Miller v. Colvin
ORDER ADOPTING REPORT AND RECOMMENDATIONS ;The report and recommendation of Judge Carlson, (Doc. 16), is ADOPTED IN ITS ENTIRETY. ORDER REMANDING CASE; (See order for details) 16 .Signed by Honorable Malachy E Mannion on 2/12/18. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DANIEL D. MILLER, SR.,
CIVIL ACTION NO. 3:16-2005
NANCY A. BERRYHILL,
Pending before the court is the report of Magistrate Judge Martin C.
Carlson which recommends that the Commissioner’s decision be affirmed in
part and remanded in part. (Doc. 16). The defendant has waived the
opportunity to object to Judge Carlson’s report, (Doc. 17), and no objections
have been filed by the plaintiff. Upon review, the report will be adopted in its
When 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 judges should give
some review to every report and recommendation)). Nevertheless, whether
timely objections are made or not, 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.
In his appeal, the plaintiff argues that the ALJ erred when he determined
that the plaintiff’s intellectual impairments did not meet or medically equal
Social Security Listing 12.05C, which relates to certain mental health
conditions, and that the ALJ erred when he fashioned a visual acuity standard
for the plaintiff which was contradicted by the objective medical evidence. In
carefully considering the plaintiff’s claims, Judge Carlson concludes that
substantial evidence supports the ALJ’s finding that the plaintiff’s intellectual
disability did not satisfy the requirements of Listing 12,05C, but that the ALJ
erred in finding that, after October 2014, the plaintiff could perform light work
which required visual acuity of corrected 20/40 vision, since that determination
was contradicted by all of the medical evidence presented to the ALJ relating
to the plaintiff’s visual acuity. Judge Carlson concludes that such error cannot
be deemed harmless since the jobs identified by the vocational expert based
upon this erroneous residual functional capacity assessment of the plaintiff’s
visual acuity included jobs which demanded significant constant or frequent
visual acuity. As such, Judge Carlson recommends that the Commissioner’s
decision be affirmed in part and remanded in part for further consideration of
the plaintiff’s claim as it relates to his visual acuity and ability to perform
substantial work in the regional and national economy after October 2014
given the limitations on his physical, mental and visual acuity.
The court has reviewed the entire report of Judge Carlson and finds no
clear error of record. The court further agrees with the sound reasoning which
led Judge Carlson to his recommendation. As such, the court adopts the
reasoning of Judge Carlson as the opinion of the court.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
The report and recommendation of Judge Carlson, (Doc.
16), is ADOPTED IN ITS ENTIRETY.
The ALJ’s determination that the plaintiff did not meet the
requirements of Listing 12.05C and his finding that prior to
October 2014 the plaintiff could return to his relevant past
work is AFFIRMED.
The ALJ’s residual functional capacity determination for the
plaintiff following October 2014 is VACATED since it rested
upon a plain error which overstated the plaintiff’s visual
acuity, an error which cannot be deemed harmless since
the Vocational Expert identified jobs for the plaintiff which
required constant or frequent near acuity, and the instant
action is REMANDED to the Commissioner for further
consideration of this issue only.
The Clerk of Court is directed to CLOSE THIS CASE.
S/Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: February 12, 2018
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2016 ORDERS\16-2005-01.wpd
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