Bosick v. Saul

Filing 25

MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 1/11/2022. ***Copy mailed to Pro Se Plaintiff 1/11/2022*** (dlw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LESLIE S. BOSICK,
Plaintiff,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant.

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C.A. No. 20-1119 (MN)

MEMORANDUM OPINION
Leslie S. Bosick, Pro Se Plaintiff
David C. Weiss, United States Attorney, Heather Benderson, Special Assistant United States
Attorney, District of Delaware, Office of the General Counsel, Social Security Administration,
Philadelphia, PA; Brian C. O’Donnell, Regional Chief Counsel, Allison L. Granger, Assistant
Regional Counsel, Social Security Administration, Philadelphia, PA – Attorneys for Defendant

January 11, 2022
Wilmington, Delaware

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NOREIKA, U.S. DISTRICT JUDGE:
Presently before the Court are the objections (D.I. 20) of Plaintiff Leslie S. Bosick
(“Plaintiff”) to Magistrate Judge Fallon’s October 15, 2021 Report and Recommendation (D.I. 19)
(“the Report”). The Report recommended (1) denying Plaintiff’s motion for summary judgment
(D.I. 13) and (2) granting Defendant’s cross-motion for summary judgment (D.I. 14). The Court
has reviewed the Report (D.I. 19), Plaintiff’s objections (D.I. 20) and Defendant’s response thereto
(D.I. 23), and the Court has considered de novo the objected-to portions of the Report, the relevant
portions of the motions, and supporting documentation (D.I. 13, 14, 15, 18). For the reasons set
forth below, Plaintiff’s objections are OVERRULED, the Report is ADOPTED, Plaintiff’s motion
for summary judgment (D.I. 13) is DENIED, and Defendant’s cross-motion for summary judgment
(D.I. 14) is GRANTED.
I.

BACKGROUND
The Report sets forth a detailed description of the procedural history, medical history, and

the proceeding before the Administrative Law Judge. (See D.I. 19 at 2-12). The parties have not
objected to any of those sections of the Report and the Court finds no error in those sections. The
Court therefore adopts those sections and incorporates them here:
A.

Procedural History

Bosick protectively filed a DIB application on February 8,
2017, alleging a disability onset date of June 14, 2013 due to knee
injuries. (D.I. 10 at 144-49) Bosick’s claims were denied initially
in March 2017 and again on reconsideration in June 2017. (Id. at
74, 85) At Bosick’s request, an administrative law judge (“ALJ”)
held a hearing on May 6, 2019. (Id. at 35-61) The ALJ issued an
unfavorable decision on May 21, 2019, finding that Bosick was not
disabled under the Act because she could perform a reduced range
of sedentary work. (Id. at 23-27) The Appeals Council
subsequently denied Bosick’s request for review of the ALJ’s
decision, making the ALJ’s decision the final decision of the
Commissioner. (Id. at 7-9)

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Bosick brought this civil action challenging the ALJ’s
decision on August 26, 2020. (D.I. 1) Bosick filed her pending
motion for summary judgment on May 19, 2021 (D.I. 13), and the
Commissioner cross-moved for summary judgment on June 11,
2021 (D.I. 14). Briefing is now complete.
B.

Medical History

Bosick was 46 years old on December 31, 2013, her date last
insured. (D.I. 10 at 26, 62) Bosick has a college degree and has past
relevant work as a customer service representative, an elementary
school teacher, and a substitute teacher. (Id. at 43-44) The ALJ
found that Bosick had the following severe impairments: bilateral
knee disorder, obesity, and sleep apnea. (Id. at 21) Bosick
challenges the ALJ’s consideration of her knee condition, the weight
given to the opinions of non-examining agency physicians, and the
assessment of her subjective complaints of pain. (D.I. 13; D.I. 18)
Because Bosick does not challenge the ALJ’s decision regarding her
obesity and sleep apnea, the court does not address those conditions
here.
1.

Medical evidence

On June 14, 2013, Bosick tripped on uneven flooring and fell
while she was shopping, sustaining injuries to her knees. (D.I. 10 at
44; D.I. 11 at 66) Ten days later, Bosick treated with Michael Axe,
M.D., an orthopedic surgeon, for bilateral knee pain. (D.I. 11 at 6667) Dr. Axe noted that Bosick’s pain increased with bending,
climbing stairs, movement, sitting, walking, and standing, and she
experienced decreased mobility, limping, numbness, spasms,
swelling, tingling, bruising, and weakness in her legs. (Id. at 66)
An x-ray revealed post-ACL reconstruction in her left knee with
anteromedial changes, and her right knee showed degeneration of
the medial compartment following ACL reconstruction. (Id. at 66,
111-14) Dr. Axe indicated there was no effusion. (Id. at 66) He
explained that she could perform activities as tolerated, and he
ordered MRIs of both knees. (Id. at 66-67) Dr. Axe prescribed a
topical gel and medication for the pain, and he suggested that they
discuss bracing her legs after receiving her MRI results. (Id. at 67)
On July 1, 2013, Bosick visited Dr. Axe to review her MRI
results, which showed mild partial tearing of her right ACL, a right
lateral meniscus tear, and loss of medial and patellofemoral
components indicative of degenerative arthritis with a partial radial
tear of the medial meniscus in her left knee. (D.I. 11 at 68, 733-34)
Dr. Axe diagnosed Bosick with a meniscus tear and degenerative

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arthritis of the knee, including cartilage loss under her left kneecap.
(Id.) He discussed the possibility of an arthroscopic debridement
and possible lateral release of the left knee and addressed the
cartilage loss and possible meniscus tear in her right knee. (Id.) Dr.
Axe represented that Bosick would be “totally disabled for the next
2 weeks” and recommended pool and land therapy, with the goal of
improving her range of motion and strength. (Id.)
Bosick began physical therapy on July 2, 2013 to treat her
bilateral knee pain, increase her strength and range of motion, and
improve her gait. (D.I. 11 at 317) Physical therapy progress notes
from July 2013 indicate that Bosick benefited from the use of the
knee brace, but she still experienced pain and swelling in her left
knee. (D.I. 11 at 302) Aquatic therapy helped her gain strength
without pain, and her topical pain cream was effective. (Id.)
Bosick’s range of motion and strength improved bilaterally, but her
gait remained abnormal. (Id.) She reported difficulty standing from
a seated position, climbing stairs, repetitive standing, and walking.
(Id.)
In mid-July 2013, Dr. Axe gave Bosick a lidocaine injection
in her left knee and prescribed the use of a knee immobilizer so she
would have “the ability to walk with a straight leg.” (Id. at 69) At
the end of July, Dr. Axe noted improvement with therapy and a
home stimulation unit, and he observed that she had no effusion.
(Id. at 70) Dr. Axe recommended reducing their visits from
biweekly to once a month, and he reduced her use of the home
stimulation unit from three times a day to twice a day. (Id.) At
Bosick’s visit in August 2013, Dr. Axe noted tears in both menisci
of Bosick’s left knee and recommended surgical intervention to
release the ligament and repair the meniscus. (Id.at 71) Dr. Axe
indicated that Bosick had been in the knee immobilizer for too long
and she felt that she was dependent on it. (Id.)
On September 12, 2013, Bosick underwent surgery on her
left knee for a torn meniscus. The surgery included a partial
synovectomy with lysis of adhesions, a partial medial
meniscectomy, chondroplasty, and lateral release. (D.I. 11 at 11516) The following week, Dr. Axe noted that, although Bosick
experienced intermittent pain, she was responding to medication and
her status had improved post-surgery. (Id. at 73) He performed two
aspirations on her left knee following her surgery in September
2013. (Id. at 73, 75) Dr. Axe indicated that Bosick was to be
considered “totally disabled” until her return visit in three weeks.
(Id. at 75, 106-07)

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In October 2013, Dr. Axe noted that Bosick was “tracking
better,” had “less effusion,” and was “progressing nicely” at
physical therapy. (D.I. 11 at 76) Bosick used crutches, but Dr. Axe
indicated that the physical therapist could switch her to a cane at any
point. (Id.) Bosick was prescribed Percocet and Voltaren gel to
manage her pain. (Id.) Dr. Axe emphasized a focus on improving
Bosick’s strength before she returned to work. (Id.) Physical
therapy notes from October 2013 indicate that Bosick made progress
and felt better after her sessions, and she exhibited improved
walking, improved tolerance for activities of daily living, and
increased ability to stand. (Id. at 279-86)
In November 2013, Dr. Axe indicated that Bosick was able
to go back to work at a “desk-type” position that would not require
kneeling, squatting, or crawling. (D.I. 11 at 77) Dr. Axe observed
that Bosick could perform a straight leg raise, and he reported that
she continued to attend physical therapy and take Percocet and
Voltaren. (Id.) During physical therapy that month, Bosick’s
progress report indicated that she was “making good progress
towards [a] return to full function,” and despite a continued deficit
in knee flexion, she exhibited an improved range of motion and
strength. (Id. at 272) She was able to use a cane instead of crutches
to ambulate at home, and her gait improved after she was fitted for
a brace. (Id. at 268-72)
On December 11 and 27, 2013, Bosick received injections
of lidocaine, Kenalog, and Supartz for pain, and Dr. Axe suggested
that her discomfort would improve as she regained her strength.
(D.I. 11 at 78, 80) Dr. Axe indicated that Bosick could perform
activities as tolerated. (Id. at 80) Bosick mostly reported feeling
better during her physical therapy sessions after receiving the
injections, and she indicated that she had stopped using her cane at
home. (Id. at 257-62) The physical therapist noted improved
movement in her patella. (Id. at 257)
Bosick continued to treat with Dr. Axe in 2014, following
her date last insured. She received multiple bilateral knee injections
of Supartz in January 2014. (D.I. 11 at 81-84) Bosick returned to
Dr. Axe in March 2014, complaining of occasional bilateral knee
pain that was worse on the left side. (Id. at 85-86) Dr. Axe reviewed
x-rays that revealed degenerative arthritis. (Id.) He recommended
treating the pain with medication and suggested that she might
require a knee replacement in the future. (Id. at 86) By April 2014,
Bosick described her pain as constant, aching, sharp, and throbbing.
(Id. at 87) However, Dr. Axe suggested that Bosick had “turned the
corner” with her current treatment of X2 cream and Meloxicam

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because it allowed her to focus on getting her strength back which,
in turn, would increase her functionality. (Id.) He indicated that her
need for a cane was up for debate, and she “certainly can return . . .
to work in which she has a desk job.” (Id. at 87, 105) In June 2014,
Dr. Axe reported that Bosick continued to get better and had shown
50% improvement despite a 40.8 deficit in peak torque, down from
a deficit of 49.1 in September 2013, and he anticipated that she
would improve further with continued treatment. (Id. at 88, 746-47)
He prescribed five weeks of Supartz injections and renewed her
prescription for Meloxicam. (Id. at 89)
Bosick was discharged from physical therapy on July 18,
2014. (D.I. 11 at 203) During her treatment in June and July 2014,
Bosick reported feeling better, she had an easier time performing
activities of daily living, and she exhibited improved strength and
walking. (Id. at 205-12) Although she performed a mix of land and
aquatic therapy exercises between January and May 2014, her
treatment no longer included aquatic exercises by June 2014. (Id. at
205-06)
Bosick completed her Supartz injections in September 2014,
about a year after her surgery. (D.I. 11 at 95) She complained of
aching, burning pain in both knees, but she did acknowledge some
improvement from the injections. (Id.) There are no further records
from Dr. Axe’s office until March 2016, when Bosick presented
with bilateral knee pain and swelling, and x-rays revealed end-stage
osteoarthritis in both knees. (Id. at 97) Bosick underwent a total
knee replacement of her left knee on April 22, 2016. (Id. at 99, 11718) Her physical therapy discharge notes from October 2016
indicate that Bosick had “made objective improvements with
Strength, as well as shown improvements with Gait, Weight
Bearing.” (Id. at 135)
2.

Medical opinions

During the course of his treatment of Bosick, Dr. Axe
periodically opined on her capacity to work. Dr. Axe represented
that Bosick was unable to work from July 2013 through the period
following her September 2013 surgery. (D.I. 11 at 107-10) On
October 21, 2013, Dr. Axe opined that Bosick was “totally disabled”
and could do “no work” until her next office visit. (Id. at 106) The
following month, Dr. Axe suggested that Bosick could not return to
previous work that involved kneeling, squatting, or crawling, but he
recommended that she consult with an employment counselor to
find appropriate work given her age. (Id. at 77) In April 2014, Dr.
Axe explained that Bosick could not squat, climb, crawl, or stoop,

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and could not stand or walk for more than ten minutes per hour, but
he cleared her for desk duty. (Id. at 105)
Dr. Michael H. Borek, D.O., a state agency physician,
reviewed Bosick’s medical records and performed a residual
functional capacity analysis based on those written records on
March 13, 2017. (D.I. 10 at 62-72) Dr. Borek found Bosick’s
statements regarding her symptoms to be partially consistent with
the objective medical evidence, but he noted that surgery and
physical therapy resulted in improvement to Bosick’s knee pain and
her ability to perform activities of daily living. (Id. at 67) He opined
that she was restricted to occasionally and frequently lifting and
carrying ten pounds, standing and walking for two hours in an eighthour workday, and sitting for a total of six hours, among additional
restrictions in her lower extremities. (Id. at 68) As a result, Dr.
Borek opined that Bosick was not disabled and was restricted to
sedentary work. (Id. at 71)
State agency physician Darrin Campo, M.D. evaluated
Bosick’s written medical records at the reconsideration level on
June 6, 2017. (D.I. 10 at 75-84) On appeal, Bosick indicated that
she had greater difficulty walking, increased pain and deterioration
in her right knee, and limping on her right side. (Id. at 80) Dr.
Campo confirmed that Bosick exhibited an antalgic gait and limited
range of motion that improved after undergoing arthroscopic
surgery for a meniscal tear. (Id.) Dr. Campo opined that Bosick
otherwise exhibited normal lower extremity strength and sensation,
and subsequent medical evidence fell outside the period of
adjudication. (Id.) Consequently, Dr. Campo adopted the initial
determination regarding Bosick’s claim and concluded that she was
not disabled. (Id. at 80, 83)
3.

Nonmedical evidence

On February 24, 2017, Bosick completed a function report.
(D.I. 10 at 211-18) In the report, she described how fatigue, pain,
and discomfort prevent her from working because these symptoms
limit her ability to sit, stand, walk, and concentrate. (Id. at 211)
Bosick reported that she spends her days going to physical therapy,
doing exercises, and elevating and icing her leg in addition to
watching television and attending to her personal hygiene. (Id. at
212) Although she indicated that she could dress and bathe herself,
she said that these tasks are difficult and painful, and she does them
less frequently. (Id.) She explained that she can no longer climb
stairs, do housework, or walk, stand, or sit for long periods. (Id.)
Her pain interfered with her ability to sleep. (Id.) Bosick reported

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that she is able to prepare her own meals and drive a car, but she can
only walk a few feet without the assistance of a cane. (D.I. 10 at
213-14, 216-17)
C.

Hearing Before the ALJ

At the administrative hearing on May 6, 2019, Bosick
represented herself. (D.I. 10 at 37) The ALJ carefully explained
Bosick’s rights and offered to postpone the hearing should Bosick
wish to seek representation. (Id. at 37-38) Specifically, the ALJ
explained that “[a] representative could help you obtain information
about your claim, explain medical terms, help protect your rights
and make any request or give any notice about the proceeding before
me.” (Id.) Bosick was advised that some organizations offer legal
representation free of charge. (Id. at 37) Bosick was further advised
that, if her claim was ultimately denied, she could appeal it on her
own or with a representative, and she could file a new application
on her own or with a representative. (Id. at 39) Bosick confirmed
that she understood and agreed to proceed without counsel. 1 (Id.)
1.

Bosick’s Testimony

Upon questioning by the ALJ, Bosick testified that she lives
by herself, she drives a car, and she has a college degree. (D.I. 10
at 43) She previously worked as a customer service representative,
an elementary school teacher, and a substitute teacher. (Id. at 4344) She stopped working in 2013 after falling and injuring her
knees. (Id. at 44-45) Bosick explained that she suffered from
degenerative arthritis in her knees before the fall, and she underwent
surgery three months after the fall. (Id. at 45) She stated that she
lost the muscle in her left leg during the time between her fall and
1

In her brief, Bosick states, “I do not have a lawyer. This is one of the reasons that I feel
discriminated against in this case.” (D.I. 13 at 2) The ALJ has a heightened level of care
and responsibility to assume a more active role when the claimant is unrepresented.
Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979). The ALJ did so here, informing
Bosick that, “[b]ecause you are not represented, I’ll make sure that your due process rights
are protected and obtain any evidence that may be needed.” (D.I. 10 at 39) The ALJ is not
required to act as the claimant’s counsel, and “[l]ack of counsel alone is not sufficient for
remand.” Conley v. Colvin, C.A. No. 15-722-RGA-MPT, 2016 WL 3436435, at *10 (D.
Del. June 20, 2016) (citing Domozik v. Cohen, 413 F.2d 5, 9 (3d Cir. 1969)). Here, the
ALJ added new evidence presented by Bosick to her file and elicited testimony from
Bosick, Bosick’s mother, and the VE regarding Bosick’s impairments, the extent of those
impairments on her ability to work, and her medical treatment. (D.I. 10 at 39-60) On these
facts, the ALJ fulfilled his duty to develop the record and provide a full and fair
administrative hearing for Bosick.

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her surgery, and she could not sleep because of the severity of the
pain. (Id.) She tried returning to work in 2015 and 2016, but she
only did occasional substitute teaching due to the swelling and pain
in her legs. (Id. at 45-46) She described having difficulty going up
and down stairs, walking, sitting for long periods, standing, turning,
getting in and out of a car, and sleeping. (Id. at 49)
Bosick’s mother, Ms. Caldwell, also testified at the hearing
before the ALJ. Ms. Caldwell said she visited her daughter a couple
times a month throughout the relevant time period and described
Bosick’s pain as unrelenting. (Id. at 52) She represented that Bosick
suffered pain from sitting in a chair, standing, walking, climbing
stairs, and getting in and out of the shower, and she had seen no
improvement over the course of the relevant time period. (Id. at 53)
Ms. Caldwell testified that she helped her daughter financially,
emotionally, and spiritually during the relevant time period,
recommending medications and buying things for Bosick to make
her more comfortable. (Id.)
2.

Vocational Expert Testimony Before the ALJ

At the administrative hearing in May 2019, the ALJ posed
the following hypothetical to vocational expert Lanell Hall (“the
VE”):
Please assume a hypothetical individual of
the Claimant’s age and education with the past jobs
that you described. Further assume that this
individual is limited to a range of sedentary work.
The individual would require the use of an assistive
device for ambulation, but would retain the use of the
free hand for lifting and carrying. The individual
would be limited to occasional use of foot controls,
no climbing of ropes, ladders, or scaffolds, no
kneeling or crawling. The individual would be
limited to occasional climbing of ramps and stairs,
occasional balancing, stooping and crouching and
limited to occasional exposure to unprotected
heights, moving mechanical parts, extreme
temperatures, humidity and vibration.
(D.I. 10 at 55-56) In response to the ALJ’s hypothetical, the
VE testified that such a hypothetical individual would be able to
perform Bosick’s past work as a customer complaint clerk. (Id. at
56) The VE further testified that the hypothetical individual could

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perform the sedentary, unskilled jobs of order clerk, document
preparer, and touch-up screener. (Id.)
The ALJ asked the VE if an employer for the customer
complaint clerk position would tolerate an employee being off task
due to pain. (Id. at 56-57) The VE responded that, if the
hypothetical individual were off task 10% or more of the day, it
would preclude Bosick’s past work as a customer complaint clerk
and would also preclude the unskilled, sedentary positions
identified. (Id. at 57) The ALJ also inquired about employer
tolerance for someone being absent from the workplace. (Id. at 5960) The VE responded that, if a person is absent more than one day
a month or more than eight times per year, it would preclude all
work. (Id. at 60)
D.

The ALJ’s Findings

Based on the factual evidence in the record and the testimony
by Bosick and the VE, the ALJ determined that Bosick was not
disabled under the Act for the relevant time period from the June 14,
2013 disability onset date through the December 31, 2013 date last
insured. (D.I. 10 at 27) The ALJ found, in pertinent part:
1.

The claimant last met the insured status
requirements of the Social Security Act on
December 31, 2013.

2.

The claimant did not engage in substantial
gainful activity during the period from her
alleged onset date of June 14, 2013 through
her date last insured of December 31, 2013
(20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant
had the following severe impairments:
bilateral knee disorder; obesity; and sleep
apnea (20 CFR 404.1520(c)).

4.

Through the date last insured, the claimant
did not have an impairment or combination
of impairments that met or medically equaled
the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and
404.1526).

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5.

After careful consideration of the entire
record . . ., through the date last insured, the
claimant had the residual functional capacity
to perform sedentary work as defined in 20
CFR 404.1567(a) except that she: required
the use of an assistive device for ambulation
but retained the use of the free hand for lifting
and carrying; could occasionally climb ramps
and stairs but needed to avoid climbing ropes,
ladders or scaffolds; could occasionally
balance, stoop and crouch but needed to
avoid kneeling or crawling; and could have
had occasional exposure to unprotected
heights, moving mechanical parts, extreme
temperatures, humidity, and vibration.

6.

Through the date last insured, the claimant
was capable of performing past relevant work
as a customer complaint clerk (DOT
#241.367-014, SVP 5, sedentary exertion as
generally performed). This work did not
require the performance of work-related
activities precluded by the claimant’s
residual functional capacity (20 CFR
404.1565).

7.

The claimant was not under a disability, as
defined in the Social Security Act, at any time
from June 14, 2013, the alleged onset date,
through December 31, 2013, the date last
insured (20 CFR 404.1520(f)).

(D.I. 10 at 21-27)
(D.I. 19 at 2-12 (emphases and some alterations in original)).
On October 15, 2021, Judge Fallon issued the Report recommending Plaintiff’s motion for
summary judgment be denied and that Defendant’s cross-motion for summary judgment be
granted. (D.I. 19). Plaintiff timely objected to the Report (D.I. 20) and Defendant responded
(D.I. 23).

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II.

LEGAL STANDARDS
The power vested in a federal magistrate judge varies depending on whether the issue to

be decided is dispositive or non-dispositive. “Unlike a nondispositive motion (such as a discovery
motion), a motion is dispositive if a decision on the motion would effectively determine a claim
or defense of a party.” Equal Employment Opportunity Commission v. City of Long Branch, 866
F.3d 93, 98-99 (3d Cir. 2017) (citations omitted). For reports and recommendations issued for
dispositive motions, “a party may serve and file specific written objections to the proposed findings
and recommendations” within fourteen days of the recommended disposition issuing and “[t]he
district judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” FED. R. CIV. P. 72(b)(2)-(3); see also 28 U.S.C. §§ 636(b)(1)(B)-(C); Brown
v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). When no timely objection is filed (including as to
select portions of the report), “the court need only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” FED. R. CIV. P. 72(b) advisory
committee notes to 1983 amendment. “[B]ecause a district court must take some action for a report
and recommendation to become a final order and because ‘[t]he authority and the responsibility to
make an informed, final determination . . . remains with the judge,’” however, district courts are
still obligated to apply “reasoned consideration” in such situations. City of Long Branch, 866 F.3d
at 99-100 (citing Mathews v. Weber, 423 U.S. 261, 271 (1976); see also Henderson v. Carlson,
812 F.2d 874, 878 (3d Cir. 1987)).
III.

DISCUSSION
In the Report, Judge Fallon correctly determined that substantial evidence supports the

ALJ’s finding that Plaintiff could perform a range of sedentary work during the short six-month
window between her alleged disability onset date and her date last insured. (D.I. 19 at 14-16). See

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Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (explaining that substantial evidence is an
evidentiary threshold that is “not high” and requires only “more than a mere scintilla” of evidence).
Judge Fallon discussed the ALJ’s RFC assessment, noting the ALJ properly considered Plaintiff’s
subjective complaints of pain, relevant treatment records, and the medical opinions. (D.I. 19 at
15). In particular, she discussed that the ALJ took into account evidence related to Plaintiff’s
limited mobility, but also considered treatment notes showing Plaintiff’s increased range of motion
and strength in the months following her meniscus surgery. (Id. at 15-16). Judge Fallon also
correctly observed that the RFC accounted for Plaintiff’s use of an assistive device for walking.
(Id. at 15). Additionally, Judge Fallon addressed the ALJ’s finding that Plaintiff’s allegations were
not entirely consistent with the overall evidence in the record. (D.I. 19 at 20). She noted that the
ALJ’s decision to discount Plaintiff’s subjective complaints was based on “consideration of the
objective medical evidence and other evidence of record.” (Id. at 21).
This Court has reviewed de novo the issues addressed in the Report. Having reviewed all
of the evidence and keeping in mind the “not high” substantial evidence standard (Biestek, 139 S.
Ct. at 1154) that requires a reviewing court to “defer[] to the presiding ALJ, who has seen the
hearing up close”), the Court agrees with the recommendation of the Report. The ALJ’s decision
is AFFIRMED.
IV.

CONCLUSION
For the foregoing reasons, the Court overrules Plaintiff’s objections, adopts the Report,

denies Plaintiff’s motion for summary judgment, and grants Defendant’s cross-motion for
summary judgment.
An appropriate order will follow.

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