Neal v. Colvin

Filing 19

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William J. Nealon on 3/22/17. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANDREW NEAL,
Plaintiff
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant

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No. 3:15-CV-2021
(Judge Nealon)
(Magistrate Judge Schwab)

MEMORANDUM
Background
On October 16, 2015, Plaintiff, Andrew Neal, filed this instant appeal1
under 42 U.S.C. § 405(g) for review of the decision of the Commissioner of the
Social Security Administration (“SSA”) denying his applications for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”)2 under
Titles II and XVI of the Social Security Act,42 U.S.C. § 1461 et seq. and 42
U.S.C. § 1381 et seq., respectively. (Doc. 1). On December 22, 2015, Defendant
filed an Answer and Transcript. (Docs. 8 and 9). On February 3, 2016, Plaintiff
filed a brief in support. (Doc. 11). On April 6, 2016, Defendant filed a brief in

Under the Local Rules of Court “[a] civil action brought to review a
decision of the Social Security Administration denying a claim for social security
disability benefits” is “adjudicated as an appeal.” M.D. Pa. Local Rule 83.40.1.
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Supplemental security income is a needs-based program, and eligibility is
not limited based on an applicant’s date last insured.
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opposition. (Doc. 15). On April 14, 2016, Plaintiff filed a reply brief. (Doc. 16).
A Report and Recommendation (“R&R”) was issued by United States Magistrate
Judge Susan E. Schwab on March 3, 2017, recommending that the appeal be
granted, the decision of the Commissioner be vacated, the matter be remanded to
the Commissioner for a new administrative hearing, and that Clerk of Court close
the matter. (Doc. 17). Objections were due by March 17, 2017, but were not filed
by either party.3 Having reviewed the reasoning of the Magistrate Judge for clear
error in the absence of objections, and having found none, the R&R will be
adopted, the appeal will be granted, the decision of the Commissioner will be
vacated, the matter will be remanded to the Commissioner for a new
administrative hearing, and the Clerk of Court will be directed to close this matter.
Standard of Review
When neither party objects to a magistrate judge’s report and
recommendation, the district court is not statutorily required to review the report,
under de novo or any other standard. Thomas v. Arn, 474 U.S. 140, 152 (1985);
28 U.S.C. § 636(b)(1)(C). Nevertheless, the Third Circuit Court of Appeals has
held that it is better practice to afford some level of review to dispositive legal

On March 6, 2017, Defendant filed a letter waiving the right to file
objections to the R&R. (Doc. 18).
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issues raised by the report. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987), writ denied 484 U.S. 837 (1987); Garcia v. I.N.S., 733 F. Supp. 1554, 1555
(M.D. Pa. 1990) (Kosik, J.) (stating “the district court need only review the record
for plain error or manifest injustice”). In the absence of objections, review may
properly be limited to ascertaining whether there is clear error that not only affects
the rights of the plaintiff, but also seriously affects the integrity, fairness, or public
reputation of judicial proceedings. Cruz v. Chater, 990 F. Supp. 375, 377 (M.D.
Pa. 1998) (Vanaskie, J.).
Discussion
Upon review of the present appeal, it is concluded that the Magistrate Judge
did not err in finding that substantial evidence does not support the administrative
law judge’s (“ALJ”) decision that Plaintiff was not disabled. The Magistrate
Judge appropriately sets forth the standard for reviewing a Social Security appeal
and the sequential evaluation process used by an administrative law judge to
determine whether the claimant is disabled, which is herein adopted. (Doc. 17, pp.
8-13). The Magistrate Judge also thoroughly reviews the medical records and the
ALJ’s decision, also herein adopted. (Id. at pp. 2-8, 13-15). Magistrate Judge
Schwab then addresses Plaintiff’s assertion that the ALJ erred at Step Two of the
Sequential Evaluation Process in failing to even mention Plaintiff’s alleged
impairment of osteoarthritis/ degenerative changes in his knees. (Id. at pp. 17).
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Ultimately, Magistrate Judge Schwab determines that the ALJ erred in failing to
discuss the alleged impairment of osteoarthritis/ degenerative changes in
Plaintiff’s knees at Step Two because the ALJ did not carry out the duty to
“consider all of a claimant’s medically determinable impairments that he or she is
aware of, including those that are not severe, when a clamaint’s RFC is assessed.
20 C.F.R. §§ 404.1545, 416.945.” (Doc. 17, p. 17). Magistrate Judge Schwab
elaborated, stating the following:
In this case, the ALJ was aware that Mr. Neal alleged
impairment due to osteoarthritis of both knees. Admin. Tr. 29.
As noted by the ALJ during the administrative hearing, Mr.
Neal was diagnosed with degenerative joint disease or
osteoarthritis. As noted by Mr. Neal’s counsel during the
proceedings, medical records from Dr. Haverstick reflect that
bilateral knee x-rays were ordered, Admin. Tr. 564, and that the
x-rays showed osteoarthritis, Admin. Tr. 488, 569, 573. Dr.
Sachs’s opinion similarly reflects that Mr. Neal’s diagnosis of
osteoarthritis was confirmed by x-rays. Admin. Tr. 436. Mr.
Neal reported that he had x-rays of his knees at Pinnacle Health
in Middletown. Admin. Tr. 40-41. Although there are multiple
references in the record that bilateral knee x-rays showed
osteoarthritis, the radiology report was not included in the
record.
Although the hearing transcript reflects that the ALJ may have
been hesitant to find this impairment medically determinable
without the radiology report, the ALJ made no such finding in
her decision. Although the Commissioner attempts to excuse
this failure by offering her own rationale, it is the responsibility
of the ALJ to explain the basis for her decision, Burnett, 220
F.3d at 121-22, and any analysis later provided by the
Commissioner cannot cure that which is absent. See e.g.,
Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000); Campbell
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v. Colvin, 2014 WL 257356 at *9 (M.D.Pa. Jan. 23, 2014).
We agree with Mr. Neal that there is a reasonable possibility
that his osteoarthritis of the knees might be found medically
determinable on remand, and if that is the case it may alter the
ALJ’s already restrictive RFC assessment. As such, because
the ALJ did not address Mr. Neal’s alleged impairment of
bilateral knee osteoarthritis, we are compelled to find that the
ALJ’s decision is not supported by substantial evidence.
Remand is warranted for further evaluation of whether Mr.
Neal’s bilateral knee osteoarthritis is a medically determinable
impairment. Because we have found a clear basis for remand,
we need not address Mr. Neal’s remaining arguments.
(Doc. 17, pp. 18-19) (footnotes omitted).
Neither party having objected to the Magistrate Judge’s recommendations,
and this Court having reviewed the R&R for clear error and having found none,
Magistrate Judge Schwab’s R&R will be adopted. As such, Plaintiff’s appeal will
be granted, the decision of the Commissioner will be vacated, the matter will be
remanded to the Commissioner for a new administrative hearing, and the Clerk of
Court will be directed to close this matter.
A separate Order will be issued.
Date: March 21, 2017
/s/ William J. Nealon
United States District Judge

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