff protectively filed an application for DBI and SSI, alleging
disability since November 27, 2006 due to compressed discs, knee and back problems, a torn
1

Because this matter involves an uncontested motion for remand, I will omit a summary
of the facts.

meniscus, problems sleeping, problems walking, and probable sleep apnea. (R. 339). After
Plaintiffs claims were initially denied on October 12, 2010, he timely requested a hearing before
an Administrative Law Judge ("ALJ"). (R. 195-96). In a decision issued on March 23, 2012, the
ALJ found that Plaintiff suffered from the severe impairment of herniated nucleus pulposus
("HNP") at T8-9, but did not have any other severe impairment. (R. 154). The ALJ further
found that Plaintiffs impairments did not meet a listed impairment, and that Plaintiff had the
residual functional capacity ("RFC") to perform a full range of light work as defined in 20
C.F.R. 404.1567(b) and 416.967(b), except he had to avoid hazards, such as unprotected heights
and moving machinery. (R. 154-55). Based on these limitations, and testimony from a
Vocational Expert ("VE"), the ALJ found that Plaintiff could perform other work in the national
economy and therefore was not disabled since November 27, 2006. (R. 159).
On May 8, 2012, following Plaintiffs timely appeal, (R. 229-35), the Appeals Council
vacated the decision and remanded the case back to the ALJ. (R. 163-67). On August 29, 2013,
the ALJ held a second administrative at which a VE and Dr. Donald Goldman, a Medical Expert
("ME"), testified. (R. 36-76). In a decision issued on September 24, 2013, the ALJ again found
that Plaintiff's only severe impairment was an HNP, that Plaintiff's impairments did not meet or
equal a listed impairment, and that Plaintiff retained the RFC to perform light as defined in 20
CFR 404. l 567(b) and 416.967(b) with no exposure to hazards. (R. 24-31 ). The ALJ further
found that Plaintiff was "unable to frequently handle or finger and is precluded from repetitive
kneeling, squatting (stooping), and bending. Plaintiff is able to sit, walk, and stand the amounts
necessary for light work (at least 6 hours each). Plaintiff is able to lift/carry 10 pounds frequently
and 20 pounds occasionally." (R. 27). On October 23, 2014, the Appeals Council denied
Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner.
(R. 1-7).

2

Plaintiff filed the instant civil appeal on November 26, 2014. (Compl., ECF No. 3). The
matter was assigned to the Honorable Edward G. Smith, who has referred it to me for a Report
and Recommendation pursuant to 28 U.S.C. § 636(b)(l)(B). (Order, ECF No. 11).

II.

DISCUSSION
Plaintiff alleges that the ALJ made multiple factual and legal errors. He contends that the

ALJ erred in: rejecting treating and examining medical source opinions that were consistent with
a finding of disability in favor of non-treating, non-examining source opinions; relying on extrarecord evidence to give no weight to one of Plaintiffs medical sources; rejecting Plaintiffs
subjective complaints of debilitating pain; failing adequately explain his determination that none
of Plaintiffs impairments met or equaled any listed impairment on the Commissioner's Listing
of Impairments; and using a vague or undefined term in the hypothetical to the VE. (Pl.' s Br. 218). Plaintiff requested that the matter be remanded for payment of benefits. (Id. at 18-19). The
Commissioner initially disputed Plaintiff's allegations of error and urged the Court to affirm the
decision of the ALJ. (Resp. 4-14). Plaintiff filed a substantive reply. (ECF No. 12). After this
Court had expended substantial judicial resources evaluating the parties' respective arguments
and reviewing the administrative record, Defendant filed a Motion to Remand for further
proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Def.' s Mot. to Remand 1, ~ 5).
The exclusive methods by which a district court may remand a case to the Commissioner
are set forth in sentence four and sentence six of section 405(g). Pursuant to sentence four,
"[t]he court shall have the power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without
remanding the case for a hearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 99100 (I 991 ). Sentence six provides:

3

[t]he court may, on motion of the [Commissio~er] made for good
cause shown before the Commissioner files [his] answer, remand
the case to the (Commissioner] for further action by the
[Commissioner), and it may at any time order additional evide~ce
to be taken before the [Commissioner], but only upon a showmg
that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in
a prior proceeding ...
42 U.S.C. § 405(g); Melkonvan, 501 U.S. at 100.
The Commissioner's request for remand in this case is not premised upon new and
material evidence. Rather, the Commissioner contends that "this case would benefit from
additional evaluation by the Agency." (Def.'s Mot. to Remand 'il 2). Specifically, the
Commissioner's motion to remand proposes that, upon remand, the Appeals Council will instruct
the ALJ to obtain evidence from a medical expert to clarify the nature and severity of Plaintiffs
impairments, reevaluate the opinion evidence of record, reassess the Plaintiffs RFC, and as
warranted, obtain supplemental VE testimony. (Id.

'il 4).

A further proposed condition set forth

in the motion to remand is that the ALJ may not rely upon the testimony and interrogatories
previously solicited from Dr. Goldman, but rather must solicit evidence from a different medical
expert (Id.). Accordingly, the Commissioner requests a remand for further proceedings pursuant
to sentence four of section 405(g). Plaintiff does not oppose the Commissioner's motion for
remand. (Def.'s Mot. to Remand 'il 3).
Upon careful and independent consideration of the record and the ALJ's decision, I
concur that reevaluation of Plaintiffs impairments is warranted under the circumstances. In
particular, the ALJ failed to set forth good reasons, supported by substantial evidence, for
discrediting the opinions of every physician who treated or examined Plaintiff in favor of nonexamining, non-treating sources. Therefore, I recommend that the Commissioner's unopposed

motion be granted, that Plaintiff's motion be denied as moot, and that the matter be remanded to
4

the Commissioner for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).
Additionally, final judgment should be entered in this case.
Therefore, I make the following:

5

RECOMMENDATION
AND NOW, this

21ST

day of April, 2016, it is RESPECTFULLY

RECOMMENDED that the Commissioner's uncontested motion for remand be GRANTED
and the matter be REMANDED.
The parties may file objections to the Report and Recommendation. See Loe. R. Civ. P.
72.1. Failure to file timely objections may constitute a waiver of any appellate rights.

BY THE COURT:

~T1;KI~

UNITED STATES MAGISTRATE JUDGE

ENTERED
APR 2 2 2.016
CLERK Or COURT

6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CIVIL ACTION

CONSTANTINO FIERRO,
Plaintiff,

v.

N0.14-6777

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant.

ORDER

AND NOW, this

day of

, 2016, upon careful consideration of

the Report and Recommendation filed by United States Magistrate Judge Lynne A. Sitarski, and
upon independent review of the briefs filed by the parties, it is hereby ORDERED that:
1. the Report and Recommendation is APPROVED and ADOPTED;
2. Defendant's uncontested Motion for Remand is GRANTED;
3. Plaintiff's request for review be DENIED as moot; and
4. this matter is REMANDED to the Commissioner for further proceedings pursuant to
the fourth sentence of 42 U.S.C. § 405(g).

BY THE COURT:

EDWARD G. SMITH,

J.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CONSTANTINO FIERRO,
Plaintiff,

CIVIL ACTION

v.

NO. 14-6777

CAROLYNW. COLVIN,
Acting Commissioner of Social Security
Defendant.

ORDER

AND NOW, this

day of

, 2016, the Court having separately ordered

the remand of this action for further administrative proceedings, it is ORDERED that final
judgment of this Court is entered pursuant to Rule 58 of the Federal Rules of Civil Procedure.

BY THE COURT:

EDWARD G. SMITH,

J.

'·I

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
4/22/2016

RE:

Fierro vs Colvin
CA No. 14-6777

·NOTICE
Enclosed herewith please find a copy of the Report and Recommendation filed by
United States Magistrate Judge Sitarski, on this date in the above captioned matter. You are
hereby notified that within fourteen (14) days from the date of service of this Notice of the filing
of the Report and Recommendation of the United States Magistrate Judge, any party may file (in
duplicate) with the clerk and serve upon all other parties written objections thereto (See Local
Civil Rule 72.1 IV (b)). Failure of a party to file timely objections to the Report &
Recommendation shall bar that party, except upon grounds of plain error, from attacking
on appeal the unobjected-to factual findings and legal conclusions of the Magistrate Judge
that are accepted by the District Court Judge.
In accordance with 28 U.S.C. §636(b)(l)(B), the judge to whom the case is
assigned will make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. The judge may accept, reject or
modify, in whole or in part, the findings or recommendations made by the magistrate judge,
receive further evidence or recommit the m'atter to the magistrate judge with instructions.
Where the magistrate judge has been appointed as special master under F.R.Civ.P
53, the procedure under that rule shall be followed.

MICHAELE. KUNZ

cc:

A. Lynch
N. Schmid
R. Savoy

,I

Courtroom Deputy to Judge Smith
civ623.frm
(11/07)