                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-2008

Radocesky v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4011




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"Radocesky v. Comm Social Security" (2008). 2008 Decisions. Paper 651.
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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                     No: 07-4011

                             NICHOLAS RADOCESKY,

                                      Appellant

                                            v.

                    COMMISSIONER OF SOCIAL SECURITY,

                                       Appellee


                    Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                                  (06-CV-01073)
                     District Court: Hon. William W. Caldwell

                               Submitted July 25, 2008
                         Pursuant to Third Circuit LAR 34.1(a)

                 Before: McKEE, FUENTES, WEIS, Circuit Judges,


                               (Filed : August 14, 2008)




                             OPINION OF THE COURT




McKee, Circuit Judge.
       Nicholas Radocesky appeals the order of the District Court affirming the

Commissioner of Social Security’s final decision to deny his application for supplemental

security income under Title XVI of the Social Security Act, 42 U.S.C. 1381-1383(f). For

the following reasons, we will vacate the order of the District Court, and remand with

instructions to remand the matter to the Commissioner for further proceedings.

                                             I.

       Inasmuch as we write only for the parties, we need not recite the factual or

procedural background of this dispute. Radocesky applied for SSI benefits claiming total

disability due to organic brain syndrome, post-concussion disorder, orthopedic difficulty,

and motor skill problems. Radocesky claims that he became unable to work as a result of

a motor vehicle accident, in which he sustained abdominal, pelvic, and head injuries,

including a contusion of the right frontal lobe. Radocesky’s application was initially

denied, and a hearing was convened before an Administrative Law Judge. After the

hearing, the ALJ held the record open for ten days so he could receive more evidence

from one of Radocesky’s cognitive therapists. On the tenth day, Radocesky sent a 25

page facsimile to the ALJ. The cover letter to the facsimile stated that the 25 pages

included records from the cognitive therapist, records from Radocesky’s

neuropsychologist, a letter from one of Radocesky’s former supervisors, and a Mental

Functional Capacity Evaluation (MFCE) from Radocesky’s neurosurgeon, Dr. V.D.

Dhaduk. The ALJ marked page 2 of the cover letter, the records from the cognitive



                                             2
therapist and the records from the neuropsychologist as one exhibit in the record. Neither

the MFCE nor the letter from the supervisor were included as part of the record.

       On appeal, Radocesky contends that the Administrative Law Judge erred because

he did not consider the MFCE from Dr. Dhaduk. The government contends that the

Radocesky cannot prove that the twenty five page facsimile he transmitted to the ALJ

included the MFCE from Dr. Dhaduk. As the government puts it, the evidence that

twenty five pages was transmitted to the ALJ does not demonstrate that the MCFE was

included within the 25 pages.

       In light of the parties’ positions, we conclude that the most logical resolution is a

remand to the ALJ for clarification as to whether the ALJ received the MCFE from Dr.

Dhaduk, and if it was received, an explanation as to why the MCFE was not included as

part of the record. We will therefore vacate the order of the District Court and remand to

the District Court to, in turn, remand the matter to the Commissioner for further

proceedings consistent with this opinion.
