United States District Court, D. Delaware
KENNETH L. EVANS, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security, Defendant.
F. CONNOLLY UNITED STATES DISTRICT JUDGE
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:
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).
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.
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.
Magistrate Judge recommended that I deny Plaintiffs motion
and grant the Commissioner's motion. D.I. 23 at 23.
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
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.
10-2 at 28 (emphasis added).
"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.
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
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 ...