IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARIA M. RODRIGUEZ,

Plaintiff

v.

JO ANNE BARNHART,

Commissioner of Social Security,

Defendant

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CIVIL ACTION

NO. 04-5375

Memorandum and Order

YOHN, J. September ___, 2005

Plaintiff Maria Rodriguez appeals the final decision of the Commissioner of Social

Security (“the Commissioner”) denying her claim for supplemental security income (“SSI”)

under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. § 1381-1383f. Rodriguez and

the Commissioner have filed cross motions for summary judgment. I referred the motions to

Magistrate Judge Charles B. Smith, who submitted a report and recommendation that I grant the

Commissioner’s motion and affirm the Commissioner’s decision. Rodriguez has filed objections

to the report and recommendation. For the following reasons, the court will adopt the magistrate

judge’s report and recommendation and will grant the Commissioner’s motion for summary

judgment

I. Factual Background

At the time of the ALJ’s decision, plaintiff Maria Rodriguez was 43 years old. (R. 57). 

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1

 The GAF scale is a method of measuring the level of psychological, social, and

occupational functioning on a hypothetical continuum of mental health. The GAF scale ranges

from 0 to 100, with some impairment in reality testing or communication at a score between 31

and 40, serious impairment in functioning at a score between 41 and 50, moderate difficulty in

functioning between 51 and 60, some difficulty in functioning between 61 and 70, and no more

than slight impairment in functioning between 71 and 80. Superior functioning is represented

by a score between 91 and 100. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual

of Mental Disorders 32 (4th ed. 1994).

2

She has a seventh grade education and no prior relevant work experience. (R. 63, 68). She lives

with her six youngest children, ranging in ages from five to fourteen. (R. 195). 

Rodriguez alleges that she became disabled on January 1, 2002, due to depression and

bad nerves. (R. 57-59, 62). However, her treatment notes date back to August 8, 2000, at which

date she underwent a psychiatric evaluation at the Mental Health Clinic at Asociación De

Puertrriqueños En Marcha, Inc. (“APM”). (R. 103-105). Psychiatrist Richard Mufson, M.D.

completed the evaluation, first noting that Rodriguez had a history of drug and alcohol abuse. 

(R. 103). He concluded that Rodriguez’s thought processes were logical, cogent, and goal

directed, and that her affect and speech were normal, but that her mood was depressed. (R. 102). 

Dr. Mufson diagnosed Rodriguez with major depression and assigned her a GAF score of 50.1

(R. 105). He prescribed Prozac and Buspar. (R. 97).

After this evaluation, Rodriguez began a regimen at APM that included psychiatric

treatment with Dr. Mufson and regular sessions of psychotherapy. Psychiatric notes for the

remainder of 2000 reveal that Rodriguez felt better and responded well to her medications. (R.

95). 

Rodriguez maintained this improved health throughout the first half of 2001. From

March to August, Dr. Mufson noted that Rodriguez was doing well on the Prozac. (R. 93-94). 

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However, in August of 2001, psychotherapy notes reported that Rodriguez began to have trouble

sleeping and experience anxiety. (R. 165). The same report noted that Rodriguez felt very

concerned about her children. (R. 165). This is the first of many times that the psychotherapy

notes appear inconsistent with the psychiatric notes. In September and October of 2001,

Rodriguez’s psychotherapy notes described her as feeling paranoid that someone would break

into her home and suffering from insomnia. (R. 166). She also reported feeling anxious, fearful,

depressed, overwhelmed, frustrated, and unable to concentrate. (R. 166). In November, Dr.

Mufson reported that Rodriguez suffered from apprehension and fear, and that her children were

upsetting her. (R. 93). 

In January of 2002, at the onset of Rodriguez’s claimed disability, her psychotherapy

notes reported that she was feeling overwhelmed, depressed, fearful, anxious, and unable to

sleep. (R. 167-68). Also in January, in response to her complaints of depression, Dr. Mufson

started Rodriguez on Paxil. (R. 91). In February, psychotherapy notes reported that she

continued to suffer from depression and insomnia, that she had poor eye contact and low energy,

and that her attire was inappropriate because she wore bedroom slippers to the appointment. (R.

168). 

On February 6, 2002, Rodriguez underwent a consultive examination with state disability

physician John P. Kohler, M.D. (R. 126-29). He diagnosed her with anxiety and depression with

elements of obsessive compulsive disorder, with a prior history of drug and alcohol abuse. (R.

129). He did not make any observations about Rodriguez’s ability or inability to perform workrelated activities. 

In March, Rodriguez’s psychotherapy notes reported that she was fearful that she had

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contracted HIV, felt very depressed, had lost 16 pounds, suffered from low energy and crying

spells, and was socially withdrawn. (R. 169). However, also in March, Rodriguez told Dr.

Mufson that she was feeling better with her Paxil. (R. 91). In April and May, she told her

psychotherapist that she was experiencing less anxiety and fewer delusional thoughts, but she

remained very depressed and restless, and displayed intermittent eye contact and pressured

speech. (R. 170). 

On June 6, 2002, Rodriguez underwent a second psychiatric evaluation by Dr. Mufson. 

(R. 100-02). She reported that her condition had improved since the start of her treatment at

APM. (R. 100). At the same time, she complained of feeling nervous, suffering from insomnia,

and feeling “down all the time.” (R. 100). Dr. Mufson reported that Rodriguez was pleasant,

cooperative, spontaneous, coherent, logical, and appropriate, with intact insight and judgment. 

(R. 101-02). He also noted that her affect was within normal range but was labile and

constricted. (R. 101). Dr. Mufson diagnosed her with dysthymia and reassigned her a GAF

score of 50. (R. 102). 

In psychotherapy notes spanning from June to September of 2002, Rodriguez reported

feeling depressed and concerned about her past reckless behavior. (R. 171-72). She continued to

exhibit pressured speech and restless behavior. (R. 171). 

Through the end of 2002, Rodriguez continued to praise her medicine to Dr. Mufson

while voicing concerns about impairments to her psychotherapist. For example, in a July 2002

treatment note, Dr. Mufson reported that Rodriguez found her medicine to be fine. (R. 92). 

Then, in an August psychotherapy note, Rodriguez reported feeling anxious and depressed. (R.

172). In a September psychiatric note, she again approved of her medicine, saying “I want the

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same medicine, it’s good.” (R. 92). But in October psychotherapy notes, Rodriguez reported

feeling easily overwhelmed, while suffering from excessive anxiety and increased depression. 

(R. 172). Also, the psychotherapist continued to observe restless behavior and pressured speech. 

(R. 172). This was confirmed in a November 2002 treatment note, in which Dr. Mufson reported

that Rodriguez felt anxious and showed traits that were suggestive of obsessive compulsive

disorder. (R. 92). However, in December, Dr. Mufson commented that Rodriguez was doing

very well with her prescriptions, with no complaints. (R. 90). Yet in November and December

psychotherapy notes, Rodriguez reported that she continued to suffer from obsessive thoughts

concerning past reckless behavior and experienced increased depression. (R. 173). The

psychotherapist also noted that Rodriguez demonstrated pressured speech and restlessness. (R.

173).

Rodriguez continued to attend psychiatric and psychotherapy sessions in 2003. In

January of 2003, she told Dr. Mufson that she felt okay and that she had no problems with her

medication. (R. 90). However, in psychotherapy sessions, she noted that her anger was

increasing, and that she was suffering from excessive anxiety, frequent depressive symptoms,

restlessness, and insomnia. (R. 174). She also exhibited slow speech and lethargic behavior. 

(R. 174). February psychotherapy notes reported that she suffered from excessive anger, anxiety

triggered by family stressors, and showed angry facial expressions. (R. 174-75). In

psychotherapy notes from March and April, Rodriguez continued to report that she was

experiencing explosive anger and extreme depression. (R. 175-76). 

State physician J.J. Kowalski, M.D. completed a Psychiatric Review Technique on April

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 Rodriguez’s psychotherapy notes were submitted at the time of her administrative 

hearing; accordingly, Dr. Kowalski had access to none of the psychotherapy notes and only those

of Dr. Mufson’s notes and assessments that were completed before April 2, 2003. 

3

 “Dysthymia” is defined as “a chronic mood disorder manifested as depression for most

of the day, more days than not, accompanied by some of the following symptoms: poor appetite

or overeating, insomnia or hypersomnia, low energy or fatigue, low self-esteem, poor

concentration, difficulty making decisions, and feelings of hopelessness.” Stedman’s Medical

Dictionary 556 (27th ed. 2000). 

4

 Dr. Kowalski found that Rodriguez was moderately limited in her ability to: carry out

detailed instructions; maintain attention and concentration for extended periods; perform

activities within a schedule, maintain regular attendance, and be punctual within customary

tolerances; work in coordination with or proximity to others without being distracted by them;

complete a normal workday and workweek without interruptions from psychologically based

symptoms and to perform at a consistent pace without an unreasonable number and length of rest

periods; interact appropriately with the general public; and respond appropriately to changes in

the work setting. (R. 152-53) 

5

 Dr. Kowalski found that Rodriguez was not significantly limited in her ability to:

understand and remember detailed instructions; carry out very short and simple instructions;

sustain an ordinary routine without special supervision; make simple work-related decisions; ask

simple questions or request assistance; accept instructions and respond appropriately to criticism

from supervisors; get along with coworkers or peers without distracting them or exhibiting

behavioral extremes; maintain socially appropriate behavior and to adhere to basic standards of

neatness and cleanliness; be aware of normal hazards and take appropriate precautions; travel in

unfamiliar places or use public transportation; set realistic goals or make plans independently of

6

2, 2003 after reviewing some of Rodriguez’s records.2 (R. 138-151). He diagnosed her with

dysthymia.3 (R. 141). Based on this diagnosis, he concluded that her activities of daily living

(“ADLs”) were mildly limited, while her ability to maintain social functioning and ability to

maintain concentration, persistence, or pace were moderately limited. (R. 148). He determined

that Rodriguez’s allegations were partly credible, but that they did not significantly limit her

functioning. (R. 150). On the same date, Dr. Kowalski also completed a Mental Residual

Functional Capacity Assessment. (R. 152-55). In this assessment, he found that Rodriguez

suffered from some moderate limitations,4 but generally was not significantly limited5 in her

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others. (R. 152-53). 

7

work-related capacity. (R. 152-53). 

In May and June psychotherapy notes, Rodriguez continued to complain of uncontrollable

depression and extreme anger. (R. 175-76). Those notes also indicate that her mood was

pessimistic, her judgment was poor, and she complained of escalating family conflict. (R. 175-

76). However, in July and August, Dr. Mufson found Rodriguez to be alert, well-oriented, of

clear speech, and cognitively intact. (R. 161, 162). Still, he also found that she was stressed due

to raising six children and having her youngest start kindergarten. (R. 160). Her psychotherapy

notes from August and September indicated that she continued to suffer from anger, depression,

and excessive anxiety. (R. 178). Her mood was unstable, her speech was lethargic, and her

judgment was poor. (R. 178). 

On August 12, 2003, Dr. Mufson completed a Medical Assessment of Ability to Do

Work Related Activities (“assessment”). (R. 156-58). He rated as “poor to none” Rodriguez’s

ability to follow work rules; relate to co-workers; use judgment; interact with supervisors; deal

with work stress; understand, remember, and carry out complex or detailed job instructions; and

relate predictably in social situations. (R. 156-58). He rated as “fair” her ability to deal with the

public; function independently; maintain attention/concentration; understand, remember and

carry out simple job instructions; behave in an emotionally stable manner; and demonstrate

reliability. (R. 156-58). His only explanation of these findings was a diagnosis of “dysthymic

disorder” and the identification of the limitations of “poor memory” and “poor comprehension.” 

(R. 157). Dr. Mufson also found that Rodriguez was capable of managing her own benefits. (R.

158). 

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II. Procedural Background

On November 26, 2002, Rodriguez applied for SSI. (R. 57-59). She alleged disability

beginning on January 1, 2002, due to depression and bad nerves. (R. 57, 62). The state agency

denied the application initially on April 25, 2003. (R. 37-40).

Rodriguez had an administrative hearing on October 20, 2003. (R. 189). She appeared,

testified, and was represented by a lawyer. (R. 191-208). In this hearing, Rodriguez testified to

living with her six children, and noted that her medicine helped to calm her. (R. 195-96). She

also noted that: she was able to walk a block and a half to reach APM, she occasionally took

public transportation to reach her welfare office and lawyer’s office, she experienced difficultly

being around groups of people, and she was constantly in fear that something bad would happen

to her or her family. (R. 196-98). Rodriguez described her typical day as involving waking up

her children for school; occasionally cooking, cleaning or doing laundry; and playing with her

dogs. (R. 199-201). She indicated that she never shopped or paid her bills; for those tasks, she

received help from a grown-up daughter who does not live with her. (R. 202). A vocational

expert (“VE”) appeared and testified. (R. 205-06). In response to the ALJ’s hypothetical

question about whether jobs existed in the national economy for an individual who was “limited

to just simple, routine tasks with not more than occasional contact with supervisors or fellow

employees and no contact with the general public,” the VE identified the unskilled jobs of

industrial cleaner, coin machine operator, assembler, and bench assembler. (R. 205-06). 

Alternatively, the VE testified that an individual possessing the limitations identified in Dr.

Mufson’s assessment would be unable to work. (R. 206-07). 

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In a thorough October 31, 2003 opinion, the ALJ found that Rodriguez was not disabled. 

(R. 23-32). He concluded that her mental impairments did amount to a severe impairment, but

did not meet any of the listings set out in 20 C.F.R. Pt. 404 , Subpt. P, App. 1. (R. 24-26). In

determining Rodriguez’s residual functional capacity (“RFC”), he concluded that her assertions

were exaggerated and of only fair credibility concerning the intensity, persistence, and limiting

effects of her impairments. (R. 28-29). The ALJ also decided to grant little weight to the

opinion of Rodriguez’s treating physician, Dr. Mufson, noting:

Dr. Mufson appears to be basing his assessment primarily . . . upon claimant’s

assertions and complaints; that he provided no objective clinical, diagnostic or

laboratory findings to support the degree of limitations assessed; that he failed to

offer any indication or description of the precise medical observations utilized to

form the basis of his assessment; that he cited the existence of specific medically

determinable disorders, but offered no specific rationale for his functional

assessment, so that it is impossible to discern how the documentary evidence gave

rise to his ultimate opinion; that he failed to provide any detailed description of

claimant’s psychosocial history, any diagnostic test results, any specific instances

describing the claimant’s inability to interact with other people, or any specific

occurrences utilized as an example of the claimant’s poor attention or concentration;

that his assessment is inconsistent with specific medical findings and/or observations

made elsewhere in the record . . . ; that his assessment is not supported by reports

which indicate only routine, conservative outpatient care; and that his assessment is

inconsistent with claimant’s self-reported activities of daily living.

(R. 29). The ALJ accorded greater weight to Dr. Kowalski’s assessment of Rodriguez. (R. 29). 

Finally, he found that Rodriguez had no medically determinable exertional or other physical

limitations, but that her “capacity for work [was] diminished by an inability to perform

occupational activities involving more than simple, routine tasks, with no more than occasional

contact with supervisors and fellow employees, and no contact with the general public.” (R. 30). 

Accordingly, he determined that she was able to work as an industrial cleaner, coin machine

operator, assembler, or bench assembler, which compelled a finding of “not disabled.” (R. 31). 

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On September 21, 2004, the Appeals Council denied Rodriguez’s request for review. (R.

4-7). Accordingly, the ALJ’s decision is the final decision of the Commissioner. On November

17, 2004, Rodriguez filed a complaint in this court seeking judicial review of the

Commissioner’s decision. On March 30, 2004, she filed a motion for summary judgment,

requesting reversal of the ALJ’s decision. The Commissioner filed a cross motion for summary

judgment. 

On May 4, 2005, the case was referred to the magistrate judge for a report and

recommendation. On May 31, 2005, the magistrate judge recommended that Rodriguez’s motion

for summary judgment be denied and the Commissioner’s motion for summary judgment be

granted.

On June 17, 2005, Rodriguez filed objections to the report and recommendation,

challenging the magistrate judge’s determinations that: 1) substantial evidence supported the

ALJ’s decision to assign little weight to the opinion of treating physician Dr. Mufson, and 2)

substantial evidence supported the ALJ’s determination that her subjective complaints were of

only fair credibility. 

III. Standards of Review

I review de novo the parts of the magistrate judge’s report to which Rodriguez objects. 

28 U.S.C. § 636(b)(1)(C). I may accept, reject, or modify, in whole or in part, the magistrate’s

findings or recommendations. Id.

In contrast, a district court may not review the Commissioner’s decision de novo. The

court may only review the Commissioner’s final decision to determine “whether that decision is

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supported by substantial evidence.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing

42 U.S.C. § 405(g)). “[S]ubstantial evidence is more than a mere scintilla.” Universal Camera

Corp. v. NLRB, 340 U.S. 474, 477 (1951) (internal quotation omitted). “Substantial evidence

‘does not mean a large or considerable amount of evidence, but rather such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Hartranft, 181 F.3d at 360

(quoting Pierce v. Underwood, 487 U.S. 552 (1988)). In making this determination, the court

must consider “the evidentiary record as a whole, not just the evidence that is consistent with the

agency’s finding.” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986) (citations

omitted). The substantial evidence test is “deferential.” Id. Consequently, the court “will not set

the Commissioner’s decision aside if it is supported by substantial evidence, even if [it] would

have decided the factual inquiry differently.” Hartranft, 181 F.3d at 360.

IV. Discussion

A. Introduction

To qualify for SSI payments, a claimant must demonstrate that “there exists a medically

determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful

activity’ for a statutory twelve-month period.” Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir.

1987) (citations omitted). When evaluating a claim for SSI disability payments, the

Commissioner applies a five-step sequential analysis. 20 C.F.R. § 416.920; Sykes v. Apfel, 228

F.3d 259, 262-63 (3d Cir. 2000). The Commissioner considers: (1) whether the claimant worked

during the alleged period of disability; (2) whether the claimant has a “severe medically

determinable . . . impairment”; (3) whether the “impairment” meets the requirements of a listed

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 Technically, neither party bears the burden of proving step three “[b]ecause step three

involves a conclusive presumption based on the listings.” Sykes v. Apfel, 228 F.3d at 263 n.2.

12

impairment; (4) whether the claimant can continue to perform “past relevant work”; and (5)

whether the claimant can perform “other work” in the national economy. 20 C.F.R. §

416.920(a)(4). The claimant bears the burden of proving steps one through four.6 If the claimant

satisfies these requirements, the burden shifts to the Commissioner to show that the claimant is

capable of performing “other work.” Sykes, 228 F.3d at 263.

Here, Rodriguez has filed two objections to the magistrate judge’s recommendation. 

First, she contends that the magistrate judge mistakenly upheld the ALJ’s decision to accord Dr.

Mufson’s opinion “limited weight.” Second, Rodriguez argues that the magistrate judge erred in

upholding the ALJ’s determination that her subjective complaints were only “fairly credible.” 

For these two points, she argues that the ALJ’s reasoning is not supported by substantial

evidence. 

B. The ALJ’s decision to accord limited weight to the treating physician’s opinion

Rodriguez argues that the ALJ erred in according limited weight to an assessment

completed by her treating physician, Dr. Mufson, which identified an array of serious, workpreclusive limitations. She offers two sub-arguments in support of this claim, asserting that: 1)

Dr. Mufson’s opinion is supported by the evidence in the record, including the psychotherapy

notes, and 2) the ALJ should have sought more evidence from Dr. Mufson if he found that the

doctor’s assessment inadequately explained its conclusions. However, neither of these

arguments has merit.

By way of background, “[t]reating physicians’ reports should be accorded great weight,

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 Indeed, this entire line of argument is based on Rodriguez’s conjecture, because Dr.

Mufson did not indicate whether he actually did consider the psychotherapy notes in reaching his

conclusions. However, for the purpose of this discussion, I will accept this theory despite its

limited support.

13

especially ‘when their opinions reflect expert judgment based on continuing observation of the

patient’s condition over a prolonged period of time.’” Plummer v. Apfel, 186 F.3d 422, 429 (3d

Cir. 1999) (quoting Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)). The regulations

provide that treating physician opinions will be granted controlling weight where they are

well-supported by medical evidence and not inconsistent with other substantial evidence in the

record. 20 C.F.R. § 416.927(d)(2). “An ALJ may reject a treating physician’s opinion outright

only on the basis of contradictory medical evidence, but may afford a treating physician’s opinion

more or less weight depending upon the extent to which supporting explanations are provided.” 

Plummer, 186 F.3d at 429 (citing Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985)). 

Where the opinion of a treating physician conflicts with that of a non-treating physician, the ALJ

may “choose whom to credit but ‘cannot reject evidence for no reason or for the wrong reason.’” 

Id. (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)). 

1. Rodriguez’s argument that Dr. Mufon’s opinion is consistent with psychotherapy notes

Rodriguez first argues that Dr. Mufson’s assessment is consistent with and based on the

psychotherapy notes. However, even if this argument is accepted, the ALJ’s decision to accord

Dr. Mufson’s opinion limited weight will still be supported by substantial evidence, because: 1)

Dr. Mufson’s assessment remains inconsistent with the rest of the record, and 2) the

psychotherapy notes are of limited value because they largely recite only Rodriguez’s claims of

her subjective symptoms.7 

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 Rodriguez argues that Dr. Mufson’s assessment is actually not inconsistent with the

remainder of the record; rather, the apparent inconsistency is the product of the magistrate judge

and the ALJ emphasizing only the assessment’s restrictive findings to the detriment of its more

positive findings. However, review of the assessment shows that the magistrate judge and the

ALJ were correct in noting that it offered exceptionally restrictive conclusions. Dr. Mufson rated

Rodriguez’s ability to perform eight work-related activities as “poor to none,” while finding that

she had a “fair” ability to perform six activities and a “good” ability to maintain personal

appearance. This means that in eight out of fifteen categories Dr. Mufson assigned Rodriguez

the lowest possible rating. The VE testified that an individual possessing those characteristics

would be unable to work. Thus, the magistrate judge and the ALJ fairly represented the

assessment’s conclusions.

14

Most importantly, this argument does not change the fact that the objective evidence,

such as Rodriguez’s treatment history and her self-reported activities of daily living (“ADLs”),

stands in opposition to Dr. Mufson’s conclusions.8 To elaborate, Rodriguez’s treatment regimen

consists of conservative outpatient care, in which she visits Dr. Mufson only once every two

months and the psychotherapist only once every two weeks. She has also never been

hospitalized due to her condition. The ALJ correctly noted that this pattern is inconsistent with

complete disability. Additionally, Dr. Mufson’s opinion is inconsistent with Rodriguez’s selfreported ability to perform ADLs. Rodriguez testified that she is the primary care-giver for six

children, whom she wakes up for school each morning. She explained that she spends her days

playing with her dogs and occasionally cleaning or doing laundry. Also, she described an ability

to take public transportation to reach appointments. These abilities and responsibilities appear

inconsistent with Dr. Mufson’s conclusions, particularly his determination that Rodriguez had a

poor to absent ability to use judgment. 

Also, Dr. Mufson’s opinion is inconsistent with that of Dr. Kowalski, the only other

physician to examine the record. Dr. Kowalski found that Rodriguez suffered from some

moderate limitations, but was not significantly limited in her work-related capacity. While Dr.

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Kowalski’s opinion is flawed in that he neither considered the psychotherapy notes because they

were not available to him nor treated Rodriguez, it provides a much fuller explanation of its

conclusions than does Dr. Mufson’s assessment. See 20 C.F.R. § 419.927(d)(3) (noting “[t]he

better an explanation a source provides for an opinion, the more weight we will give that

opinion”). Also, the opinion of a state consultant, despite coming from a non-treating source, is

valuable because “[s]tate agency medical and psychological consultants and other program

physicians and psychologists are highly qualified physicians and psychologists who are also

experts in Social Security disability evaluation.” 20 C.F.R. § 416.927(f)(2)(I). Thus, Dr.

Kowalski’s opinion further demonstrates the disparity between Dr. Mufson’s assessment and the

remainder of the record. 

Additionally, Dr. Mufson’s reports are internally inconsistent. His treatment notes, with a

few exceptions, described Rodriguez as doing “okay” and responding well to her medications. 

Yet his assessment reported dire limitations. If, as Rodriguez argues, Dr. Mufson had access to

Rodriguez’s psychotherapy notes for his assessment, presumably he had the same access to those

notes prior to his bimonthly treatment sessions. It would actually seem more important that Dr.

Mufson consider Rodriguez’s psychotherapy notes before meeting with her to consider

adjustments to her treatment plan or medication than before completing a checkbox assessment

form unrelated to treatment. Thus, even assuming that Dr. Mufson did have access to those

therapy notes while completing the assessment, the assessment is inconsistent with his years of

treatment notes. 

Dr. Mufson’s use of GAF scores also hurts his opinion’s credibility. In August of 2000,

he diagnosed Rodriguez with major depression and assigned a GAF score of 50. Then, after

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almost two years of treatment that Rodriguez described as helping her condition, Dr. Mufson

reexamined Rodriguez. This time, he diagnosed her with the less severe condition of dysthymia,

yet assigned the identical GAF score. He did not support or explain his GAF scores, which is

emblematic of his general failure to allow for meaningful scrutiny of his conclusions. 

Rodriguez’s argument is also unpersuasive because the psychotherapy notes, like Dr.

Mufson’s treatment notes, tend to recite Rodriguez’s subjective complaints without providing

clinical data. While the psychotherapy notes contain an even greater quantity of those

complaints, sheer quantity does not change character. Thus, the psychotherapy notes have the

same limitation that Dr. Mufson’s treatment notes do: they are only as valuable as Rodriguez is

credible. And, as the ALJ determined, Rodriguez is only fairly credible in describing her

limitations. This contrasts with the evidence described above, such as her conservative treatment

plan and her ability to perform ADLs, both of which have a more objective foundation. 

Accordingly, I find that substantial evidence in the record supports the ALJ’s decision to

accord limited weight to Dr. Mufson’s opinion.

2. Rodriguez’s argument that the ALJ should have sought more information from Dr. 

Mufson

Rodriguez also argues that if the ALJ found problems with the clarity or thoroughness of

Dr. Mufson’s opinion, he should have requested more information from Dr. Mufson before

discounting the opinion. However, the ALJ correctly found that there was sufficient evidence in

the record to reach a disability determination, which satisfied his duty under the regulations.

Under 20 C.F.R. § 416.912(e), “[w]hen the evidence we receive from your treating

physician or psychologist or other medical source is inadequate for us to determine whether you

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are disabled, we will need additional information.” That concept is elaborated in 20 C.F.R. §

416.912(e)(1), which states:

[w]e will seek additional evidence or clarification from your medical source when

the report from your medical source contains a conflict or ambiguity that must be

resolved, the report does not contain all the necessary information, or does not appear

to be based on medically acceptable clinical and laboratory diagnostic techniques.

“[T]he Third Circuit has not explicitly addressed the standard governing when an ALJ is

obligated to recontact a treating physician . . . .” Washington v. Barnhart, 2005 WL 701802, at

*7 (E.D. Pa. March 25, 2005). Most cases in this circuit that have addressed the issue have

followed the reasoning of Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) and determined

that notwithstanding the deficiencies of a treating physician’s opinion, the evidence on the record

remained “adequate” to reach a disability determination. See Kraft v. Barnhart, 2005 WL

950607, at *4 (E.D. Pa. April 22, 2005) (finding that evidence on the record was adequate to

determine disability when three other physicians contradicted the opinion of a treating

psychologist); Washington, 2005 WL 701802, at *7 (finding that the ALJ did not need to

recontact a treating physician “because the record was adequate to determine that the Plaintiff

was not disabled”); Simmons v. Barnhart, 2004 WL 2323776, at *6 (D. Del. Oct. 12, 2004)

(noting “other evidence found in the record was adequate to determine whether Plaintiff was

disabled”); Moody v. Barnhart, 2003 WL 21640621, at *4 (E.D. Pa. July 11, 2003) (same).

This case is similar to those cited supra. The ALJ determined that Dr. Mufson’s opinion,

besides being improperly documented, was inconsistent with much of the record, including: his

own treatment notes, Rodriguez’s self-reported ability to perform ADLs, the opinion of

consulting physician Dr. Kowalski, and Rodriguez’s conservative outpatient treatment program. 

Case 2:04-cv-05375-WY Document 13 Filed 09/15/05 Page 17 of 22
18

This combination of factors provided the ALJ with adequate evidence to determine that

Rodriguez was not disabled, and was sufficient to satisfy his obligation under 20 C.F.R. §

416.912(e). Consequently, the ALJ was not obligated to request supplemental information from

Dr. Mufson. 

C. The ALJ’s determination that Rodriguez possessed only “fair” credibility

Rodriguez next argues that the magistrate judge’s and the ALJ’s determinations that she

was only fairly credible in describing her subjective complaints were based on a distorted reading

of her administrative testimony that exaggerated her abilities. However, I find that the ALJ’s

opinion accurately portrayed Rodriguez’s self-reported abilities, so this finding will be upheld. 

The Third Circuit has created a backdrop against which complaints of subjective pain

must be evaluated, specifically noting: 

(1) that subjective complaints of pain be seriously considered, even where not

fully confirmed by objective medical evidence; (2) that subjective pain “may

support a claim for disability benefits,” and “may be disabling”; (3) that when

such complaints are supported by medical evidence, they should be given great

weight; and finally (4) that where a claimant’s testimony as to pain is reasonably

supported by medical evidence, the ALJ may not discount claimant’s pain without

contrary medical evidence.

Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) (citations omitted).

The regulations also describe a process for assessing subjective complaints. First, the

ALJ must identify a “medically determinable impairment that could reasonably be expected to

produce [the] symptoms” that the claimant alleges. 20 C.F.R. § 416.929(b). Then, after the ALJ

identifies that impairment, he or she must “evaluate the intensity and persistence of [the]

symptoms” to determine the degree to which they limit the claimant’s capacity to work. 20

C.F.R. § 416.929(c)(1). Thus, the ALJ is required to “determine the extent to which a claimant is

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19

accurately stating the degree of pain or the extent to which he or she is disabled by it.” Hartranft

v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999); see also 20 C.F.R. § 416.929(c). In making these

determinations, the ALJ will consider all of the available evidence, including: (1) the claimant’s

daily activities; (2) the duration, location, frequency, and intensity of the claimant’s pain and

other symptoms; (3) the claimant’s precipitating and aggravating factors; (4) the type, dosage,

effectiveness, or side effects of the claimant’s medication; (5) the treatment that the claimant

receives other than medication; (6) any measures used by the claimant to relieve the symptoms;

and (7) other factors concerning functional restrictions or limitations due to pain or other

symptoms. 20 C.F.R. §§ 416.929(c)(3)(i)-(vii). 

In this case, the ALJ found that Rodriguez had the underlying medically determinable

impairments of depression and anxiety, which could reasonably be expected to result in the

symptoms that she alleged. However, he then found that her assertions were only fairly credible,

mostly because her complaints of complete disability were inconsistent with her ADLs and stable

psychiatric condition. 

Rodriguez argues that the ALJ supported his determination that her complaints were of

fair credibility by either exaggerating or misinterpreting her level of functioning. It is unclear

whether she believes that the ALJ actually mischaracterized her responses or merely emphasized

the wrong portions of her testimony. However, neither version of the argument is compelling

because the ALJ’s description of Rodriguez’s capacity is entirely consistent with her

administrative testimony. 

For example, Rodriguez argues that the ALJ’s finding that she “helps to get her six

children off to school” each morning overstated her responsibilities. In her administrative

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9

 Rodriguez testified to living with her six children, the oldest of whom is fourteen. (R.

195) While Rodriguez never used the word “care-giver,” the ALJ was justified in attributing that

role to the sole adult in a household with six children.

10 Rodriguez testified that “[w]hen I’m by myself I just play with my dogs.” (R. 200). 

11 Rodriguez testified that she “sometimes” cooks, “sometimes” does laundry, and cleans

the house “with [her] kids helping.” (R. 200). 

12 Rodriguez testified that she takes the bus to her welfare office and her lawyer’s office. 

(R. 196). While she also indicated that she does not like to take the bus because it makes her

“real nervous,” (R. 199), the fact that she has taken the bus on multiple occasions makes her

complaint seem to more properly describe a dislike than a disability.

13 In response to the ALJ’s question about how Rodriguez got to APM, she responded

“walking.” (R. 196). 

20

hearing, Rodriguez’s specific language regarding this issue was “I will call my kids. They get

ready for school.” (R. 199). This dispute is entirely speculative; Rodriguez’s answer provides

insufficient information to disjoin her actions from those of her children. However, even if

Rodriguez’s contribution to her children’s preparation is limited to waking them up in the

morning, that contribution is “help” and is consistent with the ALJ’s finding. Similarly,

substantial evidence supports the ALJ’s descriptions of Rodriguez’s other capabilities, including

his findings that she: is the primary care-giver of her children;9 plays with her five dogs during

the day;10 cooks occasionally, does laundry, and cleans with assistance;11 takes public

transportation at times;12 and walks to APM.13 It was entirely appropriate for the ALJ to

determine that the ability to perform those ADLs demonstrated a more advanced level of

functioning than would be possible for an individual truly suffering from all of Rodriguez’s

subjective complaints. 

Additionally, to the extent that Rodriguez desires that this court reweigh the evidence and

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21

emphasize different parts of her testimony than the ALJ did, she is limited by this court’s role. 

This court can only review the ALJ’s decision to determine whether it is supported by substantial

evidence, Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999), and may not reweigh the

evidence, Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992); Monsour Med. Ctr. v.

Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). Here, the ALJ’s conclusion that Rodriguez’s

subjective complaints were only fairly credible is supported by substantial evidence and thus will

not be disturbed. 

V. Conclusion

For the above reasons, I will overrule both of Rodriguez’s objections to the magistrate

judge’s report and recommendation. The ALJ’s decision is supported by substantial evidence,

and consequently, I will grant the Commissioner's motion for summary judgment. An appropriate

order follows.

Case 2:04-cv-05375-WY Document 13 Filed 09/15/05 Page 21 of 22
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARIA M. RODRIGUEZ,

Plaintiff

v.

JO ANNE BARNHART,

Commissioner of Social Security,

Defendant

:

:

:

:

:

:

CIVIL ACTION

NO. 04-5375

Order

AND NOW, this ______day of September 2005, upon consideration of the parties’ crossmotions for summary judgment (Doc. Nos. 7, 8), and after careful and independent review of the

magistrate judge’s report and recommendation and the plaintiff’s objections thereto, it is hereby

ORDERED that:

1. Plaintiff’s objections are OVERRULED.

2. The Report and Recommendation of United States Magistrate Judge Charles B. Smith

is APPROVED and ADOPTED.

3. The plaintiff’s motion for summary judgment is DENIED

4. The motion of defendant Jo Anne Barnhart, Commissioner of Social Security, for

summary judgment is GRANTED.

5. Judgment is entered affirming the decision of the Commissioner.

________________________________________

 William H. Yohn, Jr., J.

Case 2:04-cv-05375-WY Document 13 Filed 09/15/05 Page 22 of 22