1

 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARGARET GRANWEHR, : CIVIL ACTION

Plaintiff :

:

VS. :

:

JO ANNE B. BARNHART, :

Commissioner of Social Security, :

Defendant : NO. 05-2221

 REPORT AND RECOMMENDATION

LINDA K. CARACAPPA

UNITED STATES MAGISTRATE JUDGE

Plaintiff, Margaret Granwehr, brought this action under 42

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

the Commissioner of Social Security (Commissioner) denying

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

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

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

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

to the Commissioner. 

 BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a fifty-six (56) year-old female born on February

13, 1949 (Tr. 110). She has an eleventh grade education, and past

relevant work experience as a telephone solicitor, food service

manager, and waitress (Tr. 131, 136). Disability is alleged as of

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1Plaintiff originally alleged disability since November 15,

1999, but amended the date at the administrative to September

2000 (Tr. 78). 

2This matter was randomly selected by the Social Security

Administration to test modifications to the disability

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

Accordingly, there was no reconsideration level of review.

2

September 20001 due to a variety of problems including vertigo,

loss of balance, difficulty with concentration, neuropathy in left

leg, seizures, and addiction to prescription medications (Tr. 130).

Plaintiff’s application was denied initially, and she then

requested a hearing before an Administrative Law Judge (ALJ).

2 A

hearing was commenced on May 28, 2003, at which, plaintiff,

represented by counsel, testified along with a medical expert (ME)

and a vocational expert (VE) (Tr. 39-96). In a decision rendered

June 25, 2003, the ALJ determined that plaintiff “suffers from the

following severe impairments: an anxiety disorder, a personality

disorder, an opiate dependence, degenerative disc disease of the

lumbar spine, left leg pain, pneumonia and a respiratory condition”

which prevent her from performing her past work as a food service

manager and waitress. The ALJ, however, further determined that

plaintiff’s impairments do not prevent her from performing her past

job as a telephone solicitor. The ALJ also found that she retains

the residual functional capacity to do limited light work. Thus,

she was determined to be not entitled to benefits (Tr. 17-34).

The ALJ's findings became the final decision of the

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Commissioner when the Appeals Council denied plaintiff's request

for review on March 11, 2005 (Tr. 8-10). Presently, plaintiff has

appealed that decision to this court.

 JUDICIAL REVIEW

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

whether the Commissioner's decision is supported by substantial

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

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

amount of evidence but rather such relevant evidence as a

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

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

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

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

 To establish a disability under the Social Security Act, a

claimant must demonstrate that there is some "medically

determinable basis for an impairment that prevents him from

engaging in any 'substantial gainful activity' for a statutory

twelve-month period." Stunkard v. Secretary of Health and Human

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

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

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

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

result of meeting or equaling certain listed impairments set forth

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

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

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

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

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

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

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

 This method of proving disability requires that the claimant

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

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

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

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

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

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

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

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

423(d)(2)(A).

This case was decided under the medical-vocational regulations

which require a five-step sequential evaluation of disability

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

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

considers in turn current work activity, the severity of

impairments, the ability to perform past work and vocational

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

Case 2:05-cv-02221-JCJ Document 10 Filed 10/31/05 Page 4 of 18
3Radiculopathy- disease of the nerve roots. Dorland’s

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

1511.

5

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

evaluation and determined that plaintiff was capable of performing

her past work as a telephone solicitor. In the alternative, the

Commissioner also went to the fifth step and concluded that

plaintiff is able to do limited light work. 

 MEDICAL HISTORY

The relevant evidence in this case consists of medical reports

and testimony which are summarized as follows:

Plaintiff was admitted into Delaware County Memorial Hospital

on September 30, 1999 with a diagnosis of degenerative lumbar

disease and left lumbar radiculopathy3. She subsequently underwent

a lumbar diskogram at L3-4, L4-5, and L5-6 performed by Dr. Don

Kovalsky. She was discharged on October 1, 1999 (Tr. 247-249).

The record contains a series of update reports from Dr.

Kovalsky covering the period from plaintiff’s operation through

October 2001. He reported on October 29, 1999 that plaintiff

continued with back pain and that she complained that pain was

“really disturbing her life, making working difficult and caring

for children difficult.” Dr. Kovalsky’s diagnosis was “probable

left lumbar radiculopathy from low-grade lumbar instability” (Tr.

246).

Case 2:05-cv-02221-JCJ Document 10 Filed 10/31/05 Page 5 of 18
4Neuropathy- a functional disturbance or pathological change

in the peripheral nervous system, sometimes limited to

noninflammatory lesions as opposed to those of neuritis; the

etiology may be known or unknown. Dorland’s at 1212.

5Atelectasis- incomplete expansion of a lung or portion of a

lung. Dorland’s at 166.

6

On March 23, 2000, Dr. Kovalsky indicated that plaintiff was

being followed for “degenerative disc disease of the lumbar spine

with left peroneal neuropathy4.” He stated further that plaintiff

reported that she is able to work while using medication. She had

no significant exacerbation of her symptoms, and no complaints of

weakness of the lower extremities (Tr. 245). In a number of

updated reports in 2000 and 2001, Dr. Kovalsky wrote that plaintiff

was in a pain management program for chronic neuropathic pain in

the left lower extremity, but was able to “participate in

activities of daily living without restriction” while taking her

pain medication (Tr. 229-243).

On February 19, 2001, plaintiff had chest x-rays taken at

Mercy Community Hospital. Dr. Russ Savit’s impression was that

“there is interstitial lung disease, greater in the right lung as

compared to the left. There are patchy areas of scarring and

atelectasis5 bilaterally” (Tr. 199).

On August 6, 2001, plaintiff entered Crozer-Chester Medical

Center to have a lung procedure performed called a “right

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6Thoracotomy- surgical incision into the pleural space

through the wall of the chest. Dorland’s at 1834.

7Disease (interstitial lung)- a heterogeneous group of

noninfectious, non-malignant disorders of the lower respiratory

tract, affecting primarily the alveolar wall structures but also

often involving the small airways and blood vessels of the lung

paraenchyma. Dorland’s at 518.

8Bronchiolitis (obliterans with organizing pneumonia)- an

idiopathic disease combining organizing pneumonia with a

condition resembling bronchiolitis fibrosa obliterns. Dorland’s

at 244.

9Bronchopneumonia- an inflammation of the lungs that begins

in the terminal bronchioles, which become clogged with a

mucopurulent exudate forming consolidated patches in adjacent

lobules. Dorland’s at 245.

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thoracotomy6 with biopsy of the right middle lobe and right lower

lobe, and mediastinal lymph node biopsy.” Dr. Robb Seto, who

performed the procedure, gave a postoperative diagnosis of

“interstitial lung disease”7 (Tr. 496-497).

The record also contains several reports from Suburban

Pulmonary Medicine. On September 7, 2001, Gerald Meis, D.O., a

pulmonologist, examined the plaintiff and reviewed a CT scan of her

lungs. He concluded that the plaintiff had “bronchiolitis

obliterans with organizing pneumonia.8 There may be an allergic

alveolitis given the peribronchial inflammation” (Tr. 261-268). 

Plaintiff was again admitted into Crozer-Chester on October

25, 2001 with respiratory problems. She was discharged on October

29, 2001 with the following diagnoses; “community-acquired

bronchopneumonia,9 rule out alveolitis, anxiety with adjustment

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10Adenopathy- enlargement of a lymph node. Dorland’s at 30.

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disorder, intermittent vestibulopathy, and chronic pain syndrome”

(Tr. 278-279). 

Two days later on October 31, 2001, plaintiff, apparently

unhappy with her care at Crozier Hospital, got admitted into Temple

University Hospital for her respiratory problems. Dr. Darilyn

Moyer reported that plaintiff had “hypercapneic respiratory failure

secondary to benzodiazepine use but denied suicide ideation.” She

was given a psychiatric consultation because of possible suicide

ideation and was found to be suffering depression, anxiety, and

bipolar disorder (Tr. 306-307).

Plaintiff was seen at the Temple Lung Center on December 10,

2001. Dr. Steven Kelson reported that plaintiff suffers with

“recurrent pulmonary infiltrates” with questionable etiology. He

added that it was possible that plaintiff may also have an

“immunogobulin deficience which predisposed her to recurrent

pneumonia.” Dr. Kelson recommended that plaintiff be weaned off of

the pain medication Oxycotin (Tr. 481-485). 

X-rays were taken of plaintiff’s chest on December 27, 2001.

Dr. Barry Suskind gave his impression as “mediastinal and hilar

adenopathy10 as previously described. Bilateral ground glass

infiltrates, slightly decreased since the prior examination. Small

lung nodule at the right base, unchanged. Subcardinal adenopathy”

(Tr. 194).

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Plaintiff again was admitted into Temple Hospital on February

5, 2002 with fever and shortness of breath. Dr. Steven Kelsen

reported that plaintiff was treated for “community-acquired

pneumonia.” She was discharged on February 8, 2002 (Tr. 350-352).

Plaintiff had an MRI of the lumbar spine performed on February

20, 2002. Dr. Stephen Kelsen’s impression was central disc

herniation at T11-12, degenerative disc disease at L5-S1, and a

small bulging disc at L4-5 (Tr. 371). An MRI was also performed on

her brain. Impression was “minimal small vessel ischemic disease”

(Tr. 373).

Plaintiff had more chest x-rays taken on March 7, 2002. This

time, Dr. Siskind’s impression was “improvement at the right base.

Residual scarring or pleural disease remains.” Dr. Siskind

commented that “there is hazy density at the right lung base,

possibly representing scarring or pleural disease” (Tr. 191).

A disability examination was conducted on May 24, 2002 by Dr.

Ralph Kaufman at the request of the Pennsylvania Bureau of

Disability Determination. Dr. Kaufman noted that plaintiff felt

she was addicted to Oxycontin, and went into rehabilitation for

detoxification. She reported that her concentration was better and

she was more alert without this drug, but she is now in pain. She

also described a typical day as trying to do some household chores,

cooking dinner, and watching television. Dr. Kaufman found

plaintiff’s moods to be good, affect bright, and thought process

Case 2:05-cv-02221-JCJ Document 10 Filed 10/31/05 Page 9 of 18
11Opioid- any synthetic narcotic that has opiate-like

activities but is not derived from opium. Dorland’s at 1271.

10

logical and goal-directed. He concluded that plaintiff had “no

psychiatric diagnosis.” He also filled out a functional capacity

assessment and opined that plaintiff has “good” ability in all

areas of making occupational adjustments, making performance

adjustments, and making personal-social adjustments (Tr. 256-260).

Plaintiff entered a long-term residential rehabilitation

facility on May 29, 2002 for “opioid11/benzo” dependence. Dr.

Joseph Campagna of the Alina Lodge facility gave his impression as

plaintiff having opioid/benzo dependence, depression, seizure

disorder, and peripheral neuropathy, but no personality disorder

(Tr. 377-378).

Plaintiff was given a psychiatric examination at Alina Lodge

on June 28, 2002. Dr. Joyce Bailey reported that her speech was

coherent and relevant, mood neutral, and affect full and

appropriate. Cognitive function appeared to be impaired at least

in terms of memory function. Dr. Bailey concluded that plaintiff

was a person with “significant physical problems and chronic pain,

who is in serious denial of her addiction to Oxycotin and likely,

Benzodiazepines.” She added that there was no evidence of

psychosis, serious depression or disabling anxiety (Tr. 388-389).

On July 17, 2002, plaintiff had a psychological evaluation by

Louis Schlesinger, Ph.D. He reported that testing showed plaintiff

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to be of approximate “average intelligence with evidence of

moderate organicity, and an unusual organic picture. She is

experiencing an anxiety disorder with inner tension, more than

might be apparent clinically. Testing also shows evidence of a

depressive potential or vulnerability. The latter falls under the

context of an underlying personality disorder with borderline and

passive-aggressive traits.” It was recommended that she have

psychiatric intervention for anxiety, depression, irritability, and

potential agitation, neurological evaluation, and consideration of

a long-term halfway house (Tr. 393-401).

Plaintiff was given a disability examination on January 8,

2003 by Dr. Merrill Mirman at the request of the Bureau of

Disability Determination. Dr. Mirman indicated that plaintiff

complained of vertigo, loss of balance, and pain in her left leg.

Impression was “arrhythmia of a cardiac origin,” syncope, seizure

disorder, and depression. Dr. Mirman further opined that plaintiff

is capable to lifting and carrying 20 pounds occasionally, stand

and walk one to two hours, and sit eight hours with alternating

sitting or standing at her option (Tr. 415-420).

Another MRI was performed on plaintiff’s lumbar spine on April

22, 2003. Dr. William Kozin reported that “there has been further

collapse of the L1 segment. There is no significant change in the

extruded disc at T11-12 and degenerative disc disease at L5-S1"

(Tr. 431).

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Plaintiff testified at the administrative hearing that she

started abusing Oxycotin in 1999, but had not used narcotic

medication since her discharge from the Alina Lodge in September

2002. She added that she was an alcoholic, but had not had a drink

for more than twenty years until she had a one time relapse in

February 2003 and was admitted to an alcoholic treatment program

for one week. She is currently attending AA meetings and has not

had a relapse since. She testified further that she experiences

back pain, shortness of breath, leg pain, feelings of guilt,

lightheadedness, and problems with concentration. She added that

she cannot do much lifting, but is able to stand and sit

comfortably (Tr. 56-77).

A medical expert (ME), Hillel Raclaw, Ph.D., a psychologist,

testified at the hearing. Dr. Raclaw reviewed the record and

observed plaintiff testified, and opined that her mental

impairments were “opioid dependence, currently in remission,

anxiety disorder, and personality disorder. Dr. Raclaw found that

such conditions were severe for purposes of step two of the

evaluation, but did not meet a listed impairment. He further

opined that plaintiff had only “minor” limitations in her ability

to concentrate for an extended period of time, “might” have “some

difficulty” focusing on one task for an entire workday, and “might”

need a break or two to finish that work task. She was also capable

of following detailed or complex job instructions. Dr. Raclaw

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added that plaintiff’s mental limitations were the same whether or

not she was improperly using prescription medication (Tr. 79-85).

A vocational expert (VE) also testified at the administrative

hearing. The ALJ asked the VE to consider an individual with

plaintiff’s vocational profile who has the exertional capacity to

perform light work that involved standing or walking for two to

eight hours in an eight-hour workday, sitting for up to eight hours

in this period, allowed for a sit/stand option, and could be

performed by an individual who is able to follow detailed or

complex job instructions and needed normal breaks during a workday.

The VE responded that such an individual could perform plaintiff’s

past work as a telephone solicitor, and could also perform a number

of light work jobs that exist in significant numbers in the

national economy including office helper, information clerk, and

travel clerk (Tr. 88-90).

 DISCUSSION

The Commissioner's findings must be affirmed if they are

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

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

role of this court is to determine whether there is substantial

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

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

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

Case 2:05-cv-02221-JCJ Document 10 Filed 10/31/05 Page 13 of 18
12Light work involves lifting no more than 20 pounds at a

time with frequent lifting or carrying of objects weighing up to

10 pounds. Even though the weight lifted may be very little, a

job is in this category when it requires a good deal of walking

or standing, or when it involves sitting most of the time with

some pushing and pulling of arm or leg controls. To be

considered capable of performing a full or wide range of light

work, you must have the ability to do substantially all of these

activities. 20 C.F.R. § 404.1567(b).

14

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

resolve conflicts in the evidence and to determine credibility and

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

Perales, supra. 

In this case, the ALJ found that the medical evidence

establishes that plaintiff “suffers from the following severe

impairments: an anxiety disorder, a personality disorder, an opiate

dependence, degenerative disc disease of the lumbar spine, left leg

pain, pneumonia, and a respiratory condition.” The ALJ further

determined, however, that such conditions did not prevent plaintiff

from performing her past work as a telephone solicitor. The ALJ

also found that plaintiff retains the residual functional capacity

to do limited light12 work with the restrictions that she gave the

VE in her hypothetical at the administrative hearing. She was,

thus, found not to be entitled to benefits under the Act (Tr. 32-

34). After a review of the record, this court finds that the ALJ's

decision is not supported by substantial evidence, and the matter

should be remanded to the Commissioner.

In this matter, the medical evidence certainly indicates that

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plaintiff suffers with several impairments including a respiratory

disorder, a lumbar back impairment, prescription drug addiction,

and an anxiety disorder. Plaintiff argues that the ALJ erred in

failing to find that her respiratory impairment met or equaled a

listed impairment, and in failing to schedule the testimony of a

medical expert (ME) to evaluate whether the combination of her

physical and mental impairments met or equaled a listing. We

agree. 

Listing 3.07 reads in relevant part:

Bronchiectasis (demonstrated by appropriate imaging

techiques). With:

. . . .B. Episodes of bronchitis or pneumonia or

hemoptysis (more than blood-streaked sputum) or respiratory

failure (documented according to 3.00C), requiring physician

intervention, occurring at least once every 2 months or at

least six times a year. Each in-patient hospitalization for

longer than 24 hours for treatment counts as two episodes, and

an evaluation of at least 12 consecutive months must be used

to determine the frequency of episodes. 

20 C.F.R. pt. 404, subpt. Plaintiff, App. , § 307 B. (2004).

The evidence, here, indicates that plaintiff had several

hospitalizations in 2001 and 2002 for episodes of bronchitis and/or

pneumonia, and was diagnosed with serious lung problems. On August

6, 2001, plaintiff was admitted into Crozier-Chester Medical Center

to have a lung procedure performed which included a biopsy of the

middle and lower lobes. Dr. Robb Seto gave a diagnosis of

“interstitial lung disease” (Tr. 496-497). A month later on

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September 7, 2001, pulmonologist, Dr. Gerald Meis, reported that a

CT scan of her lungs showed “bronchiolitis obliterans with

organizing pneumonia” (Tr. 261-268).

Another month later on October 25, 2001, she was agin admitted

into Crozier-Chester with respiratory problems, and was discharged

four days later on October 29, 2001 with “community-acquired

bronchopneumonia” (Tr. 278-279). Two days later on October 31,

2001, plaintiff was admitted into Temple University Hospital and

was diagnosed with “hypercapneic respiratory failure secondary to

benzodiazepine use” (Tr. 306-307). In December 2001, she was

evaluated at the Temple Lung Center. Dr. Steven Kelson reported

that plaintiff suffers with “recurrent pulmonary infiltrates,” and

that she may have an “immunogobulin deficiency which predisposes

her to recurrent pneumonia” (Tr. 481-485). In addition, on

February 5, 2002, plaintiff was again admitted into Temple Hospital

with fever and shortness of breath. She was discharged on February

8

th with a diagnosis from Dr. Kelsen as having “community-acquired

pneumonia” (Tr. 350-352). 

As noted earlier, plaintiff asserts that the above evidence

establishes that plaintiff’s respiratory condition meets listing

3.07, and in the alternative, argues that, at the very least, the

ALJ was obligated in having medical expert testimony at the hearing

addressing the issue of whether this listing was met. She sets

forth that “[W]here the record as a whole as it exists at the time

Case 2:05-cv-02221-JCJ Document 10 Filed 10/31/05 Page 16 of 18
13Subjective evidence of pain and disability must be

considered in determining if a claimant is disabled under the

Act. Smith v. Califano, 637 F.2d 968 (3d Cir. 1981). Subjective

complaints of pain do not require substantiation by clinical

findings, Smith v. Califano, supra; Farmer v. Weinberger, 368 F.

Supp. 1 (E.D. Pa. 1973), but they must bear on the claimant's

physical status, including adverse objective medical findings,

diagnoses and opinions. Baerga v. Richardson, 500 F.2d 309 (3d

Cir. 1973), cert. denied, 420 U.S. 931 (1975); Baith v.

Weinberger, 378 F. Supp. 603 (E.D. Pa. 1974); see also 20 C.F.R.

§§ 1526, 1529.

17

of the administrative hearing fairly raises the question of whether

a claimant’s impairment is equivalent to a listing, a medical

expert should evaluate it.” Maniaci v. Apfel, 27 F.Supp. 2d 554,

557 (E.D. Pa. 1998). 

Here, we are of the opinion that there was a real issue at the

time of the hearing that plaintiff’s respiratory problems may have

met listing 3.07. The ALJ did obtain medical expert testimony at

the hearing, but it was from a psychologist who testified regarding

plaintiff’s mental impairments. We recommend that this matter be

remanded back to the ALJ to elicit testimony from an ME and for

he/she to give an opinion whether such respiratory conditions meet

this listing.

Moreover, although we opine that the record does not support

a finding that any of plaintiff’s other medical problems including

degenerative disc disease, left leg pain13, and anxiety disorder

considered individually are of a disabling severity, on remand the

ME should be asked to render an opinion as to whether such

impairments are disabling in combination with plaintiff’s

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respiratory condition(s). A reviewing court may remand where

relevant, probative, and available evidence was not explicitly

weighed in deciding plaintiff’s claim. Dobrowolsky v. Califano,

606 F.2d 403 (3d Cir. 1979). 

Therefore, the court makes the following: 

 

 RECOMMENDATION

AND NOW, this day of , 2005,

it is respectfully RECOMMENDED that the Cross-Motions for Summary

Judgment be DENIED and the matter REMANDED to the Commissioner of

the Social Security Administration.

 ______________________________

 LINDA K. CARACAPPA

 UNITED STATES MAGISTRATE JUDGE

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