BUTLER v. COLVIN

Filing 20

ORDERED THAT: 1. PLAITNIFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION, ECF NO. 16, ARE OVERRULED, ETC. 2. THE REPORT AND RECOMMENDATION, ECF NO. 15, IS APPROVED AND ADOPTED. 3. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REQUEST FOR REVI EW, ECF NO. 8, IS DENIED. 4. JUDGMENT IS ENTERED IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFF. 5. THE FINAL ORDER OF THE COMMISSIONER OF SOCIAL SECURITY IS AFFIRMED. 6. THIS CASE IS CLOSED. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 9/28/2016. 9/29/2016 ENTERED AND COPIES E-MAILED.(lbs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
KIM BUTLER,

:
:
:
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
Defendant.
:
__________________________________________
Plaintiff,

No. 2:15-cv-00545

ORDER
AND NOW, this 28th day of September, 2016, upon consideration of Plaintiff’s
Complaint, ECF No. 3, Defendant’s Answer, ECF No. 7, Plaintiff’s Motion for Summary
Judgment and Brief and Statement in Support of Request for Review, ECF No. 8, Defendant’s
Response to Request for Review, ECF No. 12, and Plaintiff’s Reply, ECF No. 13, and after de
novo review 1 of the Report and Recommendation (“R&R”) of Lynne A. Sitarski, United States
Magistrate Judge, ECF No. 15, Plaintiff’s Objections to the R&R, ECF No. 16, Defendant’s
Response to the Objections, ECF No. 18, Plaintiff’s Reply, ECF No. 19, and the complete
Administrative Record, ECF No. 6, IT IS ORDERED THAT:
1.

Plaintiff’s objections to the Report and Recommendation, ECF No. 16, are

OVERRULED.
1

When objections to a report and recommendation have been filed, “the court shall make a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885
F.2d 1099, 1106 n.3 (3d Cir. 1989); Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). “District
Courts, however, are not required to make any separate findings or conclusions when reviewing
a Magistrate Judge’s recommendation de novo under 28 U.S.C. § 636(b).” Hill v. Barnacle, No.
15-3815, 2016 U.S. App. LEXIS 12370, at *16-17 (3d Cir. 2016). 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)(C).
1

The Court adopts the R&R issued by Magistrate Judge Sitarski, and writes separately
only to address a few of Plaintiff’s objections to the R&R. 2
First, Plaintiff objects to the Magistrate Judge’s reliance on psychiatric examinations
made during an emergency room visit by a non-mental health specialist, arguing that they are
entitled to no weight. Objs. 1-3, ECF No. 16. Contrary to Plaintiff’s argument, while the opinion
of a specialist is “generally” entitled to more weight, the Magistrate Judge did not err by
considering the emergency examinations in conjunction with the other medical evidence
supporting the ALJ’s findings. See 20 CFR 416.927(c)(5) (“We generally give more weight to
the opinion of a specialist about medical issues related to his or her area of specialty than to the
opinion of a source who is not a specialist.”). After de novo review, this Court adopts the
Magistrate Judge’s findings and recommendations that the ALJ’s decision is supported by
substantial evidence.
Second, Plaintiff asserts that because “the ALJ did not make a determination that drug or
alcohol is material the Magistrate cannot rely on evidence of past drug use to undermine her
claim for benefits.” Objs. 3. An independent review of the administrative record and the ALJ’s
decision reveals that Magistrate Judge Sitarski did not focus on evidence that the ALJ did not
base his decision on. Rather, the discussion of the evidence in the R&R is consistent with the
ALJ’s findings. See, e.g. R. 23-24 (discussing Dr. Zacharias and Plaintiff’s cocaine use).
In another objection, Plaintiff contends that the Magistrate Judge found that Plaintiff had
not articulated a good reason for failing to present prescription records from Walgreens for
January 4, 2012, to September 25, 2013, but that the ALJ’s decision is dated July 25, 2013, and
Plaintiff could not have presented the prescription records after this date to the ALJ. Objs. 5-6.
2

Although this Order does not specifically discuss each of Plaintiff’s objections, all of the
objections have been given de novo review.
2

These records were part of the “new evidence” Plaintiff relied upon in seeking remand. R&R 17.
Plaintiff argued in her Request for Review that these records would have made a difference in
assessing her credibility because they show she was taking the antipsychotic medicine
Risperidone. Pl.’s Brief 16-17, EF No. 8.
Although Plaintiff is correct that two months of the prescription records Plaintiff wanted
to present on remand were not available at the time of the ALJ’s decision, the other eighteen
months of records were available. This Court has independently reviewed these records. R. 711747. Prescriptions issued after the date of the ALJ’s decision consist of approximately two pages
of the thirty-one pages of prescription records. See R. 716-717, 719-720. 3 The records show
that Plaintiff was prescribed Risperidone as early as January 4, 2012, see R. 746, well before the
ALJ’s decision. The Magistrate Judge’s finding that Plaintiff failed to show good cause for
failing to present these records is correct. Further, as Magistrate Judge Sitarski found, “[t]he
record already documents Plaintiff’s various prescriptions, including her prescription for
Risperidone, (R. 432, 461, 549, 552, 562, 570, 570), and thus these additional medication logs
are cumulative of the record evidence before the ALJ.” R&R 17. The ALJ specifically noted the
prescription in his decision. See R. 25. Thus, this Court agrees that Plaintiff has failed to
demonstrate a reasonable probability that this evidence would have changed the ALJ’s decision.
2.

The Report and Recommendation, ECF No. 15, is APPROVED and

ADOPTED.
3.

Plaintiff’s Motion for Summary Judgment and Request for Review, ECF No. 8, is

DENIED.

3

One full page of records lists prescriptions issued after July 25, 2013, see R. 716, but
there are two prescriptions among a list of ten on each of four additional pages, totaling less than
a full page, see R. 717, 719-721.
3

4.

Judgment is ENTERED in favor of Defendant and against Plaintiff.

5.

The final order of the Commissioner of Social Security is AFFIRMED.

6.

This case is CLOSED.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.__________
JOSEPH F. LEESON, JR.
United States District Judge

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