1

If a claimant presents new and material evidence to the district court which was not

previously presented to the ALJ, then the court’s only option is to remand to the Commissioner

under sentence six of 42 U.S.C. § 405(g).

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

GREGORY B. JOHNSON : CIVIL ACTION

 :

 : 

 v. : 

 : 

JO ANNE B. BARNHART : NO. 04-5034 

 

MEMORANDUM AND ORDER

Juan R. Sánchez, J. July 27, 2005

Gregory Johnson asks this Court to reverse and remand the Social Security Administration’s

denial of Supplemental Security Income (SSI) under Title XVI of the Social Security Act, arguing

the Administrative Law Judge (ALJ) did not assign proper weight to Johnson’s treating physicians

and the Magistrate Judge failed to remand despite new evidence. This Court finds the ALJ’s

decision to reject the conclusions of Johnson’s treating physicians is supported by substantial

evidence and a “sentence six new evidence remand”1 was appropriately denied because the evidence

was cumulative and not material. Johnson’s objections are denied and U.S. Magistrate Judge

Charles B. Smith’s Report and Recommendation is adopted. The Commissioner’s Motion for

Summary Judgment is granted. 

PROCEDURAL HISTORY

Johnson filed his first SSI application in January 1997 seeking disability due to a back injury.

Johnson filed a second application on May 23, 2002, currently at issue. Rather than reopening his

Case 2:04-cv-05034-JS Document 16 Filed 07/28/05 Page 1 of 11
2

prior application from January 1997, Johnson amended his onset date to May 23, 2002, the date of

filing. (R. 89-92). The state agency denied Johnson’s application on October 11, 2002 and Johnson

timely filed a request for an ALJ hearing. (R. 93). ALJ Margaret A. Lenzi denied benefits on July

20, 2003. (R. 16-27). Johnson timely filed a request for Appeals Council review. The Appeals

Council denied review on August 27, 2004, making the ALJ’s decision final. (R. 34-36). Johnson

appealed to this Court.

FACTS

Johnson was born November 23, 1955. He suffered a back injury in January 1997 when he

fell two stories from a ladder. (R. 45). Johnson claims he has chronic back pain radiating

throughout his lower extremities and cannot stand for more than thirty minutes at a time. (R. 19).

He also states he has diminished concentration and cannot lift more than five to ten pounds because

of the pain. Johnson lives with his disabled mother, who performs the household chores and helps

Johnson bathe. 

Johnson has a high school education and last worked as a service station cashier, but stopped

working prior to his 1997 injury. He worked as a computer lab technician from 1984 to 1996, when

he was laid off due to lateness. (R. 50-51). Johnson also has past relevant work experience as a

security guard, telephone operator and nursing assistant. (R. 53-55). 

Johnson has seen several doctors regarding his back pain since 2000. Dr. David Abrams,

Johnson’s primary care physician, saw Johnson eight times between September 7, 2000 and July 18,

2002. (R. 154-55). Dr. Abrams ordered a nerve conduction study in September 2000 and noted

Johnson had a small broad disc herniation at L2 and L3. Johnson returned for several assessment

visits from April 4, 2001 to July 18, 2002. (R. 154-55). Dr. Abrams completed a Medical Source

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Johnson stated he drank a six pack of beer and smoked half a pack of cigarettes each day.

3

Statement of Functional Abilities and Limitations on May 5, 2003. He listed Johnson’s prognosis

as poor and stated his pain is severe enough to interfere with his ability to handle work-related stress.

(R. 174). Dr. Abrams opined Johnson can only walk less than a block without rest, continuously sit

fifteen to twenty minutes, and sit less than two hours in an eight hour day. (R. 174-75). 

Dr. Abrams referred Johnson to Dr. Deepak Chugh and Dr. Or Shachar on October 24, 2000

at the MCP Hahnemann Department of Neurology. The neurologists diagnosed Johnson with L5-S1

radiculopathy and chronic alcoholism. (R. 141).2 Dr. Chugh prescribed Vioxx for Johnson’s pain

and a subsequent MRI revealed multilevel disc herniations with variable degrees of neural foraminal

narrowing. (R. 133). 

Dr. Jerry Ginsberg performed a disability evaluation on September 19, 2002, subjecting

Johnson to range of motion testing for all major joints. Johnson was capable of performing all

maneuvers without restriction and without complaint of pain. Dr. Ginsberg noted Johnson had

normal gait, good coordination, no evidence of spinal deformity, and “chronic low back pain by

history.” (R. 157-58). On a Medical Source Statement Dr. Ginsberg indicated Johnson could

frequently lift and carry ten pounds and had no limitations standing, walking, sitting, pushing, and

pulling. (R. 159-160). 

Dr. Abrams also referred Johnson to Dr. David Tabby of Drexel Neurological Associates,

who examined Johnson on September 24, 2002. Dr. Tabby found Johnson was in no acute distress

and had a normal range of motion of the cervical and lumbar spines. Dr. Tabby diagnosed Johnson

with multilevel disc herniations and noted “[Johnson] has few neurological findings; his complaints

are related mainly to pain.” (R. 129). 

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4

On April 8, 2003, Dr. James Abdelhak, a member of Drexel Neurological Associates along

with Dr. Tabby, completed a Clinical Assessment of Pain multiple choice form. The form indicated

Johnson’s pain was severe enough to preclude adequate performance of daily activities or work. Dr.

Abdelhak opined Johnson’s pain will remain a significant part of his life, despite the prospect of

decreased pain in the future. (R. 169-170). 

DISCUSSION

Johnson argues the ALJ gave insufficient weight to his treating physicians, Dr. Abrams and

Dr. Abdelhak, and improperly denied his “sentence six new evidence remand.” This Court reviews

de novo Johnson’s objections to the Report and Recommendation. 28 U.S.C § 636(b)(1). This Court

must uphold the ALJ’s factual determinations supported bysubstantial evidence. 42 U.S.C. § 405(g).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Reefer v. Barnhart, 326

F.3d 376, 379 (3d Cir. 2003). It is “more than a mere scintilla but may be somewhat less than a

preponderance of the evidence.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). Where

an agency’s fact-finding is supported by substantial evidence, “reviewing courts lack power to

reverse either those findings or the reasonable regulatory interpretations that an agency manifests in

the course of making such findings of fact.” Monsour Medical Center v. Heckler, 806 F.2d 1185,

1191 (3d. Cir. 1986).

In determining whether substantial evidence exists, this Court may not weigh the evidence

or substitute its own conclusions for that of the ALJ. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir.

2002). If the ALJ’s findings of fact are supported by substantial evidence, this Court is bound by

those findings, even if it would have decided the factual inquiry differently. Fargnoli v. Massanari,

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3Regulation 20 C.F.R. 416.972 defines substantial gainful activity as follows: Substantial

gainful activity is work activity that is both substantial and gainful: (a) Substantial work activity is

work activity that involves doing significant physical or mental activities. Work may be substantial

even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than

when you worked before. (b) Gainful work activity is work activity that you do for pay or profit.

Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit

is realized.

4The listed impairments to prove disability per se are set forth in 20 C.F.R. Ch. III, Pt. 404,

Subpt. P, App. 1; see Heckler v. Campbell, 461 U.S. 458, 460 (1987).

5

247 F.3d 34, 38 (3d Cir. 2001) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)). At the

same time, however, this Court must remain mindful that “leniency [should] be shown in

establishing claimant’s disability.” Reefer, 326 F.3d at 379 (quoting Dobrowolsky v. Califano, 606

F.2d 403, 407 (3d Cir. 1979)).

To establish a disability under the Social Security Act, Johnson must demonstrate 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.” 42 U.S.C. § 423 (a)(1)(D)(2002).3

There are two ways Johnson could establish such a disability. He may produce medical evidence

he is disabled per se as a result of meeting or equaling certain listed impairments.4 Johnson

alternatively may demonstrate an inability to engage in any substantial activity “if his physical or

mental impairment or impairments are of such severity that he is not only unable to do his previous

work but cannot, considering his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy.” Plummer v. Apfel, 186 F.3d 422, 428

(3d Cir. 1999). 

Johnson does not meet any listed impairments to establish a disability. Johnson, therefore,

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5 The five-step evaluation is:

1. If the claimant is performing substantial gainful work, he is not disabled. 2. If the claimant is

not performing substantial gainful work, his impairment(s) must be “severe” before he can be found

to be disabled. 3. If the claimant is not performing substantial gainful work and has a “severe”

impairment (or impairments) that has lasted or is expected to last for a continuous period of at least

twelve months, and his impairment (or impairments) meets or medically equals a listed impairment

contained in Appendix 1, Subpart P, Regulation No. 4, the claimant is presumed disabled without

further inquiry. 4. If the claimant’s impairment (or impairments) does not prevent him from doing

his past relevant work, he is not disabled. 5. Even if the claimant’s impairment or impairments

prevent him from performing his past relevant work, if other work exists in significant numbers in

the national economy that accommodates his residual functional capacity and vocational factors, he

is not disabled. 

6

must demonstrate his impairments do not permit him to engage in any substantial gainful work in

the national economy. In determining whether he is disabled under the regulations, the ALJ used

a five-step evaluation. 20 C.F.R. § 416.920.5 The ALJ found at step one, Johnson has not engaged

in substantial gainful activity since his alleged disability onset. (R. 17). At steps two and three, the

ALJ found Johnson’s degenerative disc disease is a “severe” impairment that does not meet or equal

a listed impairment. (R. 18-19). At step four, the ALJ accepted the vocational expert’s testimony

that Johnson could not return to his prior work. The ALJ concluded Johnson has the residual

functional capacity to perform light work. (R. 24). The ALJ at step five, once again relying on the

vocational expert’s testimony, found there are a substantial number of jobs in the national economy

which Johnson could perform and he, therefore, is not disabled. (R. 25).

Johnson argues the ALJ improperly rejected the opinions of Dr. Abrams and Dr. Abdelhak.

Controlling weight is generally given to the findings and opinions of treating physicians. 20 C.F.R

§ 416.927(d)(2); Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). Treating physicians’

opinions may be rejected “only on the basis of contradictory medical evidence,” although the opinion

may be accorded “more or less weight depending upon the extent to which supporting explanations

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6

In his assessment, Dr. Abrams opined Johnson is incapable of lifting or carrying ten pounds,

incapable of standing, walking or sitting for two hours out of eight, requires unscheduled work

breaks every thirty minutes and three or more absences from work per month. (R. 22). 

7

are provided.” Plummer, 186 F.3d at 429. The ALJ may reject a physician’s statement of disability

if there is a lack of data supporting it. Newhouse v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985)

(holding ALJ justified in rejecting treating physician’s unsupported medical conclusions). The ALJ

may also reject a physician’s statement of disability if there is contrary medical evidence.

Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988) (stating treating physician’s opinion may

be given no weight by ALJ if opinion is contrary to substantial medical evidence). A treating

physician’s opinion is given controlling weight only when it is well-supported and consistent with

the other evidence on record. 20 C.F.R. § 416.927(d)(2).

Johnson specifically argues the ALJ did not provide “good reasons” for rejecting Dr.

Abrams’s opinion. This Court disagrees. The ALJ thoroughly considered Dr. Abrams’s

observations and treatment of Johnson and provided several valid reasons for discrediting the weight

given to Dr. Abrams. For example, Dr. Abrams’s May 5, 2003 Medical Source Statement of

Functional Abilities and Limitations form was a “fill in the blank” multiple choice assessment.

“Form reports in which a physician’s obligation is only to check a box or fill in a blank are weak

evidence at best.” Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993). Dr. Abrams provided no

explanation regarding his assessment and, therefore, less deference was afforded.6 

The ALJ further states Dr. Abrams is a primary care provider and not a specialist in

neurology. (R. 23). The regulations provide an ALJ should generally give more weight to the

opinions of a specialist in the areas of a claimant’s impairment, rather than one who is not a

specialist. 20 C.F.R. § 416.927(d)(6). The ALJ also notes Johnson visited Dr. Abrams on numerous

Case 2:04-cv-05034-JS Document 16 Filed 07/28/05 Page 7 of 11
8

occasions, but all visits were for either medication refills or to complete disability forms. No details

were provided regarding Johnson’s complaints of pain, with the exception of his May 5, 2003

assessment. The ALJ states in her decision, “the opinion appears to be based primarily, if not solely,

upon the claimant’s assertions and complaints.” (R. 23). Johnson claims in his objections, Dr.

Abrams’s decision is based on objective medical signs demonstrating four lumbar disc herniations,

not merely on Johnson’s subjective complaints. This objective evidence is from an MRI taken of

Johnson’s back. Interpretation of an MRI is within the province of a neurologist’s expertise, not a

primary care physician.

The ALJ found Dr. Abrams’s opinion was inconsistent with other medical findings in the

record. Dr. Ginsberg and Dr. Chugh, Johnson’s treating specialist, found Johnson had full upper and

lower extremity muscle strength. (R. 129-143, 156-160). These findings were inconsistent with the

limitations Dr. Abrams placed on Johnson’s activities in his May 5, 2003 assessment. The ALJ’s

decision to afford less weight to Dr. Abrams is supported by substantial evidence.

Johnson also argues the ALJ “should not have rejected Dr. Abdelhak’s [opinion] based

primarily on her erroneous view that he was not treating Mr. Johnson.” Objections to R&R, p.4. Dr.

Abdelhak, a neurologist, opined Johnson suffers from severe pain which will likely remain an

incapacitating element in his life. The ALJ, however, did not reject Dr. Abdelhak’s opinion solely

because he was not a treating physician. The ALJ noted Dr. Abdelhak’s opinion was inconsistent

with the observations of another neurologist, Dr. Tabby. Dr. Tabby’s reports were part of the record

before the ALJ, whereas Dr. Abdelhak’s were not. 

The ALJ only had a pain questionnaire from Dr. Abdelhak, which the ALJ found to be

“inconsistent with Dr. Tabby’s treating physician observations that the claimant is in ‘no acute

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7Sentence six of 42 U.S.C. § 405(g) states:

The court may, on motion of the Commissioner of Social Security made for good

cause shown before the Commissioner files the Commissioner's answer, remand the

case to the Commissioner of Social Security for further action by the Commissioner

of Social Security, and it may at any time order additional evidence to be taken

before the Commissioner of Social Security, but only upon a showing that there is

new evidence which is material and that there is good cause for the failure to

incorporate such evidence into the record in a prior proceeding; and the

Commissioner of Social Security shall, after the case is remanded, and after hearing

such additional evidence if so ordered, modify or affirm the Commissioner's findings

of fact or the Commissioner's decision, or both, and shall file with the court any such

additional and modified findings of fact and decision, and, in any case in which the

Commissioner has not made a decision fully favorable to the individual, a transcript

of the additional record and testimony upon which the Commissioner's action in

modifying or affirming was based.

9

distress,’ ‘has few neurological findings,’ [and] displays normal cervical and lumbar ranges of

motion . . . .” (R. 22). The ALJ also noted Dr. Abdelhak’s pain assessment was inconsistent with

Dr. Ginsberg’s opinion that Johnson had a normal gait and station, good coordination and ambulated

without assistance. (R. 22). The ALJ properly weighed Dr. Abdelhak’s assessment against other

medical evidence in the record. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). There was substantial

evidence to support the ALJ’s decision to afford less weight to Dr. Abdelhak’s opinion.

Johnson lastly argues the Magistrate Judge improperly denied a new evidence remand under

42 U.S.C. § 405(g).7 The new evidence Johnson refers to is Dr. Abdelhak’s November 26, 2002

report. The Third Circuit provided prerequisites for granting such a remand. The “new evidence”

must not be merely cumulative of what is already in the record, must be material, and claimant must

provide good cause for not having incorporated the new evidence into the administrative record.

Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 833 (3d Cir. 1984); see also

Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). To otherwise permit a remand would “open

the door for claimants to withhold evidence from the ALJ in order to preserve a reason for remand.”

Case 2:04-cv-05034-JS Document 16 Filed 07/28/05 Page 9 of 11
8This Court need not address whether claimant had good cause for not presenting this

evidence to the ALJ because the report is cumulative and immaterial. The Magistrate Judge,

however, noted claimant’s attorney was given two opportunities to supplement the record during the

ALJ hearing. Both times claimant’s counsel failed to notice Dr. Abdelhak’s report was missing. (R.

43-44, 82-83).

10

Matthews, 239 F.3d at 595.

A remand is not warranted here. Dr. Abdelhak’s report cannot be considered “new evidence”

because its contents are cumulative and almost identical to Dr. Tabby’s September 24, 2002 report.

Both examination findings and assessments were the same, with both doctors finding bilateral

lumbar radiculopathies due to multi-level disc herniations. Dr. Abdelhak’s report was also

immaterial because the ALJ would reasonably not have changed her decision based on this report.

Aside from the report not adding anything new to the record, the ALJ noted inconsistencies between

Dr. Abdelhak’s pain assessment questionnaire and other medical records.8 Johnson, consequently,

is not entitled to a remand. Accordingly, this Court enters the following:

 

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11

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

GREGORY B. JOHNSON : CIVIL ACTION

 :

 : 

 v. : 

 : 

JO ANNE B. BARNHART : NO. 04-5034 

 

ORDER

AND NOW, this 27th day of July, 2005, after consideration of the pleadings and record, and

afterreview of the Report and Recommendation of United States Magistrate JudgeCharles B. Smith,

and Plaintiff’s objections, it is hereby ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.

2. The Plaintiff’s motion for summary judgment (docket #10) is DENIED.

3. The Defendant’s motion for summary judgment (docket #11) is GRANTED.

4. Judgement is entered in favor of Defendant and against Plaintiff.

BY THE COURT:

__________________________

 Juan R. Sánchez. J.

Case 2:04-cv-05034-JS Document 16 Filed 07/28/05 Page 11 of 11