1 As a result, I have not considered the evidence which was not presented to the ALJ and was first presented

to the Appeals Council as Walter has not relied on this evidence nor has he argued that the additional evidence was

new, material, or was not presented earlier for good cause. See Fisher v. Massanari, 28 Fed. Appx. 158, 159-160 (3d

Cir. 2002) (citing Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).

2 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

GEORGE WALTER : CIVIL ACTION

: 

v. : NO. 04-4165 

: 

JO ANNE B. BARNHART, :

Commissioner of Social Security :

MEMORANDUM AND ORDER

AND NOW, this 29th day of August, 2005, upon consideration of the crossmotions for summary judgment and the reply brief filed by the parties (Doc. Nos. 10, 11, and 12),

the court makes the following findings and conclusions:

1. On March 21, 2000, George Walter (“Walter”) filed his current application

for disability insurance benefits (“DIB”), under Title II of the Social Security Act, 42 U.S.C. §§

401-433, alleging an onset date of April 4, 1996. (Tr. 146, 147-149). After Walter’s initial April

4, 2001, administrative hearing, the Administrative Law Judge (“ALJ”) found that Walter was

not disabled. (Tr. 32-54, 118-124). On June 5, 2002, the Appeals Council reversed the ALJ’s

decision and remanded it for further consideration of several issues. (Tr. 129-131). Walter’s

second hearing was held on August 20, 2002, after which the ALJ again found that Walter was

not disabled and the Appeals Council denied review, thus making the ALJ’s second decision the

final decision in this case.1 (Tr. 7-11, 22-26, 55-90). Pursuant to 42 U.S.C. § 405(g), Walter

filed his complaint on September 2, 2004. 

2. In her decision, the ALJ concluded that Walter’s severe impairment

consisted of limitations associated with degenerative disc disease of the lumbar spine. (Tr. 23 ¶

4, 25 Finding 3).2 The ALJ further found that Walter’s impairment did not meet or medically

equal any listed impairments, that he could not perform his past work as a welder, but that he

retained the residual functional capacity (“RFC”) to engage in a limited range of light and

sedentary work. (Tr. 23 ¶ 5, 24 ¶ 3, 25 Findings 4-5, 26 Findings 7, 11).

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

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2

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. Walter raises two arguments in which he alleges that the determinations by

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

arguments are addressed below. However, 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, Walter argues that the ALJ did not properly explain her

reliance on the three assessments of Dane K. Wukich, M.D. (“Dr. Wukich”) dated April 23,

1998, December 3, 1999, and March 12, 2001. (Tr. 461-474). The ALJ stated in her decision

that Dr. Wukich’s assessments, which she gave considerable weight, were consistent with the

Residual Functional Capacity (“RFC”) assessment from the state agency medical consultant and

the treatment records of Matthew T. Kline, M.D. (“Dr. Kline”). (Tr. 24 ¶ 1). Walter argues that

Dr. Wukich’s assessments were not consistent with these two sources and, thus, the ALJ

improperly relied on Dr. Wukich’s assessments. I disagree. First, Walter contends that the RFC

assessment is much more restrictive than Dr. Wukich’s assessments and, therefore, the two items

cannot be considered consistent with each other. I note that the two sources are not technically

consistent since the state agency medical consultant concludes that Walter can perform a wider

range of work than is concluded by Dr. Wukich. However, I agree with the Commissioner that

the two sources are consistent in that neither source concludes that Walter is unable to perform

work and since the RFC assessment provides for a broader range of work, Dr. Wukich’s

narrower range of work is not precluded by the RFC assessment. (Compare Tr. 334-341 to 461-

474).

Walter also contends that Dr. Wukich’s assessments and Dr.

Kline’s treatment notes are not in accord. After reading the record, I find that Dr. Wukich’s

assessments are not inconsistent with Dr. Kline’s records. (Compare Tr. 412-431, 456-460 to

461-474). Walter alleges that Dr. Kline’s records support his assertion that he is unable to work

due to disabling back pain. On the contrary, Dr. Kline’s notes show steady improvement marred

only by occasional flare-ups due to overexertion. (Tr. 412, 415-420, 423-430, 456-457, 459-

460). Dr. Kline’s records do not show that Walter is unable to work nor do they contradict Dr.

Wukich’s assessments. The ALJ properly explained her reliance on Dr. Wukich’s assessments

Case 2:04-cv-04165-LR Document 16 Filed 08/29/05 Page 2 of 4
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 Furthermore, it was unnecessary for the ALJ to specifically comment on whether Dr. Wukich’s

assessments were valid throughout the relevant time span because the assessments are consistent with the other

medical evidence in the record spanning the entire temporal period.

3

 and, thus, Walter’s argument to the contrary must fail.3

B. Second, Walter contends that the ALJ should have given more

weight to his subjective testimony regarding his pain and limitations. In the Appeals Council’s

decision remanding the action to the ALJ, it directed the ALJ to, inter alia, “[f]urther evaluate

the claimant’s subjective complaints and provide rationale in accordance with the disability

regulations pertaining to evaluation of symptoms (20 CFR 404.1529) and Social Security Ruling

96-7p.” (Tr. 130). Walter claims that the ALJ ignored this directive. I disagree with Walter as

the ALJ does discuss many of the proper criteria for this analysis as outlined in the

aforementioned regulation and ruling. I also find that, although the ALJ’s discussion of

credibility is somewhat sparse, it is legally adequate and supported by substantial 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)). 

As mentioned, the ALJ’s discussion of credibility is truncated and

does not discuss several issues. For example, the ALJ, in noting that Walter only takes Celebrex

as needed, failed to note that Walter claims to have an intolerance for stronger narcotic

medicines. (Tr. 24 ¶ 1, 47, 287). In discussing Walter’s daily activities, the ALJ claimed that

Walter prepares meals for his children. (Tr. 24 ¶ 2). However, Walter explained that he does not

actually make dinners (other than spaghetti) but simply heats up pre-prepared meals. (Tr. 62, 83-

85). Finally, although the ALJ contended that Walter makes frequent trips to the grocery store,

Walter actually testified that his wife does all of the grocery shopping but that he occasionally

goes to the store for certain items as needed. (Tr. 43, 63, 84, 251). Regardless of these

omissions, the ALJ’s credibility findings are supported by the record and, thus, I will defer to

them. 336 F.3d at 271. Walter has undergone generally conservative treatment for his pain and

the medical records show steady improvement with occasional flare-ups due to overexertion. 

(see e.g. Tr. 286, 333, 342-46, 351-355, 357-371, 412-431, 456). Likewise, as discussed above,

the ALJ’s findings are also supported by the reports of Dr. Wukich and the RFC assessment. (Tr.

334-341, 461-471). As a result, read as a whole, the record supports the ALJ’s finding that

Walter’s pain is not totally disabling. Furthermore, the ALJ followed the directives of 20 C.F.R.

§ 404.1529 and S.S.R. 96-7p as she discussed Walter’s daily activities, alleged symptoms,

medicinal regimen, treatment and assessments, as well as referencing his prior work as a welder. 

(Tr. 23 ¶¶ 1-3, 24 ¶¶ 1-3). Therefore, Walter’s argument must fail. 

Upon careful and independent consideration, the record reveals that the

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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 George Walter 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 GEORGE WALTER; 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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