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Evans v. Berryhill

United States District Court, D. Delaware

May 21, 2019

KENNETH L. EVANS, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security, Defendant.



         At Wilmington this Twenty-first day of May in 2019, having reviewed the Report and Recommendation issued by the Magistrate Judge on February 12, 2019 (D.I. 23) and the objections filed thereto by Plaintiff (D.I. 24) and Defendant's response (D.I. 25), IT IS HEREBY ORDERED that, pursuant to 28 U.S.C. § 636(b)(1), the Report and Recommendation is REJECTED and Plaintiffs objections are SUSTAINED IN PART for these reasons:

         1. A district court judge is charged with conducting de novo review of a magistrate judge's report and recommendation when specific written objections are made. 28 U.S.C. § 636(b)(1); see also Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). The district court judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

         2. Plaintiff filed claims for disability insurance benefits and supplemental security income under Title II and XVI of the Social Security Act in 2013. His claims were denied on multiple occasions by an administrative law judge (ALJ). The ALJ's last decision was issued in December 2014. Plaintiff sought review of that decision by the Appeals Council, which denied that review in June 2016. Plaintiff then sought relief from the Appeal Council's decision by filing an action in this Court in August 2016. In 2017, Plaintiff and the Commissioner filed cross-motions for summary judgment. In September 2018, the case was reassigned to this judge. In November 2018, the case was referred to the magistrate judge. In February 2019, the magistrate judge issued her report and recommendation.

         3. Plaintiff seeks in his motion for summary judgment the entry of a judgment order reversing the Commissioner's decision to deny him benefits or, alternatively, remanding his case for further administrative proceedings. The Commissioner seeks by her summary judgment motion the entry of a judgment order affirming the ALJ's decision.

         4. The Magistrate Judge recommended that I deny Plaintiffs motion and grant the Commissioner's motion. D.I. 23 at 23.

         5. Plaintiffs arguments overlap to some extent, but distilled to their essence, the arguments take exception with ALJ's findings regarding (1) the severity of Plaintiff s disability, (2) Plaintiffs residual function capacity (RFC), and (3) the opinions of Plaintiff s treating physician. An issue relevant to all three findings is whether and, if so, to what extent, Plaintiff requires the use of a cane for balancing.

         6. The ALJ concluded that Plaintiff

has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b), except he can frequently climb ramps and stairs and never climb ladders, ropes or scaffolds; he can frequently balance, stoop, kneel, crouch, and crawl; he can have no concentrated exposure to ... hazards such as machinery and heights ... and he is limited to simple, routine work.

         D.I. 10-2 at 28 (emphasis added).

         7. "Light work" is defined in 20 C.F.R. § 404.1567(b) and § 416.967(b) as

involv[ing] lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.

         8. The parties agree that "frequently" is defined as "up to two-thirds of an eight-hour work-day" (Tr. of May 21, 2019 Hr'g at 9:14-16; 10:19-25; 39:5-9) and that "frequently balance" is therefore a restriction above and beyond what "light work" would otherwise entail. Accordingly, we know from the ALJ's putting a "frequently balancing" restriction in his RFC finding that the ALJ considered Plaintiffs balancing capabilities in determining Plaintiff s RFC.

         9. The ALJ also concluded that "[p]ostural limitations [in the RFC] address ... [Plaintiffs] need for a cane due to balance issues." D.I. 10-2 at 30. There are, however, no postural limitations in the RFC that address Plaintiffs need for a cane. There is, as just noted, a postural limitation in the RFC related to balancing; but it is not clear that this balancing limitation has anything to do with ...

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