1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

JAMES ELNICKI, :

:

Plaintiff, :

:

v. : CIVIL ACTION

:

JO ANNE B. BARNHART, : NO. 04-CV-2653

Commissioner of the :

Social Security Administration, :

:

Defendant. :

____________________________________:

MEMORANDUM AND ORDER

Juan R. Sánchez, J. July 21, 2005

James Elnicki asks this Court to reverse or remand the Social Security Administration’s

denial of Supplemental Security Income (SSI) under Title XVI of the Social Security Act,

arguing the Administrative Law Judge’s decision (ALJ) was not supported by substantial

evidence. This Court finds the ALJ’s decision that Elnicki is able to perform light, unskilled

work is supported by substantial evidence from the independent medical examiner and the

vocational expert. Elnicki’s objections are denied and U.S. Magistrate Judge Linda K.

Caracappa’s Report and Recommendation is adopted. The Commissioner’s motion for summary

judgment is granted.

PROCEDURAL HISTORY

 On January 23, 2003, Elnicki filed an application for Supplemental Security Income (SSI).

(ALJ 1). After a hearing, the ALJ concluded Elnicki suffers from some “severe” impairments,

but retains the residual functional capacity to perform unskilled light work and is, therefore, not

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42 U.S.C. § 405(g) confers jurisdiction over Elnicki’s appeal to this Court.

2

The ALJ Report states claimant has a 10th grade education. (ALJ 10). However, the record and claimant’s own

testimony show claimant is six credits short of completing two years of college.

3

 Light work is defined as:

 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 of these activities. 20 C.F.R. § 1567(b).

2

entitled to benefits. (ALJ 1-9). The Appeals council denied Elnicki’s request for

reconsideration, making the ALJ’s decision final. (R. 5). Elnicki appealed to this Court.1

FACTS

James Elnicki was born on August 11, 1949 and is 55 years old. (ALJ 1). He is a high

school graduate and is six credits short of completing two years of college (R. 97, 269).2 He

alleged disability as of August 15, 1999 due to coronary artery disease, hypertension, and

depression (R. 62-65).

Elnicki last worked full time as a printer in 1993. Since then, Elnicki has held a few

short-term jobs lasting several months each as a clerk and, most recently, as a courtesy van

driver for a hotel in the last three months of 2002. (R. 270-71, 297, 298). From 1993 to 1999,

Elnicki received welfare and attended community college under the state’s back to work

program. (R. 274).

Elnicki takes care of his two children and three pets. (ALJ 5). He cleans and does some

of the laundry. Id. Elnicki provides his own personal care, drives a car, uses public

transportation, pays his bills, mows the lawn and does yard work. Id. He can also carry two

bags about a block and a half, and his lifting and carrying ability is about 10-15 pounds. Id.3

Elnicki can also dress, shower and make a bed without resting. Id.

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 A medically determinable impairment or combination of impairments is “severe” if it significantly limits an

individual’s physical or mental ability to do basic work activities. (20 CFR § 416.920). 

3

Elnicki’s depression and history of coronary artery disease and hypertension are

impairments which are “severe” within the meaning of the Regulations but not “severe” enough

to meet or medically equal, either singly or in combination, one of the impairments which

qualifies for disability in Appendix 1, Subpart P, Regulations No. 4. (R. 18).4 

In August 1999, Elnicki had a heart attack and was hospitalized for three days. (R. 114-

15). Elnicki was advised to undergo cardiac rehabilitation, discontinue smoking and watch his

diet. Id. On April 14, 2002, Elnicki went to the emergency room with unstable angina. (R. 139-

140). After several more tests, Elnicki was discharged two days later, again with instructions to

quit smoking, start an exercise program, and watch his diet. (R. 140-41). On December 31,

2002, Elnicki had a second heart attack which resulted in a cardiac catheterization and stenting

procedure. (R. 172-74, 196-98). Post surgery, his congestive heart failure was almost

completely resolved. (R. 170). He was discharged on January 4, 2003 in stable and improved

condition, again with instructions to quit smoking and to follow a specified diet. (R. 173-74,

200).

Elnicki testified he attempted to return to the van driving job he held in the last three

months of 2002. (R. 278). He also testified he applied for at least 200 other jobs. (R. 280). He

said he believed he was turned down because he was on probation for a felony conviction. (R.

280-81). On May 19, 2003, a state agency medical consultant found Elnicki could perform light

work and he had no other limitations. (R. 203-06). Elnicki’s arguments on appeal involve only

the ALJ’s findings discounting his alleged mental impairment.

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On August 6, 2003, Elnicki referred himself to The Wedge Medical Center with

complaints of depression, fatigue, poor sleep and poor concentration (R. 233). Minda

Magundayao, M.D., the intake physician at Wedge, noted Elnicki was fully oriented with a fully

intact recent and remote memory. (R. 240). At Elnicki’s initial psychosocial evaluation, Dr.

Magundayo found his thought process logical and goal-directed, perception normal, and insight

and memory fair. She also stated Elnicki believed he could not find a job because he was a

convicted felon. (R. 233-44). Dr. Magundayao recommended Elnicki be treated five times per

week for one year. (R. 244). On October 3, 2003, Dr. Magundayao stated Elnicki was

“temporarily incapacitated.” (R. 224).

Florencio Stafford, Elnicki’s treating therapist at the Wedge Center, found Elnicki’s

abilities were “poor” in completing a normal workday and work week without interruptions from

symptoms of depression, dealing with work stresses, and understanding and carrying out detailed

and simple job instructions. (R. 252-54). Stafford and Dr. Magundayao recommended Elnicki

continue with his group meetings and treatment sessions on a regular basis. (R. 262-63).

At the administrative hearing, Sharon Wainwright, M.D., an independent medical expert,

testified Elnicki had depression without psychotic features. (R. 292). Dr. Wainwright found

Elnicki was not impaired or only slightly impaired. (R. 293). She testified the symptoms

Elnicki described called for therapy no more than once a week. (R. 293).

Dr. Wainwright also specifically rebutted Stafford’s assessment of Elnicki’s mental

ability to work. (R. 295-97). Dr. Wainwright stated Stafford’s comment that Elnicki’s “ability

to focus is nil” was inconsistent with the fact that he continued to maintain a household with

children. (R. 296). Dr. Wainwright found Elnicki’s concentration was moderately impaired, but

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this was because he was under a financial strain and his children were having behavioral

problems. 

DISCUSSION

Elnicki argues the ALJ gave insufficient weight to his treating health care providers and

failed to include all of his functional limitations in the ALJ’s hypothetical question to the

vocational expert, resulting in a wrongful denial.

This Court reviews de novo Elnicki’s objections to the Report and Recommendation. 28

U.S.C § 636(b)(1). This Court must uphold the ALJ’s factual determinations supported by

substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402

U.S. 389, 401 (1971); Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). It is “more than a

mere scintilla but may be somewhat less than a preponderance of the evidence.” Rutherford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). Where an agency’s factfinding is supported by

substantial evidence, “reviewing courts lack power to reverse either those findings or the

reasonable regulatory interpretations that an agency manifests in the course of making such

findings of fact.” Monsour Medical Center v. Heckler, 806 F.2d 1185, 1191 (3d. Cir. 1986).

In determining whether substantial evidence exists, this Court may not weigh the

evidence or substitute its own conclusions for that of the ALJ. Burns v. Barnhart, 312 F.3d 113,

118 (3d Cir. 2002). If the ALJ’s findings of fact are supported by substantial evidence, this

Court is bound by those findings, even if it would have decided the factual inquiry differently.

Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (citing Hartranft v. Apfel, 181 F.3d 358,

360 (3d Cir. 1999)). At the same time, however, this Court must remain mindful that “leniency

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Regulation 20 C.F.R. 416.972 defines substantial gainful activity as follows: Substantial gainful activity is work

activity that is both substantial and gainful: (a) Substantial work activity is work activity that involves doing

significant physical or mental activities. Work may be substantial even if it is done on a part-time basis or if you do

less, get paid less, or have less responsibility than when you worked before. (b) Gainful work activity is work

activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit,

whether or not a profit is realized.

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The listed impairments to prove disability per se are set forth in 20 C.F.R. Ch. III, Pt. 404, Subpt. P, App. 1; see

Heckler v. Campbell, 461 U.S. 458, 460 (1987)

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 The five-step evaluation is:

 1. If the claimant is performing substantial gainful work, he is not disabled. The ALJ found that claimant has not

engaged in substantial gainful activity since his alleged onset date due to the brevity of the work he has done. (ALJ

2). 2. If the claimant is not performing substantial gainful work, his impairment(s) must be “severe” before he can

be found to be disabled. The ALJ found that claimant doe shave impairments that are “severe” within the meaning

of the Regulations . (ALJ 8). 3. If the claimant is not performing substantial gainful work and has a “severe”

impairment (or impairments) that has lasted or is expected to last for a continuous period of at least twelve months,

and his impairment (or impairments) meets or medically equals a listed impairment contained in Appendix 1,

Subpart P, Regulation No. 4, the claimant is presumed disabled without further inquiry. The ALJ found claimant’s

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[should] be shown in establishing claimant’s disability.” Reefer, 326 F.3d at 379 (quoting

Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979)).

To establish a disability under the Social Security Act, Elnicki must demonstrate there is

some “medically determinable basis for an impairment that prevents him from engaging in any

substantial gainful activity for a statutory twelve-month period.” 42 U.S.C. §423

(a)(1)(D)(2002).5 There are two ways Elnicki could establish such a disability. He may produce

medical evidence he is disabled per se as a result of meeting or equaling certain listed

impairments.6 Elnicki alternatively may demonstrate an inability to engage in any substantial

activity but “only if his physical or mental impairment or impairments are of such severity that

he is not only unable to do his previous work but cannot, considering his age, education, and

work experience, engage in any other kind of substantial gainful work which exists in the

national economy.” Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). Elnicki does not meet

any listed impairments to establish a disability. In determining whether he is disabled under the

regulations, this Court must use a five-step evaluation. 20 C.F.R. § 416.920.7 In this case, the

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medically determinable impairments do not meet or medically equal one of the listed impairments. (ALJ 8).

 4. If the claimant’s impairment (or impairments) does not prevent him from doing his past relevant work, he is not

disabled. The ALJ found that claimant cannot perform his past relevant work because it exceeded a light residual

functional capacity. (ALJ 7).

 5. Even if the claimant’s impairment or impairments prevent him from performing his past relevant work, if other

work exists in significant numbers in the national economy that accommodates his residual functional capacity and

vocational factors, he is not disabled. The ALJ found that the claimant has the residual functional capacity to

perform a significant range of light work using Medical-Vocational Rule 202.00 as a framework for decisionmaking. Examples of such jobs include work in approximately 1,600 separate sedentary and light unskilled

occupations in eight broad occupational categories. (ALJ 9).

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Commissioner reached the fifth step of the evaluation and determined Elnicki was capable of

performing unskilled light work. See generally ALJ.

Generally the Commissioner gives controlling weight to the findings and opinions of

treating physicians. 20 C.F.R § 416.927(d)(2); Rutherford v. Barnhart, 399 F.3d 546, 554 (3d

Cir. 2005). Treating physicians’ opinions may be rejected “only on the basis of contradictory

medical evidence,” although the opinion may be accorded “more or less weight depending upon

the extent to which supporting explanations are provided.” Plummer, 186 F.3d at 429. The ALJ

may reject a physician’s statement of disability if there is a lack of data supporting it. Newhouse

v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985) (ALJ justified in rejecting treating physician’s

unsupported medical conclusions). The ALJ may also reject a physician’s statement of disability

if there is contrary medical evidence. Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)

(treating physician’s opinion may be given no weight by ALJ if opinion is contrary to substantial

medical evidence). A treating physician’s opinion is given controlling weight only when it is

well-supported and consistent with the other evidence on record. 20 C.F.R. § 416.927(d)(2).

The testimony of the independent medical expert is supported by substantial evidence.

The ALJ considered all the evidence and, as required, gave her reasons for discounting the

evidence she rejects. See Stewart v. Secretary of H.E.W., 714 F.2d 287, 290 (3d Cir. 1983). The

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 The ALJ noted Dr. Wainwright is in the unique position of taking a longitudinal review of the entire record and

hearing the claimant’s testimony. Dr. Wainwright considered all of the evidence and testified that there was no

reason to place the claimant in a partial program. According to Dr. Wainwright, the symptoms Elnicki presented are

ordinarily treated with once a week therapy and medication.

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ALJ also set forth the reasons for adopting the findings of an impartial medical expert, Dr.

Wainwright.8 

First, the ALJ discussed in detail Dr. Magundayao’s evaluation of Elnicki’s mental status

at intake in August, 2003. (ALJ 5). Dr. Magundayo noted Elnicki had been seeking

employment but believed he could not get a job due to his prior felony conviction and probation

status, not due to a mental impairment. (R. 240). Dr. Magundayao’s findings at that time did

not indicate any mental impairment that would preclude Elnicki from unskilled work.

The independent medical expert, Dr. Wainwright, also found Elnicki’s only significant

mental limitation was a moderate limitation in concentration. (ALJ 6). Dr. Wainwright found

Elnicki is appropriately sad about real life circumstances, such as problems with his children and

his inability to find a job, but that it would be incorrect to say Elnicki is unable to function on his

own. Although Elnicki has some mental impairments, medical evidence and the opinion of the

independent medical expert support the notion that Elnicki’s mental disabilities do not preclude

him from unskilled work. Therefore, this Court finds the ALJ’s evaluation of Dr. Wainwright’s

findings was supported by substantial evidence.

Elnicki also objects to the Magistrate Judge’s analysis that the evidence of continued

treatment is merely cumulative and would not have changed the outcome. Although evidence

considered by the Appeals Council, but not the ALJ, is part of the administrative record on

appeal, it cannot be considered by this Court in making its substantial evidence review.

Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). 

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Claimant argues the new evidence, which shows that he continues to attend mental health treatment for 18 hours

each weak, proves an inability to sustain full time employment and that he is disabled. Claimant fails to realize an

ability to work part-time is enough to prevent a finding of disabled under the Act.

10 Even if Claimant had proven the ongoing mental health treatment he undertakes for 18 hours each week, there

would still be many jobs in the economy that claimant is able to do. The only difference is claimant would be

limited to part-time jobs as opposed to part-time and full-time jobs. However, there are certainly many part-time

jobs that claimant is able to perform. This issue is moot.

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If this Court were to find the new evidence meets the criteria specified under sentence six

of 42 U.S.C. § 405(g), then the only option is to remand to the Commissioner. To warrant a new

evidence remand under sentence six, the plaintiff must show: (1) the evidence is “new” and not

merely cumulative of what is already in the record; (2) the evidence is “material”, i.e., relative

and probative, and there is a reasonable possibility that the new evidence would have changed

the outcome of the Secretary’s determination; (3) the evidence must not concern a later-acquired

disability or a subsequent deterioration of the previously non-disabling condition; and (4) there is

“good cause” for not having included the new evidence in the record. Szubak v. Secretary of

Health and Human Services, 745 F.2d 831 (3d Cir. 1984). This Court agrees with the Magistrate

Judge that new evidence Elnicki offers about his treatment schedule is cumulative. This new

evidence would not change the ALJ’s decision.9

Elnicki also argues the ALJ’s reliance on the vocational expert (VE) was erroneous

because the hypothetical questions were incomplete. An ALJ’s hypothetical questions to a VE

must include all the limitations supported by the record. Chrupcala v. Heckler, 829 F.2d 1269,

1276 (3d Cir. 1987). Here, the ALJ’s hypotheticals expressly limited Elnicki to unskilled light

work (R. 298). Because the hypotheticals accurately reflected Elnicki’s limitations that are

supported by the evidence, there is substantial evidence to support that the ALJ’s questions

accurately reflected Elnicki’s documented impairments and limitations.10

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CONCLUSION

The ALJ’s decision that Elnicki is able to perform light, unskilled work is supported by

substantial evidence from the independent medical examiner and the vocational expert. The

ALJ’s decision to give greater weight to the independent medical expert’s opinion is supported

by substantial evidence in the record. The new evidence Elnicki seeks to introduce in this appeal

is cumulative and does not satisfy the requirements of a remand under sentence six of 42 U.S.C.

§ 405(g). Finally, there is substantial evidence to support the accuracy of the ALJ’s questions to

the vocational expert. Elnicki is capable of performing light, unskilled activity, for which there

are jobs in the economy. 

For the foregoing reasons, this Court approves and adopts the Report and

Recommendation of Magistrate Judge Linda K. Caracappa. Summary Judgment is hereby

granted in favor of Defendant, the Commissioner of Social Security, and against Plaintiff James

Elnicki.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

JAMES ELNICKI, :

:

Plaintiff, :

:

v. : CIVIL ACTION

:

JO ANNE B. BARNHART, : NO. 04-CV-2653

Commissioner of the :

Social Security Administration, :

:

Defendant. :

____________________________________:

ORDER

AND NOW, this 21st day of July, 2005, after consideration of the pleadings and record,

and after review of the Report and Recommendation of United States Magistrate Judge Linda K.

Caracappa, and Plaintiff’s objections, it is hereby ORDERED that

1. The Report and Recommendation is APPROVED and ADOPTED.

2. The Plaintiff’s motion for summary judgment and appeal is DENIED.

3. The Defendant’s motion for summary judgment is GRANTED.

BY THE COURT:

__________________________

 Juan R. Sánchez. J.

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