UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

GERALD GLYN LEWIS, : No. 4:CV-04-1293

:

Plaintiff, : Complaint Filed 06/16/04

:

vs. :

:

JO ANNE B. BARNHART, : (Judge Muir)

Commissioner of Social Security, :

: (Magistrate Judge Mannion)

Defendant, :

ORDER

August 10, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On August 9, 1999, Plaintiff Gerald Glyn Lewis filed

applications with the Social Security Administration for two types

of benefits. Lewis claimed in the applications to have been

disabled since August 1, 1994, because of fibromyalgia,

osteoarthritis, and severe pain in his joints, muscles, and back. 

He sought Supplemental Security Income Benefits as well as

Disability Insurance Benefits.

On October 17, 2002, an Administrative Law Judge issued a

written decision in which he found that Lewis had become disabled

on October 31, 1998. As a result of that finding, Lewis was

entitled to receive only Supplemental Security Income Benefits;

Lewis did not qualify for Disability Insurance Benefits because his

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1. This date is described in the governing regulations as the

“date last insured.”

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entitlement to such benefits expired on December 31, 1997.1 That

decision became final on April 16, 2004, when the Appeals Council

denied Lewis’s request for further review. Lewis now challenges in

this court the Administrative Law Judge’s decision. He alleges

that the Commissioner’s findings with respect to the onset date of

his disability are not supported by substantial evidence.

The Clerk of Court assigned responsibility for this case to us

but referred it to United States Magistrate Judge Malachy E.

Mannion for preliminary consideration. On June 15, 2005, the

Magistrate Judge issued a twenty-page report recommending that the

case be remanded to the Administrative Law Judge. The Magistrate

Judge specifically found that the Administrative Law Judge’s

conclusion concerning the number of jobs in the national and local

economies which Lewis remained able to perform is not based on

substantial evidence. 

On July 1, 2005, the government filed an objection to

Magistrate Judge Mannion’s Report and Recommendation. Lewis filed

his response to the objection on July 18, 2005. The time allowed

for the government to file a reply brief expired on August 4, 2005,

and to this date no such brief has been filed. The matter is ripe

for disposition. 

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When objections are filed to a report of a magistrate judge,

we make a de novo determination of those portions of the report or

specified proposed findings or recommendations made by the

magistrate judge to which there are objections. United States v.

Raddatz, 447 U.S. 667 (1980); 28 U.S.C. §636(b)(1); M.D. Pa. Local

Rule 72.3. Furthermore, district judges have wide discretion as to

how they treat recommendations of the magistrate judge. Id.

Indeed, in providing for a de novo review determination rather than

a de novo hearing, Congress intended to permit whatever reliance a

district judge, in the exercise of sound discretion, chooses to

place on a magistrate judge’s proposed findings and

recommendations. Id. See also Mathews v. Weber, 423 U.S. 261, 275

(1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

In an appeal of the denial of Social Security Benefits, our

review of the Magistrate Judge’s report and the issues therein is

governed not only by the principles set forth in the preceding

paragraph, but also by 42 U.S.C. §405(g). In such cases our review

is less than plenary. A decision of the Commissioner which is

supported by substantial evidence must be affirmed. E.g., Mason v.

Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).

Substantial evidence is “‘more than a mere scintilla. It

means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Richardson v. Perales, 420 U.S.

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389, 401 (1971)(quoting Consolidated Edison Co. v. N.L.R.B., 305

U.S. 197, 229 (1938)). Substantial evidence exists only “in

relationship to all the other evidence in the record,” Cotter v.

Harris, 642 F.2d 700, 706 (3d Cir. 1981), and “must take into

account whatever in the record fairly detracts from its weight.”

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971).

The government’s only objection to Magistrate Judge Mannion’s

Report and Recommendation is that “[t]he Magistrate Judge erred in

determining that the hypothetical question to the vocational expert

was not reflective of Plaintiff’s limitations prior to October 31,

1998.” (Government’s Objections, p. 1) The manner in which the

government’s objection has been framed suggests that the remand

recommended by the Magistrate Judge is based on the limitations

contained in the hypothetical question that the Administrative Law

Judge posed to the vocational expert.

It appears as though the government’s objection is based on an

erroneous interpretation of Magistrate Judge Mannion’s Report and

Recommendation. The Magistrate Judge recommends that the matter be

remanded to the Administrative Law judge strictly for the following

reason:

... [W]e find that the Commissioner failed to meet her burden

at step five of the sequential evaluation process [set forth

in the governing regulations]. The [Administrative Law Judge]

stated that since he found that the plaintiff could not

perform his past relevant work, it was the agency’s burden to

establish that other jobs, which the plaintiff could perform,

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existed in significant numbers in the economy prior to October

31, 1998.

 In order to show that such jobs existed, the

[Administrative Law Judge] considered the Medical-Vocational

Guidelines .... The [Administrative Law Judge] explained that

since plaintiff’s impairments were non-exertional, he also

relied on the testimony of the [vocational expert] at the

hearing, as prescribed in the regulations. ... The

[Administrative Law Judge] decided that the plaintiff could

perform the jobs of alarm monitor or record keeper and that,

according to the [vocational expert], those jobs existed in

significant numbers in the economy. ... However, the

hypothetical question posed by the [Administrative Law Judge]

to the [vocational expert] was not tailored to the time period

prior to October 31, 1998. 

...

... The [vocational expert’s] testimony does not constitute

substantial evidence and ... the Commissioner failed to meet

her burden at step five. Since this Court has no fact-finding

role in social security disability cases, the Commissioner’s

decision must be reversed as a matter of law.

(Report and Recommendation, pp. 17-19)(Emphasis added). The defect

noted by Magistrate Judge Mannion relates to the time period

specified in the Administrative Law Judge’s questions of the

vocation expert. The foundation for the recommendation that this

case be remanded does not relate in any manner to the limitations

which may have been referenced by the Administrative Law Judge in

those questions.

We are of the view that the government’s objection does not

address the Magistrate Judge’s reasons for recommending a remand in

this case. For that reason we will overrule the government’s

objection, adopt Magistrate Judge Mannion’s Report and

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Recommendation in toto, and remand this case to the Administrative

Law Judge for the reason stated in the Report and Recommendation.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Magistrate Judge Mannion’s Report and Recommendation

filed on June 15, 2005, (Document 9) is adopted in toto.

2. This case is remanded to the Administrative Law Judge for

further consideration of whether other jobs, which Lewis

could perform, existed in significant number in the

economy prior to October 31, 1998.

3. The Clerk of Court shall close this case.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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