Swank v. Colvin

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; Pltf's request for a new administrative hearing is GRANTED; decision of Commissioner denying the pltf's claims is VACATED; matter is REMANDED to the Commissioner to conduct a new administrative hearing ; Clerk of Court directed to CLOSE this case; Signed by Honorable Malachy E Mannion on 4/9/18. (ep)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
WILLARD N. SWANK
Plaintiff
v.
NANCY A. BERRYHILL 1
Defendant

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CIVIL ACTION NO. 3:16-0625
(MANNION, D.J.)
(SAPORITO, M.J.)

ORDER
Pending before the court is the Report and Recommendation (“Report”)
of Magistrate Judge Joseph F. Saporito, which recommends that the final
decision of the Commissioner denying the plaintiff’s claim for disability benefits
be vacated and that the case be remanded to the Commissioner for further
proceedings pursuant to 42 U.S.C. §405(g). (Doc. 18). The defendant has
waived the opportunity to object to Judge Saporito’s report, (Doc. 21), and the
plaintiff has filed no objections. Upon review, the Report will be adopted in its
entirety.

1

On January 23, 2017, Nancy A. Berryhill became the Acting
Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure
25(d), Nancy A. Berryhill is substituted for Carolyn W. Colvin as the defendant
in this suit.

Where no objection is made to a Report and Recommendation, the court
should, as a matter of good practice, “satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.” Fed. R. Civ.
P. 72(b), advisory committee notes. See also Univac Dental Co. v. Dentsply
Intern., Inc., 702 F. Supp. 2d 465, 469 (M.D. Pa. 2010) (citing Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining that judges should give
some review to every Report and Recommendation)). Nevertheless,
regardless of whether timely objections are made, the District Court may
accept, not accept, or modify in whole or in part the findings or
recommendations made by the Magistrate Judge. 28 U.S.C. §636(b)(1); Local
Rule 72.31.
On appeal from the Commissioner’s decision, the plaintiff argues that (1)
the Administrative Law Judge (“ALJ”) improperly deemed Swank a noncredible source and thus failed to consider Swank’s impairments in
combination, (2) the ALJ improperly assigned weight to the medical opinions
of record, and (3) the ALJ’s hypotheticals posed to the vocational expert
(“VE”) were improperly formulated.
In carefully considering the plaintiff’s claims, Judge Saporito
appropriately concludes that (1) the ALJ did not consider all medical source
opinions in formulating the plaintiff’s residual functional capacity (“RFC”), (2)
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the ALJ did not adequately explain which evidence was relied upon, and (3)
the ALJ improperly formulated hypothetical questions to the VE. (Doc. 18).
Specifically, the ALJ does not point to any medical opinions to determine the
plaintiff’s work capabilities, which gives the impression that the ALJ based his
decision on his own lay opinion over that of the plaintiff’s physician. (Doc. 11).
The court has reviewed the reasons presented by Judge Saporito for
recommending that this case be remanded to the Commissioner to conduct a
new administrative hearing, fully develop the record, and properly evaluate the
evidence. Because the court agrees with the sound reasoning that led Judge
Saporito to the conclusions in his Report and finds no clear error on the face
of the record, the court will adopt the Report in its entirety.
Now, therefore, IT IS HEREBY ORDERED THAT:
(1)

The Report and Recommendation of Judge Saporito, (Doc. 18), is

ADOPTED IN ITS ENTIRETY;
(2)

The plaintiff’s request for a new administrative hearing is

GRANTED;
(3)

The decision of the Commissioner denying the plaintiff’s claims is

VACATED;

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(4)

The matter is REMANDED to the Commissioner to conduct a new

administrative hearing pursuant to 42 U.S.C. §405(g) and 42 U.S.C.
§1383(c)(3); and
(5)

The Clerk of Court is directed to CLOSE THIS CASE.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

Dated: April 9, 2018
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2016 ORDERS\16-0625-01.docx

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