United States District Court, D. Delaware
LINDA M. WRIGHT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner Of Social Security, Defendant.
an appeal from the denial of social security benefits for the
period from August 11, 2006, to December 31, 2007. The
parties cross-moved for summary judgment. (D.I. 11, 17). I
referred the motions to the Magistrate Judge. (D.I. 19). The
Magistrate Judge issued a Report and Recommendation. (D.I.
21). In brief, the recommendation was that the Magistrate
Judge's decision was based on substantial evidence, but
that the Magistrate Judge erred in not considering evidence
from the time period of February 2, 2006, to August 10, 2006.
Thus, the Magistrate Judge recommended remand for further
administrative proceedings where the evidence from February
2, 2006, to August 10, 2006, would be considered.
filed objections. (D.I. 22). Defendant responded. (D.I. 24).
Magistrate Judge had authority to make the decision pursuant
to 28 U.S.C. § 636(b)(1)(B), which provides that "a
[district] judge may . . . designate a magistrate judge to
conduct hearings, including evidentiary hearings, and to
submit... proposed findings of fact and recommendations for
the disposition ... of any motion [including a motion for
summary judgment or to dismiss for failure to state a claim
upon which relief can be granted]." The objected-to
portions of Magistrate Judge's Report and Recommendation
are subject to de novo review pursuant to 28 U.S.C.
first objection is that she gave ten reasons in the summary
judgment briefing why the ALJ's decision was not based on
substantial evidence, and the Magistrate Judge only discussed
five of them in the Report and Recommendation. (D.I. 22 at
1-2). Plaintiffs objections do not describe any of the five
reasons and therefore provides no basis for thinking the
Magistrate Judge overlooked something of significance.
second objection is that the ALJ did not have good reasons to
"reject the RFC of social security's medical
consultant [Dr. Borek]." (Id. at 2). Plaintiff
argues that an October 2007 medical evaluation did not
provide a basis to reject Dr. Borek's opinions from 2005
and 2006. (Id. at 2-3, 4-5). Plaintiff argues that
the ALJ could not use evidence from 2008-10, which post-dated
the claimed disability period, as evidence of disability in
the earlier period. (Id. at 3- 4).
responds to Plaintiffs second objection by stating that it is
repetition of Plaintiffs brief, and Defendant is relying upon
the Magistrate Judge's analysis. (D.I. 24 at 1-2).
Defendant objects that the Report and Recommendation should
not have remanded the matter as the ALJ did consider the
evidence from February 2, 2006, to August 10, 2006.
(Id. at 2-3).
wrote in connection with his analysis of the record:
As for the opinion evidence, the undersigned gives little
weight to the opinions of the DDS medical consultant [Dr.
Borek] regarding the claimant's physical abilities from
August 9, 2006, (which accompanied the prior determination),
because the evidence presented at the hearing level shows
that the claimant experienced improvement in her condition
after that date (20 CFR § 404.1527, SSR 96-6p). As
discussed above, the last treatment records prior to the date
last insured [December 31, 2007] from October 2007 showed
that the claimant was able to walk with a steady gait and
even tiptoe and heel walk (Exhibit 16F, p.l) [D.I. 7-10, Exh.
16F at 355]. Additionally, in light of the claimant's
lack of treatment between 2008 and 010, it appears that
the second surgery in June 2007 did help the claimant quite a
(D.I. 7-2 at 25).
Magistrate Judge wrote, in connection with the ALJ's
discounting of Dr. Borek's opinions:
The ALJ assigned little weight to the opinions of Dr. Borek
due to the inconsistency of plaintiffs physical abilities
from a medical examination performed on August , 2006 and
the evidence presented at the hearing level. Dr. Borek's
examination resulted in a determination of an RFC of
"less than sedentary." The October 2007 medical
evaluation revealed plaintiff was able to walk with a steady
gait and tiptoe which evidenced improvement when compared to
the August , 2006 evaluation. Also, the ALJ considered
plaintiffs lack of treatment from 2008 until 2010 to
substantiate his evaluation of plaintiff s progress from the
June 2007 surgery. Therefore, the ALJ reasonably concluded
Dr. Borek's evaluation from August , 2006 should be
given little weight.
(D.I. 21 at 15-16) (footnotes omitted).
argues that the ALJ rejected Dr. Borek's 2006
evaluation "based upon selective evidence from
one office visit in October 2007." (D.I. 22 at 2).
Weighing the evidence, and decided how to reconcile it, is
the job of the ALJ. It is not for the Magistrate Judge, nor
for me, to reweigh it. See Monsour Medical Center v.
Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).
generally, the ALJ's opinion was that Plaintiff was
improving over the time period from August 2006 through
December 2007. The October 29, 2007 office visit was
consistent with that view. Plaintiff "reported that she
was feeling better up until [an accident about two weeks
before]." (D.I. 7-10, at 355). She was walking much
better, and declined any physical therapy. (Id.).
The ALJ observed that the June 2007 surgery had a positive
impact not only based on the October 29, 2007, office visit,
but also by the absence of treatment in subsequent years.
Plaintiff objects to the ALJ's reliance on evidence from
after December 31, 2007, and cites a number of cases for the
proposition that the ALJ could not do this. (D.I. 22 at 3). I
do not think the cases stand for that proposition. The first
one cited, Thomas v. Chater,933 F.Supp. 1271, 1277
(D.V.I. 1996), states the relevant point of law:
"medical reports containing observations made after the
period of disability can be relevant in assessing a
claimant's disability only insofar as such reports relate
to or provide evidence of claimant's pre-expiration
condition." The ALJ was explicit that he viewed the lack
of treatment in the post-disability time frame as evidence
that the possible ...