IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BARBARA A. MYLOD, : CIVIL ACTION 

:

Plaintiff, : NO. 04-5795

:

v. :

:

JO ANNE B. BARNHART, :

Commissioner of Social Security, :

:

Defendant. :

MEMORANDUM

BUCKWALTER, S. J. May 9, 2006

Presently before the Court is Plaintiff’s Objections to Report and

Recommendation of United States Magistrate Judge M. Faith Angell. For the reasons set forth

below, Plaintiff’s objections are overruled, and the Magistrate Judge’s Report and

Recommendation is approved and adopted.

I. DISCUSSION

After analyzing the reproduced record, the Administrative Law Judge’s (“ALJ”)

opinion, the Magistrate Judge’s Report and Recommendation, and Plaintiff’s Objections, the

Court finds that summary judgment is appropriately entered on behalf of Defendant.

Even though the Court agrees with the Magistrate Judge’s Report and

Recommendation, the Court will briefly address Plaintiff’s objections. Plaintiff argues that: (1)

the ALJ failed to assign sufficient weight to the report of Plaintiff’s treating orthopedist, and (2)

the ALJ failed to make a proper credibility determination in light of Plaintiff’s work history.

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1. The ALJ noted that in both a letter from Dr. Avart to James Mogel dated January 10, 2002 ®. 225), and a

Progress Report dated June 7, 2002 ® . 218), Dr. Avart failed to mention any restriction on claimant’s ability to sit. 

However, in an Interim Progress Note dated January 18, 2002 ®. 224), Dr. Avart stated that claimant’s “[p]ain

worsens . . . with prolonged sitting.”

2

 A. The ALJ afforded sufficient weight to the report of Plaintiff’s treating physician

Plaintiff argues that the ALJ failed to assign sufficient weight to the report of

Plaintiff’s treating orthopedist, Dr. Mark Avart. Specifically, Plaintiff contends that the ALJ

improperly rejected Dr. Avart’s conclusion that Plaintiff could sit for only three to four hours per

eight hour work day. 

Dr. Avart completed a residual functional capacity (“RFC”) questionnaire ®. 410-

12), which indicates Plaintiff can sit for three to four hours, stand for up to one hour, walk for up

to one hour, lift and carry up to ten pounds occasionally, and reach occasionally. The RFC also

indicates that Plaintiff cannot bend, squat, crawl, climb, stoop, crouch, or kneel and cannot be

exposed to unprotected heights. Id. 

The ALJ found that while “the limitations indicated [in the RFC] by Dr. Avart with

respect to [Plaintiff’s] ability to stand, walk and lift are credible, the limitation he indicated with

respect to her ability to sit, raise[s] some doubts.” ®. 26). The ALJ reasoned that because Dr.

Avart did not consistently limit Plaintiff’s ability to sit prior to the RFC,1 his conclusion regarding

Plaintiff’s ability to sit in the RFC could not be credited. The ALJ instead relied on the reports of

Dr. Stanley Nosheny, a consulting physician ®. 212), and Dr. Stuart Gordon, who performed an

independent medical evaluation (“IME”) ®. 153). Dr. Nosheny’s report indicates that Plaintiff

has the capacity to sit for eight hours or more. ®. 212.) Dr. Gordon’s report states that Plaintiff

Case 2:04-cv-05795-RB Document 21 Filed 05/09/06 Page 2 of 6
2. Additionally, the ALJ noted that the limitations indicated by Dr. Avart may have been based on Plaintiff’s

assertions, which cannot be totally credited. As is discussed later in this Memorandum, the Court finds that the

ALJ’s conclusion with regard to Plaintiff’s credibility is supported by substantial evidence.

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“is able to continue working her routine job without any restrictions and this would include a 40

hour work week.” ®. 154.)

In response, Plaintiff first argues that Dr. Avart’s RFC recommendation regarding

her ability to sit is supported by a January 2002 treatment note from Dr. Avart which stated that

Plaintiff’s “pain worsen[ed] . . . with prolonged sitting.” ®. 224.) As such, according to Plaintiff,

“this is not a case in which the treating physician suddenly announced a limitation which was

nowhere mentioned in his previous records.” (Pl.’s Objections at 2-3.) Contrary to Plaintiff’s

argument, the ALJ did consider Dr. Avart’s RFC and the treatment note which limited Plaintiff’s

ability to sit. In addition, the ALJ considered Dr. Avart’s reports which did not indicate any

limitation on Plaintiff’s ability to sit and the other objective medical evidence in the record. 

Notably, none of Dr. Avart’s reports dated after the January 2002 treatment note and before the

RFC mention restrictions on or pain associated with Plaintiff’s ability to sit.2 This supports the

ALJ’s conclusion that Dr. Avart did not consistently limit Plaintiff’s ability to sit and that Dr.

Avart’s recommendation with regard to Plaintiff’s ability to sit could not be credited. 

Accordingly, the Court agrees with the Magistrate Judge’s Report and Recommendation regarding

this issue.

Second, Plaintiff argues that the ALJ should not have relied on Dr. Gordon’s IME

because that examination took place on March 7, 2001, eighteen months prior to claimant’s

amended onset date. The Court notes that Plaintiff has not demonstrated any intervening changes

Case 2:04-cv-05795-RB Document 21 Filed 05/09/06 Page 3 of 6
3. Plaintiff cites Dr. Nosheny’s certification record available at the American Board of Medical Specialist’s

(“ABMS”) website, htttp://www.abms.org. The ABMS website lists that Dr. Nosheny has a general certificate in

international medicine and a subspecialty certificate in rheumatology. 

4

in her condition to render Dr. Gordon’s 2001 IME irrelevant. Moreover, even without Dr.

Gordon’s IME, Dr. Nosheny’s November 2002 exam, coupled with Dr. Avart’s inconsistent

reports, would be sufficient to contradict Dr. Avart’s finding regarding Plaintiff’s ability to sit.

Third, Plaintiff argues that the ALJ should have afforded greater weight to the

opinion of Dr. Avart, an orthopedic specialist, than the opinion of Dr. Nosheny, who is not an

orthopedic specialist.3 Plaintiff claims that the ALJ may have mistakenly believed that Dr.

Nosheny was an orthopedist because his report was titled “Orthopedic Consultative Examination”

in the Exhibit List. Even assuming that Dr. Nosheny is an not orthopedic specialist, as Plaintiff

contends, this fact would not alter the inconsistency of Dr. Avart’s reports. 

Finally, Plaintiff contends that “the ALJ gave no reason for rejecting Dr. Avart’s

report that [Plaintiff] was incapable of performing repetitive activities with her dominant hand and

wrist.” (Pl.’s Objections at 6.) However, the ALJ properly states that in the RFC, Dr. Avart

indicated that Plaintiff can “use both hands for simple grasping, pushing and pulling, and fine

manipulations, as long these activities involve[] less than 10 pounds.” ® . 27); see also R. 411-12. 

Therefore, the ALJ’s conclusion that Plaintiff’s wrist impairment does not warrant any additional

limitation on her ability to perform sedentary work is supported by substantial evidence.

Case 2:04-cv-05795-RB Document 21 Filed 05/09/06 Page 4 of 6
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 B. The ALJ made a proper credibility determination 

Plaintiff argues that the ALJ failed to make a proper credibility determination in

light of Plaintiff’s work history. The ALJ noted that Plaintiff alleges severe pain in her knees, but,

Plaintiff does not appear to be taking strong pain medication for pain relief. Also, Plaintiff has

been advised to lose weight to alleviate discomfort, but has not done so. In addition, Plaintiff

admits that she is able take public transportation, albeit with some difficulty, vacuum her

apartment, and do some cooking. Furthermore, as the ALJ noted, little in Dr. Avart’s reports

contradicts Dr. Nosheny’s findings. Based on these facts, the ALJ concluded that there are

conflicts in the evidence and as such Plaintiff’s testimony and statements indicating that she is

unable to perform the full range of sedentary work cannot be credited. Plaintiff points out that her

long work history was not considered by the ALJ when assessing Plaintiff’s credibility. However,

even if Plaintiff were afforded “significant credibility,” the standard her counsel proposes, there

are still conflicts in the evidence. Considering these conflicts along with Plaintiff’s credibility, the

Court would still find that Plaintiff’s statements regarding her ability to perform sedentary work

cannot be credited. Therefore, the ALJ’s conclusion regarding Plaintiff’s credibility is supported

by substantial evidence.

II. CONCLUSION

For the reasons stated above, the Court approves and adopts the Magistrate Judge’s

Report and Recommendation. An appropriate order follows.

Case 2:04-cv-05795-RB Document 21 Filed 05/09/06 Page 5 of 6
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BARBARA A. MYLOD, : CIVIL ACTION 

:

Plaintiff, : NO. 04-5795

:

v. :

:

JO ANNE B. BARNHART, :

Commissioner of Social Security, :

:

Defendant. :

ORDER

AND NOW, this 9th day of May, 2006, upon consideration of Plaintiff’s

Motion for Summary Judgment (Docket No. 11), the Report and Recommendation of the Chief

United States Magistrate Judge M. Faith Angell (Docket No. 19), and Plaintiff’s Objections

thereto (Docket No. 20), it is hereby ORDERED that the Report and Recommendation is

APPROVED and ADOPTED. Judgment is entered on behalf of Defendant and against Plaintiff. 

This case is now CLOSED.

BY THE COURT:

 s/ Ronald L. Buckwalter, S. J. 

 RONALD L. BUCKWALTER, S.J.

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