The named defendant in the instant suit was originally former Commissioner Jo Anne B. 1

Barnhart; the current Commissioner, Michael J. Astrue, has been substituted pursuant to Federal

Rule of Civil Procedure 25(d)(1). 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LOIS TRAYLOR-LAMB,

Plaintiff,

v.

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

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CIVIL ACTION

NO. 05-2971

Memorandum and Order

YOHN, J. July ___, 2007

Plaintiff Lois Traylor-Lamb appeals the decision of the Commissioner of Social Security

(“the Commissioner”) denying her claims for supplemental security income (“SSI”), disability 1

insurance benefits (“DIB”) and widow’s insurance benefits (“WIB”) under Titles II and XVI of

the Social Security Act (“the Act”), 42 U.S.C. §§ 401-433. Plaintiff and the Commissioner have

filed cross motions for summary judgment (now titled in the Clerk’s standard procedural order as

a Request for Review, Response and Reply). I referred the motions to U.S. Magistrate Judge

Carol Sandra Moore Wells, who submitted a report and recommendation that I grant plaintiff’s

motion in part and deny it in part, deny the Commissioner’s motion for summary judgment, and

remand to the Commissioner for further proceedings. The Commissioner has filed objections to

the report and recommendation, and plaintiff has filed a response thereto. For the following

Case 2:05-cv-02971-WY Document 19 Filed 07/26/07 Page 1 of 31
Plaintiff previously filed for DIB on April 7, 1995, which was denied on July 5, 1995, 2

but plaintiff apparently never appealed that decision. (R. 29-32, 33-35, 37.)

2

reasons, I will overrule the government’s objections, adopt the report and recommendation of

Magistrate Judge Wells, and remand the case for further proceedings consistent with this

memorandum and order. 

I. Procedural History

Plaintiff protectively filed for SSI, DIB, and WIB on December 23, 1997, alleging

disability since July 1, 1997, based on anxiety, depression, high blood pressure and bronchitis. 

(R. 92-97, 111, 228-30.) Plaintiff’s application was denied initially and on reconsideration. (R.

2

57-76, 226-27, 231-36.) She timely requested review by an Administrative Law Judge (“ALJ”)

and a hearing was held on October 4, 1999. (R. 77.) At the hearing, plaintiff, who was

represented by counsel, and a vocational expert (“VE”), testified before an ALJ. (R. 240-73.) 

The ALJ denied plaintiff’s application on November 23, 1999, finding that she was able to

perform work that is simple, repetitive and routine in nature at all exertional levels and thus, not

disabled. (R. 292-303.) The Appeals Council denied plaintiff’s request for review on January

25, 2002, making the ALJ’s decision the final decision of the Commissioner. (R. 8-11.) On

March 29, 2002, plaintiff appealed that decision to the United States District Court for the

Eastern District of Pennsylvania, whereupon I referred the case to Magistrate Judge Wells for a

report and recommendation. Without objection from the parties, on April 23, 2004, I adopted the

report and recommendation of Magistrate Judge Wells and remanded the case to the

Commissioner for further proceedings, consistent with that report and recommendation. (R. 317-

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3

338.) On September 20, 2004, the Appeals Council subsequently vacated the ALJ’s decision and

remanded plaintiff’s application for further proceedings, as required by this court. (R. 339-40.)

On January 20, 2005, a second hearing was held before another ALJ. Plaintiff, Dr.

Richard Saul, a medical expert (“ME”), and VE Bruce Martin testified. (R. 496-543.) In a

decision issued on April 2, 2005, the ALJ concluded that plaintiff was not disabled. (R. 280-91.) 

Specifically because, in the absence of substance abuse, plaintiff could perform a range of

simple, routine work that allowed for moderate deficits in social functioning and concentration,

at the medium exertional level, and in a clean environment. (R. 290-91.) Plaintiff properly

commenced the instant action for judicial review of the Commissioner’s final decision pursuant

to 42 U.S.C. § 405(g). 

I referred the action to Magistrate Judge Wells who issued a comprehensive report and

recommendation that plaintiff’s motion for summary judgment be granted in part and denied in

part, the Commissioner’s motion be denied, and the matter be remanded for further proceedings

consistent with the report and recommendation. (Rep. & Recom. 1.) The government filed

objections to the report and recommendation on June 6, 2007 and plaintiff filed a response

shortly thereafter. 

II. Factual History and Hearing Testimony

Plaintiff was born on March 15, 1944, making her sixty-one years old at the time of the

ALJ’s decision on April 2, 2005. (R. 29, 92, 96, 228-30, 280-91.) She has an eleventh grade

education. (R. 116, 503.) Plaintiff has past relevant work experience as a meat packer, nursing

assistant and potato wrapper. (R. 55, 116, 268, 506-07.) 

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A. Mental Impairments

On July 22, 1997, plaintiff’s physician, Dr. Julius A. Mingroni, in a form for the

Pennsylvania Department of Public Welfare, opined that plaintiff was temporarily disabled due

to severe anxiety, major depression, hypertension, and chronic bronchitis. (R. 188.) He reported

that she could not work because she was “very anxious” and had “depression,” but her

medication, which he reported as Prozac, led to drowsiness. (R. 186.) In December of 1997, Dr.

Mingroni diagnosed depression and prescribed Prozac. (R. 171.) 

Following an incident where plaintiff attacked her sister, in April 1998, pursuant to a

court order, plaintiff underwent a mental health evaluation and was scheduled for three to six

months of treatment. (R.162-65, 175.) The mental health records from Citizens Acting Together

Can Help (“CATCH”), Community Mental Health/Mental Retardation Center, reveal complaints

of anxiety, depression, suicidal ideation, sleeplessness, lack of appetite, ringing in her ears, loose

bowels and shortness of breath. (R. 162-65, 170.) Plaintiff reported using marijuana, social

drinking, and smoking one pack of cigarettes per day. (R. 162.) The examiner described her as

having a sad affect, depressed mood, poor memory, and with mild auditory / visual

hallucinations. (R. 163-64.) The examiner also reported plaintiff as being well groomed with

appropriate behavior, good concentration, and intact reasoning, judgment, and insight. (R. 163-

64.) The interviewer, J. Miller, diagnosed recurrent major depressive disorder and past physical

abuse and rape, assigned a Global Assessment of Functioning score of forty and recommended

individual therapy and psychiatric evaluations. (R. 164-65.) 

Dr. Mingroni continued to treat plaintiff’s complaints and diagnosed depression and

anxiety throughout 1998 - 2003, and prescribed Zoloft and Avitan. (R. 168, 171-73, 217, 219,

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221, 407-31.) On January 3, 2005, he additionally prescribed Xanax. (R. 408-09.) 

Plaintiff underwent several psychiatric assessments. In a report dated June 9, 1998, a

state agency psychiatrist, Dr. Gerald A. Fishman, described his consultative examination of

plaintiff. (R. 190-93.) Dr. Fishman noted plaintiff’s complaints that she “feels agitated,”

“jumpy, very nervous, fearful of something happening, . . . depressed, has trouble functioning

and she hears a voice.” (R. 190.) He also reported that “[s]he has trouble sleeping, trouble

communicating and does not like to be around people.” (Id.) He summarized by stating that “the

picture [plaintiff] presents is one of a rejection sensitivity impulsivity, much anger, tendency to

act out, depression, multiple fears, and neurosis.” (R. 191.) Dr. Fishman further noted that

plaintiff’s concentration and task persistence are reduced, and her reaction to stress is to “get

panicky.” (R. 192.) Plaintiff gave inaccurate responses to several questions, and indicated an

inability to interpret proverbs, but after some reluctance was able to perform serial threes with

only one error. (Id.) Dr. Fishman noted “[s]he also evidently has an alcohol problem.” (R. 193.) 

He opined that plaintiff’s symptoms were “compatible with Borderline personality disorder” and

“advised her to continue with her therapy at CATCH.” (R. 192-93.) 

In June 1998, a state agency psychologist reviewed plaintiff’s records and completed a

mental residual functional capacity (“RFC”) assessment of plaintiff and a psychiatric review

technique form. (R. 140-42, 153-61.) The examiner found moderate limitations in plaintiff’s

ability to understand, remember and carry out detailed instructions; perform activities within a

schedule; maintain regular attendance and be punctual within customary tolerances; work in

coordination with or proximity to others without being distracted by them; complete a normal

workday and workweek without interruptions from psychologically based symptoms; perform at

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a consistent pace without an unreasonable number and length of rest periods; accept instructions

and respond appropriately to criticism from supervisors; get along with coworkers; maintain

socially appropriate behavior and adhere to basic standards of neatness and cleanliness; respond

appropriately to changes in the work setting; and set realistic goals or make plans independently

of others. (R. 140-41.) In all other categories the examiner found plaintiff was not significantly

limited. (R. 140-41.) Specifically, the examiner noted that plaintiff “shows affective symptoms

and personality disorder symptoms and uses substances to excess.” (R. 142.) The examiner

further opined that “substance abuse exacerbates her symptoms, rendering her unable to sustain

on task behavior and maintain appropriate social behavior.” (R. 142.) In the absence of alcohol

or drugs the examiner believed plaintiff “would be stable enough for [significant gainful

activity].” (Id.) The examiner assessed that plaintiff met the “A” criteria of Listing 12.04

Affective Disorders, characterized by anhedonia or pervasive loss of interest in almost all

activities, psychomotor agitation or retardation, feelings of guilt or worthlessness, difficulty

concentrating or thinking, and thoughts of suicide. (R. 156.) The examiner also assessed

plaintiff as meeting the “A” criteria for Listing 12.08 Personality Disorder, as evidenced by

pathologically inappropriate suspiciousness or hostility, persistent disturbances of mood or affect,

and pathological dependence, passivity or aggressivity. (R. 158.) The presence of Listing 12.09

Substance Addiction Disorder was also noted. (R. 159.) However, the examiner opined that

plaintiff’s symptoms did not satisfy the“B” criteria of the relevant Listings, finding that plaintiff

was only slightly limited in her activities of daily living, had moderate difficulties in maintaining

social functioning, often had deficiencies of concentration, persistence or pace, and never had

episodes of deterioration or decompensation. (R. 160.) 

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Plaintiff underwent another consultative examination in October 28, 1998, by a

psychiatrist, Dr. Perry Ottenberg. (R. 195-202.) Dr. Ottenberg noted that plaintiff complained of

panic attacks that “she feels two or three times a week,” which plaintiff explained began when

she was around the age of eighteen and was raped. (R. 195.) On mental status, simple judgment

questions were intact, but plaintiff had a great deal of difficulty concentrating. (R. 196.) Dr.

Ottenberg described her affect as “show[ing] mild depressive symptomology but acute

anxiousness and anxiety attacks in the neurotic sphere.” (R. 197.) The examiner summarized:

“This is a woman with a history of acting out violently. It is unclear as to how much alcohol she

is consuming and how this plays a part in her anxiety attacks on a neurotic basis. She tends to be

violent and disruptive at times.” (R. 197.) 

In assessing her activities of daily living, Dr. Ottenberg reported that plaintiff could clean,

shop, cook, use public transportation, and tend to her personal grooming and hygiene. (R. 199.) 

Plaintiff was deemed capable of initiating social contacts and speaking clearly, but had recurrent

physical fights, problems interacting with authority, co-workers or peers, and was tense,

combative and aggressive with the public. (R. 200.) With respect to concentration and task

persistence, Dr. Ottenberg opined that plaintiff could carry out basic instructions, perform

activities within a schedule and from beginning to end, as well as sustain a routine and make

decisions; however, Dr. Ottenberg again noted that plaintiff had recurrent difficulties with

authority figures. (R. 201.) Finally, Dr. Ottenberg opined that plaintiff’s ability to adapt to

changes was poor and she lacked personal insight, although had the ability to make decisions. 

(R. 202.) 

In November 1998, another state agency psychologist reviewed plaintiff’s medical

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records and assessed her mental impairments. (R. 136-39, 144-52.) The examiner opined that

plaintiff had only moderate limitations in the areas of ability to carry out detailed instructions,

interact appropriately with the general public, accept instructions and respond appropriately to

criticism from supervisors, and set realistic goals or make plans independently of others; in all

other areas the examiner deemed her not significantly limited. (R. 136-37.) The examiner

concluded that plaintiff “retains the RFC to do simple and semiskilled jobs [and] socially she can

ask questions and follow directions.” (R. 138.) With respect to Listing 12.06 Anxiety Disorders

the examiner opined that plaintiff met the “A” criteria as evidenced by anxiety and panic, and

that she met the “A” criteria of Listing 12.08 Personality Disorders as manifested by pathological

dependence, passivity, or aggressivity. (R. 148-49.) However, the examiner opined that plaintiff

had only slight restriction of activities in her daily living, moderate difficulties in maintaining

social functioning, seldom experienced deficiencies in concentration, persistence or pace, and

had no episodes of deterioration or decompensation; thus, she did not satisfy the “B” criteria of

any Listing. (R. 151.) 

On August 16, 1999, plaintiff’s treating medical doctor, Dr. Mingroni, completed a

Medical Assessment of Ability to do Work-Related Activities (Non-Exertional). (R. 214-16.) In

all categories relating to her ability to make occupational adjustments he found her “seriously

limited,” noting specifically that in dealing with the public she was “combative [and] aggressive”

and had “numerous problems” interacting with supervisors. (R. 214-15.) He further opined that

plaintiff was seriously limited in her ability to understand, remember and carry out complex, or

detailed but not complex, job instructions, but could understand, remember and carry out simple

job instructions. (R. 215.) Further, he reported that she was seriously limited in her ability to

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behave in an emotionally stable manner or relate predictably in social situations, describing her

as “tense, combative-aggressive, [with] interpersonal difficulties, [and] close family

dysfunction.” (R. 216.) In a follow up to that questionnaire, Dr. Mingroni stated that he was

aware of Dr. Ottenberg’s concerns of “heavy alcoholic disposition, however, [he] had not seen

any evidence of active drug or alcohol abuse.” (R. 223.) 

B. Physical Impairments 

Medical records from Dr. Mingroni from May 1997 report a diagnosis of bronchitis,

hypertension, history of fibroids and abdominal discomfort. (R. 173.) In August 1997, Dr.

Mingroni diagnosed hypertension and, in December 1997, he reported hypertension as well as

asthma/bronchitis. (R. 171-72.) He advised plaintiff to stop smoking and prescribed Inderal for

the treatment of hypertension. (R. 171.) On February 11, 1998, plaintiff saw Dr. Richard

Scheurmann for pain in her left-side and lower back. (R. 169.) On March 3, 1998, plaintiff

reported to Dr. Mingroni pain in her left side, under her breast, difficulty walking and severe

anxiety. (R. 168.) He diagnosed degenerative joint disease, panic attacks and hypertension; he

prescribed Motrin, Ativan and an x-ray of plaintiff’s left rib cage. (R. 168.) Plaintiff’s medical

records from South Philadelphia Radiology Center show a mammogram taken March 12, 1998,

which revealed benign nodules (R. 182-83, 459-62), and x-rays of the left ribs and spine, which

revealed no significant abnormalities. In April 1998, Dr. Mingroni again diagnosed

hypertension, asthma/bronchitis and depression. (R. 171.) On September 22, 1998, plaintiff saw

Dr. Mingroni for a left earlobe cyst, a urinary tract infection, hypertension and anxiety. (R. 221.) 

In January 1999, plaintiff was diagnosed with hypertension, COPD (chronic obstructive

pulmonary disease)/bronchitis, and anxiety and depression. (R. 219.) Dr. Mingroni again

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prescribed Inderal and Ativan, and additionally, an Albuteral inhaler. (R. 219.) In March,

plaintiff’s diagnosis remained the same, and she was also prescribed Claritin. (Id.) In June of

the same year, she reported an “ear popping sound,” and her records indicate that her tension and

stress were controlled with medications. (R. 218, 426.) 

On August 3, 1999, plaintiff again saw Dr. Mingroni for complaints of left breast pain,

gastrointestinal distress, tension, stress, and tingling/weakness of her right upper extremity and

right lower extremity. (R. 217.) Dr. Mingroni diagnosed gastroesophageal reflux disease,

hypertension and depression. (R.217.) He also ordered an EMG of plaintiff’s lower extremity

which, along with nerve conduction studies, were completed by Dr. James F. Bonner on

September 21, 1999. (R. 217, 224-25, 432-33.) The exams revealed “evidence of mild to

moderate lumbar radiculopathy of multiple levels, primarily at L5 bilaterally . . . of chronic

duration.” (R. 225, 433.) After complaints of “neck pain which radiates into her upper

extremities causing numbness and tingling into her hands,” nerve conduction studies and EMGs

were again performed in October 1999. (R. 467-68.) The report from the examination states that

the “findings are consistent with bilateral C7 radiculpathy primarily of a subacute to chronic

nature of mild intensity. There was no evidence of peripheral or entrapment neuropathy, carpal

tunnel syndrome brachial plexopathy or myopathy.” (R. 468.) 

On October 19, 1999, records indicate that plaintiff would have a follow-up MRI after the

diagnosis of lumbar radiculpathy as a result of the EMG. (R. 427.) She complained of pain in

her leg in the lateral tibia and down to her foot. (R. 427.) Plaintiff was diagnosed with

degenerative joint disease, anxiety disorder, depression, hypertension, and lumbar radiculpathy;

her previous medications were continued and Celebrex was prescribed. (R. 427.) In December

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1999, plaintiff again complained of left-side pain; her diagnoses remained the same. (R. 428.) 

On February 1, 2000, plaintiff’s diagnoses and prescriptions remained the same; she complained

of numbness in both arms and hands for the previous two weeks. (R. 429.) Dr. Mingroni

reported no drug or alcohol use. (R. 429.) In addition to complaints of pain and anxiety and

depression, plaintiff was seen again in April for complaints of pain in her left breast (R. 430) and,

in May, for sinus pain, (R. 431). She underwent a cardiovascular consultative examination on

May 12, 2000 after complaining of “shortness of breath with mild ambulation, i.e., she is short of

breath if she ambulates a block on a level plain or up one flight of stairs.” (R. 435.) On June 15,

2000, plaintiff reported experiencing knee pain, which apparently had been exacerbated by

working at Colonial Beef Company where she had to stand on hard surfaces in cold for most of

the day, and for which she had been seen at the emergency room. (R. 417, 437.) An MRI taken

on July 12, 2000 revealed pre-patellar bursitis, a small tear in the medial meniscus,

chrondromalacia of the patella, trochlea and medial meniscus, tiny subchondral defect and

marrow edema posterial lateral aspect, a medial collateral ligament sprain and joint effusion. (R.

366-67, 465-66.) Plaintiff was admitted to St. Agnes Medical Center for arthroscopic

examination and debridement of the right knee, partial medial meniscectomy, and resection of

the plicae and lateral release of the right knee on August 2, 2000. (R. 372-95.) In addition to her

other medications, physical therapy was recommended by Dr. Mingroni on August 22, 2000. (R.

416.) He reported no drug or alcohol use. (R. 416.) In September and October, plaintiff had

follow up visits with her orthopedic surgeon and reported no pain in October. (R. 456-67.) On

November 21, 2000, plaintiff was seen for a mass in her left breast, hypertension and anxiety. 

(R. 415.) She was prescribed Darvocet for pain, in addition to continuing Zoloft and Ativan. (R.

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415.) Again, Dr. Mingroni reported no drug or alcohol use. (R. 415.) 

On January 17, 2001, plaintiff had a follow-up exam and x-ray of her knee, wherein Dr.

Eric L. Hume reported that she “continues to have recurrent effusion and pain limiting her

activity.” (R. 437.) He further noted that “[s]he does get some benefit from Naprosyn . . . .

Stiffness and swelling are a significant part of the symptomatic problem for her.” (R. 437.) On

physical examination, Dr. Hume noted “a moderated tension relatively large chronic effusion . . .

some patellofemoral crepitus as well as lateral crepitus . . . [but] overall alignment of the knee is

relative neutral.” (R. 437.) Dr. Hume diagnosed mild medial compartment osteoarthritis and

right joint effusion, which was reviewed and confirmed by another physician. (R. 464). He

recommended a follow up MRI and a new antinflammatory, Feldene, and if that proved

ineffective, plaintiff would undergo a series of aspiration and corticosteroid injections, depending

on the MRI findings. (R. 436.) 

On January 22, 2001, plaintiff was diagnosed with COPD/chronic bronchitis,

hypertension, anxiety/depression; her prescriptions were refilled then and again in March and

April of 2001. (R. 412-14.) On March 1, 2001, she had a follow-up MRI and Dr. Hume wrote

that the report “shows a degenerative tear in the posterior horn of the medial meniscus with

predominantly degenerative changes in the medial compartment and the patellofemoral joint and

a fairly significant effusion.” (R. 450.) He recommended physical therapy and medical

management. (R. 450.) Plaintiff had follow-up visits in with her orthopedic surgeon in

November 2001, April 2002, July 2002, August 2003, October 2004, and November 2004. (R.

358-362.) 

The record contains far fewer medical records for the years subsequent to 2001. On April

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This section contains a summary of testimony from both of plaintiff’s hearings before an 3

ALJ. 

13

22, 2002, after a physical altercation with her neighbors, plaintiff was treated for an injury to her

right upper extremity. (R. 411.) Her depression and anxiety were noted and prescriptions for

Zoloft, Ativan and Darvocet continued. (R. 411.) The record states no use of drugs or alcohol. 

(R. 411.) Plaintiff underwent an MRI of the lumbosacral spine on August 23, 2002 and the

impression was “[m]ild degenerative changes diffusely, not unusual for patient’s age,” “disc

bulging and ligamentous hypertrophy” at L4-L5, “causing mild lateral recess stenosis bilaterally,”

without “focal disc herniation.” (R. 365, 442.) Plaintiff saw Dr. Mingroni on May 13, 2003 and

he diagnosed allergies, COPD, degenerative joint disease and anxiety. (R. 410.) 

On October 17, 2003, plaintiff underwent an MRI of the lumbar spine that revealed

“hypertrophic fact joint disease, worse on the right side,” at both the L3-4 and L4-5 levels,

causing “spinal stenosis.” (R. 398-99.) An MRI of plaintiff’s lumbar spine from November 14,

2004 showed mild diffuse bulging, mild diffuse arthropathy, mild central canal stenosis, and no

evidence of disc protrusion or neural foramina stenosis. (R. 363-64, 443-45.) On December 15,

2004, plaintiff was seen for low back pain; she reported drinking socially. (R. 397.) On January

3, 2005, plaintiff was seen for a refill of Xanax. (R. 408.) On January 5, 2005, plaintiff received

a sacroiliac joint steroid injection for her lower back pain, which she reported was a nine on a

pre-operative pain scale, indicating between “Very Severe Pain” and “Worst Pain Ever.” (R.

402-07.) Her chart indicates that she tolerated the procedure well. (R. 402.) 

C. Plaintiff’s Hearing Testimony3

At both hearings, plaintiff testified as to her limitations and her daily activities. (R. 240-

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14

73, 496-543.) She stated that she had experienced back pain for the previous four to five years,

which had gotten worse in the previous few months. (R. 511.) Plaintiff testified that despite her

surgery, her knee still bothers her. (R. 512.) Plaintiff stated she had no problems with sitting as

long as she had a firm seat. (R. 516.) She reported problems walking and standing, stating that

“with the back it’s kind of like a pressure, it bends, I mean, it makes your legs like kind of limp

where you can’t stand. Even if I walked up the steps.” (R. 515; see also R. 255-56.) She also

stated that she could not lift heavy bags, which her daughter did for her, and that she used a step

ladder because she could not reach above her head. (R. 516.) Plaintiff does not do her own

laundry and a friend drives her to appointments. (R. 257, 519-20.) Plaintiff testified that she

would not be able to stoop and get back up again because “[i]t bothers [her back] and [her] knee

on the left side, not the right . . . and sometimes [her] toes [] get numb.” (R. 516.) Plaintiff

explained that she sleeps irregularly, only sleeping for two or three hours at a time. (R. 259-60,

264, 519.) 

She testified that she socializes infrequently and attends church once per month. (R. 258,

520.) Plaintiff explained that she goes out rarely in order to prevent having conflicts with others

and because when she is out “[i]t just feels like something is going to happen.” (R. 523-24.) She

explained that she has been having panic attacks for at least the past twenty years, stating “I just

break out in a sweat, my stomach, it jumps. I feel like I really want to jump out.” (R. 249.) She

explained that the panic attacks are exacerbated by being around people, which causes her to not

want to go out. (R. 249.) She also described her frequent confrontations–including physical

fighting–with others. (R. 250, 261-63.) 

 Plaintiff testified that she used to drink beer and smoke marijuana once per week, but

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currently drinks only socially. (R. 254, 509-10.) She stated that she used those substances to

give her an appetite and to calm her. (R. 522.) 

D. Medical Expert Testimony

At the second hearing, an ME, Dr. Richard Saul, testified regarding plaintiff’s limitations. 

(R. 525-35.) After reviewing plaintiff’s mental health records, the ME opined that during the

years 1997-1999, her restrictions of daily living were moderate, difficulties of maintaining social

functioning were marked, and difficulties in maintaining concentration, persistence of pace was

somewhere between mild and moderate. (R. 528.) He specifically added that substance abuse

was a significant contributing factor. (R. 528-29.) The ME stated that he could not assess later

periods because of the lack of medical records, but noted that plaintiff had indicated that she had

“mellowed out over the years . . . because of age.” (R. 528.) 

The ME explained that borderline personality disorder is aggravated by drinking (R. 529),

but also that persons with borderline personality frequently resort to drinking because it can

depress symptoms of aggression and anger (R. 534). He opined that without substance abuse,

plaintiff’s limitations of social functioning “would be more of the moderate range than in the

marked range.” (R. 529.) There was some discussion regarding the ME’s definition of marked

versus moderate limitations that took place during the hearing, as discussed in part IV.A, infra. 

(R. 530-31.) 

E. Vocational Testimony

At plaintiff’s second hearing, a VE, Bruce Martin, testified to assist the ALJ in

determining whether jobs exist in the national and local economies that a person of plaintiff’s

age, education and mental/physical limitations could perform. (R. 536-41.) The VE classified

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While the hearing transcript records the VE as stating that work as a meat packer is

4

skilled work, the VE stated “SVP is two,” which is a specific vocational preparation time that

corresponds with unskilled work. See SSR 00-4p (stating “unskilled work corresponds to an

SVP of 1-2”).

Light work involves lifting no more than twenty pounds at a time with frequent lifting or 5

carrying of objects weighing up to ten 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, a claimant must have the ability to do

substantially all of these activities. If someone can do light work, he or she is considered able

also to do sedentary work. 20 CFR §§ 404.1567(b), 416.967(b).

Medium work involves lifting no more than fifty pounds at a time with frequent lifting or

carrying of objects weighing up to twenty-five pounds. If someone can do medium work, he or

she is considered to be capable of sedentary and light work. §§ 404.1567(c), 416.967(c).

Unskilled work is work which needs little or no judgment to do simple duties that can be

learned on the job in a short period of time. The job may or may not require considerable

strength. §§ 404.1568(a), 416.968(a).

Semi-skilled work is work that needs some skills but does not require doing the more

complex work duties. Semi-skilled jobs may require alertness and close attention to watching

machine processes; or inspecting, testing or otherwise looking for irregularities; or tending or

guarding equipment, property, materials, or persons against loss, damage or injury; or other types

of activities that are similarly less complex than skilled work, but more complex than unskilled

work. A job may be classified as semi-skilled where coordination and dexterity are necessary, as

when hands or feet must be moved quickly to do repetitive tasks. §§ 404.1568(b), 416.968(b).

16

plaintiff’s past relevant work as nursing assistant as semi-skilled, medium work; work as a meat

packer as unskilled, medium work; and job as a wrapper as unskilled, light work. (R. 536.) 4 5

The ALJ asked the VE whether a hypothetical person of advanced age, 55 and older, with

limitations as described by the ME–limitations involving social contacts–and specifically, limited

public contacts, could return to plaintiff’s prior jobs. (R. 536-37.) The VE confirmed that the

prior work would be somewhat questionable. (R. 537.) However, the VE opined that someone

with that profile could do cleaning work–a simple, routine job, performed in isolation. (R. 537-

38.) However, the VE explained that due to “occasional odors from cleaners, chlorinated base

cleaners and dust,” a person who needs a clean environment would be precluded from such work. 

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17

(R. 540.) The VE stated that a job as a production laborer, most of which are found at the

medium exertional level, would also fit the ALJ’s hypothetical description. (R. 540-41.) The

VE also opined that if plaintiff’s testimony were credited, notably her testimony regarding her

pain and postural limitations, she would not be capable of maintaining any jobs. (R. 538.) 

F. ALJ’s Findings

By decision dated April 2, 2005, the ALJ denied plaintiff’s claims, finding, in relevant

part as follows: 

4. The claimant’s knee impairment, asthma, a major depressive disorder, an anxietyrelated disorder, a borderline personality disorder, and a history of alcohol abuse are

considered “severe” based on the requirements in the Regulations 20 CFR §

404.1520(c). 

***

6. The undersigned finds the claimant’s allegations regarding her limitations are not

totally credible for the reasons set forth in the body of the decision. 

7. The claimant has the following residual functional capacity with the continued

abuse of alcohol: the claimant is unable to mentally do sustained work activities in

an ordinary work setting on a regular and continuing basis. The claimant is

significantly limited by a reduced ability to function socially and has poor emotional

control. 

8. The claimant is unable to perform any of her past relevant work when drinking

alcohol (20 CFR § 404.1565). 

9. The claimant was 53-58 years old during the relevant time period in question. The

ages are defined in the regulations as an individual closely approaching advanced age

and advanced age (20 CFR § 404.1563). 

10. The claimant has “a limited education” (20 CFR § 404.1564).

11. The claimant has no transferrable skills from any past relevant work (20 CFR §

404.1568). 

12. Considering the claimant’s age, education, past work experience and residual

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18

functional capacity based on all of the claimant’s severe impairments, including

alcoholism, the claimant is unable to make an adjustment to work existing in

significant numbers in the national economy. A finding of “disabled” is therefore

appropriate. 

13. Considering all of the claimant’s severe impairments, including alcoholism, the

claimant is under a disability as defined in the Social Security Act (20 CFR §

416.920(g)). 

***

15. If the claimant stopped using alcohol, the claimant would retain the following

residual functional capacity: to perform at the medium level of exertion. The

claimant has non-exertional limitations. Due to her asthma, she must be permitted

to work in a clean environment. She is limited to performing simple, routine jobs

because of her mental impairments, and has moderate limitations in social

functioning and concentration. 

16. If the claimant stopped using alcohol, the claimant would be able to perform past

relevant work as a packager (20 CFR § 416.965). 

17. If the claimant stopped using alcohol, although the claimant’s exertional and nonexertional limitations do not allow her to perform the full range of medium work,

using Medical-Vocational Rules 203.12 and 203.19 as a framework for decisionmaking, there are a significant number of jobs in the national economy that she could

perform. Examples ofsuch jobs, provided bythe testimony of the Vocational Expert,

include work as a production laborer, of which there are 40,000 regionally and

80,000 jobs nationally. A finding of “not disabled” is therefore appropriate. 

18. Because the claimant would not be disabled if she stopped using alcohol,

alcoholism is a contributing factor material to the determination of disability (20 CFR

§ 416.935 and Social Security Ruling 82-60). 

19. The claimant is not considered to be under a disability pursuant to Section 105

of Public Law 104-121.

20. The claimant was not under a “disability” as defined in the Social Security Act,

at any time during the relevant time period. (July 1, 1997 to August 19, 2002) (20

CFR § 404.1520(g)). 

(R. 289-91.)

The ALJ explicitly based his opinion of plaintiff’s mental impairments on the testimony

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19

of the ME, finding that “the record supports a finding that the mental impairments result in

moderate restriction in activities of daily living, marked difficulties with social functioning,

moderate difficulties in maintaining concentration, persistence and pace.” (R. 284.) However,

again relying on the ME’s expertise, “[w]ithout excessive alcohol consumption (which appeared

to end in 1999),” plaintiff’s limitations would only be moderate. (R. 285.) 

With respect to plaintiff’s credibility, the ALJ found her “not fully credible, in light of the

medical evidence,” because plaintiff “tended to exaggerate her symptoms and minimize her

capabilities, which undermined her credibility.” (R. 285.) For example, plaintiff complained of

knee pain, but the diagnostic studies showed bursitis, not a chronic problem, and mild medial

compartment osteoarthritis.” (R. 285.) Further, “she admitted to being non-compliant with her

medications” and to “still drinking beer on social occasions.” (R. 286.) 

G. Magistrate Judge’s Opinion

The Magistrate Judge recommended remand on three bases: 1) the confusion regarding

“rating definitions” applied by the ME; 2) the lack of a medically supported physical RFC; and 3)

the consequently flawed hypothetical question presented to the VE. The Commissioner has

objected to the entirety of the Magistrate Judge’s opinion and additionally argues that the

decision of the ALJ is supported by substantial evidence. Plaintiff has responded to the

Commissioner’s objections but has not lodged separate objections to the report and

recommendation. I will address each of the Commissioner’s objections in turn. 

III. Legal Standards

I review de novo the parts of the Magistrate Judge’s report to which the Commissioner

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20

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

Magistrate Judge’s findings or recommendations. Id.

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

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

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

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

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

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

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

(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). In making this determination, the

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

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

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

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

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

Before a district court can review the record to determine if the Commissioner’s final

decision is supported by substantial evidence, the Commissioner must provide an explanation for

his findings in order to allow for meaningful judicial review. Burnett v. Comm’r of Soc. Sec.,

220 F.3d 112, 119 (3d Cir. 1981) (holding that an ALJ must “set forth the reasons for his

decision”). The ALJ cannot simply state a conclusion “without identifying the relevant listed

impairments, discussing the evidence, or explaining his reasoning.” Burnett, 220 F.3d at 119. 

The Third Circuit has stated that “we need from the ALJ not only an expression of the evidence

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21

[he] considered which supports the result, but also some indication of the evidence which was

rejected” in order to determine “if significant probative evidence was not credited or simply

ignored.” Cotter, 642 F.2d 700, 705 (3d Cir. 1981). Without such information, the ALJ’s

findings are “beyond meaningful judicial review.” Burnett, 220 F.3d at 119; see also Cotter, 642

F.2d at 705-06. Without the ability to meaningfully review the ALJ’s conclusions, a court is

compelled to “vacate and remand the case for a discussion of the evidence and an explanation of

reasoning supporting” those conclusions. Burnett, 220 F.3d at 120.

To determine if a claimant is disabled, the Commissioner applies a five-step process of

evaluation under 20 C.F.R. § 404.1520. The first two steps of the analysis involve threshold

determinations of whether the claimant is working, 20 C.F.R. § 404.1520(a), and whether the

claimant’s impairment is of required duration and severity to significantly limit his or her ability

to work, 20 C.F.R. § 404.1520(c). The third step is comparing the evidence of medical

impairment against a list of impairments that would permit the claimant to qualify for disability

without further inquiry. 20 C.F.R. § 404.1520(d). If the claimant does not qualify for benefits

automatically according to this list, the Commissioner proceeds to the fourth and fifth steps of

the analysis. In the fourth step the Commissioner determines whether the claimant retains the

residual functional capacity to perform work similar to that he or she has performed in the past. 

20 C.F.R. § 404.1520(e). In the fifth and final step, if the Commissioner finds that the claimant

is unable to perform any other work that exists in the national or regional economies, she must

find the claimant to be disabled. 20 C.F.R. § 404.1520(f); see also Sullivan v. Zebley, 493 U.S.

521, 525 (1990) (expounding on the application of this five-step process).

Case 2:05-cv-02971-WY Document 19 Filed 07/26/07 Page 21 of 31
The Magistrate Judge also noted in the margin another ALJ decision in which the same 6

ME had used word descriptions generally considered “marked” while opining that a claimant’s

limitations were only moderate. (Rep. & Recom. 21 n.21.)

22

IV. Discussion

A. Rating Definitions

During his testimony, the ME categorized plaintiff’s mental limitations and difficulties

using the accepted terminology of “moderate” and “marked.” These descriptions of a plaintiff’s

limitations are significant to determining whether a plaintiff meets the criteria for a Listed

impairment or retains the RFC to perform past relevant work or other work that exists. After

referring to the relevant portion of the record, the Magistrate Judge found that there was

confusion regarding the definitions the ME was attributing to the categories of “marked” and

“moderate” for purposes of describing plaintiff’s mental limitations. The Magistrate Judge 6

determined that a remand was appropriate because “the court cannot conclusively state that no

error was made, and since remand is appropriate in this case for other reasons, upon remand the

Commission should, through written interrogatories and/or oral testimony, clarify the ME’s

intent and use of the rating definitions.” (Rep. & Recom. 21.) 

The Commissioner objects to remand on this basis for two reasons. First, the

Commissioner argues that it seems clear from the Magistrate Judge’s statement that she would

not have recommended remand based on this issue alone. (Gov’t Obj.’s 2.) Second, the inability

to state that “no error was made” exceeds the substantial evidence standard of review, which, the

Commissioner maintains, exists to support the ALJ’s determination.

Plaintiff argues that a significant confusion exists and that because the ME was stating a

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23

restriction was “moderate” when using a definition corresponding with a “marked” restriction,

plaintiff should have been deemed per se disabled at Step 3 of the sequential analysis. Plaintiff

has attached the Commissioner’s “Medical Source Statement of Ability To Do Work Related

Activities (Mental),” which defines the classifications of “none,” “slight,” “moderate,” “marked,”

and “extreme” for purposes of rating a claimant limitations. (Pl.’s Mot. Summ. J., Ex. A.); see

also, Agency Information Collection Activities: Proposed Request and Comment Request, 71

Fed. Reg. 961, 963 (stating that the Medical Source Statement of Ability To Do Work Related

Activities (Physical and Mental) “are used to collect data that is required to determine the

residual functional capacity (RFC) of individuals who are appealing denied claims for benefits

based on disability”). The form directs the evaluator to use the following definitions for the

rating terms: 

Moderate–There is a moderate limitation in this area but the individual is still able

to function satisfactorily.

Marked–There is serious limitation in this area. The ability to function is severely

limited but not precluded.

Extreme–There is major limitation in this area. There is no useful ability to function

in this area.

(Pl.’s Mot. Summ. J., Ex. A.) The relevant portion of the hearing transcript is as follows:

ALJ: Okay. Now, when you indicate that the limitations, the various limitations

that you noted are moderate do you mean they are precluded or that they are

impacted but not precluded?

ME: Impacting but not precluded.

Atty: Your Honor, is that the same thing as seriously limited but not precluded?

The agency has forms.

ALJ: Is it seriously limited but not precluded?

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24

ME: In terms of marked that I mention and socially, is that what you’re talking

about?

Atty: In terms of moderate I guess.

ALJ: Not marked but moderate. 

ME: I would say that it was not precluded but it was seriously limited that particular

area because of the violence that she had at that particular time.

ALJ: I’m sorry, now I’m a little confused. 

Atty: Now I’m confused I think.

ME: Okay. 

ALJ: When you saw marked – 

ME: When I say marked in the B criteria?

ALJ: In social, right. You’re indicating something is seriously limited I take it but

the real question is does that preclude the interaction for example?

ME: I think in her case, yes, yes. 

ALJ: Okay. Now, when you say moderate does that mean it’s still seriously

impacted but not precluded?

ME: Not precluded. 

ALJ: Not precluded.

(R. 530-31.) I agree that the record of the proceeding demonstrates confusion as to the

definitions the ME was using to classify plaintiff’s restrictions. 

Because the ALJ explicitly relied on the ME’s determination of plaintiff’s mental health

limitations–specifically that she only suffered from “moderate” restrictions in social functioning

in the absence of the use of alcohol–remand is appropriate to clarify the ME’s definitions of the

Case 2:05-cv-02971-WY Document 19 Filed 07/26/07 Page 24 of 31
25

appropriate terms. This clarification is crucial because had plaintiff suffered from “marked”

limitations of social functioning even in the absence of alcohol use, the determination of her

ability to perform substantial gainful activity would likely have had a different outcome or she

may have met the criteria for a Listing at Step 3 of the sequential analysis. Thus, in the absence

of clarification, it is not possible to discern whether substantial evidence supports the ALJ’s

conclusion. However, this ambiguity may be resolved through the use of simple written

interrogatories or a statement by the ME, as suggested by Magistrate Judge Wells. Accordingly,

I will overrule the Commissioner’s objection.

B. Physical RFC

The Magistrate Judge’s first report and recommendation, which I adopted on April 23,

2004, without objection from the parties, states as follows: “Finally, upon remand, the ALJ

should obtain a physical RFC. This court found no medical assessment of Plaintiff’s exertional

limitations, thus, was unable to determine the appropriateness of exertional parameters set by the

ALJ in her RFC presentation to the VE.” (R. 337.) In the current report and recommendation,

the Magistrate Judge found that such an assessment had not been undertaken as directed and,

furthermore, the record still lacked evidence from which plaintiff’s physical RFC could be

evaluated. (Rep. & Recom. 22-23.) Moreover, the Magistrate Judge concluded that there was

other evidence in the record that the ALJ did not address that would have supported less than the

medium exertional ability the ALJ found plaintiff to have. (Id. at 24-25.) The Magistrate Judge

further bolstered her conclusion that a medically supported physical RFC was necessary by

pointing out that the VE testified that plaintiff’s subjective allegations of pain and postural

limitations, in combination with her other impairments, would preclude all work. (Id. at 25.) 

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26

The Commissioner lodges several objections. First, that the Magistrate Judge’s

interpretation of the prior order is incorrect and it only mandated the ALJ to seek additional

medical opinion if necessary. (Def. Obj.’s 2). The Commissioner also objects stating that there

is no independent requirement that an ALJ seek such a statement and substantial evidence

supports the determination of the ALJ that plaintiff is capable of doing medium work in a clean

environment. (Id. at 3–6.) 

The report and recommendation adopted by this court was clear that the Commissioner

was to obtain a physical RFC in order to appropriately assess plaintiff’s physical limitations. The

order issued by the court directed “[t]he matter be REMANDED to the [Commissioner] to allow

the [ALJ] conduct additional proceedings consistent with this Report and Recommendation.” (R.

317.) Thus, the ALJ should have obtained an medically supported physical RFC in order to

determine the extent of plaintiff’s physical limitations. While the order itself directs the

Commissioner to, inter alia, “reassess the severity of [p]laintiff’s Borderline Personality Disorder

and hypertension” and “if necessary, seek additional medical opinion to determine if these

conditions singly or combined with [p]laintiff’s other impairments, meet or equal a listed

impairment,” (R. 317), that does not, as the Commissioner argues, negate the express mandate

contained in the report and recommendation to obtain a medically supported RFC. 

While it is certainly true that there is no independent requirement that a physical RFC or

specific form of medical opinion be obtained by an ALJ, the Magistrate Judge issued such a

directive recognizing the absence of medical evidence to support any determination of plaintiff’s

exertional capabilities. An ALJ is simply not authorized to evaluate medical conditions himself. 

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d

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27

Cir. 1985); see also Wallace v. Sec’y of Health & Human Servs., 722 F.2d 1150, 1155 (3d Cir.

1983) (“An ALJ is not free to set his own expertise against that of physicians who present

competent medical evidence.” (internal quotation omitted)). He may not make “purely

speculative inferences from medical reports,” Smith v. Califano, 637 F.2d 968, 972 (3d Cir.

1981), nor may he make medical findings based on “amorphous impressions, gleaned from the

record and from his evaluation of [the claimant]’s credibility.” Kent v. Schweiker, 710 F.2d 110,

115 (3d Cir. 1983); see also, e.g., Morales v. Apfel, 225 F.3d 310, 316-17 (3d Cir. 2000)

(defining substantial evidence and citing Kent, 710 F.2d at 114). To support his decision with

substantial evidence, the ALJ must cite to the opinion of a physician for medical conclusions

when there is contradictory evidence in the record. Ferguson, 765 F.2d at 37. The Third Circuit

has admonished: “By independently reviewing and interpreting the [medical evidence], the ALJ

impermissibly substitute[s] his own judgment for that of a physician; an ALJ is not free to set his

own expertise against that of a physician who presents competent evidence. Again, if the ALJ

believe[s] that [a doctor’s] reports [are] [not satisfactory], it [is] incumbent upon the ALJ to

secure additional evidence from another physician.” Id. Above all, an ALJ may not reach a

decision about a claimant’s medical condition solely on his own “non-expert observations at the

hearing — in other words, by relying on the roundly condemned ‘sit and squirm’ method of

deciding cases.” Van Horn v. Schweiker, 717 F.2d 871, 874 (3d Cir. 1983) (citing Freeman v.

Schweiker, 681 F.2d 727, 731 (11th Cir. 1982) and Aubeuf v. Schweiker, 649 F.2d 107, 113 n.7

(2d Cir. 1981)); see also Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir.

2000) (citing Van Horn). 

It may very well be that plaintiff is capable of performing medium work. See supra note

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28

5. However, as noted by the Magistrate Judge, there was other medical evidence in the record,

including the statement of plaintiff’s treating physician, Dr. Mingroni, and plaintiff’s own

statements, which could contradict the ability to do medium work, and plaintiff herself was never

asked about her ability to do the essentials of medium work, including lifting, carrying, sitting,

standing, bending, stooping, crouching, kneeling, and crawling. (See Rep. & Recom. 24-25.)

Thus, the prior directive to obtain a physical RFC was still necessary. See Kent, 710 F.2d at 114-

115 (stating that the ALJ’s “conclusion may not be permitted to stand” where “the Secretary

adduced no evidence that appellant was capable of doing [sedentary work]” and was based on

“his own amorphous impressions, gleaned from the record and from his evaluations of

appellant’s credibility”); see also Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004) (“The

problem is that we don’t know what [the ALJ] thought. And in particular . . . we do not know on

what basis he decided that [the claimant] can stand for two hours at a time. No physician said

that.”). Accordingly, I will overrule the Commissioner’s objection based on the facts of this case

and the prior report and recommendation.

C. Hypothetical Question to the VE

The Magistrate Judge lastly found that given the absence of a clear-cut physical RFC, one

essential assumption of the RFC presented to the VE was flawed. (Rep. & Recom. 25.) This

determination is thus linked to the second that a medically supported physical RFC was lacking. 

As such, the Commissioner makes the same objections and argues that the hypothetical was

legally sufficient. (Def.’s Obj.’s 6.) The Third Circuit has explained that “‘the vocational

expert’s testimony concerning a claimant’s ability to perform alternative employment may only

be considered for purposes of determining disability if the question accurately portrays the

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29

claimant’s individual physical and mental impairments.’” Burns v. Barnhart, 312 F.3d 113, 123

(3d Cir. 2002) (quoting Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984)). The

hypothetical question “must reflect all of a claimant’s impairments.” Id. (citing Chrupcala v.

Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)). Because, as discussed above, the ALJ improperly

assessed plaintiff’s RFC, the hypothetical question to the VE was insufficient. Accordingly,

plaintiff’s RFC must be assessed and resubmitted to a VE and the Commissioner’s objection is

overruled. 

IV. Conclusion 

For the foregoing reasons, I will overrule Commissioner’s objections and adopt the

Report and Recommendation of Magistrate Judge Wells. Accordingly, I will grant plaintiff’s

motion for summary judgment in part and deny it in part, deny the Commissioner’s motion for

summary judgment, and remand the case for further proceedings consistent with this

memorandum and order. I pause only to note my disappointment that plaintiff’s claim was not

adjudicated consistent with the previous report and recommendation that I adopted; plaintiff’s

application has been pending for almost ten years and must henceforth be acted upon

expeditiously. The Third Circuit has repeatedly voiced its concern with applications that have

been delayed for this length of time. See, e.g., Cadillac v. Barnhart, 84 F. App’x 163, 164 (3d

Cir. 2003) (“register[ing] . . . disappointment and disapproval at the unconscionable delay that

has plagued Cadillac’s application at nearly every level of the review process” and cataloging

previous cases wherein the Third Circuit has “voiced concerns,” including instances where the

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30

determination has taken ten, eight and five years”). As such, the Commissioner shall promptly

comply with this memorandum and order. An appropriate order follows. 

Case 2:05-cv-02971-WY Document 19 Filed 07/26/07 Page 30 of 31
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LOIS TRAYLOR-LAMB,

Plaintiff,

v.

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant.

:

:

:

:

:

:

:

:

:

CIVIL ACTION

NO. 05-2971

Order

AND NOW, this _____ day of July 2007, upon consideration of the parties’ crossmotions for summary judgment (Docket Nos. 9, 10) and plaintiff’s reply to the Commissioner’s

motion for summary judgment, and after careful and independent review of the report and

recommendation of U.S. Magistrate Judge Wells and the Commissioner’s objections thereto, it is

hereby ORDERED that:

1. The Commissioner’s objections are OVERRULED.

2. The Report of Magistrate Judge Wells is APPROVED and ADOPTED

3. Plaintiff’s motion for summary judgment is GRANTED to the extent that I am

remanding.

4. The Commissioner’s motion for summary judgment is DENIED.

5. The matter is REMANDED to the Commissioner for further proceedings consistent

with this memorandum and order.

 s/ William H. Yohn Jr. 

 William H. Yohn Jr., Judge

Case 2:05-cv-02971-WY Document 19 Filed 07/26/07 Page 31 of 31