IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________

:

ROBERT DEBEARY, : CIVIL ACTION

 Plaintiff :

:

v. : NO. 05-1558

:

JO ANNE B. BARNHART, : 

COMMISSIONER OF SOCIAL SECURITY, :

 Defendant :

___________________________________: 

ORDER

AND NOW, this day of , 2006, upon

consideration of the parties’ Motions for Summary Judgment, and

after careful review of the Report and Recommendation of United

States Magistrate Judge Arnold C. Rapoport, IT IS ORDERED that:

1. the Report and Recommendation is APPROVED and

ADOPTED;

2. the Plaintiff’s Motion for Summary Judgment is

GRANTED in part; 

3. the Defendant’s Motion for Summary Judgment is

DENIED; and

4. the matter is REMANDED consistent with the Report

and Recommendation.

BY THE COURT:

 

JOHN R. PADOVA, J.

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 1 of 15
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________

:

ROBERT DEBEARY, : CIVIL ACTION

 Plaintiff :

:

v. : NO. 05-1558

:

JO ANNE B. BARNHART, : 

COMMISSIONER OF SOCIAL SECURITY, :

 Defendant :

___________________________________: 

ARNOLD C. RAPOPORT

UNITED STATES MAGISTRATE JUDGE 

REPORT AND RECOMMENDATION

Plaintiff, Robert DeBeary (“Plaintiff”), brings this

action under 42 U.S.C. section 1383(c)(3), which incorporates 42

U.S.C. section 405(g) by reference, to review the final decision

of the Commissioner of Social Security (“Defendant”), denying his

claim for disability insurance benefits (“DIB”) provided under

Title II of the Social Security Act (“the Act”). 42 U.S.C. §§

401-433. Subject matter jurisdiction is based upon section

205(g) of the Act. 42 U.S.C. § 405(g). Presently before this

Court are the parties’ Cross-Motions for Summary Judgment. For

the reasons that follow, it is recommended that Plaintiff’s

motion be granted in part, and Defendant’s motion be denied.

PROCEDURAL HISTORY

Plaintiff filed an application for DIB on July 24,

2001, alleging disability since September 1, 2000. (R. 222-224.) 

Plaintiff alleged disability as a result of cervical and left

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 2 of 15
1

Specifically, Plaintiff indicated in his Adult Disability Report

that the following impairments limited his ability to work: head, eye, back

and pain injury of whole left side, traumatic brain injury, and post traumatic

stress syndrome. (R. 267.)

2

shoulder problems and mental disorders. (R. 267.)1 The state

agency denied Plaintiff’s claim, and Plaintiff filed a timely

request for a hearing before an Administrative Law Judge (“ALJ”). 

(R. 183-187, 188.) Initially, a hearing was scheduled for August

8, 2002. (R. 192.) Plaintiff appeared at the August 8, 2002

hearing and requested additional time to obtain legal

representation; as a result, the ALJ continued the case for 103

days. (R. 162-181.)

A second hearing was held on November 19, 2002, at

which Plaintiff, who was represented by counsel, appeared and

testified. (R. 47, 52-69, 70, 72-97, 117-135, 139-141.) An

impartial medical expert (“ME”), Richard W. Cohen, M.D., and an

impartial vocational expert (“VE”), William Hausch, also appeared

and testified at the administrative hearing. (R. 47, 69-70, 124,

135-139, 141-143, 144-150.) At the conclusion of the hearing,

the ALJ left the record open so that Plaintiff’s counsel could

obtain clarification from Plaintiff’s treating psychiatrist,

Cynthia Choi, M.D., specifically regarding the check-box form

completed by her in September 2002. (R. 150-156.)

Having considered evidence of Plaintiff’s impairments,

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 3 of 15
2

We note that there are some discrepancies in the record with

respect to the ALJ’s decision. The court transcript index to the record

indicates that the ALJ’s decision is dated September 6, 2003. The Appeals

Council indicates that the ALJ’s decision is dated September 5, 2003. (R. 6.) 

For the purposes of this report and recommendation, we will adopt the date of

September 8, 2003 because this date has been cited by both the Plaintiff and

Defendant as the date on which the ALJ issued his decision.

3

Specifically, the ALJ found that Plaintiff has the following

residual functional capacity: 

He could regularly lift/carry 10 pounds and

occassionally a maximum of 20 pounds; walk/stand a

total of six hours in an 8-hour workday; but should

not do any reaching to the shoulder level or above on

the left. Further, the [Plaintiff] has a very good

ability to: follow work rules; relate to co-workers;

deal with the public; use judgment; interact with

supervisors; function independently; and understand,

remember and carry out simple job instructions as well

as detailed and complex job instructions. He also has

a good ability to: deal with work stresses; maintain

attention and concentration; maintain personal

appearance; behave in an emotionally stable manner;

relate predictably in social situations; and

demonstrate reliability (20 C.F.R. § 404.1545).

(R. 44-45, Finding No. 5.)

3

on September 8, 2003,2 the ALJ issued a decision in which he

found that Plaintiff retains the residual functional capacity

(“RFC”) to perform a significant range of light work limited only

by an inability to reach at or above shoulder level on the left.3

(R. 44-45, Finding No. 5.) Based on this RFC determination, the

ALJ found that Plaintiff’s past relevant work as a security guard

did not require the performance of work related activities which

would be precluded by the limitations set. (R. 44-45, Finding

No. 6.) Thus, the ALJ concluded that Plaintiff was not disabled. 

(R. 44-45, Finding No. 8.) 

Plaintiff timely requested review of the ALJ’s

decision. (R. 17-18.) On February 25, 2005, the Appeals Council

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 4 of 15
4

denied Plaintiff’s request for review. (R. 6-10.) Thus, the

ALJ’s decision became the final decision of the agency. 

Plaintiff filed this civil action on April 5, 2005, seeking

judicial review of the Commissioner’s decision that he was able

to perform past relevant work as a security guard, and thus was

not entitled to DIB. The matter was referred to this Magistrate

Judge for preparation of a report and recommendation on September

22, 2005. 

FACTS

Born on December 13, 1943, Plaintiff was fifty-eight

years old at the time of the administrative hearing. (R. 26,

54.) Plaintiff attended high school and has a general education

degree (“GED”). (R. 26, 64, 273, 571.) Plaintiff also graduated

from the Philadelphia Police Academy in June 1977 and attended

one semester of college at Los Angeles Southwest College in 1986. 

(R. 26, 64-65.) 

Based on the record evidence and Plaintiff’s testimony,

the VE testified that the claimant has the past relevant work:

(1) a warrant officer for approximately 12 years until 2000

(light to heavy work that is classified as skilled) and (2) a

security guard (light work classified as semiskilled). (R. 26,

69-71, 268.)

This Court has independently and thoroughly examined

the entire record. Further, we note that the ALJ’s written

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 5 of 15
5

decision dated September 8, 2003 contains a thorough and

chronological summation of each of Plaintiff’s treating and

examining provider’s diagnostic and clinical findings relevant to

Plaintiff’s claim for DIB. (R. 26-36.) The ALJ’s decision also 

includes a detailed summary of the testimony of the Plaintiff,

the ME, and the VE. (R. 36-40.) Based on our independent

examination of the record, we adopt the summary and analysis of

the evidence detailed by the ALJ and incorporate any additional,

relevant facts in our discussion below. 

LEGAL STANDARD

The role of this Court on judicial review is to

determine whether there is substantial evidence in the

administrative record to support the Commissioner’s final

decision. Any findings of fact made by the Commissioner must be

accepted as conclusive, provided that they are supported by

substantial evidence. 42 U.S.C. § 405(g). “Substantial

evidence” is deemed to be such relevant evidence as a reasonable

mind might accept as adequate to support a decision. Richardson

v. Perales, 402 U.S. 389, 407 (1971), quoting Consolidated Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938). See also, Williams v.

Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 113

S.Ct. 1294 (1993). When determining whether the ALJ’s decision

is supported by substantial evidence, the court may look to any

evidence in the record, regardless of whether the ALJ cites to it

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 6 of 15
6

in his decision. Hook v. Bowen, 677 F. Supp. 305, 306 (M.D. Pa.

1988); Eposito v. Apfel, 66 Soc.Sec.Rep.Ser. 217, 2000 WL 218119,

at *6 (E.D. Pa. Feb. 24, 2000). Thus, the issue before this

Court is whether the Commissioner’s final decision of “not

disabled” should be sustained as being supported by substantial

evidence. Moreover, apart from the substantial evidence inquiry,

a reviewing court must also ensure that the ALJ applied the

proper legal standards in evaluating a claim of disability. 

Coria v. Heckler, 750 F.2d 245 (3d Cir. 1984). 

To prove disability, 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.” 42 U.S.C. §

423(d)(1). Each case is evaluated by the Commissioner according

to a five-step process: 

The sequence is essentially as follows: (1)

if the claimant is currently engaged in

substantial gainful employment, []he will be

found not disabled; (2) if the claimant does

not suffer from a "severe impairment," []he

will be found not disabled; (3) if a severe

impairment meets or equals a listed

impairment in 20 C.F.R. Part 404, Subpart P,

Appendix 1 and has lasted or is expected to

last continually for at least twelve months,

then the claimant will be found disabled; (4)

if the severe impairment does not meet prong

(3), the Commissioner considers the

claimant's residual functional capacity

("RFC") to determine whether []he can perform

work []he has done in the past despite the

severe impairment - if []he can, []he will be

found not disabled; and (5) if the claimant

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 7 of 15
4 The ALJ proceeded through the first four steps, finding that: (1)

Plaintiff has not been engaged in substantial gainful activity since the

alleged onset date of September 1, 2000; (2) Plaintiff’s cervical spondolysis,

left shoulder rotator cuff tear, and left shoulder biceps tendon rupture are

considered severe (cognitive disorder, NOS, post-traumatic stress disorder,

and seizure disorder are not considered severe); (3) Plaintiff’s impairments

or combination of impairments do not meet or equal the criteria of a listed

impairment in Appendix 1, Subpart P, Regulations No. 4; and (4) Plaintiff

retains the RFC to perform a significant range of light work limited only by

an inability to reach at or above shoulder level on the left. (R. 40-45,

Finding Nos. 1-3 and 5.) At step four, the ALJ determined that Plaintiff’s

past relevant work as a security guard did not require the performance of work

related activities which would be precluded by his RFC and, thus, found that

Plaintiff was able to perform his past relevant work as a security guard. (R.

44-45, Finding Nos. 6-7.) Accordingly, Plaintiff was not disabled at any time

through the date of the ALJ’s decision. 44-45, Finding No. 8.) 

7

cannot perform [his] past work, the

Commissioner will consider the claimant's

RFC, age, education, and past work experience

to determine whether []he can perform other

work which exists in the national economy. 

See id. § 404.1520(b)-(f).

Schaudeck v. Comm’r of Social Sec. Admin., 181 F.3d 429, 431-32

(3d Cir. 1999).

ALJ DECISION AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff’s alleged disability primarily involves an

inability to work because of cervical and left shoulder problems,

traumatic brain injury and mental disorders, including post

traumatic stress syndrome. (R. 22, 26-36, 267.) The ALJ,

however, proceeded through the sequential evaluation process and

found Plaintiff was not disabled due to his impairments.4 (R.

40-46.) 

In his Motion for Summary Judgment, Plaintiff asserts

that the ALJ failed to give proper weight to the opinions of

Plaintiff’s treating physicians; failed to consider Plaintiff’s

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 8 of 15
5 Specifically, we find that the ALJ failed to appropriately discuss 

and weigh the opinions of Roger E. Farber, M.D. and John Traverso, D.O.

regarding Plaintiff’s alleged mental impairments. 

8

subjective complaints of pain and limitation; erred by finding

that Plaintiff’s mental impairment was not severe; and erred in

his RFC determination. The sole issue before this Court,

however, is whether the Commissioner’s final decision of “not

disabled” should be sustained as being supported by substantial

evidence. 

This Court has reviewed the various sources of medical

and vocational evidence, the submissions of counsel, and the

testimony at the ALJ hearing. Based on this Court’s independent

and thorough review of the record and for the reasons that

follow, we find that although the ALJ’s ultimate conclusion that

Plaintiff is not disabled may be supported by substantial

evidence of record, the ALJ failed to explicitly make certain

fundamental findings in his decision with respect to the opinions

of some of Plaintiff’s treating physicians.5 Because the ALJ

failed to specifically address these opinions, we cannot find the

ALJ’s decision supported by substantial evidence. We will,

therefore, recommend that the matter be remanded for the ALJ to

make specific findings with respect to these opinions. 

DISCUSSION

In reaching a decision, the ALJ must consider all of

the relevant evidence in the record. Wier v. Heckler, 734 F.2d

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 9 of 15
9

955, 963 (3d Cir. 1984); Cotter v. Harris, 642 F. 2d 700, 705 (3d

Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.

1979); Gober v. Mathews, 574 F.2d 772, 776 (3d Cir. 1978). 

Furthermore, to guard against an abuse of discretion by the

Commissioner, the ALJ is required to provide some indication of

the evidence which was rejected in arriving at the decision and

the reasons therefore, so that a reviewing court can determine

whether probative evidence was properly credited or simply

ignored. See Cotter, at 705. 

Evidence submitted by a treating physician is to be

given special significance. Morales v. Apfel, 225 F.3d 310 (3d

Cir. 2000). The Morales court stated, “[a] cardinal principle

guiding disability eligibility determinations is that the ALJ

accord treating physicians’ reports great weight, especially

‘when their opinions reflect expert judgment based on continuing

observation of the patient’s condition over a period of time.’” 

Id. at 317 (quoting Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.

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

1987))). In addition, “a treating physician’s report not only

may be given more weight, it must be given controlling weight.” 

20 C.F.R. § 404.1527. 

Plaintiff alleges that the ALJ failed to appropriately

discuss and weigh relevant reports from treating sources, Roger

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 10 of 15
6

Although Plaintiff argues that the ALJ failed to address the

opinions of Dr. Choi, we note that the ALJ explicitly discussed the diagnosis

and assessment offered by Dr. Choi as well as his reasons for rejecting Dr.

Choi’s opinions in his decision dated September 8, 2003. (R. 41-42.) 

7

On July 20, 2001, Dr. Traverso opined that Plaintiff was

“suffering from traumatic brain injury, cervical disc syndrome with

radiculopathy, lumbar disc syndrome with radiculopathy, and thoracic back

pain.” (R. 509.) Dr. Traverso further opined that Plaintiff’s prognosis was

guarded and that he was unable to work. (R. 509.)

With respect to Plaintiff’s alleged mental impairments, Dr. 

Farber opined on January 9, 2002 that Plaintiff was a very circumstantial

historian and that if Plaintiff was credible about his occupation and how well

he performed at it prior to the incident, then he was certainly markedly

limited in his current capacity to function. (R. 603.) Dr. Farber also

remarked that Plaintiff did not cognitively understand how to do finger-tonose and that there may have been major cognitive changes to the Plaintiff as

a result of the incident. (R. 604.) Records from Dr. Farber in July 2002

indicate that Plaintiff was having a great deal of trouble with anxiety. (R.

648.)

On November 25, 2002, Dr. Farber completed a physical residual

functional capacity questionnaire with respect to the Plaintiff. (R. 805-

808.) Dr. Farber diagnosed Plaintiff with a left rotator cuff tear, cervical

spondylosis, cognitive difficulties, and post-traumatic stress disorder. (R.

805.) Dr. Farber listed Plaintiff’s prognosis as “poor” and stated that his

pain and other symptoms constantly interfere with his ability to maintain

attention and concentration. (R. 805-806.) Dr. Farber opined that because of

Plaintiff’s decreased memory, anxiety, and constant pain, he is incapable of

even low stress jobs. (R. 806.) Finally, Dr. Farber concluded by opining

that Plaintiff’s anxiety and cognitive impairments prevented him from handling

any job. (R. 808.)

10

E. Farber, M.D., Cyndia Choi, M.D.,6 and John Traverso, D.O. (Pl.

Br. at 17-19.) Plaintiff argues that had the ALJ appropriately

considered and weighed the assessments of these treating

physicians,7 the ALJ would have found Plaintiff disabled. 

In the summary and analysis of the evidence section of

his September 8, 2003 decision, the ALJ noted the treatment

record and reports of Drs. Farber and Traverso. Specifically,

the ALJ documented their findings with respect to Plaintiff’s

alleged physical and mental impairments. However, we note that

the ALJ failed to address the mental impairment opinions of these

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 11 of 15
8

Competent evidence includes the opinion of a treating physician as

to the nature and severity of the claimant’s impairments. See 20 C.F.R. §

404.1527(a)(2).

11

treating physicians in his rationale for the unfavorable

decision. By ignoring this evidence, the ALJ acted in clear

dereliction of his duty to explicitly weigh such evidence. See

Dobrowolsky, 606 F.2d at 407, see also Sykes v. Apfel, 228 F.3d

259, 266 (3d Cir. 2000). Without discussing the opinions of Drs.

Farber and Traverso regarding Plaintiff’s mental impairments, the

ALJ concluded that Plaintiff’s alleged cognitive disorder, NOS

and post-traumatic stress disorder were not severe impairments. 

(R. 41.) 

As noted supra, this Court “cannot conduct de novo

review of the Commissioner’s decision or re-weigh the evidence of

record.” Schwartz v. Halter, 134 F.Supp. 2d 640, 647 (E.D.Pa.

2001)(citing Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D.Pa.

1998)). Thus, where the ALJ has failed to adequately explain in

the record his reasons for rejecting or discrediting competent

evidence,8 “the reviewing court cannot tell if significant

probative evidence was not credited or simply ignored.” 

Schwartz, 134 F.Supp. at 648 (citing Cotter, 642 F.Supp. at 705). 

The Third Circuit has directed that “[w]here competent evidence

supports a claimant’s claims, the ALJ must explicitly weigh the

evidence,” Dobrowolsky, 606 F.2d at 407, see also Sykes, 228 F.3d

at 266, and explain a rejection of the evidence. See Schaudeck,

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 12 of 15
12

181 F.3d at 435 (citing Benton v. Bowen, 820 F.2d 85, 88 (3d Cir.

1987)). 

Unless the Secretary has analyzed all

evidence and has sufficiently explained the

weight he has given to obviously probative

exhibits, to say that his decision is

supported by substantial evidence approaches

an abdication of the court’s ‘duty to

scrutinize the record as a whole to determine

whether the conclusions reached are

rational.’ 

Id. That is, meaningful judicial review, of the ALJ’s decision,

is not possible where the ALJ has not sufficiently explained the

weight given to all probative evidence, which necessarily

includes the treating physician’s assessment of claimant’s

abilities and limitations. See 20 C.F.R. §§ 404.1527(e), (a)(2).

An ALJ may afford a treating physician’s opinion more

or less weight depending upon the extent to which supporting

explanations are provided. Plummer v. Apfel, 186 F.3d 422, 429

(3d Cir. 1999). A treating physician’s opinion cannot be

rejected unless the ALJ points to other medical evidence of

record. Allen v. Bowen, 881 F.2d 37, 41-42 (3d Cir. 1989). 

Further, the ALJ is obligated to provide an adequate explanation

when rejecting a treating physician’s opinion. Johnson v. Bowen,

699 F. Supp. 475, 482-483 (E.D. Pa. 1983). In the present case,

Plaintiff’s treating physicians, Drs. Farber and Traverso,

submitted competent evidence regarding Plaintiff’s mental

impairments, which the ALJ failed to address. Thus, the ALJ

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 13 of 15
9

“The court can hypothesize numerous sound reasons that might have

informed the ALJ’s conclusion on this issue, however our court of appeals does

not permit such guesswork in the name of judicial review.” Woodcock v.

Barnhart, 2003 WL 1949638, at *6 (E.D.Pa. Apr. 24, 2003).

13

provided an insufficient basis for a reviewing court to conduct

meaningful judicial review. 

This Court may not presume to know why the ALJ failed

to address the opinions of Drs. Farber and Traverso regarding

Plaintiff’s mental limitations; judicial review is not meaningful

when based on such presumptions. Woodcock v. Barnhart, 2003 WL

1949638, at *6(E.D.Pa. Apr 24, 2003). Without the ability to

meaningfully review the ALJ’s conclusion as to Dr. Farber’s and

Dr. Traverso’s opinions regarding Plaintiff’s mental limitations,

we are compelled to recommend that the case be remanded so that

the ALJ can provide the tools to engage in such review. 

Remanding the case for this reason does not reflect anything more

than the court’s need for such information in reviewing the ALJ’s

decision.9 

CONCLUSION

Because the ALJ’s decision fails to demonstrate full

consideration of all relevant evidence, particularly evidence

submitted by Drs. Farber and Traverso, the matter should be

remanded for further consideration and articulation as to the

weight applied to the evidence. In re-evaluating the medical

evidence, the ALJ should consider the combined effect of all of

Plaintiff’s impairments. In light of this re-evaluation of the

Case 2:05-cv-01558-JP Document 13 Filed 02/27/06 Page 14 of 15
10 As discussed supra, the ALJ should discuss the credibility of the

Plaintiff. 

11 The Third Circuit has consistently held that because the VE

provides opinion as to the claimant’s residual functional capacity, the

hypotheticals posed to a VE must accurately identify “all of a claimant’s

impairments that are supported by the record; otherwise the question is

deficient and the expert’s answer to it cannot be considered substantial

evidence.” Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)(citing

Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984) and Wallace v. Sec’y, 722

F.2d 1150, 1155 (3d Cir. 1983)(stating the expert must have evaluated

claimant’s particular impairments as contained in the record)). 

14

evidence, the ALJ should also reconsider his credibility

determination,10 residual functional capacity determination, and

the hypothetical proposed to the VE.11 Finally, Plaintiff should

remain cognizant that the ultimate burden of proving disability

rests with him.

Therefore, I make the following: 

RECOMMENDATION

AND NOW, this 27 day of February, 2006, it is 

RESPECTFULLY RECOMMENDED that the Plaintiff’s Motion for Summary

Judgment should be GRANTED in part, the Defendant’s Motion for

Summary Judgment should be DENIED, and the matter should be

REMANDED.

BY THE COURT:

/s/ Arnold C. Rapoport 

ARNOLD C. RAPOPORT, 

United States Magistrate Judge

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