1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVNIA 

JEFFREY M. BROWN, : CASE NO. 4:15-cv-00992-MWB-GBC 

 Plaintiff, : 

 : 

 : (Judge Brann) 

 v. : 

 : 

CAROLYN W. COLVIN, : (Magistrate Judge Cohn) 

COMMISSIONER OF 

SOCIAL SECURITY : 

 Defendant. : 

MEMORANDUM OPINION 

November 10, 2016 

I. Introduction 

Jeffrey M. Brown, hereinafter “Plaintiff,” commenced this action by filing a 

complaint on May 21, 2015, which appealed the final decision of the 

Commissioner of Social Security, hereinafter “Defendant,” denying his claim for 

Disability Insurance Benefits and Supplemental Security Income under Titles II 

and XVI of the Social Security Act.1

 Magistrate Judge Gerald B. Cohn filed a 

Report and Recommendation on August 25, 2016, recommending that this Court 

find that the administrative law judge (ALJ) made the required specific findings of 

fact in determining whether Plaintiff met the criteria for disability, and that these 

                                                            

1

 ECF No. 1. 

Case 4:15-cv-00992-MWB Document 24 Filed 11/10/16 Page 1 of 11
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findings were supported by substantial evidence.2 Plaintiff timely objected to the 

Report and Recommendation on September 12, 2016.3

 Defendant responded to 

Plaintiff’s objections on September 22, 2016.4

 For the reasons that follow, the 

Court will now adopt Magistrate Judge Cohn’s Report and Recommendation. 

II. Standard of Review 

Upon designation, a magistrate judge may “conduct hearings, including 

evidentiary hearings, and ... submit to a judge of the court proposed findings of 

fact and recommendations.”5

 Once filed, this Report and Recommendation is 

disseminated to the parties in the case who then have the opportunity to file written 

objections.6

 When objections are timely filed, the district court must conduct a de 

novo review of those portions of the report to which objections are made.7

. 

Although the standard of review for objections is de novo, the extent of review lies 

within the discretion of the district court, and the court may otherwise rely on the 

recommendations of the magistrate judge to the extent it deems proper.8

 

For portions of the report and recommendation to which no objection is made, 

the court should, as a matter of good practice, “satisfy itself that there is no clear 

                                                            

2

 ECF No. 21. 

3

 ECF No. 22. 

4

 ECF No. 23. 

5

 28 U.S.C. 636(b)(1)(B). 

6

 28 U.S.C. 636(b)(1). 

7

 28 U.S.C. 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). 

8 Rieder v. Apfel, 115 F. Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz, 447 

U.S. 667, 676 (1980). 

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error on the face of the record in order to accept the recommendation.”9 Regardless 

of whether timely objections are made by a party, the district court may accept, not 

accept, or modify, in whole or in part, the findings or recommendations made by 

the magistrate judge.10

The Court has reviewed the entirety of Magistrate Judge Cohn’s Report and 

Recommendation and finds that it contains no clear error. Further, the Court has 

reviewed de novo those portions of the Report and Recommendation that have 

been objected to by the Plaintiff, and finds these objections to be without merit. 

III. Discussion 

Plaintiff objects to Magistrate Judge Cohn’s Report and Recommendation on 

three grounds. First, Plaintiff asserts that Magistrate Judge Cohn erred in finding 

that the ALJ did not fail to seek medical records and develop the record. Second, 

Plaintiff asserts that Magistrate Judge Cohn erred in affirming the ALJ’s failure to 

find that Plaintiff’s obesity was a severe impairment. Third, Plaintiff asserts that 

Magistrate Judge Cohn erred in finding that the ALJ appropriately rejected the 

opinion of consultative examiner Dr. Muthiah. 

                                                            

9

 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) 

10 28 U.S.C. § 636(b)(1); Local Rule 72.31 

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A. Magistrate Judge Cohn did not err by finding that the ALJ properly 

developed the record.

Plaintiff objects that the administrative law judge failed in his duty to fully 

develop the record. Plaintiff acknowledges that in order to prevail on this 

argument, he must prove that the errors alleged have caused prejudice to the 

Plaintiff. This, however, Plaintiff has failed to do. Plaintiff asserts that he had been 

“psychiatrically hospitalized several times in the year prior to the ALJ’s decision,” 

and that the ALJ was aware of three suicide attempts and the hospital at which 

Plaintiff was treated. Plaintiff proceeds to note that “[c]ertainly, evidence of 

suicide attempts would support a finding that Plaintiff’s mental condition was more 

severe than the ALJ’s decision concludes.”11 Plaintiff, however, never provided the 

records to the administrative law judge. 

Plaintiff’s argument also fails because while he asserts that the records 

regarding his psychiatric treatment would “certainly shed much light” on 

Plaintiff’s suspected suicide attempt, he has failed to bring these documents before 

the Court for review. Because Plaintiff’s counsel has neglected to substantiate this 

argument with copies of the records, I cannot identify any prejudice that has been 

caused by the omission of these documents. As the magistrate judge correctly 

                                                            

11 ECF No. 22 p. 4. 

Case 4:15-cv-00992-MWB Document 24 Filed 11/10/16 Page 4 of 11
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stated, the Court is not required to accept Plaintiff’s bare assertions as to what 

these records would show. 

Magistrate Judge Cohn further noted that “[a]llowing a claimant to secure a 

remand for failing to develop the record without any showing of prejudice would 

allow a back door around the materiality requirement of a sentence six remand.”12

A sentence six remand requires that evidence be material, and materiality requires 

“ a reasonable possibility that the new evidence would have changed the outcome 

of the Secretary’s determination.”13 Magistrate Judge Cohn reasoned that bare 

allegations regarding the content of the records were not sufficient for a finding of 

materiality. Plaintiff disputes Magistrate Judge Cohn’s analysis, asserting that 

Plaintiff’s pro se status before the administrative law judge, (Plaintiff now has 

counsel for this appeal), is a materially significant element. The Court disagrees 

that a plaintiff’s status as a pro se litigant satisfies the materiality requirement. 

Further, the Court notes Plaintiff’s discussion of the timeframe in which 

Plaintiff’s counsel was required to review the case record when preparing a brief 

before the Appeals Council. Plaintiff alluded to a short turnaround time which 

prevented counsel from more fully developing the record in the case at that time.14

Be that as it may, the Plaintiff has still failed to explain why the documents have 

                                                            

12 ECF No. 21 p. 27. 

13Id. 

14 See ECF No. 22 p. 4 (“Plaintiff’s attorney was only provided 25 days to review the file and 

submit argument to the Appeals Council. That 25 days was further limited by the delay in 

receiving the briefing opportunity from the Appeals Council.”) 

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not been presented to the Court today. Without offering these documents to the 

Court, Plaintiff cannot show that he has been prejudiced by their absence. The 

Court disagrees with Plaintiff’s conclusion that requiring production of medical 

records in order to establish that their absence resulted in prejudice “would defeat 

the beneficent purposes of the Act.”15

B. Magistrate Judge Cohn did not err by finding that the ALJ’s failure to develop 

Plaintiff’s obesity claim at step two was harmless error. 

Plaintiff alleges that because the administrative law judge was aware of records 

establishing that Plaintiff suffered from obesity, the administrative law judge 

should have helped Plaintiff advance consideration of this impairment by 

questioning him more closely at the hearing. Plaintiff further asserts that the ALJ 

erred by failing to develop the severity of Plaintiff’s obesity claim at step two. 

Magistrate Judge Cohn correctly reasoned that this error was harmless because it 

did not affect the ultimate outcome of the case, and that “close scrutiny is only 

required when there is a denial of benefits at step two.” Plaintiff objects to the fact 

that Magistrate Judge Cohn declined to apply close scrutiny at step two. While 

Magistrate Judge Cohn noted that “close scrutiny is only required when there is a 

                                                            

15 ECF No. 22 p. 4. 

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denial of benefits at step two,” Plaintiff asserts that close scrutiny is always 

required at step two. 

Plaintiff cites to Newell v. Commissioner of Social Security and McCrea v. 

Commissioner of Social Security for the proposition that “any step two denial” 

requires close scrutiny.16 However, the United States Court of Appeals for the 

Third Circuit explicitly states in McCrea that because the limited function of steptwo is to dispose of groundless claims, “the Commissioner’s determination to deny 

an applicant’s request for benefits at step two should be reviewed with close 

scrutiny.”17 This statement supports Magistrate Judge Cohn’s reasoning that close 

scrutiny is only required when benefits have been denied at step two, as opposed to 

each time a purported impairment was not fully developed. 

In the present case, Magistrate Judge Cohn correctly reasoned that the ALJ’s 

failure to explicitly address Plaintiff’s obesity impairment was insufficient to 

require a remand. Magistrate Judge Cohn considered Plaintiff’s allegations of error 

regarding the obesity impairment, namely, that it “tainted the ALJ’s analysis at the 

subsequent steps of the sequential evaluation” and “may” cause more pain and 

limitation on a weight-bearing joint, as well as Plaintiff’s testimony to pain and 

limitations in lifting, carrying, and standing.18 In Rutherford, the Third Circuit 

                                                            

16 ECF No. 22 p. 6. 

17 McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (emphasis added). 

18 ECF No. 21 p. 38. 

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reasoned that the ALJ did not err in failing to explicitly consider the plaintiff’s 

obesity where Plaintiff asserted that her weight more difficult for her to stand, 

walk, and manipulate her hands and fingers.19 

In explaining Rutherford, the Third Circuit referred to a decision of the United 

States Court of Appeals for the Seventh Circuit, noting that the Seventh Circuit’s 

analysis “might well have been written for this case.”20 The Seventh Circuit stated 

“any remand for explicit consideration of [Plaintiff’s] obesity would not affect the 

outcome of this case,” noting that “[Plaintiff] does not specify how his obesity 

further impaired his ability to work, but speculates merely that his weight makes it 

more difficult to stand and walk.”21 In Rutherford, the Third Circuit concluded that 

remand was not required because an explicit obesity analysis would not affect the 

outcome of the case, noting that the Plaintiff had not specified how obesity would 

affect the ALJ’s analysis beyond an assertion that it makes it more difficult to 

stand, walk, and manipulate her hands and fingers.22 The Third Circuit called this a 

“generalized response,” insufficient to require a remand.23 

Magistrate Judge Cohn correctly reasoned that the effects of plaintiff’s obesity 

constituted a “generalized response” under Rutherford, and that a remand to 

                                                            

19 Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) 

20 Id. at 552. 

21 Id. at 553 ((citing Skarbek v. Barnhart, 390 F.3d 500 (7th Cir. 2004) (per curiam)). 

22 Id. 

23 Id. 

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develop the obesity impairment would “not affect the outcome of the case.”24 Here, 

Plaintiff’s assertion that obesity “may” cause more pain and limitation on a weightbearing joint, and Plaintiff’s testimony as to pain and limitations in lifting, 

carrying, and standing, are insufficient to require remand for explicit discussion of 

the obesity impairment. 

Plaintiff responds in his objections by asserting that Rutherford is inapplicable 

to the present case.25 Plaintiff distinguishes his case from Rutherford by stating that 

he was unrepresented before the administrative law judge, while the Plaintiff in 

Rutherford was represented by counsel throughout the proceedings.26 This Court 

disagrees with Plaintiff’s assertion that Magistrate Judge Cohn’s reliance on 

Rutherford is misplaced solely because of Plaintiff’s previous pro se status. 

C. Magistrate Judge Cohn did not err by finding that ALJ properly credited Dr. 

Hutz’s non-treating opinion over Dr. Muthiah’s non-treating opinion. 

Magistrate Judge Cohn properly reasoned that the administrative law judge 

did not undertake lay reinterpretation of medical evidence when evaluating the 

opinion of Dr. Muthiah, the consultative physical evaluator. Plaintiff objects to 

Magistrate Judge Cohn’s report and recommendation on the basis that “the ALJ 

                                                            

24 Id. 

25 ECF No. 22 p. 6. 

26 Id. 

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impermissibly supplanted his own lay judgment for that of Dr. Muthiah.”27

Plaintiff’s assertion is incorrect. First, the administrative law judge did not fully 

reject Dr. Muthiah’s opinion, but instead afforded the opinion “moderate 

weight.”28 Second, the ALJ provided legitimate reasons for rejecting the portion of 

Dr. Muthiah’s opinion that addressed Plaintiff’s sitting limitations. The 

administrative law judge reasoned that Dr. Muthiah’s three hour sitting limitation 

was unsupported by the physical evaluation findings of Dr. Hawks, Plaintiff’s 

primary care physician, as well as Dr. Muthiah’s “own physical evaluation that 

shows decreased range of motion with normal strength and a normal neurological 

evaluation.”29 

Magistrate Judge Cohn correctly reasoned that when evaluating Dr. 

Muthiah’s opinion the administrative law judge did not impermissibly rely on his 

own lay opinion, but instead relied on the opinion of Dr. Hutz, a medical 

consultant for the disability determination service. Dr. Hutz opined that Dr. 

Muthiah overly relied on subjective complaints rather than on objective findings 

and that the subjective complaints were inconsistent with the treatment record.30

Magistrate Judge Cohn reasoned that “[t]he ALJ’s explanation that Dr. Muthiah’s 

opinion was not supported by the examination findings or clinical findings by 

                                                            

27 ECF No. 22 p. 8.

28 ECF No. 11-2 p. 34. 

29 ECF No. 21 p. 40. 

30 ECF No. 21 p. 43. 

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treating providers is sufficiently specific to determine whether substantial evidence 

supports his assignment of weight to Dr. Muthiah’s opinion,” and correctly found 

that substantial evidence supported the ALJ’s assignment of weight.31 

IV. Conclusion 

In sum, the Report and Recommendation of Magistrate Judge Gerald B. Cohn 

will be adopted in full and the decision of the Commissioner correspondingly 

affirmed. 

An appropriate Order follows. 

BY THE COURT: 

 

/s Matthew W. Brann 

 Matthew W. Brann 

 United States District Judge 

                                                            

31Id. 

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