Duke v. Colvin

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; adopting 14 Report and Recommendations in its entirety. Decision of the Commissioner is Vacated and the matter is remanded to the Commissioner for a new admin hrg. Clerk to close case.Signed by Honorable Malachy E Mannion on 7/16/18. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM DUKE,

:
Plaintiff

NANCY A. BERRYHILL1,
Defendant

CIVIL ACTION NO. 3:16-2061

:

v.

:

JUDGE MANNION

:
:

ORDER
Pending before the court is the report of Magistrate Judge Susan E.
Schwab, which recommends that the decision of the Commissioner be
vacated and the instant matter remanded to the Commissioner pursuant to
sentence four of 42 U.S.C. §405(g) to conduct a new administrative hearing.

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On January 23, 2017, Nancy A. Berryhill became the Acting
Commissioner of Social Security. On March 6, 2018, the Government
Accountability Office stated that, as of November 17, 2017, Ms. Berryhill’s
status violated the Federal Vacancies Reform Act, which limits the time a
position can be filled by an acting official and “[t]herefore Ms. Berryhill was not
authorized to continue serving using the title of Acting Commissioner...”
Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of
1988 Commissioner, Social Security Administration. Government
Accountability Office. March 6, 2018. However, Ms. Berryhill continues to
functionally lead the Social Security Administration from her position of record
as Deputy Commissioner of Operations. Pursuant to Federal Rule of Civil
Procedure 25(d), Nancy A. Berryhill is substituted for Carolyn W. Colvin,
Acting Commissioner of Social Security, as the defendant in this suit.

(Doc. 14). By letter filed on May 30, 2018, the Commissioner waived the
opportunity to object to Judge Schwab’s report and recommendation. (Doc.
15). The plaintiff has also filed no objections to Judge Schwab’s report and
recommendation.
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 administrative law judge
(“ALJ”) failed to properly assess the effects of his obesity on his other
impairments; the ALJ’s finding that the plaintiff can perform light work activity
is not supported by substantial evidence; and the ALJ’s residual functional

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capacity assessment is not supported by a medical source opinion.
In carefully considering the plaintiff’s claims, Judge Schwab found that
substantial evidence does not support the ALJ’s residual functional capacity
assessment and that a more meaningful assessment of the effect of the
plaintiff’s obesity on his ability to work in combination with his other
impairments is warranted. Accordingly, Judge Schwab recommends that the
decision of the Commissioner be vacated and the matter be remanded for a
new administrative hearing.
The court has reviewed the entire report of Judge Schwab and finds no
clear error of record. The court further agrees with the sound reasoning which
led Judge Schwab to her recommendation. As such, the court adopts the
reasoning of Judge Schwab as the opinion of the court.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
(1)

The report and recommendation of Judge Schwab, (Doc.
14), is ADOPTED IN ITS ENTIRETY.

(2)

The decision of the Commissioner is VACATED and the
matter REMANDED to the Commissioner for a new
administrative hearing.

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(3)

The Clerk of Court is directed to CLOSE THIS CASE.

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

Date: July 16, 2018
O:\Mannion\shared\ORDERS - DJ\CIVIL ORDERS\2016 ORDERS\16-2061-01.wpd

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