REYES v. BERRYHILL

Filing 19

ORDERED THAT THE CLERK IS DIRECTED TO REMOVE THE CASE FROM CIVIL SUSPENSE. THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. PLAINTIFF'S REQUEST FOR REVIEW IS GRANTED, AND THIS MATTER IS REMANDED TO THE COMMISSIONER FOR FURTHER PROCEEDINGS PURSUANT TO THE FOURTH SENTENCE OF 42 USC, 405 (g). SIGNED BY HONORABLE CYNTHIA M. RUFE ON 4/17/2019. 4/18/2019 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
A:SGEL REYES,
Plaintiff,
v.

CIVIL ACTION
NO. 18-349

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
ORDER
AND NOW, this 17th day of April 2019, upon careful and independent consideration of

Plaintiffs Request for Review, the response and reply thereto, the administrative record, and the
Report and Recommendation ("R&R") of United States Magistrate Judge Lynne A. Sitarski, to
which no objections have been filed, it is hereby ORDERED that:
I. The Clerk is directed to REMOVE the case from Civil Suspense;
2. The Report and Recommendation is APPROVED AND ADOPTED; 1
3. Plaintiffs Request for Review is GRANTED; and this matter is RE~ANDED to the
Commissioner for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).
It is so ORDERED.
BY THE COURT:

1

Because no objections to the R&R were filed, the Court is not reqmred to conduct a de nova review and
has the discretion to "accept, reject, or modify, in whole or in part, the findings or recommendations" of the
Magistrate Judge. 28 U.S.C. § 636(b)(l). Nevertheless, the Court has carefully considered the administrative record
and the R&R and agrees with the R&R that the opmion of the Administrative Law Judge ("ALJ") was not supported
by substantial evidence with regard to the conclusion that, after properly considering Plaintiffs limitations, there
were a substantial number of Jobs in the economy that Plaintiff could perform.
The ALJ afforded the opinion of consultative examiner Dr. Kakodkar "partial weight," because her
proposed limitations, including the postural limitations, were "generally well supported"; yet, as correctly
determined by the R&R, the ALJ failed to explain her decision not to incorporate Dr. Kakodkar's opinion that
Plamt1ff could never stoop into the RFC. Addit1onally, although the ALJ appeared to incorporate some of the
opimons of the non-examming state agency consultant, Dr. Maas, into the RFC, including the opinion that Plaintiff
could occasionally stoop, the ALJ failed to discuss or even acknowledge Dr Maas's assessment within her decision.
Plaintiff also requested remand for the consideration of new evidence, arguing this evidence is new and material,
and the R&R properly declined to address this argument so that the AU, on remand, could determine in the first
instance whether the evidence should be considered. See Reefer v Barnhart, 326 F.3d 376, 381 (3d Cir. 2003)
("[w]e need not decide whether the ALJ's failure to obtain [certain records] ... provides a reason for remand
because we believe that remand 1s otherwise warranted.").