1

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOANNA COWDRICK, : CIVIL ACTION

Plaintiff :

:

VS. :

:

JO ANNE B. BARNHART, :

Commissioner of Social Security, :

Defendant : NO. 05-0074

 REPORT AND RECOMMENDATION

LINDA K. CARACAPPA

UNITED STATES MAGISTRATE JUDGE

Plaintiff, Joanna Cowdrick, brought this action under 42

U.S.C. § 405(g), seeking judicial review of the final decision of

the Commissioner of Social Security (Commissioner) denying

plaintiff's claim for disability insurance benefits (DIB) under

Title II of the Social Security Act (Act). The parties have filed

cross-motions for summary judgment. For the reasons which follow,

it is recommended that both motions be denied and the case remanded

to the Commissioner. 

 BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a forty-five (45) year-old female born on

December 13, 1959 (Tr. 47). She has a high school education, and

past work experience as a waitress, hostess, account manager,

account representative, and owner of a housekeeping business (Tr.

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1In order to be entitled to DIB, plaintiff must establish

that she was disabled on or prior to the date she was last

insured. See 20 C.F.R. §§ 404.130-32, 404.315) (2004). 

2Plaintiff filed previous DIB applications in February 1997

and July 1999. Both were denied and became final decisions when

plaintiff failed to appeal those decisions. See 20 C.F.R. §

404.955. 

3This matter was randomly selected by the Social Security

Administration to test modifications to the disability

determination process. See 20 C.F.R. § 416.1406 (b)(4)(2000). 

Accordingly, there was no reconsideration level of review.

2

71, 76, 390-392). Disability is alleged as of June 17, 1996 due to

cervical and lumbar strain and a right arm injury (Tr. 47).

Plaintiff’s was last insured for DIB purposes on September 30, 2002

(Tr. 427).1

Plaintiff’s application, filed on June 1, 20002, was denied

initially, and she then requested a hearing before an

Administrative Law Judge (ALJ).3 A hearing was commenced on August

28, 2001, at which, plaintiff, represented by counsel, testified

along with a vocational expert (VE) (Tr. 382-413). In a decision

rendered September 19, 2001, the ALJ determined that plaintiff has

impairments considered “severe.” The ALJ, however, further

determined that plaintiff retains the residual functional capacity

to perform her past work as an account collection agent or

restaurant hostess, and in the alternative can do a full range of

light work. Thus, she was determined to be not entitled to

benefits (Tr. 12-26).

The ALJ's findings became the final decision of the

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4Specifically, on remand, the ALJ was directed to “recontact

a Dr. Mohsenian to clarify claimant’s limitations. The remand

further stated that “[I]f clarification from Dr. Mohsenian is not

possible, the ALJ will obtain a consultative mental status

examination with a detailed medical source statement of the

claimant’s work capabilities” (Tr. 466). 

3

Commissioner when the Appeals Council denied plaintiff's request

for review on December 3, 2001 (Tr. 4-5). Plaintiff then appealed

that decision to this court, and filed a motion for summary

judgment. The Commissioner responded with a motion to remand the

case for further administrative proceedings (Tr. 465-467).

Plaintiff did not oppose the motion and this court remanded the

matter back to the Commissioner.4

The ALJ held a second hearing on August 8, 2003, at which,

plaintiff, represented by counsel, again testified along with a VE

(Tr. 443-463). While plaintiff’s case had been pending in this

court, she filed an application for DIB on February 27, 2002. Such

was denied initially (Tr. 622-626), and plaintiff requested a

hearing. This matter was then consolidated with the remanded

action.

The ALJ then rendered another unfavorable decision on October

27, 2003. The ALJ opined that plaintiff has “severe” impairments,

but again made alternative step four and five determinations. He

found plaintiff able to do her past work as a hostess at step four

and able to do “nearly the full range of unskilled sedentary work

and a wide range of unskilled light work” at the fifth step of the

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4

evaluation. She was, thus, not found entitled to benefits (Tr.

426-437).

This decision became the final decision of the Commissioner

when the Appeals Council declined to assume jurisdiction on

December 29, 2004 (Tr. 441-416). Plaintiff then appealed that

decision to this court. 

 JUDICIAL REVIEW

The role of this court, on judicial review, is to determine

whether the Commissioner's decision is supported by substantial

evidence. 42 U.S.C. § 405(g); Pierce v. Underwood, 587 U.S. 552

(1988). "Substantial evidence” is not "a large or significant

amount of evidence but rather such relevant evidence as a

reasonable mind might accept to support a conclusion.” Id. at 664-

65. “The Court is bound by the ALJ's findings of fact if they are

supported by substantial evidence in the record.” Plummer v.

Apfel, 186 F.3d 422, 427 (3d Cir. 1999). 

 To establish a disability under the Social Security Act, a

claimant must demonstrate that 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." Stunkard v. Secretary of Health and Human

Services, 841 F.2d 57 (3d Cir. 1988), quoting Kangas v. Bowen, 823

F.2d 775, 777 (3d Cir. 1987); 42 U.S.C. § 423(d)(1) (1982). A

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claimant can establish such a disability in either of two (2) ways:

(1) by producing medical evidence that one is disabled per se as a

result of meeting or equaling certain listed impairments set forth

in 20 C.F.R. Regulations No. 4, Subpart P, Appendix 1 (1987); see

Heckler v. Campbell, 461 U.S. 458 (1987); Stunkard v. Secretary of

Health and Human Services, 841 F.2d at 59; Kangas v. Bowen, 823

F.2d at 777; or (2) by demonstrating an impairment of such severity

as to be unable to engage in "any kind of substantial gainful work

which exists in the national economy." Heckler v. Campbell, 461

U.S. at 461; 42 U.S.C. § 423(d)(2)(A).

 This method of proving disability requires that the claimant

first show that he/she is unable to return to his/her former work

due to a physical or mental impairment. Once a claimant has

demonstrated that he/she is unable to perform his/her former work,

the burden shifts to the Commissioner to prove that there is some

other kind of substantial gainful employment he/she is able to

perform, taking into consideration the claimant's physical ability,

age, education and work experience. See Kangas v. Bowen, supra;

Rossi v Califano, 602 F.2d 55, 57 (3d Cir. 1979); 42 U.S.C. §

423(d)(2)(A).

This case was decided under the medical-vocational regulations

which require a five-step sequential evaluation of disability

claims. See generally, Heckler v. Campbell, supra; Santise v.

Schweiker, 676 F.2d 925 (3d Cir. 1982). The sequential evaluation

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considers in turn current work activity, the severity of

impairments, the ability to perform past work and vocational

factors. 20 C.F.R. §§ 404.1520 and 416.920.

In this case, the ALJ reached the fourth step of the

evaluation and determined that plaintiff was capable of performing

one of her past jobs. In addition, in the alternative, the ALJ

went to the fifth step of the process and decided that plaintiff

was able to do nearly a full range of sedentary work and a wide

range of light work. 

 MEDICAL HISTORY

The relevant evidence in this case consists of medical reports

which are summarized as follows:

Plaintiff had an MRI of the cervical spine on July 24, 1996.

Dr. Lawrence Ratner reported the results as a “straightening of the

cervical spine,” and a “small central disc protrusion C5-6

interspace unassociated with any cord encroachment or compression”

(Tr. 113).

Plaintiff was seen several times in July and August 1996 by an

orthopedic surgeon, Dr. Harry Cooper, for neck and back pain. On

July 30, 1996, he reported that an MRI showed disc protrusion at

C5-C6. He stated that side bending and compressing the cervical

spine did not produce any radicular symptoms, and that examination

of the lower extremities was normal. Dr. Cooper’s impression was

Case 2:05-cv-00074-BMS Document 9 Filed 08/26/05 Page 6 of 23
5Radiculopathy- disease of the nerve roots. Dorland’s

Illustrated Medical Dictionary, Twenty-ninth Edition, 2000, p.

1511.

7

acute cervical sprain and strain, C5 radiculopathy5, and disc

protrusion at C5-C6 (Tr. 116-119).

Plaintiff received a cervical epidural steroid injection at

the Delaware Valley Medical Center on October 14, 1998. Dr.

Jeffrey Selk gave plaintiff’s preoperative diagnosis as a herniated

disc at C5-6 (Tr. 105).

On January 30, 1997, plaintiff received a neurosurgical

consultation by Dr. Thomas McCormick. He indicated that plaintiff

had persistent neck, left arm, and left leg pain. Regarding her

neck, he suspected that she had a “cervical radiculopathy probably

at the C5-6 level with radiation through the arm down into the

radial aspect of the hand.” He opined that she was not a good

candidate for surgery and recommended epidural blocking. Regarding

her low back pain, Dr. McCormick stated further that it was a

probable lumbar radiculopathy at the L4-5 level (Tr. 147-148).

 Plaintiff had an independent orthopedic examination on March

6, 1997 by Dr. Victor Frankel. He reported that plaintiff had

lumbar flexion to 40 degrees without radicular pain. Her

extension, lateral bending and rotation were intact with no

radicular pain. Cervical spine extension was approximately 80

percent of normal. Dr. Frankel’s impression was “degenerative

discogenic disease at C5-6, with no neural element compression

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6Fibrosis- the formation of fibrous tissue, as in repair or

replacement of parenchymatous elements. Dorland’s at 673.

8

whatsoever.” He believed there to be no evidence of “ongoing

radiculopathy,” and concluded that plaintiff could return to work

in a “full duty capacity” (Tr. 151-153).

Plaintiff was seen several times in 1996 and 1997 by

neurologist Emil Matarese, M.D. On June 2, 1997, he indicated that

since plaintiff’s last visit, she had an MRI of the brain which was

normal. Dr. Matarese concluded that her “neurologic work-up has

been unremarkable. There is no neurologic explanation for her

persistent neck and low back pain with diffuse painful paresthesias

throughout the right arm” (Tr. 154-155).

Plaintiff was also evaluated by a rheumatologist, Dr. Angela

Jannelli, on July 11, 1997. Dr. Jannelli noted that plaintiff was

having various pains in her left leg and right ankle. She stated

that plaintiff’s diagnosis “appears to be fibrositis6,” and urged

her to exercise every other day (Tr. 166).

An independent medical evaluation was conducted upon the

plaintiff on July 25, 1997 by Herbert Avart, D.O. He found

plaintiff to have chronic pain syndrome, inappropriate illness

behavior, probable enthesopathy of the right shoulder, and probable

mood disorder. Dr. Avart added that plaintiff’s conditions be

“classified under the general heading of polyarthralgia,

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7Polymyalgia- myalgia affecting several muscles. Dorland’s

at 1432.

8Fibromyalgia- pain and stiffness in the muscles and joints

that is either diffuse or has multiple trigger points. Dorland’s

at 673.

9

polymyalgia7, fibromyalgia8, and depressed mood.” He opined that

these conditions should only have a “minimal” impact on her ability

to work (Tr. 172-176).

Plaintiff was seen at the Foundation for Pain Management on

June 30, 1997 by Thomas Costello, D.O. His impression after an

examination was cervical radiculopathy, mechanical lumbar spine

syndrome, and fibromyalgia. Dr. Costello recommended a trial of

cervical epidural steroid injections, and an aerobic exercise

program (Tr. 179-181).

Plaintiff had a CT of the lumbar spine on September 21, 1998.

Dr. Robert Miller reported that at “L5-S1 there is a small right

posterolateral disc herniation with mild narrowing of the right

lateral recess” (Tr. 198).

On October 14, 1998, plaintiff was administered a cervical

epidural steroid injection at the Pain Management Center by Dr.

Jeffrey Selk. Dr. Selk noted that plaintiff had earlier received

an injection which had completely resolved her pain, but it had

reoccurred (Tr. 194). 

Cervical spine x-rays were taken on February 28, 2000. Dr.

Eric Bosworth reported that they showed “no evidence of fracture,

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subluxation or prevertebral soft tissue swelling. The vertebral

bodies are of normal stature and the disc spaces are well

maintained. The neural foramina and the C1-2 articulation are

normal” (Tr. 219).

Jerry Lindenbaum, D.O.P.C., completed a Physical Capacities

form on October 20, 1998, and rendered an opinion as to plaintiff’s

ability to perform her past jobs. He opined that she is incapable

of doing her past work as a credit customer account manager. “She

cannot sit constantly for 8 hours a day, only 30 minutes maximum,

and then must move around 5-10 minutes every hour. Also, she

cannot reach, bend, squat or do any repetitive action even at waist

level.” Dr. Lindenbaum noted that plaintiff had started her own

business from home and had five employees working for her. He also

checked off that he believed plaintiff capable of sedentary work

(Tr. 220-222).

Plaintiff was examined By Dr. B.S. Sandhu on September 27,

2000 at the request of the Pennsylvania Bureau of Disability

Determination. Dr. Sandhu noted that plaintiff had an MRI of the

cervical spine just two weeks earlier which revealed a small

central disk herniation at C5-6 and a small central bulging disk at

C4-5 and such MRI was unchanged since 1996. Examination of the

lumbosacral spine revealed “palpable spasm and tenderness over the

paraspinal muscles of the lumbar spine.” Plaintiff had a steady

gait, had minimal difficulty with squatting half way down, and

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could walk without the any assistive device. There were also “no

palpable triggerpoints over the thigh muscles or the hip girdle

area.” Dr. Sandhu diagnosed her with cervical radiculopathy,

lumbosacral radiculopathy, and a history of fibromyalgia and panic

attacks (Tr. 330-332). 

Dr. Sandhu also completed an Ability to Perform Work-Related

Physical Activities. He opined that plaintiff is able to

frequently lift and carry 10 pounds, stand and walk 1 hour or less

total in an 8-hour workday, and sit less than 2 hours in this time

(Tr. 334-335). 

Plaintiff had an MRI of the lumbar spine performed on

September 19, 2000. Dr. Leonard Gordon reported that “no

abnormality” was seen (Tr. 512). The next day, September 20th, she

an ENG and nerve conduction study completed. Dr. Louis Pearlstein

wrote that the “present study is consistent with bilateral L5

radiculopathies. There is no evidence of neuropathy on the present

study” (Tr. 513).

Plaintiff had an EMG and nerve conduction study performed on

September 28, 2000. Dr. Louis Pearlstein wrote that the “present

study is consistent with a C6 radiculopathy on the right. There is

no evidence of neuropathy on the present study” (Tr. 338).

On November 22, 2000, plaintiff was given a mental evaluation

by Dr. Javad Mohsenian. He indicated that plaintiff appeared to be

in pain. Her affect and mood were depressed and her affective

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responses were poor. Memory was good. Speech was coherent and

there was no evidence of psychosis. Dr. Mohsenian’s diagnostic

impression was major depressive disorder and a history of panic

attacks (Tr. 348-351).

Dr. Lindenbaum filled out a Physical Residual Functional

Capacity Questionnaire on July 19, 2001 that had been sent to him.

He noted that he had seen plaintiff weekly to monthly since 1996

and had last seen her in November 2000. He gave her diagnoses as

fibromyalgia, a protruding disc at C5-6, and C5 radiculopathy. He

also gave her prognosis as fair. Dr. Lindenbaum circled that

plaintiff often has pain or other symptoms that interfere with

attention and concentration. He indicated further that she is

capable of low stress jobs pointing out that she has functioned in

the past running her own business. He opined that she is able to

walk 2 blocks without pain or rest, sit 1 hour and stand for 30

minutes continuously, and sit, stand/walk a total of about 4 hours

in an 8-hour workday. She would also need to have periods of rest

and the opportunity to shift positions during a workday. He opined

further that she can occasionally lift up to 10 pounds and would be

expected to be absent from a job about 4 times a month due to her

impairments (Tr. 375-381). 

On May 13, 2002, plaintiff was given a disability evaluation

by Dr. Jeffrey Perlson at the request of the Bureau of Disability

Determination. He indicated that a neurological examination showed

Case 2:05-cv-00074-BMS Document 9 Filed 08/26/05 Page 12 of 23
9Apnea (sleep)- transient periods of cessation of breathing

during sleep. It may result in hypoxemia and vasoconstriction of

pulmonary arterioles, producing pulmonary arterial hypertension.

Dorland’s at 114. 

13

grip strength significantly decreased in the right hand versus the

left. Strength in the lower extremities is equal. She can perform

fine dexterity and manipulation with both hands equally and without

difficulty. Dr. Perlson added that plaintiff’s problems come when

she tries to lift an object heavier than a few pounds. He stated

further that he would not recommend plaintiff lifting more than 2-3

pounds on an occasional basis. “The rest is prohibitive on the

basis of clinical information at the time of the examination.” He

opined that plaintiff has no limitation standing and walking as

long as she has an appropriate facility to sit when the pain is

severe. “More realistically, I would permit her to walk two to

three hours a day no more.” He also found plaintiff to have no

limitation sitting (Tr. 528-543).

Plaintiff had sleep tests performed at the Institute for

Respiratory and Sleep Medicine on October 1, 2002. Dr. Howard Lee

reported that plaintiff has some mild asthma and significant sleep

apnea9 (Tr. 574-575). 

X-rays of the chest were taken on August 19, 2002. They

showed “no evidence for active disease.” She also had an MRI of

the brain on October 7, 2002. Dr. Leonard Gordon indicated that no

abnormality was seen (Tr. 596-598).

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On February 24, 2003, plaintiff was given a psychiatric

disability examination by Dr. Mahmood Ghahramani at the request of

the Bureau of Disability Determination. Dr. Ghahramani found

plaintiff’s memory impaired for remote and recent. Her

concentration was poor, judgement adequate, and she was tearful and

depressed. His diagnoses were severe major depressive disorder,

panic attacks, cervical and lumbar disc disease, and a history of

fibromyalgia, sleep apnea, and alcohol abuse (Tr. 599-601).

Dr. Ghahramani also checked off on an occupational form that

plaintiff has no ability to use judgment, interact with

supervisors, deal with work stresses, function independently,

maintain attention/concentration, behave in an emotionally stable

manner, relate predictably in social situations, and demonstrate

reliability. He further indicated that plaintiff has “fair”

ability to follow work rules, relate to co-workers, use judgment,

and maintain personal appearance. Finally, in the area of making

performance adjustments, Dr. Ghahramani opined that plaintiff has

no ability to understand, remember, and carry out complex job

instructions, “fair” ability to carry out detailed but not complex

job instructions, and “good” ability to carry out simple job

instructions (Tr. 602-603).

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10Sedentary work involves lifting no more than 10 pounds at a

time and occasionally lifting or carrying articles like docket

files, ledgers, and small tools. Although a sedentary job is

defined as one which involves sitting, a certain amount of

walking and standing is often necessary in carrying out job

duties. Jobs are sedentary if walking and standing are required

occasionally and other sedentary criteria are met.

15

 DISCUSSION

The Commissioner's findings must be affirmed if they are

supported by substantial evidence. 42 U.S.C. § 405(g); Richardson

v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971). The

role of this court is to determine whether there is substantial

evidence to support the Commissioner's decision. Williams v.

Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507

U.S. 924, 113 S. Ct. 1294 (1993).

In coming to a decision, it is the ALJ's responsibility to

resolve conflicts in the evidence and to determine credibility and

the relative weights to be given to the evidence. Richardson v.

Perales, supra. 

In this case, the ALJ found that the medical evidence

establishes that plaintiff has an impairment or impairments

considered “severe.” The ALJ, however, further determined under

step four of the evaluation that plaintiff retains the residual

functional capacity to do her past work as a hostess. She also

went on and alternately determined under step five that plaintiff

is able to perform “nearly the full range of unskilled sedentary

work10 and a wide range of unskilled light11 work.”12 She was, thus,

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20 C.F.R. § 404.1567(a).

11Light 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. § 404.1567(b).

12Specifically, the ALJ found that plaintiff had the

following residual functional capacity: “Simple and repetitive

work involving lifting and carrying no more than 10 pounds

frequently and occasionally; sitting, standing or walking up to 6

hours each with normal breaks, and no repetitive bending” (Tr.

436).

1320 C.F.R. § 416.927 (d)(2) provides in part that ". . .[I]f

we find that a treating source's opinion on the issue(s) of the

nature and severity of your impairment(s) is well-supported by

medically acceptable clinical and diagnostic techniques and is

16

found not to be entitled to benefits under the Act (Tr. 436-437).

For the reasons which follow, this court finds that the ALJ's

decision is not supported by substantial evidence, and the matter

should be remanded to the Commissioner. 

Plaintiff asserts that the ALJ rejected the opinions of

treating and examining physicians without adequate explanation. We

agree. “Treating physicians' reports should be accorded great

weight, especially ‘when their opinions reflect expert judgment

based on a continuing observation of the patient's condition over

a prolonged period of time.’" Plummer v. Apfel, 186 F.3d 422, 429

(3d Cir. 1999) (citing Rocco v. Heckler, 826 F.2d 1348, 1350 (3d

Cir.1987).13

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not inconsistent with the other substantial evidence in your case

record, we will give it controlling weight. . ." 

17

Regarding plaintiff’s treating family physician, Dr.

Lindenbaum, the ALJ recognized that in a July 2001 residual

functional capacity assessment, Dr. Lindenbaum opined that

plaintiff could walk two blocks, sit for one hour at a time for a

total of about four hours in a workday, and stand for thirty

minutes at a time for a total of four hours in a workday. She

would also have to be able to alternate positions, take unscheduled

breaks twice a day for five to ten minutes. He added that she is

able to lift 10 pounds occasionally, and would be expected to be

absent four times a month (Tr. 375-381). 

The ALJ explained her rationale for not giving Dr.

Lindenbaum’s assessment controlling weight. She stated that a

basis for Dr. Lindenbaum’s assessment was a herniated lumbar disc,

and that plaintiff’s most recent MRI study from September 2000

failed to show such herniation. However, the ALJ failed to point

out there is objective evidence that plaintiff does suffer with a

painful cervical condition. An EMG and nerve conduction study in

September 2000 revealed a “C6 radiculopathy on the right” (Tr.

338). 

The ALJ also stated in her opinion that Dr. Lindenbaum “did

not explain why he found her more limited in this assessment than

in his prior assessment” (Tr. 220-222). The ALJ also noted that

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Dr. Lindenbaum “did not cite to any objective test results to

support his assessment or comment on the large gaps between visits

apparent in his contemporaneous treatment notes” (Tr. 434).

We are of the opinion, however, that instead of the ALJ simply

rejecting Dr. Lindenbaum’s opinions for the reasons stated above,

we find that it was incumbent upon the ALJ to seek clarification

and/or additional evidence from him. 20 C.F.R. § 404.1512(e)

provides in part that . . . “we [Social Security Administration]

will seek 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 techniques . . . ”

Upon remand, the Commissioner should contact Dr. Lindenbaum

and attempt to obtain further reports, treatment notes, and/or any

other evidence that support his assessment that plaintiff is

incapable of even sedentary work. In addition, if the ALJ rejects

Dr. Lindenbaum’s assessments, a full and adequate explanation for

such rejection must be given.

We also agree with the plaintiff’s contention that the ALJ

failed to give adequate explanations in her opinion for her

rejection of the opinions of examining physicians, Drs. B.S.

Sandhu, Jeffrey Perlson, and Mahmood Ghahramani. An ALJ must give

a specific factual basis for each finding. Baerga v. Richardson,

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500 F.2d 309 (3d Cir. 1974). Moreover, simply referring to the

record is insufficient. Abshire v. Bowen, 662 F.Supp. 8 (E.D. Pa.

1986). 

Plaintiff was examined by Dr. Sandhu in September 2000 at the

request of social security. He noted that a recent MRI revealed a

small central disk herniation at C5-6 and a small central bulging

disk at C4-5. He diagnosed her with cervical radiculopathy and

lumbosacral radiculopathy (Tr. 330-332). He then went on and

opined in an Ability to Perform Work-Related Activities form that

plaintiff is unable to perform even sedentary work indicating that

she is able to lift and carry 10 pounds, but can only stand and

walk one hour or less in an eight-hour workday and sit less than

two hours in this time (Tr. 334-335).

In her first opinion prior to the matter being remanded, the

ALJ did discuss the evidence from Dr. Sandhu and found that his

assessment was based on plaintiff’s self-reported complaints and

that he provided no clinical findings for support. However, as

noted above, Dr. Sandhu does refer to clinical findings citing an

MRI of the cervical spine which showed a small central disk

herniation. In her second and current opinion, the ALJ failed

entirely to discuss Dr. Sandhu’s assessment and only mentioned him

in the context of plaintiff’s “alleged mental impairment” (Tr. 429-

430). This is inadequate, and the ALJ must consider and discuss

such assessment upon remand. 

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In addition, the ALJ failed to explain her rejection of the

assessment of Dr. Perlson. In May 2002, plaintiff was evaluated by

Dr. Perlson also at the request of social security. In her

opinion, the ALJ merely summarized the evidence from this

evaluation and offered no rationale and/or explanation in rejecting

his opinion that plaintiff was incapable of doing even sedentary

work. Dr. Perlson opined that she could walk two to three hours a

day and have no limitation sitting, but added that her problems

come when she attempts to lift heavier objects, and is only able to

lift no more than 2-3 pounds on an occasional basis (Tr. 528-543).

The ALJ’s explanation of her rejection of Dr. Ghahramani‘s is

also inadequate. Plaintiff was given a psychiatric disability

evaluation by Dr. Ghahramani in February 2003, again at the

direction of the state agency. He found plaintiff’s memory

impaired both remote and recent. Her concentration was poor,

judgment adequate, and she was tearful and depressed. He diagnosed

her with severe major depressive disorder (Tr. 599-601). 

Dr. Ghahramani then indicated on an occupational assessment

form that plaintiff has no ability to use judgment, interact with

supervisors, deal with work stresses, function independently,

maintain attention/concentration, behave in an emotionally stable

manner, relate predictably in social situations, demonstrate

reliability, and to understand, remember, and carry out complex job

instructions. He also found plaintiff to have “fair” ability to

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21

follow work rules, relate to co-workers, use judgment, maintain

personal appearance, and carry out detailed job instructions, and

to have “good” ability to carry out simple job instructions (Tr.

602-603).

The ALJ, however, determined that the “evidence as a whole

does not support the functional limitations reported by this onetime examining physician. No treating physician found the extreme

limitations of concentration and memory cited in this examination.”

The ALJ, thus, concluded that “Dr. Gharamani’s assessment is only

accepted to the extent that the claimant may be limited to simple

job instructions” (Tr. 430-431).

We, however, are of the opinion that the above explanation is

inadequate especially considering the fact that Dr. Ghahramani

examined plaintiff at the request of social security. This matter

had been previously remanded at the request of the Commissioner in

order for the ALJ to re-contact Dr. Mohsenian about plaintiff’s

limitations. The remand order further stated that “[I]f

clarification from Mohsenian is not possible, the ALJ will obtain

a consultative mental status examination” (Tr. 466). It was only

after Dr. Mohsenian could offer no further information concerning

the plaintiff that social security requested Dr. Ghahramani to

evaluate her. The ALJ simply cannot order a comprehensive

psychiatric evaluation from Dr. Ghahramani and then reject his

findings stating that the record doesn’t support such without a

Case 2:05-cv-00074-BMS Document 9 Filed 08/26/05 Page 21 of 23
14We are well aware that this matter has been remanded once

and that another remand will further delay a final determination. 

We do not, however, find that the current record supports a

granting of summary judgment for the plaintiff. Rather, another

remand is justified for the reasons outlined above.

22

more comprehensive analysis. Thus, upon remand, the ALJ must

reconsider the assessment given by Dr. Ghahramani and if he/she

chooses to reject such, he/she must render a full and adequate

explanation.

In addition, we are also of the opinion that Dr. Ghahramani’s

mental assessment should be reconsidered in combination with the

physical limitations indicated by Drs. Lindenbaum, Perlson, and

Sandhu. In order to do such, the ALJ should obtain the testimony

of a medical expert (ME) in determining whether plaintiff’s

impairments both physical and mental, considered in combination,

were disabling on or prior to September 30, 2002, the last date she

was insured for DIB purposes.14

A reviewing court may remand where relevant, probative, and

available evidence was not explicitly weighed in deciding

plaintiff’s claim. Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir.

1979). 

Therefore, the court makes the following:

Case 2:05-cv-00074-BMS Document 9 Filed 08/26/05 Page 22 of 23
23

RECOMMENDATION

AND NOW, this day of , 2005,

it is respectfully RECOMMENDED that the Cross-Motions for Summary

Judgment be DENIED and the matter REMANDED to the Commissioner of

the Social Security Administration.

 ______________________________

 LINDA K. CARACAPPA

 UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-00074-BMS Document 9 Filed 08/26/05 Page 23 of 23