1 All numbered paragraph references to the ALJ’s decision begin with the first full paragraph on each page.

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ESTHER CORDOVI : CIVIL ACTION

: 

v. : NO. 04-3742 

: 

JO ANNE B. BARNHART, :

Commissioner of Social Security :

MEMORANDUM AND ORDER

AND NOW, this 12th day of December, 2005, upon consideration of the cross-motions

for summary judgment filed by the parties and the reply thereto (Doc. Nos. 8, 13 & 16), the court

makes the following findings and conclusions: 

1. On June 21, 2002, Esther Cordovi (“Cordovi”) filed for supplemental security

income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f, alleging an onset

date of May 1, 1991. (Tr. 83-85). Throughout the administrative process, including an administrative

hearing held on May 12, 2003, before an administrative law judge (“ALJ”), Cordovi’s claims were

denied. (Tr. 4-6, 12-28, 38-71, 72, 74-77). Pursuant to 42 U.S.C. § 405(g), Cordovi filed her

complaint in this court on August 6, 2004. 

2. In her decision, the ALJ concluded that Cordovi had severe impairments

consisting of Human Immunodeficiency Virus (“HIV” or “AIDS”) and depression. (Tr. 20 ¶ 4, 27

Finding 2).1 Ultimately, the ALJ concluded that Cordovi’s impairments did not meet or equal a

listing, that she retained the residual functional capacity (“RFC”) to perform light work in jobs

requiring no more than simple repetitive tasks and involving no more than one or two step reasoning

level, that she could perform jobs existing in significant numbers in the economy and, thus, Cordovi

was not disabled. (Tr. 19 ¶ 4, 21 ¶¶ 2-3, 26 ¶ 1, 27 Findings 3, 5, 28 Findings 10-12). 

3. The Court has plenary review of legal issues, but reviews the ALJ’s factual

findings to determine whether they are supported by substantial evidence. Schaudeck v. Comm’r of

Soc. Sec., 181 F.3d 429, 431 (3d. Cir. 1999) (citing 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229

(1938)); see also Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). It is more than a mere

scintilla but may be less than a preponderance. See Brown v. Bowen, 854 F.2d 1211, 1213 (3d Cir.

1988). If the conclusion of the ALJ is supported by substantial evidence, this court may not set aside

the Commissioner’s decision even if it would have decided the factual inquiry differently. Hartranft v.

Apfel, 181 F.3d 358, 360 (3d Cir. 1999); see 42 U.S.C. § 405(g). 

4. Wright raises four arguments in which she alleges that the determinations by the

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ALJ were either not supported by substantial evidence or were legally erroneous. These arguments are

addressed below. Upon due consideration of all of the arguments and evidence, I find that the ALJ’s

decision is legally sufficient and supported by substantial evidence. 

A. First, Cordovi argues that this case should be remanded so that the ALJ

can consider interrogatory answers dated May 13, 2005, from Erika Aaron, CRNP (“nurse Aaron”)

which Cordovi claims were submitted to the ALJ two days after the administrative hearing, as she

believes this evidence is new and material. (Tr. 329). It is unclear whether this evidence was actually

received or considered by the ALJ. When a claimant seeks to rely on evidence that was not before the

ALJ, the District Court may remand to the Commissioner, but only if the evidence is new and material

and if there was good cause for not having been presented previously to the ALJ. Fisher v. Massanari,

28 Fed. Appx. 158, 159 (3d Cir. 2002) (citing Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001)). 

Nurse Aaron answered two interrogatory questions. First, nurse Aaron responded in the negative to

whether she believed Cordovi could maintain attendance at a job on a regular and continuous basis five

days per week, eight hours per day. (Tr. 329). Second, nurse Aaron opined that Cordovi would not be

able to sustain a job because of severe depression, advanced AIDS, wasting, and cervical cancer. (Id.). 

This evidence is neither new nor is there a reasonable possibility that it would have caused the ALJ to

alter her opinion. The evidence is not new because it is essentially a repetition of and is cumulative of

nurse Aaron’s previous assessments that Cordovi was unable to work due to AIDS, depression, and

fatigue. (Tr. 274-75, 277, 279); Newhouse v. Heckler, 753 F.2d 283, 287 (3d Cir. 1985) (stating that

“to support a ‘new evidence’ remand, the evidence must first be ‘new’ and not merely cumulative of

what is already in the record”). The only difference between the old and new assessments is that nurse

Aaron adds wasting and cervical cancer to her reasons why Cordovi cannot work. (Tr. 274-75, 277,

279, 329). The ALJ was aware of Cordovi’s cervical cancer and there is no evidence of wasting in the

record. (Tr. 22 ¶ 2). Furthermore, like her previous assessments, this new assessment is not supported

by objective medical evidence and nurse Aaron provides no rationale for her responses. As a result,

the new evidence would not have changed the ALJ’s decision. Newhouse, 753 F.2d at 287 (finding

that, for a remand, there must be a “reasonable possibility that the new evidence would have changed

the outcome of the Secretary’s determination”). Therefore, a remand to consider the May 13, 2003,

interrogatory answers is not warranted. 

B. Second, Cordovi asserts that the ALJ failed to give proper weight to her

subjective complaints which she claims were supported by medical evidence. “Credibility

determinations are the province of the ALJ and only should be disturbed on review if not supported by

substantial evidence.” Pysher v. Apfel, No. 00-1309, 2001 WL 793305, at *3 (E.D. Pa. July 11, 2001)

(citing Van Horn v. Schweiker, 717 F.2d 871, 973 (3d Cir. 1983)). Moreover, such determinations are

entitled to deference. S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 271 (3d

Cir. 2003). Likewise, the ALJ is required to determine the extent to which a claimant is accurately

stating the degree of pain or the extent to which he or she is disabled by it. Hartranft, 181 F.3d at 362

(citing 20 C.F.R. § 404.1529(c)). In this case, the ALJ reasonably discounted Cordovi’s subjective

complaints because of, inter alia, inconsistencies between the level of daily activities she had admitted

to and the degree of severity of impairment she alleged, (Tr. 23 ¶ 2, 51-54, 212), and the fact that

treating physician progress notes suggested that her HIV symptomatology had improved due to

medication and her complaints of diarrhea were of recent origin. (Tr. 23 ¶¶ 3-4, 48, 59, 211-214). 

Similarly, the records from her treating sources generally show that Cordovi was doing well. (Tr. 211-

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214, 239, 284). The ALJ also concluded that the record was devoid of objective medical evidence to

corroborate the degree of limitation Cordovi alleged. (Tr. 24 ¶ 2). 

Cordovi suggests that the opinions of nurse Aaron and Dr. Loren

Laviolette Ed. D. (“Dr. Laviolette”) corroborate her testimony. (Tr. 274-75, 277, 279, 329, 250-54).

However, the ALJ reasonably discounted these sources’ conclusions. The ALJ explained that the

opinions of Marla Gold, M.D., Richard Gold, D.O. (“Drs. Gold”), and nurse Aaron that Cordovi was

incapacitated and permanently disabled were based primarily if not solely on Cordovi’s subjective

assertions and provided no objective tests or findings to support their conclusions. (Tr. 24 ¶ 4 - 25 ¶1,

274-75, 277, 279). Moreover, these sources’ opinions were belayed by their own notes showing

improvement and by the fact that the record indicated only routine conservative outpatient care. (Tr.

25 ¶ 1, 211-214, 239, 247, 284). Similarly, the ALJ concluded that Dr. Laviolette’s assessment that

Cordovi had a global assessment of functioning score of 47 was based on one consultative exam and

was dependant on Cordovi’s own description of her functioning level. (Tr. 25 ¶ 3, 250-254). As a

result of the above, the ALJ’s credibility determinations are supported by substantial evidence, and,

thus, shall stand. 

C. Third, Cordovi contends that the ALJ erred by merely summarizing her

son’s testimony but failing to explain the weight given to it. While discussing Cordovi’s RFC in her

decision, the ALJ reviewed first Cordovi’s testimony, then that of her son. (Tr. 22 ¶ 2). Cordovi’s

son’s testimony is nearly identical to her own. (Tr. 48, 51-54, 63-67). After summarizing this

testimony, the ALJ concluded for a variety of reasons, many of which are discussed above, that the

testimony was not fully reliable. (Tr. 23 ¶ 1 - 24 ¶ 3). Although the ALJ only specifically discussed

the reliability of Cordovi’s testimony, I conclude that her reasoning is equally applicable to the son’s

testimony. Therefore, even if the ALJ should have specifically mentioned that she also was

discounting Cordovi’s son’s testimony for the same reasons, the error is harmless. See Rutherford v.

Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (finding that a remand was not required because a direct,

instead of indirect, consideration of obesity would not have affected the outcome of the case). 

D. Fourth, Cordovi alleges that her impairments meet or equal the

requirements of listing 14.08(N). In order to meet listing 14.08(N), a claimant must show:

Repeated [ ] manifestations of HIV infection (including those listed in

14.08A-M, but without the requisite findings, e.g., carcinoma of the

cervix not meeting the criteria in 14.08E, diarrhea not meeting the

criteria in 14.08J, or other manifestations . . .) resulting in significant,

documented symptoms or signs (e.g., fatigue, fever, malaise, weight loss,

pain, night sweats) and one of the following at the marked level [ ]: 

1. Restriction of activities of daily living; or 

2. Difficulties in maintaining social functioning; or 

3. Difficulties in completing tasks in a timely manner due to deficiencies

in concentration, persistence, or pace. 

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.08(N). Cordovi first contends that she, inter alia, has

marked restrictions in all three of the areas listed above. Cordovi bases her argument on the fact that

Dr. Laviolette opined that her functioning was such that she would not be able to work, (Tr. 253-254),

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and because Drs. Gold and nurse Aaron concluded that she was incapacitated and permanently

disabled. (Tr. 274-275, 277, 279, 329). As discussed above, the ALJ reasonably discounted these

opinions because they were not supported by objective medical evidence and, in fact, were contrary to

Cordovi’s medical records and treatment. As a result, Cordovi has not proven that she meets listing

14.08(N). 

Next, Cordovi argues that if she does not meet the listing, she equals it. 

The ALJ found, based in part upon the state agency’s psychiatric review technique form, that Cordovi

had moderate restrictions in all three of the above mentioned areas. (Tr. 25 ¶ 3, 269). Cordovi alleges,

without support, that having moderate limitations in all three areas must be equal to having a marked

limitation in one of the areas. The ALJ discussed in her decision whether Cordovi’s HIV and

depression equaled either listing 14.08 (HIV Infection) or 12.04 (Affective Disorders). (Tr. 20 ¶ 5 - 21

¶ 3). The ALJ concluded that the record lacked the necessary evidence to suggest that she equaled one

of the two listings. (Tr. 21 ¶¶ 2-3). I conclude that the ALJ sufficiently explained why she found that

Cordovi did not equal a listing and that her decision was supported by substantial evidence. Moreover,

I disagree with Cordovi that the mere fact that she had moderate restrictions in all three areas shows

that she equaled listing 14.08(N) as having moderate restrictions in three areas is not necessarily equal

in severity to having a marked restriction in one area. Sullivan v. Zebley, 493 U.S. 521 (1990); 20

C.F.R. § 416.926(a)(1)(B)(2).

Finally, Cordovi contends that the ALJ failed to call a medical expert to

determine whether she met or equaled a listing in violation of S.S.R. 96-6p. An ALJ may, but is not

required to obtain expert opinions regarding whether an impairment meets or equals a listing. 20

C.F.R. § 416.927(f)(2)(iii). Here, it evident that there was nothing in the record that the ALJ believed

might change the state agency’s ultimate findings or that suggested that a judgment of medical

equivalence would be reasonable. S.S.R. 96-6p. Moreover, there is substantial evidence in the record

to support the ALJ’s conclusion that Cordovi did not meet or equal a listing. Therefore, it was

unnecessary for the ALJ to consult a medical expert on this issue.

 Upon careful and independent consideration, the record reveals that the Commissioner

applied the correct legal standards and that the record as a whole contains substantial evidence to

support the ALJ’s findings of fact and conclusions of law. Therefore, it is hereby ORDERED that:

5. The motion for summary judgment filed by Esther Cordovi is DENIED;

6. The motion for summary judgment filed by the Commissioner is GRANTED

and JUDGMENT IS ENTERED IN FAVOR OF THE COMMISSIONER AND AGAINST

ESTHER CORDOVI; and 

7. The Clerk of Court is hereby directed to mark this case as CLOSED.

________________________________

LOWELL A. REED, JR., S.J.

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