Vaughn v. Colvin

Filing 24

REPORT AND RECOMMENDATIONS re 19 Cross MOTION for Summary Judgment, 13 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (n o longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 9/4/2018. Signed by Judge Sherry R. Fallon on 8/21/2018. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GLENN EL WOOD VAUGHN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, 1
Defendant.

)
)
)
)
) C. A. No. 16-370-JFB-SRF
)
)
)
)
)

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Plaintiff Glenn Elwood Vaughn ("Vaughn") filed this action on May 18, 2016 against

defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration
(the "Commissioner"). Vaughn seeks judicial review pursuant to 42 U.S.C. § 405(g) of the
Commissioner's March 17, 2016 final decision denying Vaughn's claim for disability insurance
benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social
Security Act (the "Act"), 42 U.S.C. §§ 401-434. The court has jurisdiction over the matter
pursuant to 42 U.S.C. § 405(g).
Currently before the court are Vaughn's and the Commissioner's cross-motions for
summary judgment. (D.1. 13; D.I. 19) Vaughn asks the court to enter an award of benefits or,
alternatively, to remand his case for further administrative proceedings. (D.1. 14 at 21-22) The
Commissioner requests the court affirm the Administrative Law Judge's ("ALJ") decision. (D.1.
15 at 16) For the reasons set forth below, the court recommends denying Vaughn's motion for

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Federal
Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for former Commissioner
Carolyn W. Colvin.

summary judgment (D.I. 13), and granting the Commissioner's cross-motion for summary
judgment (D.I. 19).

II.

BACKGROUND
A. Procedural History

Vaughn filed an application for DIB and SSI on February 16, 2012, claiming a disability
onset date of December 1, 2010. (Tr. at 18) Vaughn subsequently amended his alleged onset
date of disability to July 5, 2012. (Id. at 17) His claim was initially denied on July 24, 2012, and
denied again after reconsideration on February 28, 2013. (Id. at 125-29, 136-40) Vaughn then
timely requested a hearing, which occurred on June 18, 2014. (Id. at 141, 36-56) On July 21,
2014, Administrative Law Judge Jack Penca issued an unfavorable decision, finding that Vaughn
was not disabled under the Act because he retained the residual functional capacity ("RFC") to
perform work that existed in significant numbers in the national economy. (Id. at 14-35) On
August 8, 2014, Vaughn requested a review of the ALJ's decision. (Id. at 12-13) On March 17,
2016, the Appeals Council denied Vaughn's request for review, making the ALJ's decision the
final decision of the Commissioner. (Id. at 1-4) On May 18, 2016, Vaughn brought a civil
action in this court challenging the ALJ's decision. (D.I. 2) On February 3, 2017, Vaughn filed
a motion for summary judgment, and on June 5, 2017, the Commissioner filed a cross-motion for
summary judgment. (D.I. 13; D.I. 19)
B. Medical History

Vaughn was born on July 5, 1962, and was fifty years old on his alleged amended onset
date. (Tr. at 17, 41) Vaughn graduated high school and completed two years of trade school,
and has worked in the past as an automobile mechanic. (Id. at 42, 210) Vaughn stopped
working in October 2009 after he was terminated by his employer. (Id. at 209)

2

1. Physical Health

Prior to his amended onset date, Vaughn had a history of lower back pain, hypertension,
anxiety disorder, bipolar disorder, and alcohol dependence. In December 2010, Vaughn fell and
injured his right shoulder and has experienced pain and right shoulder symptoms since then. (Id.
at 24) On January 9, 2011, Vaughn was admitted to Christiana Hospital for care for bilateral
upper extremity numbness and tingling. (Id. at 270-80) He was unable to lift his right arm. (Id.
at 279) An x-ray of Vaughn's cervical spine showed mild multilevel degenerative changes of the
lower cervical spine including disc space narrowing and osteophytosis. (Id. at 343) Vaughn
regularly saw his primary care physicians at Brandywine Medical for his impairments in 2012,
and was regularly prescribed medications such as Xanax and Oxycodone. (Id. at 529-50)
On June 12, 2012, in a medical certification, Bernard Schneider, P.A., Vaughn's primary
care physician, stated that due to major depressive disorder, anxiety disorder, bipolar disorder,
rotator cuff injury, and cervical degenerative disc disease, Vaughn was unable to work for six to
twelve months. (Id. at 484)
On August 20, 2012, Vaughn presented to Meadow Wood Hospital with complaints of
right shoulder pain. (Id. at 575) On physical examination, Vaughn's upper and lower extremity
strength was "5/5" and his deep tendon reflexes were "2+." (Id. at 576) Vaughn did not have
any loss of sensation. (Id.) The examining physician noted that Vaughn was being scheduled for
surgery for his chronic right shoulder pain. (Id.)
An MRI of Vaughn's right shoulder, done on September 27, 2012, revealed a moderate
grade undersurface partial tearing in the distal supraspinatus tendon near the greater tuberosity
attachment site and severe diffuse atrophy of the teres minor muscle. (Id. at 521-22)

3

On October 4, 2012, Mr. Schneider recommended updated diagnostic studies due to
ongoing neck and shoulder pain. (Id. at 540) Vaughn had an MRI of the cervical spine on
October 12, 2012, which showed the following results:
Degenerative disc desiccation throughout the cervical spine; a central disc
protrusion at C2-3 impinging upon the ventral aspect of the thecal sac; at C3-4, a
broad disc osteophyte complex most prominent centrally impinging on the ventral
aspect of the thecal sac with moderate to severe degenerative narrowing of the
neural foramina; a broad disc osteophyte complex impinges on the ventral aspect
of the thecal sac at C4-5 with impingement of the ventral aspect of the spinal cord
without cord compression. Severe degenerative narrowing of the neuroforamina;
unconvertebral joint hypertrophy at C4-5; annular fissure at C4-5; at CS-6, a
broad disc osteophyte complex most prominent on the right impinges on the
ventral aspect of the thecal sac with moderate narrowing of the thecal sac with
relatively severe degenerative narrowing of the neural foramina at CS-6 with
unconvertebral joint hypertrophy; and at C6-7, broad based disc osteophyte
complexes impinges on the ventral aspect of the thecal sac with moderate to
severe narrowing of the neuroforamina.
(Id. at 894-95)

On December 12, 2012, Vaughn saw his primary care physician James McGlynn, M.D.,
for piercing pain down his right arm with decreased mobility, numbness, tingling, and weakness.
(Id. at 514) Dr. McGlynn indicated that Vaughn's acute CS radiculopathy seemed to be

recovermg. (Id. at 514) Dr. McGlynn noted that Vaughn had "much less pain," and although his
atrophy had not resolved, it had improved. (Id.) Additionally, Dr. McGlynn noted that Vaughn
had recovered full motion and function of the rotator cuff, although he still experienced pain at
the shoulder joint. (Id.) Dr. McGlynn diagnosed him with a rotator cuff tear with atrophy. (Id.)
Dr. McGlynn administered a cortisone injection in Vaughn's AC joint and recommended
physical therapy. (Id. at 514-15, 517-18) Additionally, Dr. McGlynn recommended more
aggressive treatment for the cervical radiculopathy since the atrophy improved. (Id. at 514-15)
Beginning on December 20, 2012, Vaughn began treatment at Dynamic Physical Therapy
primarily for complaints of pain, paresthesia, loss of motion, weakness, and loss of function of

4

his right arm. (Id at 618) Vaughn reported that he had a history of "neck issues," and had
recently received a series of injections. (Id) As a result of these injections, Vaughn stated that
his pain improved and he could move his neck and shoulder "a lot better." (Id) After two
months of physical therapy, in February 2013, Vaughn reported that his right arm improved with
increased motion and decreased pain, but his arm remained weak. (Id at 640) At this time,
Vaughn was able to dress himself without restriction and he felt that he had full range of motion.
(Id) Dynamic Physical Therapy reevaluated Vaughn again on March 22, 2013. At this time,

Vaughn advised that although improving, he experienced weakness that resulted in difficulty
with fine motor activities, such as lifting and dressing. (Id at 592) Moreover, Vaughn reported
that his right shoulder pain was constant and aggravating, and his pain level ranged from a 4 to 6
on a scale from 1 to 10. (Id)
On January 17, 2013, Vaughn saw Mr. Schneider. (Id at 527) Vaughn had positive joint
and back pain or muscle problems. (Id) On examination of his extremities, Vaughn had full
range of motion, no deformities, no edema, and no erythema. (Id) Mr. Schneider diagnosed
chronic pain syndrome, rotator cuff syndrome of the shoulder and allied disorders, degeneration
of the cervical intervertebral disc, anxiety, alcohol dependence, and bipolar affective disorder.
(Id) On a follow-up visit on January 28, 2013, Mr. Schneider noted Vaughn had limited

musculoskeletal range of motion, and that Vaughn's cervical radiculopathy and degenerative disc
disease were well controlled. (Id at 775)
Vaughn saw Dr. McGlynn in February 2013 and April 2013 for his ongoing symptoms of
persisting weakness, numbness, and pain in his right upper extremity. (Id at 683-85) In April
2013, Vaughn elected to undergo shoulder surgery, despite Dr. McGlynn's warning that surgery
may not help the weakness and pain in his arm due to his cervical radiculopathy. (Id at 685)

5

On March 27, 2013, Vaughn consulted with Anne Mack, M.D., and underwent an EMG
of the right upper extremity. (Id. at 601) Results showed evidence of right median nerve
entrapment at the wrist consistent with right carpal tunnel syndrome, as well as sensory
peripheral neuropathy, right multilevel cervical radiculopathy, and subacute denervation. (Id.)
On May 16, 2013, Vaughn underwent arthroscopy subacromial decompression on his
right shoulder, Mumford, and biceps tenotomy. (Id. at 607) After the surgery and at the
recommendation of his surgeon, Vaughn restarted physical therapy in June 2013 with pain levels
ranging from "4 to 6" on a scale of 1 to 10. (Id. at 679,687) In July 2013, Vaughn reported that
his status was improving, and his range of motion of his shoulder was acceptable post
operatively. (Id. at 690) Vaughn still experienced ongoing pain, so Dr. McGlynn prescribed
additional physical therapy for his shoulder. (Id. at 689-90)
On June 5, 2013, Vaughn saw Christian I. Fras, M.D., for spine surgery consultation. (Id.
at 694-95) Dr. Fras noted that he last saw Vaughn two years earlier in August 2011. (Id. at 694)
Vaughn informed Dr. Fras that after his last visit, he saw Ginger Chiang, M.D., for cervical
epidural steroid injections, which helped his symptoms. (Id.) On physical examination, Vaughn
was not in acute distress. (Id.) Dr. Fras opined that Vaughn had cervical spondylosis and disc
bulging, and was not convinced that Vaughn's symptoms in the right upper extremity would be
improved by spinal surgery. (Id. at 695) Dr. Fras recommended that Vaughn return to pain
management for a discussion regarding additional injections, and suggested that Vaughn see a
neurologist. (Id.) Dr. Fras opined that Vaughn was unable to work. (Id.)
On June 24, 2013, Vaughn saw Pramod K. Yadhati, M.D., for an evaluation for ongoing
upper extremity weakness. (Id. at 906) Dr. Yadhati noted that Vaughn had weakness and
diminished reflexes in the right biceps, as well as decreased sensation. (Id.) Dr. Yadhati

6

diagnosed right C5 radiculopathy and scheduled Vaughn for epidural injections. (Id.) Vaughn
underwent three cervical epidural steroid blocks with Dr. Yadhati on July 31, 2013, August 14,
2013, and August 28, 2013. (Id. at 898-900)
Physical therapy notes from July 2013 indicate that Vaughn still experienced some pain,
but reported that his shoulder felt better since having the surgery. (Id. at 701-05, 715) Vaughn
made some improvements in his strength, but still experienced deficits and difficulty with daily
activities. (Id. at 717) On August 13, 2013, Vaughn reported that he had a nerve block injection
in the neck area, which helped his pain. (Id. at 720) Vaughn was happy with his increased range
of motion as a result of physical therapy, but was still frustrated with his bicep weakness. (Id. at
726,728)
On September 11, 2013, Dr. McGlynn reexamined Vaughn. (Id. at 691) Dr. McGlynn
noted that Vaughn had "recovered nicely" following right shoulder surgery. (Id.) He also noted
that Vaughn had regained normal motion in his arm, but still had significant weakness in his
right biceps, some shoulder weakness, loss of biceps reflex, and numbness and tingling in his
thumb and finger. (Id.) Dr. McGlynn believed that Vaughn was a candidate for neck surgery
and had failed all non-operative care. (Id.)
On September 18, 2013, Vaughn saw Dr. Fras.with complaints of neck and right shoulder
pain, as well as weakness in his right arm. (Id. at 913) Dr. Fras noted that Vaughn was in
"obvious discomfort" upon examination, had diminished sensation to light touch in the right
upper extremity, "4/5" right biceps and triceps strength, and "2+" biceps and triceps reflexes
bilaterally. (Id.) Dr. Fras diagnosed him with cervical radiculopathy. (Id.)
On September 23, 2013, Vaughn saw Dr. Yadhati, who noted Vaughn's good range of
motion in his neck and minimal pain in the cervical area. (Id. at 902) Dr. Yadhati reported that

7

Vaughn had weakness in the right biceps and decreased handgrip strength. (Id.) Dr. Yadhati's
impression was right C6 radiculopathy. (Id.) Dr. Yadhati recommended that Vaughn continue
with physical therapy, as it seemed to be helping his lower neck and shoulder pain, and to follow
up with Dr. Fras. (Id.)
Physical therapy notes from September 2013 indicate that Vaughn continued to report
that his shoulder was improving. (Id. at 738-46) By September 27, 2013, Vaughn was reporting
improvement in his bicep strength. (Id. at 745) On October 4, 2013, Vaughn reported that he
was getting better, and that the pain in his right should had improved. (Id. at 749) In November
2013, Vaughn reported intermittent pain in the right shoulder, pain with lifting objects heavier
than five pounds, soreness with overhead motion, intermittent and unpredictable popping
sensation in the shoulder, and arm weakness. (Id. at 755)
On April 21, 2014, Vaughn consulted with one of his primary care physicians, Jerry P.
Gluckman, M.D., complaining of worsening right arm pain that radiated from his neck. (Id. at
847-50) Vaughn requested a prescription for physical therapy for his right arm, as well as an
increase in Percocet for his neck pain. (Id. at 847) Dr. Gluckman referred Vaughn to pain
management. (Id. at 850)
Vaughn reported no neck pain on May 7, 2014, and a musculoskeletal examination
performed by Mr. Schneider revealed normal range of motion and gait. (Id. at 851-53) On May
29, 2014, Vaughn saw Dr. Gluckman and reported back pain, neck pain, decreased range of
motion, and tingling in his right hand fingers. (Id. at 855)
On June 4, 2014, Vaughn underwent a physical therapy evaluation. (Id. at 770) The
report noted reduced range of motion in his neck, atrophy in his forearm flexor, extensors, and

8

bicep flexors, and reduced grip strength on the right. (Id. at 771) The evaluator recommended
physical therapy. (Id.)
Also in May and June 2014, Dr. Gluckman and Mr. Schneider jointly completed a
Physical Medical Source Statement. (Id. at 596-99) They diagnosed Vaughn with C5-6 disc
impingement with radiculopathy and myelopathy, as well as numbness of the hand and fingers.

(Id at 596) Vaughn was noted to have limited use of the right upper extremity, with weakness
and neck pain ranging from a score of 5 to 9 out of a scale of 1 to 10. (Id) They also noted that
depression and anxiety affect Vaughn's physical condition. (Id. at 597) Dr. Gluckman and Mr.
Schneider limited Vaughn to less than two hours sitting and less than two hours standing and
walking. (Id.) Vaughn was only able to lift three pounds due to muscle weakness, chronic
fatigue, adverse side effects, and pain. (Id at 598) Vaughn was also limited to occasionally
twisting, stooping, crouching, squatting, and climbing stairs and ladders. (Id.) Dr. Gluckman
opined that Vaughn would be off task 25% of the day due to pain, and was incapable of low
stress work. (Id at 599) In addition, Dr. Gluckman noted that Vaughn would likely be absent
more than four days per month due to his impairments. (Id)

2. Mental Health
In January 2012, Vaughn was admitted to Meadow Wood hospital for major depression
and alcohol dependence. (Id at 346-49) George Lasota, M.D., assigned Vaughn a GAF score of
30 at admission and 35 upon discharge. 2 (Id. at 348)

2

The GAF scale ranges from Oto 100 and is used by a clinician to indicate his overall judgment
of a person's psychological, social, and occupational functioning on a scale devised by the
American Psychiatric Association. Robinson v. Colvin, 137 F. Supp. 3d 630, 636 n.5 (D. Del.
2015) (citing American Psychiatric Association, Diagnostic & Statistical Manual ofMental
Disorders (Text Revision, 4th ed. 2000) (DSM-IV-TR)). A GAF of 11-20 indicates "[s]ome
danger of hurting self or others (e.g., suicide attempts without clear expectation of death;
frequently violent; manic excitement) OR occasionally fail[ing] to maintain minimal personal
9

On July 12, 2012, Ramnick Singh, M.D., examined Vaughn and diagnosed him with
depression and alcohol dependence. (Id. at 491) Dr. Singh reported that Vaughn had mild to
moderate limitations in his ability to work. (Id. at 487-88) Specifically, Dr. Singh opined that
Vaughn was moderately limited in his ability to relate to other people, restriction of daily
activities, deterioration of personal habits, and constriction of interests. (Id. at 487) Further, she
opined that Vaughn has a moderate degree of impairment in performing work requiring frequent
contact with others, performing complex tasks, performing repetitive tasks, and performing
varied tasks. (Id. at 487-88) Dr. Singh noted that Vaughn "stated that most of his problems are
due to his use of drugs and alcohol," and opined that Vaughn "would benefit from being sober
and attending [Alcoholics Anonymous] meetings and getting treatment for his addiction." (Id. at
489,491) She assigned Vaughn a GAF score of 65. (Id.)
In August 2012, Vaughn was admitted to Meadow Wood Hospital for depression and
alcohol dependence. (Id. at 570-91) At the time of admission, Ujwala Dixit, M.D., assigned
Vaughn a GAF score of 20. (Id. at 573)
From January 2013 to April 2014, Vaughn saw psychiatrist Patricia Lifrak, M.D. (Id. at
885-92) Dr. Lifrak diagnosed Vaughn as having bipolar disorder and alcohol abuse in early full

hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely incoherent or
mute)." Id. A GAF of 31-40 indicates "[s]ome impairment in reality testing or communication
(e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas,
such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man
avoids friends, neglects family, and is unable to work ... )." Id. A GAF of 41-50 indicates
"[s]erious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR
any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to
keep a job)." Id. A GAF of 51-60 indicates "[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational,
or school functioning (e.g. few friends, conflicts with peers or co-workers)." Id. A GAF of 6170 indicates "[s]ome mild symptoms (e.g. depressed mood and mild insomnia) OR some
difficulty in social, occupational, or school functioning ... , but generally functioning pretty well,
has some meaningful interpersonal relationships." Id.
10

rem1ss10n. (Id. at 892) At a January 2013 visit, Dr. Lifrak assigned Vaughn a GAF score of 60
to 65. (Id. at 892) In July 2013, Vaughn reported feeling depressed "for no reason," but did not
have hallucinations or suicidal thoughts. (Id. at 889) During visits in August, September, and
October 2013, Vaughn reported to Dr. Lifrak that he was feeling well, stable on his medications,
and less depressed. (Id. at 886-88) In April 2014, Vaughn reported feeling depressed, but he
had been in prison for five months and had been released only one week prior to the visit with
Dr. Lifrak. (Id. at 885) Although feeling depressed, Vaughn denied having suicidal thoughts at
that time. (Id.)
In April 2012, the state agency psychological consultant at the initial level, Vinod K.
Kataria, M.D., opined that Vaughn has mild restriction of activities of daily living, moderate
difficulties in maintaining social functioning, moderate difficulties in maintaining concentration,
persistence, or pace, and has experienced no repeated episodes of decompensation, each of
extended duration. (Id. at 67) The consultant also opined that Vaughn has up to moderate
limitation in sustained concentration and persistence, social interaction, and adaption. (Id. at 71)
In February 2013, the state agency psychological consultant at the reconsideration level,
Christopher King, Psy. D., opined that Vaughn has mild restriction of activities of daily living,
moderate difficulties in maintaining social functioning, moderate difficulties in maintaining
concentration, persistence, or pace, and has experienced one or two repeated episodes of
decompensation, each of extended duration. (Id at 104) The consultant also opined that Vaughn
has up to moderate limitation in sustained concentration and persistence and social interaction.

(Id. at 105)

C. Hearing Before the ALJ
1. Vaughn's testimony

11

Vaughn testified that he experiences pain in his neck and has trouble "twisting and
bending forward." (Id. at 43) Vaughn described having an aching pain that runs through his
neck down his right collarbone into his shoulder. (Id. at 43) Vaughn testified that the pain in his
neck and shoulder is constant, and it affects his ability to do things. (Id.) Because of this pain,
Vaughn has difficulty with prolonged sitting and standing, and has to lie down two to three times
an hour throughout the day. (Id.) Despite having surgery in his right shoulder, Vaughn testified
that he still experiences pain and, through the help of physical therapy, can only lift two pounds
with his right arm. (Id. at 43-44) To help manage the pain in his neck, Vaughn had five cervical
nerve blocks that only relieved his pain temporarily. (Id. at 44-45) Vaughn testified that there
has been muscle deterioration due to not using his arm, and that he experiences numbness from
his right elbow leading down the right forearm, as well as numbness in his fingers. (Id. at 45)
Vaughn stated that he has difficulty sleeping, and often wakes up with pain throughout
the night. (Id.) At the time of the hearing, he was seeking treatment for depression, and
experienced crying spells and lethargy. (Id. at 45) Vaughn testified as to his history with
alcohol abuse. (Id. at 46) Vaughn stated that he consumed alcohol as means to self-medicate his
depression and anxiety. (Id.) Vaughn had a DUI in 2011, and attended inpatient and outpatient
treatment at Meadow Wood Hospital in January and August of 2012. (Id.) After his treatment in
August 2012, Vaughn had three months sobriety and then began drinking once a month
thereafter. (Id.) Vaughn testified that the last time he had an alcoholic drink was November 20,
2013. (Id.)
Vaughn testified that he is unbalanced when trying to walk, and can only walk about an
eighth of a mile before feeling tired or dizzy. (Id. at 47) He also experiences dizziness when he
first stands, which can last for three or four minutes before it stops and he can move. (Id.) He

12

experiences numbness in his three fingers on his right hand, and has difficulty lifting light
objects. (Id.) Vaughn lives alone, and is able to perform chores, such as cleaning and laundry,
on his own. (Id. at 42, 48-49) Vaughn is also able to do yard work, such as cutting the grass, but
has to take frequent breaks. (Id. at 49-50) Vaughn is able to care for his personal hygiene, but
experiences some difficulty when dressing himself. (Id. at 50)
Finally, Vaughn testified that he does not think he would have been capable of working a
full time job since 2012, because he cannot stand for long periods of time and must sit and lay
down frequently. (Id.)

2. Vocational expert testimony before the ALJ
The ALJ posed the following hypothetical to the vocational expert ("VE"):
Assume an individual of the claimant's age, education, and work history who can
perform work at the light exertional level; who can frequently reach overhead
with his right arm; who can occasionally climb ramps, stairs, ladders, ropes, and
scaffolds; who can occasionally balance, stoop, kneel, crouch, and crawl; who can
have frequent exposure to vibration and hazards such as moving machinery and
unprotected heights; and who can perform simple, routine, and repetitive tasks
with no fast pace or strict production requirements with occasional simple work
related decision making, with occasional interaction with co-workers that does not
require teamwork or tandem tasks; and with no interaction with the public. Could
this individual perform the claimant's past work?
(Id. at 53-54) The VE testified that this individual could not perform the claimant's past work,

but, at the light exertional level, the individual described would be able to work in occupations
including final inspector, control worker, and hand bander. (Id. at 54)
On cross examination, Vaughn's attorney asked whether a hypothetical individual who
missed more than four days per month would be able to do any of the jobs that the VE outlined.
(Id.) The VE stated that such a hypothetical would be considered excessive by an employer and

would be work preclusive. (Id.) Vaughn's attorney also asked whether an individual who "was
going to be off task 25 percent of the typical workday," or could only lift three pounds, would be

13

able to do the positions the VE cited. (Id. at 54-55) The VE testified that such a reduction in
productivity would be work preclusive, and being able to lift only three pounds would "basically
reduce the person to not even being capable of sedentary employment." (Id. at 55) Finally,
Vaughn's attorney asked the VE to what extent an employer would tolerate an individual who
required unscheduled breaks during the eight hour workday. (Id. at 55) The VE stated that if the
person "is requiring breaks which are over and above those standard allowed by the employer, if
they need them on a regular basis, then that would be considered by the employer ... if the person
was requiring an extra five, ten minute break every hour or two, then that certainly would act to
reduce their productivity and also would take them beyond employer tolerances for the amount
of breaks that they are typically allowed." (Id.)

D. The ALJ's findings
Based on the factual evidence in the record and the testimony of Vaughn and the VE, the
ALJ determined that Vaughn was not disabled under the Act for the relevant time period from
July 5, 2012, through the date of the ALJ's decision, July 21, 2014. (Tr. at 29) The ALJ found,
in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through
September 30, 2014.
2. The claimant has not engaged in substantial gainful activity since July 5, 2012, the
amended alleged onset date.
3. The claimant has the following severe impairments: degenerative disc disease of the
cervical spine; right rotator cuff repair; major depressive disorder; and anxiety.
4. The claimant does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1.
5. After careful consideration of the entire record, the claimant has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except he can frequently reach overhead with his right arm, occasionally

14

climb ramps, stairs, ladders, ropes, and scaffolds, and occasionally balance, stoop, kneel,
crouch, and crawl. He can have frequent exposure to vibrations and hazards (such as
moving machinery and unprotected heights) and can perform simple, routine, and
repetitive tasks with no fast-paced or strict production requirements. His work should
involve occasional, simple work-related decision making, occasional interaction with
coworkers that does not require team work or tandem tasks, and no interaction with the
public.
6. The claimant is unable to perform any past relevant work.
7. The claimant was born on July 5, 1962, and was 50 years old, which is defined as an
individual closely approaching advanced age, on the amended alleged disability onset
date.
8. The claimant has at least a high school education and is able to communicate in
English.
9. Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the claimant
is "not disabled," whether or not the claimant has transferable job skills.
10. Considering the claimant's age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform.
11. The claimant has not been under a disability, as defined in the Social Security Act,
from July 5, 2012, through the date of this decision.
(Tr. at 19-29)

III.

STANDARD OF REVIEW

Findings of fact made by the ALJ, as adopted by the Appeals Council, are conclusive if
they are supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3) (2015).
Judicial review of the ALJ's decision is limited to determining whether "substantial evidence"
supports the decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).
In making this determination, a reviewing court may not undertake a de novo review of the
ALJ's decision and may not re-weigh the evidence ofrecord. See id. In other words, even if the

15

reviewing court would have decided the case differently, the court must affirm the ALJ's
decision if it is supported by substantial evidence. See id. at 1190-91.
Substantial evidence is defined as less than a preponderance of the evidence, but more
than a mere scintilla of evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (quoting

Jesurum v. Secy of the United States Dep 't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir.
1995)). As the United States Supreme Court has explained, substantial evidence "does not mean
a large or significant amount of evidence, but rather such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552,565
(1988). The Supreme Court also has embraced this standard as the appropriate standard for
determining the availability of summary judgment pursuant to Federal Rule of Civil Procedure
56. "The inquiry performed is the threshold inquiry of determining whether there is the need for
a trial-whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,250 (1986).
This standard mirrors the standard for a directed verdict under Federal Rule of Civil
Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law,
there can be but one reasonable conclusion as to the verdict. If "reasonable minds could differ as
to the import of the evidence, however, a verdict should not be directed." See id. at 250-51
(internal citations omitted). Thus, in the context of judicial review under § 405(g):
[a] single piece of evidence will not satisfy the substantiality test if [the ALJ] ignores, or
fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial
if it is overwhelmed by other evidence-particularly certain types of evidence (e.g., that
offered by treating physicians )-or if it really constitutes not evidence but mere
conclusion.

16

Brewster v. Heckler, 786 F.2d 581,584 (3d Cir. 1986) (quoting Kent v. Schweiker, 710 F.2d 110,

114 (3d Cir. 1983)). Where, for example, the countervailing evidence consists primarily of a
claimant's subjective complaints of disabling pain, the ALJ "must consider the subjective pain
and specify his reasons for rejecting these claims and support his conclusion with medical
evidence in the record." Matullo v. Bowen, 826 F.2d 240,245 (3d Cir. 1990).
"Despite the deference due to administrative decisions in disability benefit cases,
'appellate courts retain a responsibility to scrutinize the entire record and to reverse or remand if
the [Commissioner]'s decision is not supported by substantial evidence."' Morales v. Apfel, 225
F.3d 310, 317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)). "A
district court, after reviewing the decision of the [Commissioner] may, under 42 U.S.C. § 405(g)
affirm, modify, or reverse the [Commissioner]'s decision with or without remand to the
[Commissioner] for rehearing." Podedworny v. Harris, 745 F.2d 210,221 (3d Cir. 1984).
IV.

DISCUSSION
A. Disability Determination Process
Title II of the Social Security Act affords insurance benefits "to persons who have

contributed to the program and who suffer from a physical or mental disability." 42 U.S.C. §
423(a)(l)(D) (2015); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). A disability is the "inability
to engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A).
A claimant is only disabled if his impairments are so severe that he is unable to do his previous
work or engage in any other kind of substantial gainful work existing in the national
economy. Id. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003). To qualify for

17

disability insurance benefits, a claimant must establish that he was disabled prior to the date he
was last insured. 20 C.F.R. § 404.131 (2016); Matullo, 826 F.2d at 244.
The Commissioner must perform a five-step analysis to determine whether a person is
disabled. See 20 C.F.R. §§ 404.1520, 416.920; Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir.
1999). If the Commissioner makes a finding of disability or non-disability at any point in the
sequential process, the Commissioner will not review the claim further. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4)(i). At step one, the Commissioner determines whether the
claimant is engaged in any substantial gainful activity. See id.§§ 404.1520(a)(4)(i),
416.920(a)(4)(i) (mandating finding of non-disability when claimant is engaged in substantial
gainful activity). If the claimant is not engaged in substantial gainful activity, step two requires
the Commissioner to determine whether the claimant is suffering from a severe impairment or a
severe combination of impairments. See id.§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (mandating
finding of non-disability when claimant's impairments are not severe). If the claimant's
impairments are severe, at step three, the Commissioner compares the claimant's impairments to
a list of impairments that are presumed severe enough to preclude any gainful work. See id. § §
404.1520(a)(4)(iii), 416.920(a)(4)(iii); Plummer, 186 F.3d at 428. When a claimant's
impairment or its equivalent matches a listed impairment, the claimant is presumed disabled. See
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant's impairment, either singly or
in combination, fails to meet or medically equal any listing, the analysis continues to step four
and five. See id.§§ 404.1520(e), 416.920(e).
At step four, the ALJ considers whether the claimant retains the RFC to perform his past
relevant work. See id.§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv) (stating claimant is not disabled
if able to return to past relevant work); Plummer, 186 F.3d at 428. A claimant's RFC is "that

18

which an individual is still able to do despite the limitations caused by his or her impairment(s)."

Fargnoli v. Halter, 247 F.3d 34, 40 (3d Cir. 2001). The claimant bears the burden of
demonstrating the inability to return to past relevant work. See Plummer, 186 F.3d at 428.
If the claimant is unable to return to past relevant work, at step five, the Commissioner
must demonstrate that the claimant's impairments do not preclude him from adjusting to any
other available work. See 20 C.F.R. §§ 404.1520(g), 416.920(g) (mandating finding ofnondisability when claimant can adjust to other work); Plummer, 186 F.3d at 428. In other words,
the Commissioner must prove that "there are other jobs existing in significant numbers in the
national economy which the claimant can perform, consistent with his medical impairments, age,
education, past work experience, and [RFC]." Plummer, 186 F.3d at 428. The ALJ must
analyze the cumulative effect of all the claimant's impairments in determining whether he or she
is capable of performing work and is not disabled. See id. The ALJ often seeks the VE's
assistance in making this finding. See id.

B. Whether the ALJ's Decision is Supported by Substantial Evidence
On July 21, 2014, the ALJ found Vaughn was not disabled within the meaning of the Act
from the amended alleged onset date of July 5, 2012, through the date of the hearing. (Tr. at 1929) The ALJ concluded that, despite Vaughn's severe impairments (degenerative disc disease of
the cervical spine, right rotator cuff repair, major depressive disorder, and anxiety), he had the
residual functional capacity to perform light work 3 and perform jobs that exist in significant
numbers in the national economy. (Id. at 22-28)

3

"Light work involves 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
19

Vaughn asserts two main arguments on appeal: ( 1) the ALJ erred as a matter of law in
failing to acknowledge and evaluate all of the relevant medical evidence pertaining to Vaughn's
impairments; and (2) the ALJ erred as a matter of law in failing to accord adequate weight to the
opinions and assessments of Vaughn's treating physicians. (D.1. 14 at 13, 19)
1. Relevant Medical Evidence

Vaughn contends that, in determining that Vaughn had the capacity for light work, the
ALJ failed to acknowledge and evaluate all of the relevant medical evidence. (Id. at 13-14)
Vaughn contends that "the ALJ had the duty to discuss significant evidence both supportive of
and contrary to Ms. (sic) Vaughn's claim for disability." (Id. at 14)
To reach the conclusion that Vaughn had the RFC to perform light work, the ALJ
reviewed the entire record. (Tr. at 22) After reviewing the evidence of record, the ALJ
determined that Vaughn had severe impairments of degenerative disc disease of the cervical
spine, right rotator cut repaid, major depressive disorder, and anxiety. (Id. at 19) The ALJ
determined that Vaughn is capable oflight exertional work activity as defined in 20 C.F.R. §
404.1567(b), except he can frequently reach overhead with his right arm, occasionally climb
ramps, stairs, ladders, ropes, and scaffolds, and occasionally balance, stoop, kneel, crouch, and
crawl. He can have frequent exposure to vibration and hazards (such as moving machinery and
unprotected heights) and can perform simple, routine, and repetitive tasks with no fast-paced or
strict production requirements. His work should involve occasional, simple work-related
decision making, occasional interaction with coworkers that does not require team work and
tandem tasks, and no interaction with the public. (Id at 22) In determining the RFC, the ALJ

of these activities. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time." 20 C.F.R. § 404.1567(b).
20

discussed and considered Vaughn's testimony, Vaughn's treating sources' notes, the state agency
medical opinions, and treating source opinions. (Id at 22-27)
The ALJ did not improperly weigh the physical medical evidence when concluding that
Vaughn could perform a limited range of light work. Vaughn contends that the ALJ
mischaracterized and ignored evidence related to Vaughn's right shoulder and cervical spine
impairments. 4 (D.I. 14 at 13-18) Specifically, Vaughn contends that the ALJ: (1)
mischaracterized the severity of the findings of Vaughn's diagnostic studies, including the MRI
and EMG; (2) failed to properly consider numerous notations of ongoing weakness, reduced
muscle strength, decreased range of motion and atrophy in the right upper extremity; and (3)
failed to consider substantial evidence showing limited or no improvement in Vaughn's shoulder
impairment. (Id) However, the ALJ considered the evidence relevant to Vaughn's right
shoulder and cervical spine impairments, and explicitly cited to Vaughn's history of treatment
for these impairments, such as the MRI and EMG studies. (Tr. at 22-25) Viewing the record
and treatment history as a whole, the ALJ determined that Vaughn had experienced some
improvement in his neck and right shoulder symptoms with treatment and surgery, and that his
mental impairments were improved with medication and treatment as well. (Id at 23-24) The
ALJ stated that "the facts in the record do not dispute that Vaughn has conditions, which singly
or in combination may cause him pain." (Id at 24) The ALJ held, however, that "these pieces

4

Vaughn also argues that the ALJ erred by not mentioning Vaughn's lower back pain in his
decision. (D.I. 14 at 18) Vaughn contends that although he did not testify about his lower back
pain, his attorney reported it to the ALJ. (Id) However, in the initial decision, Vaughn alleged
disability due to a herniated disc and pinched nerve in his neck, and a tom right shoulder. (Tr. at
208-18) On reconsideration and at the hearing, Vaughn alleged disability due to worsening right
arm weakness and numbness in his fingers, as well as depression. (Id at 243-49, 252-61) And,
as Vaughn concedes, he did not testify about his lower back pain at the hearing. (D .I. 14 at 18)
Therefore, the ALJ was not required to take into consideration any alleged lower back pain in his
decision.
21

of evidence suggest that Vaughn's symptoms may not exist at the level of severity assumed by
Vaughn's testimony at hearing." (Id.) The ALJ concluded that the RFC, as he determined, gives
adequate weight to the facts as determined as credible. (Id.) As such, substantial evidence
supports the ALJ's RFC assessment, 5 and the ALJ did not improperly weigh the relevant medical
evidence.
To the extent Vaughn asserts that the ALJ did not consider all relevant evidence, the
Third Circuit does not require the ALJ to discuss or refer to every piece of evidence of the
record, so long as the reviewing court can discern the basis of the decision. Robinson v. Colvin,
137 F. Supp. 3d 630,645 (D. Del. 2015) (citing Fargnoli, 247 F.3d at 42). The ALJ at bar stated
that he considered all the evidence of record. (Tr. at 22) The mere failure to cite to specific
evidence does not establish that the ALJ failed to consider it. Robinson, 137 F. Supp. 3d. at 645
(citing Black v. Apfel, 143 F.3d 383,386 (8th Cir. 1998); Carlson v. Shala/a, 999 F.2d 180, 181
(7th Cir. 1993) (the ALJ need not evaluate in writing every piece of evidence submitted)).
Having reviewed the ALJ' s decision, it is evident that he considered all the record evidence and
provided sufficient reasons for the court to discern his decision.
2. Opinions of Vaughn's Treating Physicians

5

Vaughn contends that substantial evidence does not support the ALJ' s finding that Vaughn had
the RFC to perform the requirements of light work, because he cannot lift up to 20 pounds, nor
walk for a total of approximately 6 hours of an 8-hour work day. (D.I. 14 at 18) The ALJ
appropriately considered Vaughn's limitations in determining which credibly established
limitations should be accounted for in the hypothetical and RFC assessment. Specifically, the
ALJ noted that Vaughn's symptoms were controlled and improved with physical therapy and
medication. (Tr. at 24) The ALJ appropriately concluded that Vaughn's complaints of extreme
lifting limitations were not supported by the medical evidence of record, and, consequently, the
ALJ was not obliged to include additional limitations in the hypothetical and RFC assessment.
Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005)
22

Vaughn argues that the ALJ failed to properly weigh the medical opinions of Dr.
Gluckman and Dr. Fras. (D.I. 14 at 19) Vaughn claims that the ALJ improperly gave the
doctors' opinions little weight, despite their treatment history of Vaughn. (Id.)
To determine the proper weight to give a medical opinion, the ALJ is required to weigh
all the evidence and resolve any material conflicts. See Richardson v. Perales, 402 U.S. 389,
399 (1971). Generally, the weight afforded to any medical opinion is dependent on a variety of
factors, including the degree to which the opinion is supported by relevant evidence and
consistent with the record as a whole. 20 C.F.R. § 404.1527(c)(3)-(4) (2012). To that end, the
more consistent an opinion is with the record as a whole, the more weight is given to that
opinion. Id. § 404.1527(c)(4).
The ALJ must first assess whether a medical opinion is from a treating, non-treating, or
non-examining source. 20 C.F.R. §§ 404.1502, 416.902; see also Fletcher v. Colvin, 2015 WL
602852, at *9 (D. Del. Feb. 11, 2015), report and recommendation adopted, 2015 WL 1284391
(D. Del. Mar. 19, 2015). The opinion of a treating physician-one who has an "ongoing
treatment relationship" with the patient-is entitled to special significance. 20 C.F.R.
§404.1502; Fargnoli, 247 F.3d at 43 (citing 20 C.F.R. § 404.1527(d)(2)). On the other hand, a
treating physician's opinion does not warrant controlling weight if unsupported by clinical and
laboratory findings, and if it is inconsistent with other substantial evidence. See 20 C.F .R. §
404.1527(c)(2); Fargnoli, 247 F.3d at 42-43. The more a treating source presents medical signs
and laboratory findings to support the medical opinion, the more weight it is given. See
Robinson, 137 F. Supp. 3d at 644. Likewise, the more consistent a treating physician's opinion

is with the record as a whole, the more weight it should be afforded. Id.

23

An ALJ may not reject a treating physician's assessment based on his or her own

credibility judgments, speculation, or lay opinion, and the ALJ cannot disregard a treating
physician's opinion without explaining his or her reasoning or referencing objective conflicting
medical evidence. Morales, 225 F.3d at 317; Gilliland v. Heckler, 786 F.2d 178, 184 (3d Cir.
1986). Even when the treating source opinion is not afforded controlling weight, the ALJ must
determine how much weight to assign it by considering factors such as length, nature, and
frequency of treatment visits, nature and extent of the treatment relationship, whether the opinion
is supported by medical evidence, whether the opinion is consistent with the medical record, and
the medical source's specialization. 20 C.F.R. §§ 404.1527(d), 416.927(d).
In the present case, in June 2013, Dr. Fras opined that Vaughn had cervical spondylosis
and disc bulging, and was not convinced that Vaughn's symptoms in the right upper extremity
would be improved by spine surgery. (Tr. at 695) Dr. Fras recommended that Vaughn return to
pain management for a discussion regarding additional injections, and suggested that Vaughn see
a neurologist. (Id) Dr. Fras opined that Vaughn was unable to work. (Id) The ALJ afforded
Dr. Fras' opinion little weight because the opinion was not supported by the evidence of the
record. (Id at 25) For example, the ALJ found that the physical examination Dr. Fras
performed when he made this opinion was essentially normal. (Id.); (see id. at 694) (Vaughn
was not in acute distress, walked with normal gait, and had "+4/5 bicep strength on the right").
Also, Dr. Fras recommended conservative treatment, recommending that Vaughn see pain
management for another injection and to see a neurologist. (Id. at 695) Additionally, the
Commissioner's regulations explain that medical source opinions that a claimant is "disabled" or
"unable to work" are not medical opinions and are not given special significance because
opinions as to whether or not a claimant is disabled are reserved for the Commissioner. 20

24

C.F.R. § 404.1527(d). Therefore, substantial evidence supports the ALJ's decision to assign less
than controlling weight to the opinion of Dr. Fras, for it is inconsistent with the record as a
whole.
In May 2014, Dr. Gluckman and Mr. Schneider jointly completed a Physical Medical
Source Statement, in which they diagnosed Vaughn with C5-6 disc impingement with
radiculopathy and myelopathy, as well as numbness of the hand and fingers. (Tr. at 596-99)
They reported Vaughn as having limited use of the right upper extremity, with weakness and
neck pain ranging from a score of 5 to 9 out of a scale of 1 to 10. (Id) They also noted that
depression and anxiety affect Vaughn's physical condition. (Id at 597) Dr. Gluckman and Mr.
Schneider limited Vaughn to less than two hours sitting and less than two hours standing and
walking, lifting three pounds, and to occasionally twisting, stooping, crouching, squatting, and
climbing stairs and ladders. (Id at 598) Dr. Gluckman opined that Vaughn would be off task
25% of the day due to pain, was incapable of low stress work, and would likely be absent more
than four days per month due to his impairments. (Id at 599) The ALJ assigned Dr.
Gluckman's opinion little weight because it was "not supported by the evidence ofrecord." (Id
at 25) Specifically, the ALJ found that "the evidence of record demonstrates that although
[VaughnJ's physical symptoms did not completely resolve, they have improved," and,
"diagnostic testing and physical examinations do not support a finding that Vaughn is completely
unable to work." (Id) Physical therapy notes from September 2013 indicate that Vaughn
continued to report that his shoulder was improving. (Id at 738-46) By September 27, 2013,
Vaughn was reporting improvement in his bicep strength. (Id. at 745) On October 4, 2013,
Vaughn reported that he was getting better, and that the pain in his right should had improved.

(Id. at 749) Although a physical therapy report dated June 4, 2014 noted reduced range of

25

motion in Vaughn's neck, atrophy in his forearm flexor, extensors, and bicep flexors, and
reduced grip strength on the right (Id. at 771), this is consistent with the ALJ's finding that
although Vaughn's symptoms were not resolved, they improved with medication and physical
therapy. Moreover, Dr. Gluckman, in addition to Dr. Fras, Mr. Schneider, and Dr. McGlynn,
recommended conservative treatment. (Id. at 850) ("plan: refer to pain management"); (see also

id. at 515, 517-18, 689-90) (referred to physical therapy). Therefore, substantial evidence
supports the ALJ' s decision to assign less than controlling weight to the opinion of Dr.
Gluckman, for it is inconsistent with the record as whole.

V.

CONCLUSION
For the foregoing reasons, the court recommends denying Vaughn's motion for summary

judgment (D.I. 13), and granting the Commissioner's cross-motion for summary judgment (D.I.
19).
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(1 ), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objection and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.<led.uscourts.gov.

26

st

Dated: August

t\ , 2018

27