The ALJ held: 1

After giving careful consideration to all the

evidence, the Administrative Law Judge has

concluded that the claimant is unable to

return to her past relevant work. However,

she is able to make an adjustment to work

existing in significant numbers in the

national economy. This conclusion is based on

findings concerning her age, education, work

experience, and residual functional capacity.

For this reason she is not under a disability

as that term is defined in the Social Security

Act and regulations. Since the claimant is

not disabled, she is ineligible to receive

Disability Insurance Benefits by virtue of her

application of August 27, 2002.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MILDRED TRUETT : CIVIL ACTION

: NO. 04-5376

Plaintiff, :

:

v. :

:

JO ANNE BARNHART, :

COMMISSIONER OF SOCIAL : 

SECURITY, :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. NOVEMBER 23, 2005

I. BACKGROUND

Plaintiff, Mildred Truett, brought this action under 42

U.S.C. § 405(g) seeking judicial review of a final decision by

the administrative law judge (ALJ) dated September 2, 2003. The

ALJ denied plaintiff’s claim for Disability Insurance Benefits.1

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 1 of 15
(R. at 14-15.)

Disability is defined as the inability to engage in any 2

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last

for a continuous period of not less than twelve months. 42

U.S.C. § 423(d)(1)(A); see Barnhart v. Walton, 535 U.S. 212

(2002).

2

Before the Court is plaintiff’s objections to the Magistrate

Judge’s Report and Recommendation. The Magistrate Judge

concluded that there is substantial evidence in the record to

support the ALJ’s decision that plaintiff was not disabled under

the Social Security Act, and thus, was not entitled to disability

benefits.2

Plaintiff has raised four objections to the Magistrate

Judge’s Report and Recommendation. In particular, she alleges

the following errors: (1) the Magistrate Judge inaccurately

summarized plaintiff’s daily activities as support for the ALJ’s

decision that plaintiff could perform full-time work, contrary to

the opinion of plaintiff’s treating physician; (2) the Magistrate

Judge improperly accepted the ALJ’s conclusion accepting parts of

the consultative physician’s opinion, while rejecting other

parts, without explanation; (3) the ALJ failed to follow-up with

plaintiff’s treating physician as to the inconsistencies between

the physician’s opinion and the objective testing; and (4) the

Magistrate Judge erred in finding that substantial evidence

existed in the record to support the ALJ’s finding that

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 2 of 15
3

plaintiff’s right arm and left knee impairments were not

“severe.” 

For the reasons that follow, the Court overrules

plaintiff’s objections to the Magistrate Judge’s Report and

Recommendation. The Court approves and adopts the Report and

Recommendation.

II. DISCUSSION

A. Standard of Review

The Court undertakes a de novo review of the portions

of a report and recommendation of a magistrate judge to which the

plaintiff has lodged objections. See 28 U.S.C. § 636(b)(1);

Continental Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245,

250 (3d Cir. 1998). The Court “may accept, reject or modify, in

whole or in part,” the findings and recommendations of a

magistrate judge. 28 U.S.C. § 636(b)(1). The Court should

uphold the determinations of the ALJ if supported by substantial

evidence. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). 

Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Pierce

v. Underwood, 487 U.S. 552, 565 (1988).

B. Plaintiff’s Objections to the Magistrate Judge’s

Report and Recommendation

1. The ALJ’s decision that the opinion of

plaintiff’s treating orthopedist is

inconsistent with plaintiff’s activities

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 3 of 15
4

of daily living is supported by

substantial evidence in the record.

Dr. Mark Avart is plaintiff’s treating orthopedist. 

Dr. Avart has been treating plaintiff for the pain in her neck,

back, left shoulder, and left arm and hand since 1998. (R. at

145-46.) In a medical report dated June 10, 2003, Dr. Avart

opined that plaintiff was “disabled permanently” due to ongoing

symptoms and sequelae of damage and injury to plaintiff’s neck,

shoulder, elbows, and back. (R. at 263.) Dr. Avart concluded

that plaintiff’s functional capabilities were restricted as

follows:

The patient is completely limited from any

overhead use of her shoulder and arms. The

patient is limited to standing no longer than

10-15 minutes without change in position from

standing to sitting, and she even needs the

ability to lie down during the day. She can

sit for 20-30 minutes before she has to stand

up, walk around, and change position, and

driving is restricted to less than that also.

She is restricted from repetitive motion and

use of her arms below the shoulder level, as

well as restricted from fine manipulation and

coordination of her hands secondary to nerve

damage in her elbows and problems in her neck.

She is limited in pushing and pulling to less

than 10 pounds, and can do this on an

occasional basis only. She is completely

restricted from kneeling, squatting, stairs,

and crawling. She is restricted from working

in the outside with temperature extremes and

must wear bracing for her back and

occasionally for her neck. The patient has

weakness with muscle strength in bilateral

upper extremities graded to 3+/5 and in the

lower left extremity at 4+/5, the right lower

extremity being close to normal. There is

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 4 of 15
The ALJ has the discretion to discount Dr. Avart’s 3

conclusions. The opinion of a treating physician should be given

controlling weight only when it is consistent with other evidence

in the record and is supported by medically accepted laboratory

and clinical tests. See 20 C.F.R. § 404.1527(d)(2); Jones v.

Sullivan, 954 F.2d 125, 128-29 (3d Cir. 1991); Frankenfield v.

Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Newhouse v. Heckler, 753

F.2d 283, 286 (3d Cir. 1985).

5

atrophy in her left shoulder and arm in the

deltoid and suprascapular region.

(R. at 263.)

However, the ALJ found that the opinion of Dr. Avart

should not be given controlling or substantial weight. The ALJ 3

described six reasons for discounting the conclusions of Dr.

Avart:

1) there is a lack of objective clinical or

laboratory findings to support the degree of

limitation alleged; 2) the record is also

contradictory and on average reveals no

significant evidence of neurological

compromise which would affect the claimant’s

ability to stand, walk or sit to the degree as

indicated; 3) he limits the claimant to a less

than sedentary residual functional capacity,

but does not relate his opinion to any

specific findings; 4) the assessment is

inconsistent with specific observations made

in that same report; 5) his opinion is not

supported by his own earlier reports which

indicate mostly routine outpatient care

(Exhibit 7F); and 6) his assessment is

inconsistent with the claimant’s self-reported

activities of daily living.

(R. at 21.)

Plaintiff’s first objection relates to the sixth reason

listed by the ALJ for discounting Dr. Avart’s opinion–that “his

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 5 of 15
Plaintiff testified that she is able to put the laundry 4

in the machine and fold the laundry. Her son takes the laundry

upstairs and downstairs. (R. at 63.)

The Court also notes that this inconsistency is not the 5

sole reason that the ALJ discounted the opinions of Dr. Avart. 

Rather, the ALJ listed five additional, legitimate reasons that

call Dr. Avart’s opinion into doubt, which are all supported by

substantial evidence in the record.

6

assessment is inconsistent with the claimant’s self-reported

activities of daily living.” (Pl.’s Obj. at 1-3.) As concluded

by the Magistrate Judge, this Court holds that the ALJ’s

conclusion is supported by substantial evidence in the record. 

Dr. Avart opined that plaintiff is “completely limited

from any overhead use of her shoulder and arms,” cannot stand for

more than ten or fifteen minutes, is restricted from fine

manipulation and coordination of her hands, and is “completely

restricted from kneeling, squatting, stairs, and crawling.” Yet,

plaintiff testified that she does the laundry, cooking, and 4

cleaning. (R. at 55.) Plaintiff also testified that she is able

to go shopping (although she does not go by herself), she is able

to take public transportation, and also is able to go out to

dinner with her son. (R. at 55-57, 62.)

The Court holds that substantial evidence exists in the

record to support the ALJ’s finding that Dr. Avart’s opinion as

to plaintiff’s functional restrictions is inconsistent with

plaintiff’s testimony relating to her daily activities. The 5

Court further holds that, contrary to plaintiff’s assertions, a

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 6 of 15
Plaintiff also makes similar allegations as to Dr. 6

Sharon Wander, who reviewed plaintiff’s medical records in

October 2002. (Pl.’s Obj. at 5.)

7

review of the record indicates that the Magistrate Judge

accurately depicted plaintiff’s deposition testimony pertaining

to her limitations of daily living. 

2. The ALJ’s decision to accept portions of

the consultative physician’s opinion,

while rejecting other portions, is

supported by substantial evidence in the

record.

Dr. Harris Ross is plaintiff’s consultative physician. 

Plaintiff contends that the ALJ’s decision to credit portions of

Dr. Ross’s testimony (the portions which support a finding

against disability), while discrediting other portions (the

portions which support a finding of disability), is not

adequately explained and is not supported by the record. (Pl.’s 6

Obj. at 3-5.) 

The ALJ relied on the opinion of Dr. Ross that

plaintiff occasionally could lift and carry twenty pounds with

her right upper extremity and could stand and walk between one

and two hours in an eight-hour work day. (R. at 233-34.) 

However, the ALJ did not adopt Dr. Ross’s opinion that plaintiff

could not sit six hours per day. Rather, the ALJ concluded that

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 7 of 15
Plaintiff also contends that the ALJ reached this 7

conclusion, but remained silent as to any medical opinion that

supported this conclusion. (Pl.’s Obj. at 4-5.) Plaintiff

asserts that the Magistrate Judge, and not the ALJ, found support

from the opinion of Dr. Wander. (Pl.’s Obj. at 4-5.) Plaintiff

believes this is a violation of “the Chenery doctrine,” (Pl.’s

Obj. at 5-6) which states that “[t]he grounds upon which an

administrative order must be judged are those upon which the

record discloses that its action was based.” SEC v. Chenery

Corp., 318 U.S. 80, 87 (1943). Plaintiff’s argument is

unpersuasive. While the ALJ did not refer to Dr. Wander by name,

the ALJ regularly referred to the findings of the “State Agency

medical consultant,” who in this case includes Dr. Wander. Dr.

Wander concluded that plaintiff could sit about six hours in an

eight-hour workday. (R. at 236.) 

8

plaintiff is capable of sitting for six hours in an eight-hour

day so long as she can alternate sitting and standing. 

7

The Court finds no error in the ALJ’s decision to adopt

some of the findings of Dr. Ross, while rejecting others, so long

as the ALJ’s conclusions are supported by substantial evidence in

the record (which they are in this instance). (R. at 20-22.) 

3. The ALJ was not under an “affirmative

duty” to contact plaintiff’s treating

physician to reconcile his opinion as to

plaintiff’s limitations with the

objective testing.

The ALJ deemed Dr. Avart’s opinions as to plaintiff’s

functional limitations inconsistent with objective testing, and

accordingly, the ALJ discounted Dr. Avart’s opinions. Plaintiff

argues, “[I]f the ALJ truly could not reconcile Dr. Avart’s

opinion as to Plaintiff’s limitations with objective testing

ordered by Dr. Avart, the ALJ had the affirmative duty to contact

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 8 of 15
9

Dr. Avart to seek clarification.” (Pl.’s Obj. at 6.) (emphasis

in original). For support, plaintiff points to 20 C.F.R. §

404.1512, which states,

(e) Recontacting medical sources. When the

evidence we [the Social Security

Administration (“SSA”)] received from your

treating physician . . . is inadequate for us

to determine whether you are disabled, we will

need additional information to reach a

determination or a decision. To obtain, the

information, we will take the following

actions.

(1) We will first recontact your treating

physician . . . to determine whether the

additional information we need is readily

available. We 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. We may do this by

requesting copies of your medical source’s

records, a new report, or a more detailed

report from your medical source, including

your treating source, or by telephoning your

medical source. . . .

(2) We may not seek additional evidence or

clarification from a medical source when we

know from past experience that the source

either cannot or will not provide the

necessary findings.

20 C.F.R. § 404.1512 (emphasis added).

Plaintiff’s argument is without merit. Under 20 C.F.R.

§ 404.1512, the SSA is only required to seek additional or

clarifying information if the information already in its

possession, whether in conflict or not, is “inadequate for [the

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 9 of 15
10

SSA] to determine whether [the applicant] is disabled or not.” 

In other words, where the ALJ can make a determination based on

the evidence in the ALJ’s possession, even if “inconsistent”

evidence is presented, the ALJ has the discretion to make that

determination. 

This discretionary authority of the ALJ to proceed in

making a determination, despite the existence of inconsistent

evidence, is also described in 20 C.F.R. § 404.1527. Under 20

C.F.R. § 404.1527(c)(2), “If any of the evidence in your case

record, including any medical opinion(s), is inconsistent with

other evidence or is internally inconsistent, we will weigh all

of the evidence and see whether we can decide whether you are

disabled based on the evidence we have.” 20 C.F.R. §

404.1527(c)(2). The ALJ is required to seek additional evidence

or clarification under section 404.1512 only if the ALJ “cannot

reach a conclusion about whether you [the applicant] are

disabled” based on the available evidence. See 20 C.F.R. §

404.1527(c)(3) (“[I]f after weighing the evidence we decide we

cannot reach a conclusion about whether you are disabled, we will

try to obtain additional evidence under . . . § 404.1512 

. . . .”) 

In the instant case, the ALJ reviewed all of the

evidence presented. The ALJ was apparently satisfied that a

disability determination could be made based on the records in

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 10 of 15
A determination of the “medical severity” of the 8

impairment is step 2 of the five-step sequential evaluation

process. See 20 C.F.R. § 404.1520. If the ALJ finds that an

applicant is disabled or not disabled at a step, then the ALJ

should make the determination and not go on to the next step. 

Id. If the ALJ cannot make a finding that an applicant is

disabled or not disabled at a step, then the ALJ should continued

on to the next step. Id.

11

his possession, even though Dr. Avart’s opinions were

“inconsistent” with other records provided. The ALJ was not

required to seek additional evidence to clarify any apparent

inconsistency. Nothing here indicates that the record lacked

enough data for the ALJ to make a sound determination. Nor has

plaintiff pointed to any evidentiary gaps that required the ALJ

to seek “additional evidence or clarification” under sections

404.1512 and 404.1527. Accordingly, plaintiff’s third objection

is overruled. 

4. The ALJ’s conclusion that plaintiff’s

right arm and left knee impairments are

not “severe” is supported by substantial

evidence in the record.

The ALJ concluded that plaintiff’s right arm and left

knee injuries did not constitute “severe impairments” as defined

by the Social Security Act. (R. at 16.) The Magistrate Judge 8

concluded that there is substantial evidence in the record to

support this conclusion. (Rep. & Rec. at 17.) Plaintiff

contends that this conclusion is erroneous. (Pl.’s Obj. at 6;

Pl.’s Mot. Summ. J. 14-17.) 

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 11 of 15
12

An impairment is severe if it significantly limits a

claimant’s physical ability to do basic work activities, which

include walking, standing, sitting, lifting, pushing, pulling,

reaching, carrying, or handling. See 20 C.F.R. § 404.1521. In

the instant case, the ALJ considered plaintiff’s complaints of

right arm and left knee pain and made the following finding:

Although the claimant has alleged having

severe pain in her right arm and left knee,

there is no clinical evidence (Exhibits 6F and

8F) or significant treatment documented in the

record to corroborate or support any findings

of significant vocational impact related to

these conditions. Therefore, it is found that

these are not severe impairments as defined by

the Social Security Act. 

(R. at 16.) 

The Court finds that there is substantial evidence in

the record to support the ALJ’s conclusion that plaintiff’s right

arm and left knee impairments are not “severe.” In plaintiff’s

“Disability Report” filed with the SSA, plaintiff did not list

her left knee or right arm as an injury that limited her ability

to work. (R. at 87.) Plaintiff consistently denied right arm

pain or failed to report impairments of her right arm. Several

physician reports reflect these findings or omissions, including

those of Dr. Richard Kanoff and Dr. Shanin Gross. (R. at 157,

169.) Further, an examination by Dr. Ross revealed that

plaintiff’s right shoulder was “normal” with a “full range of

motion and normal grip strength.” (R. at 231.) 

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 12 of 15
For support of plaintiff’s contention that she suffered 9

from “severe impairments” of her right arm and left knee,

plaintiff points only to the opinions of Dr. Avart. (Pl.’s Mot.

Summ. J. at 15.) As discussed, the ALJ found that the opinions

of Dr. Avart were not credible because they were unsubstantiated

and contradicted the opinions of numerous other physicians, as

well as clinical and diagnostic evidence. Contrary to

plaintiff’s assertions, the ALJ adequately explained the weight

given to Dr. Avart’s opinions. Plaintiff is unable to point to

any other report or examination, besides those of Dr. Avart, that

indicate a severe impairment of her right arm or left knee.

13

As to plaintiff’s complaints relating to her left knee,

an EMG in 2002 revealed that plaintiff’s lower left extremity was

“normal” and “fail[ed] to delineate any evidence of

radiculopathy.” (R. at 203.) Additionally, the record is void

of any clinical evidence showing significant treatment for

plaintiff’s alleged left knee pain.9

III. CONCLUSION

For the foregoing reasons, plaintiff’s objections are

overruled. The Magistrate Judge’s Report and Recommendations are

approved and adopted by this Court. An appropriate order

follows.

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 13 of 15
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MILDRED TRUETT : CIVIL ACTION

: NO. 04-5376

Plaintiff, :

:

v. :

:

JO ANNE BARNHART, :

COMMISSIONER OF SOCIAL : 

SECURITY, :

:

Defendant. :

ORDER

AND NOW, this 23rd day of November, 2005, upon

consideration of the cross-motions for summary judgment (doc.

nos. 7 & 9), and after review of the Report and Recommendation of

United States Magistrate Judge Thomas J. Rueter (doc. no. 13) and

the plaintiff’s Objections thereto (doc. no. 14), it is hereby

ORDERED for the reasons provided in the accompanying memorandum

that:

1. The Report and Recommendation (doc. no. 13) is

APPROVED and ADOPTED. 

2. Plaintiff’s Objections to the Report and

Recommendation (doc. no. 14) are OVERRULED. 

3. Defendant’s motion for summary judgment (doc. no.

9) is GRANTED. 

4. Plaintiff’s motion for summary judgment (doc. no.

7) is DENIED.

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 14 of 15
5. The final decision of the Commissioner of Social

Security is AFFIRMED and JUDGMENT is entered in favor of

defendant and against plaintiff. 

AND IT IS SO ORDERED.

______________________________

EDUARDO C. ROBRENO, J.

Case 2:04-cv-05376-ER Document 15 Filed 11/29/05 Page 15 of 15