United States District Court, D. Delaware
VALORIE H. JACQUET, Plaintiff,
CAROLYN W. COLVIN, Defendant.
SUE L. ROBINSON, District Judge.
At Wilmington this 30th day of January, 2014, having reviewed the Report and Recommendation ("R&R") issued by the Honorable Christopher J. Burke on December 1, 2013 (D.I. 23), as well as the limited objection filed thereto by defendant Carolyn W. Colvin, Acting Commissioner of Social Security (D.I. 25); I adopt the objection and reverse the R&R, to the extent it contained the recommendation that defendant's motion for summary judgment be denied and the case remanded for further proceedings, based on the following analysis.
1. Background. The R&R relates with great specificity plaintiff's medical history. In his R&R, Judge Burke affirmed the ALF's finding of nondisability but for her evaluation of former listing 9.08A. In this regard, Judge Burke concluded that, because there was evidence that could be cited to support either side of the argument,  a remand was appropriate "for a further review of he evidence as to whether [plaintiff] could or could not meet this Listing, and for the ALJ to set out the reasons supporting that finding in sufficient written detail." (D.I. 23 at 53)
2. Analysis. The defendant poses three objections to this recommendation. Most significantly, however, is that directed to the fact that Listing 9.08A and the other sections relating to endocrine disorders were eliminated effective June 7, 2011. 76 Fed. Reg. 19692-01 (Apr. 8, 2011). Moreover, defendant has specifically explained that former Listing 9.08 will not be applied on remand. ( Id. at 19698 n.3) I agree with defendant that remand to specifically consider former Listing 9.08A would not be proper.
3. The reasoning behind defendant's decision to remove Listing 9.08A is consistent with the evidence of record. As noted, plaintiffs medical records indicate that her impairments as to gait did not remain at a sufficient level of severity long enough to meet the 12-month duration requirement. Indeed, given the record, the ALJ's overall decision to deny benefits was supported by substantial evidence. See Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).
4. Conclusion. Given the removal of Listing 9.08A, remand for further consideration under that Listing is not appropriate. Therefore, the R&R is adopted in part and rejected in part, the defendant's motion for summary judgment is granted and the ...