1

I have reviewed and considered the following documents in analyzing this case: Plaintiff’s Complaint and Motion for

Summary Judgment, Plaintiff’s Brief in Support, Plaintiff’s Reply Brief to Defendant’s Motion for Summary Judgment,

Defendant’s Motion for Summary Judgment, and the Court transcript (“R.”), including all exhibits thereto.

2

Carpal tunnel syndrome is a “compression of the median nerve at the wrist, which may result in numbness, tingling,

weakness, or muscle atrophy in the hand and fingers.” See MedlinePlus available at http://www.nlm.nih.gov/

medlineplus/ency/article/000433.htm#Definition.

3Obsessive Compulsive Disorder is “an anxiety disorder characterized by obsessions or compulsions. Having one or

both is sufficient for the diagnosis. An obsession is a recurrent and intrusive thought, feeling, idea, or sensation. A

compulsion is a conscious, recurrent pattern of behavior a person feels driven to perform.” See MedlinePlus available

at http://www.nlm.nih.gov/medlineplus/ency/article/000929.htm#Definition.

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDWARD J. LARKIN, III : CIVIL ACTION

Plaintiff :

:

v. :

:

JO ANNE B. BARNHART, :

Commissioner of the :

Social Security Administration, : NO. 05-2558

Defendant

REPORT AND RECOMMENDATION

CAROL SANDRA MOORE WELLS May 31, 2006

UNITED STATES MAGISTRATE JUDGE

Edward J. Larkin, III (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g), of

the final decision of the Commissioner of the Social Security Administration (“Commissioner”),

denying his 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 set forth

below, it is recommended that the Commissioner’s Motion for Summary Judgment be GRANTED,

and Plaintiff’s Motion for Summary Judgment be DENIED.

I. PROCEDURAL HISTORY1

On June 4, 1997, Plaintiff applied for DIB alleging disability, since June 28, 1996, as a result

of degenerative disc disease of the lumbar spine, carpal tunnel syndrome,2 obsessive compulsive

disorder,3 depressive disorder, and anxiety. (R. 21-27, 91-99). Plaintiff last met the insured status

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 1 of 20
4

The Social Security Regulations provide the following five-step sequential evaluation for determining whether or not

a claimant is disabled:

1. If claimant is working, doing substantial activity, a finding of not disabled is

directed. Otherwise proceed to Step 2. See 20 CFR §§ 404.1520(b); 416.920(b).

2. If claimant is found not to have a severe impairment which significantly limits

his or her physical or mental ability to do basic work activity, a finding of not

disabled is directed. Otherwise proceed to Step 3. See 20 CFR §§ 404.1520(c);

416.920(c).

3. If claimant’s impairment mee ts or equals criteria for a listed impairment or

impairments in Appendix 1 of Subpart P of Part 404 of 20 CFR, a finding of

disabled is directed. Otherwise proceed to Step 4. See 20 CFR §§ 404.1520(d);

416.920(d).

4. If claimant retains the residual functional capacity to perform past relevant work,

a finding of not disabled is directed. Otherwise proceed to Step 5. See 20 CFR §§

404.1520(e); 416.920(e).

5. The Commissioner will determine whether, given claimant’s residual functional

capacity, age, education and past work experience in conjunction with criteria listed

in Appendix 2, he is or is not disabled. See 20 CFR §§ 404.1520(f); 416.920(f). 

 

2

requirements on December 31, 2002. (R. 104). Benefits were denied, initially, whereupon, Plaintiff

requested and was granted an administrative hearing. Although, on October 8, 1998, Plaintiff

appeared before Paula Garrety, Administrative Law Judge (“ALJ”), the case was remanded to the

state agency for review of Plaintiff’s mental condition. The case was denied on remand and Plaintiff

was granted a second administrative hearing. On September 24, 1999, Plaintiff testified before ALJ

Garrety; a vocational expert (“VE”) also testified. On December 10, 1999, the ALJ, using the

sequential evaluation process,4 issued an unfavorable decision. The Appeals Council denied

Plaintiff’s request for review, making the ALJ’s decision the final decision of the Commissioner.

Upon judicial review in this court, the Honorable Diane M. Welsh remanded the matter for further

proceedings, consistent with her Report and Recommendation (“R&R”). 

On June 24, 2004 a supplemental administrative hearing was held before ALJ Garrety; VE

Denis Mohn testified. (R. 28-53). In a decision dated August 16, 2004, the ALJ concluded that

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 2 of 20
5

“Your RFC is what you can still do despite your limitations.” 20 CFR §§ 404.1520(a); 416.945(a).

6

Plaintiff testified that he received a settlement for his workers’ compensation claim approximately one year after he was

injured, which he believed was in June of 1995. (R. 43). However, the record reflects that Plaintiff injured his back in

June of 1996 (R. 92, 167) and so it is likely that the settlement occurred in June of 1997. 

3

Plaintiff, notwithstanding inability to return to his past relevant work retained the residual functional

capacity (“RFC”)5 to perform a significant range of light and sedentary work, and, thus, was not

“disabled,” as defined by the Act. (R. 27 Finding Nos. 10-12). The Appeals Council declined

Plaintiff’s request for review on April 4, 2005, (R. 3-5), rendering the ALJ’s unfavorable decision

the final decision of the Commissioner. Plaintiff now seeks judicial review of the Commissioner’s

determination. This case was referred to the undersigned by the Honorable Thomas J. O’Neill, Jr.,

under the authority of 28 U.S.C. § 636(b)(1)(B), for preparation of a report and recommendation.

II. FACTUAL BACKGROUND

A. Personal History

Plaintiff, born on July 10, 1955, was forty-seven years old when his insured status expired.

(R. 55). He has a tenth grade education and past relevant work experience as an assembler. (R. 93,

98, 104). Plaintiff is married and currently lives in a house with his wife and one adult son. (R. 43,

122). Plaintiff injured his back at work in June of 1996. (R. 92, 167). 

B. Plaintiff’s Testimony and Statements 

At the administrative hearing, Plaintiff testified that he settled his workers’ compensation

claim for approximately $80,000 in June of 1996;6 he receives $43 monthly in work-related disability

retirement benefits. (R. 43-44). He stated he sleeps up to twelve hours a day, but sometimes goes

days without sleep due to depression and boredom. (R. 34, 40, 45). He often talks to himself, hears

voices in his head, and believes that there are “a bunch of different people inside” of him. (R. 34-35,

40). Plaintiff complained of difficulty concentrating, remembering things and anxiety that causes

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 3 of 20
7

Zoloft is “used to treat depression, obsessive-compulsive disorder (bothersome thoughts that won't go away and the need

to perform certain actions over and over), panic attacks (sudden, unexpected attacks of extreme fear and worry about

these attacks), posttraumatic stress disorder (disturbing psychological symptoms that develop after a frightening

experience), and social anxiety disorder (extreme fear of interacting with others or performing in front of others that

interferes with normal life).” See MedlinePlus available at http://www.nlm.nih.gov/medlineplus/druginfo

/medmaster/a697048.html#why

8GAF is “a clinician’s judgment of the individual’s overall level of functioning [and] [t]his information is useful in

planning treatment and measuring its impact, and in predicting outcome.” See Diagnostic and Statistical Manual of

Mental Disorders (“DSMMD”) (4th ed. 1994) at 32. This is a scale from 1-100 with 90-100 being the rating for a

“superior functioning” person and 1-10 reflecting a serious danger of harming one self or others or persistent hygiene

neglect. Id. at 34. 

9A GAF score of 31-40 indicates a major impairment in several areas such, such as school, family relations, and

judgment. See DSMMD at 32. 

10Anafranil is “used to relieve mental depression.” See MedlinePlus available at http://www.nlm.nih.gov/medline

plus/druginfo/uspdi/202055.html.

4

him to grit down on his teeth and suffer from neck pain and headaches. (R. 37-38, 42). He stated

that his obsessive compulsive symptoms have worsened since 1999, causing him to wash his hands

often, repeatedly turn things on and off, and count numbers in his head. (R. 38-39). Plaintiff, who

stated he does of all of the driving in his household, just received a speeding ticket prior to the

hearing. (R. 43, 45). He reportedly rode his bicycle to store recently, but does not ride it as often

as he did prior to his mental condition. (R. 47). 

C. Medical History

Plaintiff was treated, in June 1996, at Holmesburg Family Medical for depression, anxiety,

and obsessive-compulsive disorder. (R. 156, 163, 255-58). He remained out of work for six and a

half months and was worried about his employment, medical, and financial situations; his primary

care physician prescribed zoloft.7 (R. 156, 160-63, 258). 

Plaintiff presented to Parkview Hospital, in November 1998, and was hospitalized for three

days for dysphoria and suicidal ideation; a GAF8 of 409 was assessed upon admission. (R. 146).

Barton Branscum, M.D., the discharging psychiatrist, noted that anafranil10 had resolved Plaintiff’s

suicidal ideation and his dysphoria had lifted. Id. Dr. Branscum discharged Plaintiff with a

diagnosis of depressive disorder, not otherwise indicated, obsessive-compulsive disorder and a

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 4 of 20
11A GAF score of 65 is the rating for “moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic

attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or

coworkers).” See DSMMD at 32. 

12Dysthymic disorder is “a chronic form of depression, characterized by moods that are consistently low, but not as

extreme as other types of depression.” See MedlinePlus available at http://www.nlm.nih.gov/medlineplus

/ency/article/000918.htm.

13Osgood-Schlatter disease is “a painful swelling of the bump on the front of the upper tibia in an area called the anterior

tibial tubercle.” See MedlinePlus available at http://www.nlm.nih.gov/medlineplus/ency/article/001258.htm#Definition.

14A GAF score of 50-61 indicates “serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent

shoplifting) or any other serious impairment in social, occupational, or school functioning (e.g., few friends, conflicts

with peers or co-workers). See DSMMD at 32.

5

GAFof 65.11 

On December 17, 1998, Dr. Theodore Wilf, M.D., Plaintiff’s psychiatrist at Warminster

Hospital, noted in a psychiatric evaluation that Plaintiff did not appear depressed, seemed

extroverted, and had a spontaneous affect. (R. 251). Dr. Wilf’s diagnosis was dysthymic disorder,12

obsessive-compulsive disorder, herniated disk, carpal tunnel syndrome, Osgood-Schlatter disease,13

gastroesophageal reflux, financial problems, chronic back pain, and a GAF of 55.14 (R. 252). Dr.

Wilf continued Plaintiff on anafranil and recommended Plaintiff continue counseling and follow-up

in one month. (R. 253).

On August 5, 1999, Virginia Kean, M.A., a psychologist, reported Plaintiff’s outpatient

treatment at Warminster Hospital. (R. 154). She noted that, despite therapy, Plaintiff’s anxiety

remained consistently high, his obsessive-compulsive disorder remained persistent, and his

medication decreased Plaintiff’s concentration and increased his fatigue. Id. Ms. Kean found that

Plaintiff could not engage in any gainful employment on a sustained and continuous basis; his

prognosis remained poor. Id.

 On August 5, 1999 Dr. Wilf opined that Plaintiff’s dysthymic disorder, severe depression,

with decreased energy, decreased concentration, hypersomina, obsessive-compulsive disorder

prevented him from functioning in a normal work situation. (R. 155). 

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 5 of 20
6

 D. State Agency Assessments

A. Mental Evaluations

On March 10, 2004, Paul Perch, E.D.D., a state agency psychologist, reviewed Plaintiff’s

medical records and completed a Psychiatric Review Technique form on behalf of the state agency.

(R. 335-49). Perch determined that Plaintiff did not have a severe mental impairment prior to

December 2002, Plaintiff’s date last insured. (R. 335). Perch diagnosed dysthymic disorder and

obsessive-compulsive disorder with mild limitations on Plaintiff’s activities of daily living and

ability to maintain social functioning, concentration, persistence or pace. (R. 338, 345). Perch

reported no episodes of decompensation of an extended duration. (R. 345). 

In a mental evaluation dated May 27, 2004, Drs. Kranson and Nemeth diagnosed Plaintiff

with bipolar disorder that could be expected to last at least a year; Plaintiff’s prognosis was guarded

such that he could not work productively. (R. 358-59). Drs. Kranson and Nemeth found moderate

restrictions of activities of daily living, extreme difficulties in maintaining social functions, constant

deficiencies of concentration, persistence or pace, and continual episodes of deterioration or

decompensation in work or work-like settings. (R. 364). Dr. Herman concurred with this diagnosis

and prognosis. (R. 370). Also he noted that Plaintiff’s psychiatric condition exacerbated his high

blood pressure, diabetes and high cholesterol and that Plaintiff’s medications increased his anxiety.

(R. 371). 

B. Residual Functional Capacity Assessment

On March 12, 2004, a state agency disability adjudicator found Plaintiff could occasionally

lift fifty pounds, frequently lift twenty-five pounds, stand and/or walk, with normal breaks, for a total

of six hours in an eight-hour workday, sit for a total of six hours in an eight-hour workday, and push

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 6 of 20
15“Light work involves lifting no more that 20 pounds at a time with frequent lifting or carrying of objects weighing up

to 10 pounds.” 20 C.F.R. §§ 404.1567(b); 416.967(b).

16“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers, and small tools.” 20 C.F.R. §§ 404.1567(a); 416.967(a). 

7

and/or pull without limitation. (R. 351). No postural, manipulative, visual, communicative, or

environmental limitations were found. (R. 352-54). 

C. Vocational Testimony

At the administrative hearing, the ALJ elicited testimony from VE Denis Mohn to determine

if jobs exist in the national and local economies that a person of Plaintiff’s age, education, and

physical and mental limitations could perform. (R. 49-52). The ALJ asked the VE to assume a

hypothetical individual of Plaintiff’s age and education, who could perform work that is:

. . . simple and routine, not requiring sequence in task. The work

should be confined to one-to two-step tasks. The work should be

low-stress in nature. As a result of the individual’s anxiety, the work

should not require more concentration than is required for one-to twostep tasks because of complaints of fatigue and depression. The work

should not expose the individual to heights or hazardous machinery

because of complaints of fatigue and drowsiness. The work should

be confined to work that does not require lifting in excess of 20

pounds, standing in excess of two hours, walking in excess of two

hours, or sitting in excess of four hours. The work should not require

continuous repetitive right-hand motion, and should provide no more

than limited contact with the public and coworkers. In other words,

light, low stress, no heights or hazardous machinery, simple routine

tasks, limited contact with others, and no continuous repetitive righthand motion.

(R. 50-51). The VE concluded that Plaintiff could perform a limited range of light15 and sedentary16

work as a garment sorter and folder (3,000 positions regionally; 180,000 positions nationally),

ticketer (400 positions regionally; 170,000 positions nationally), and general table worker (5,000

positions regionally; 635,000 positions nationally). Id. If Plaintiff’s subjective testimony were

deemed credible, the VE opined that he could not work on a sustained basis. (R. 51). 

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 7 of 20
8

III. ALJ’s FINDINGS

After the hearing, the ALJ issued the following findings:

1. [Plaintiff] met the disability insured status requirements of the

Social Security Act on June 28, 1996, the alleged onset date of

disability, and has acquired sufficient quarters of coverage to

remain insured through December 31, 2002.

2. The claimant has not engaged in substantial gainful activity at

any time relevant to this decision.

3. From June 28, 1996 through December 31, 2002, [Plaintiff]

was suffering from the following medically determinable

impairments which limited his ability to work: bipolar disorder

and degenerative disc disease involving the thoracic spine.

[Plaintiff’s] mood disorder was mildly interfering with his

activities of daily living, and mildly to moderately interfering

with his social functioning and his ability to maintain

concentration, persistence and pace. There is no evidence of

a residual disease process which would likely cause the

[Plaintiff] to decompensate in response to minimal increases

in the mental demands of work or to minor changes in the

workplace; there is nothing to suggest that [Plaintiff] would be

unable to function without a highly supportive living

arrangement, and there are no repeated episodes of

decompensation. [Plaintiff’s] carpal tunnel syndrome is nonsevere.

4. [Plaintiff’s] impairments did not meet or equal any of the

impairments listed in Appendix 1, Subpart P of Regulations

No. 4 at any time relevant to this decision.

5. At all times relevant to this decision, [Plaintiff’s] fatigue,

depressed mood, and impaired concentration restricted him to

simple “one/two step” job tasks; his reported levels of anxiety

restricted him to low stress work; his problems with anger

management restricted him to jobs where he would have only

limited contact with coworkers and the general public; and his

reported fatigue and drowsiness would restrict him to jobs

which would not expose him to heights or hazardous

machinery. His physical impairments restricted him to jobs

which do not require lifting or carrying more than 20 pounds

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 8 of 20
9

on an occasional basis; the ability to tolerate standing or

walking for more than 2 hours in an eight hour workday; and

the ability to sit for more than 4 hours over the course of a

normal workday. In addition, he would be unable to work at

jobs which require repetitive use of the right hand secondary

to carpal tunnel syndrome. 

6. [Plaintiff’s] allegations of wholly disabling functional

limitations are not supported by the evidentiary record.

7. At all times relevant to this decision, [Plaintiff] lacked the

residual functional capacity to return to his past relevant work.

8. [Plaintiff] was born on July 10, 1955.

9. [Plaintiff] attended school through the tenth grade.

10. Based on the [Plaintiff’s] age, education, and work history, and

assuming a residual functional capacity for the full range of

light work, the medical and vocational guidelines set forth in

Table No. 2, Appendix 2, Subpart P of Regulations No. 4

would direct a finding that [Plaintiff] was not disabled at any

relevant time on or prior to December 31, 2002.

11. Although the [Plaintiff] is unable to perform the full range of

light work, using the above-cited rules as a framework for

decision-making, and taking into consideration all of the

available evidence, there were a significant number of light

and sedentary jobs throughout the national economy which the

[Plaintiff] was capable of performing on a regular and

continuing from June 28, 1996 through December 31, 2002.

Examples of such jobs include: garment sorter/folder

(approximately 3,000 jobs in the local economy, and

approximately 180,000 jobs in the national economy); ticketer

(approximately 400 jobs in the local economy, and

approximately 170,000 jobs in the national economy); and

table worker (approximately 5,000 jobs in the local economy,

and approximately 635,000 jobs in the national economy).

12. [Plaintiff] was not under a disability as defined in the Social

Security Act at any time through the date of this decision. 

(R. 26-27).

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 9 of 20
10

IV. DISCUSSION

A. Standard of Judicial Review

The role of this Court upon judicial review is to determine if substantial evidence in the

administrative record supports the Commissioner’s final decision. See Stunkard v. Sec’y of Health

and Human Serv., 841 F.2d 57, 59 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).

Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations

omitted). It is more that a mere scintilla of evidence but may be less than a preponderance. See

Stunkard, 841 F.2d at 59. It is the responsibility of the ALJ to resolve conflicts in evidence,

determine credibility of witnesses and weigh the evidence presented. See Richardson, 402 U.S. at

401. This Court’s review is not de novo, and the evidence of record will not be weighed a second

time. See Monsour Medical Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986), cert. denied,

482 U.S. 905 (1987).

B. Burden of Proof in Disability Proceedings

In order to be found “disabled” under the Act, a Plaintiff must carry the initial burden of

demonstrating that she is unable to engage in “any substantial gainful activity by reason of any

medically determinable physical or mental impairment . . . which has lasted or can be expected to

last for a continuous period of not less than twelve months.” 42 U.S.C. § 423 (d)(1)(A); 20 C.F.R.

§§ 404.1505(a); 416.905(a). Plaintiff may establish a disability through: (a) medical evidence

meeting one or more of the serious impairments detailed in 20 C.F.R., Part 404, Subpart P, App. 1;

or (b) proof that the impairment is severe enough that Plaintiff cannot engage in any type of

“substantial gainful work which exists in the national economy.” Heckler v. Campbell, 461 U.S.

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 10 of 20
17Supra n. 4, at 2.

11

458, 460 (1983); 42 U.S.C. § 423 (d)(2)(A). 

Under the first method, a Plaintiff is considered per se disabled by meeting one of the “listed”

impairments. Under the second method, a Plaintiff must initially demonstrate that a medically

determinable disability prevents her from returning to past employment. See Brown v. Bowen, 845

F.2d 1211, 1214 (3d Cir. 1988). If Plaintiff proves that her impairment results in functional

limitations to performing her past relevant work, then the burden of proof shifts to the Commissioner

to prove that work does in fact exist in the national economy which Plaintiff is capable of performing

given his or her age, education, and work experience. See Mason v. Shalala, 994 F.2d 1058, 1064

(3d Cir. 1993). This is a two-fold analysis. First, the Commissioner must evaluate the Plaintiff’s

job qualifications such as physical ability, age, education, and work experience. See 42 U.S.C. §

423 (d)(2)(A); 20 C.F.R. §§ 404.1520(f); 416.920(f). Second, the Commissioner must consider,

given Plaintiff’s qualifications, whether jobs exist in the national economy that a similarly situated

person could perform. See 20 C.F.R. §§ 404.1520(f), 404.1566-69; 416.920(f), 416.966-69. 

C. Review of the Administrative Law Judge’s Decision

The ALJ, applying the sequential evaluation process,17 concluded that Plaintiff could adjust

to work which exists in significant numbers in the national economy. Plaintiff seeks reversal of the

ALJ’s decision to deny disability benefits. Specifically, Plaintiff asserts that the ALJ failed to pose

a proper hypothetical to the VE; the ALJ’s decision is not supported by substantial evidence; and the

ALJ failed to consult a medical expert to help determine if Plaintiff met listings 12.04 and 12.06.

Plaintiff’s Brief (“Pl. Br.”) at 6. The Commissioner requests that this court affirm its finding that

the Plaintiff was not disabled. If the ALJ’s decision that Plaintiff was not disabled at any time

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 11 of 20
12

through the day of his decision is supported by substantial evidence in the record, it should be

affirmed. See 42 U.S.C. § 405 (g). Thus, the issue presented is whether substantial evidence

supports the Commissioner’s determination that Plaintiff is not disabled because he is able to

perform limited light work. 

1. The ALJ’s Hypothetical to the VE was Proper 

Plaintiff argues the ALJ presented a flawed hypothetical to the VE by failing to present any

of his problems caused by bipolar disorder to the VE. See Pl. Br. at 8-12. In order to serve as

substantial evidence that Plaintiff can perform work that is available in the national economy, the

VE must respond to a hypothetical question that encompasses all of Plaintiff’s limitations that are

supported by the objective medical evidence of record. See Chrupcala v. Heckler, 829 F.2d 1269,

1276 (3d Cir. 1987). 

The Commissioner is required to conduct an assessment of an “individual's ability in

evaluating claims of stress and mental illness.” See Walls v. Barnhart, No. CIV. A. 01-2361, 2002

WL 485641, *19 (E.D. Pa. 2002). SSR 85-15, 1985 WL 56857 at *6 states, 

Because response to the demands of work is highly individualized,

the skill level of a position is not necessarily related to the difficulty

an individual will have in meeting the demands of the job. A

claimant’s condition may make performance of an unskilled job as

difficult as an objectively more demanding job, for example, a busboy

need only clear dishes from tables. But an individual with a severe

mental disorder may find unmanageable the demand of making sure

that he removes all of the dishes, does not drop them, and gets the

table cleared promptly for the waiter or waitress. Similarly, an

individual who cannot tolerate being supervised may be not able to

work even in the absence of close supervision; the knowledge that

one's work is being judged and evaluated, even when the supervision

is remote or indirect, can be intolerated for some mentally impaired

persons.” 

SSR 85-15 provides the following example:

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 12 of 20
18See discussion infra at 14-16.

13

A person whose vocational factors of age, education, and work

experience would ordinarily be considered favorable . . . would have

severely limited occupational base if he or she has a mental

impairment which causes a substantial loss of ability to respond

appropriately to supervision, coworkers, and usual work situations.

A finding of disability would be appropriate. 

Id. at *4. The ALJ, however, did mention all of Plaintiff’s credible mental limitations in her

hypothetical to the VE: 

. . . assume . . . an individual of this [Plaintiff’s] age, education, and

past work history. Further assume the individual is capable of

performing work that is simple and routine, not requiring sequence in

task. The work should be confined to one-to two-step tasks. The

work should be low-stress in nature. As a result of the individual’s

anxiety, the work should not require more concentration than is

required for one-to two-step tasks because of complaints of fatigue

and depression. The work should not expose the individual to heights

or hazardous machinery because of complaints of fatigue and

drowsiness. The work should be confined to work that does not

require lifting in excess of 20 pounds, standing in excess of two

hours, walking in excess of two hours, or sitting in excess of four

hours. The work should not require continuous repetitive right-hand

motion, and should provide no more than limited contact with the

public and coworkers. In other words, light, low stress, no heights or

hazardous machinery, simple routine tasks, limited contact with

others, and no continuous repetitive right-hand motion.

(R. 49-50) (emphasis added). Plaintiff’s fatigue and drowsiness associated with his “other

depression-related limitations” were addressed by the ALJ in this hypothetical as requited by Judge

Welsh. See Judge Welsh’s R&R at 11. However, the ALJ found that Plaintiff’s testimony regarding

his limitations were not fully credible.18 The ALJ presented an accurate hypothetical that presented

all of Plaintiff’s credible limitations. 

2. The ALJ’s Decision is Supported by Substantial Evidence

Plaintiff argues that the ALJ improperly discredited Plaintiff’s testimony, ignored the

Case 2:05-cv-02558-TON Document 8 Filed 05/31/06 Page 13 of 20
14

opinions of Drs. Herman, Kranson, Nemeth, and Kear; and relied too heavily on Plaintiff’s activities

of daily living in discounting subjective complaints. See Pl. Br. at 13-16. This court finds that the

ALJ’s decision is supported by substantial evidence. 

a. The ALJ properly assessed Plaintiff’s credibility and activities of daily living

Plaintiff contends that the ALJ improperly evaluated and dismissed his corroborated

testimony. See Pl. Br. at 13-14. In this Circuit, the ALJ’s credibility findings “must be accepted

unless they are without basis in the record.” Kliesh v. Chater, No. CIV. A. 95-213, 1996 WL 39438

(E.D. Pa. Jan. 31, 1996) (citing Gober v. Mathews, 574 F.2d 772, 777 (3d Cir. 1978); Torres v.

Harris, 494 F.Supp. 297, 301 (E.D. Pa. July 29, 1980), aff’d, 659 F.2d 1071 (3d Cir. 1981)). Other

district courts, similarly, hold that an ALJ’s credibility assessment will not be overturned unless it

is “patently wrong.” Peterson v. Massanari, No. 99 C 6026, 2001 WL 831818 (N.D.III. July 24,

2001) (citing Zurawski v. Halter, 245 F.3d 881 (7thCir. 2001)). Ordinarily, a reviewing court defers

to the ALJ’s credibility determination, because he or she has had the opportunity during a hearing

to assess the witnesses’ demeanor. See Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003).

However, the ALJ must indicate what evidence he is rejecting and provide valid reasons for

discounting that evidence. See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (citing Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000)).

Furthermore, to be found credible, subjective complaints of pain must bear some relationship

to the Plaintiff’s physical status, as determined by objective medical findings, diagnoses and

opinions. See Baerga v. Richardson, 500 F. 2d 309 (3d Cir. 1974), cert denied, 420 U.S. 931 (1975);

20 C.F.R. § 404.1529. An ALJ may discredit a Plaintiff’s complaints of pain when: (1) there is

contrary evidence in the record, and (2) the ALJ explains the basis for rejecting the complaints. See

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Mason v. Shalala, 994 F. 2d at 1067. If medical signs or laboratory findings show that a Plaintiff

has a medically determinable impairment that could produce pain, the ALJ must consider all

available evidence, including Plaintiff’s statements, to determine whether and how the symptoms

limit Plaintiff’s capacity to work. See 20 C.F.R. § 404.1529 (c)(1). Specifically:

[I]t is not sufficient for the adjudicator to make a single, conclusory

statement that the “individual’s allegations have be considered” or

that “the allegations are not credible.” It is also not enough for the

adjudicator simply to recite the factors that are described in the

regulations for evaluating symptoms. The determination or decision

must contain specific reasons for the finding on credibility, supported

by evidence in the case record, and must be sufficiently specific to

make clear to the individual and to any subsequent reviewers the

weight the adjudicator gave to the individual’s statements and the

reasons for that weight.

SSR 97-7p at 2. 

The Commissioner’s rulings further instruct the ALJ to consider (1) the individual’s daily

activities; (2) the location, duration, frequency and intensity of the individual’s pain or other

symptoms; (3) factors that precipitate and aggravate pain; (4) the type, dosage, effectiveness and side

effects of any medication the individual takes or has taken to alleviate the pain or other symptoms;

(5) treatment, other than medication, the individual receives or has received for relief of pain or other

symptoms; (6) any measures other than treatment the individual uses or has used to relieve pain or

other symptoms; and (7) any other factors concerning the individual’s functional limitation and

restrictions dues to pain or other symptoms. SSR 96-7p at 8.

In the case at bar, the ALJ’s written decision offers specific reasons for discrediting

Plaintiff’s testimony and gives an adequate basis for a reviewing court to ascertain the propriety of

the weight assigned Plaintiff’s statements. The ALJ specifically found:

In reaching this assessment of the [Plaintiff’s] functional capacity, the

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Administrative Law Judge notes the absence of objective medical

evidence to support functional limitations as extreme as those the

[Plaintiff] describes in his testimony. [Plaintiff’s] allegations of

disabling functional limitations are also inconsistent with his

activities of daily living which suggest a much broader range of

functioning. With regard to the latter, the record shows that

[Plaintiff] lives with his wife and son and that he is the only one in

the household who drives a motor vehicle. He testified that he travels

to the Jersey shore a couple times over the summer months and that

he drives his wife and son to wherever they need to go when they are

not using public transportation. He also enjoys riding his bicycle. At

the instant hearing, he did not volunteer any complaints of feeling

tired or fatigued and, when specifically questioned, he did attribute

any of these symptoms to his impairments or his medication. Rather,

the [Plaintiff] testified that he takes naps during the day because he

is bored.

(R. 24-25) (footnote omitted). These reasons are consistent with the record. 

Plaintiff further argues that the ALJ took his testimony regarding his activities of daily living

out of context. Pl. Br. at 16. Upon this court’s review of the record, the ALJ properly assessed

Plaintiff’s activities of daily living. The ALJ’s decision thoroughly discusses inconsistencies in

Plaintiff’s testimony and statements to his treating physicians contained in medical the record. The

ALJ articulated reasons for the rejection of Plaintiff’s subjective complaints, therefore, this

assessment should be upheld. See Fargnoli, 247 F.3d at 43 (3d Cir. 2001)(citing Burnett v. Comm’r

of Soc. Sec. Admin., 220 F.3d at 121.)

b. The ALJ properly assessed the opinions of Drs. Herman, Kranson, Nemeth and Kear

Plaintiff next argues that the ALJ ignored the medical opinions of Drs. Herman, Kranson,

Nemeth and Kear. See Pl. Br. at 15. The Commissioner counters that the opinions of Drs. Kranson,

Nemeth, and Herman do not relate to the relevant period, inasmuch as these opinions were authored

and pertain to his mental status after the Plaintiff’s date last insured. Defendant’s Brief (“Def. Br.”)

at 13. The Commissioner further contends that the ALJ’s omission of Dr. Kear’s findings in her

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decision was harmless error; Judge Welsh found the ALJ’s prior decision explicitly discussed Dr.

Kear’s opinion. Id. at 15-16. This court finds the ALJ properly assessed all expert opinions.

The mental evaluation of Drs. Nemeth and Kranson on May 27, 2004 was completed more

than a year after Plaintiff’s date last insured and did not purport to relate back to Plaintiff’s prior

condition. The relevant time period was from June 1996 through December 2002. ALJ Garrety

therefore, appropriately discredited the opinions of Drs. Herman and Kranson. The ALJ was 

. . . not persuaded by the Medical Source Statements obtained from

Drs. Herman and Kranson. While [Plaintiff’s] mental disorder may

have progressively worsened after September 2003, there is nothing

in the record to suggest the presence of such extreme functional

limitations at any time on or before December 31, 2002, the date the

[Plaintiff] last met the disability insured status requirements of the

Social Security Act. The Administrative Law Judge will give

[Plaintiff] benefit of the doubt, however, and find that at all times

relevant to this decision [Plaintiff’s] mood disorder was moderately

interfering with both his social functioning and his ability to maintain

concentration, persistence and pace.

(R. 24). The ALJ elected medical reliance upon the assessment of Dr. Perch, a state agency

psychological consultant, who found that:

from June 28, 1996 through December 31, 2002, the [Plaintiff] did

not have any mental impairment which would interfere in any

significant way with his ability to work. (Exhibit B-6F). The

Administrative Law Judge is according significant weight to this

opinion which is consistent with the minimal evidence of record and

the lack of any treatment for a mental health care problem from the

latter part of 1999 through September 20, 2003, the date the

[Plaintiff] presented to the SRI Psychological Services.

(Id.) The ALJ committed harmless error in failing to discuss the opinion of Dr. Kear in her August

16, 2004 decision. As Judge Welsh previously noted:

[F]irst, Dr. Kear is not a treating physician. Instead, he performed a

consultative psychological evaluation of the [P]laintiff. (Tr. 303).

Further, in her [d]ecision, the ALJ explicitly mentioned findings

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made by Dr. Kear. (Tr. 22, 23, 24). Thus, it is not the case that the

ALJ disregarded Dr. Kear’s findings. Instead, she explicitly

considered them.

Judge Welsh’s R&R at 8. The ALJ’s prior decision fully discussed Dr. Kear’s opinion and ALJ

Garrety incorporated all of Plaintiff’s limitations in her August 16, 2004 decision. Morever, as noted

by the Commissioner, “the current residual functional capacity assessment and hypothetical question

address all the relevant limitations from Dr. Kear’s report, making the alleged error harmless.” Def.

Br. at 16. 

 3. The ALJ was not Required to Obtain Medical Expert Testimony

Finally, Plaintiff complains that the ALJ should have engaged a medical expert to testify at

the administrative hearing. Pl. Br. at 17-18. SSR 96-6p, issued by the Commissioner to provide

guidance when applying the rules in 20 CFR §§ 404.1527(f) and 416.927(f), explains that the rules

for weighing medical and other opinions of treating sources apply in considering the medical

opinions of non-examining sources. SSR 96-6p requires that the Commissioner obtain an updated

medical expert opinion regarding equivalence in two circumstances:

1. When no additional medical evidence is received, but in the

opinion of the administrative law judge or the Appeals Council the

symptoms, signs, and laboratory findings reported in the case record

suggest that a judgment of equivalence may be reasonable; or 

2. When additional medical evidence is received that in the opinion

of the administrative law judge or the Appeals Council may change

the State agency medical or psychological consultant's finding that the

impairment(s) is not equivalent in severity to any impairment in the

Listing of Impairments.

Id. (emphasis added). First, in accordance to the language of this ruling, the ALJ has discretion in

obtaining an updated medical opinion. Likewise, 20 C.F.R. § 404.1527(f), does not require that the

Commissioner or the ALJ obtain an updated medical opinion. Rather, the rule is permissive, the

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ALJ, “may also ask for and consider opinions from medical experts on the nature and severity of [an]

impairment(s) and on whether [an] impairment(s) equals the requirements of any [listed]

impairment.” 20 C.F.R. § 404.1527(f)(2)(iii) (emphasis added). Moreover, the record neither

suggests medical equivalence nor presents additional evidence that would likely influence the

outcome of the Commissioner’s determination based on the December 31, 2002 cutoff date.

Plaintiff, citing no legal authority for his assertion that the ALJ was required to obtain

medical expert testimony, improperly relies on Judge Welsh’s ruling in her R&R in which the Judge

found that “[t]he ALJ is not a doctor nor a psychologist and she lacks the expertise to determine for

herself whether [a] particular medication will or will not cause drowsiness, tiredness or fatigue.”

Judge Welsh’s R&R at 9 (emphasis added). The court’s R&R did not reference SSR 96-6p or the

necessity for medical expert testimony in the instant case, to the contrary the court discussed the need

for the ALJ to properly consider the limitations caused by the negative side-effects of Plaintiff’s

medication(s). Notably, the ultimate assessment of “disability” is a legal determination which rests

not with any physician, but, rather, with the ALJ who must be fully informed to make the proper

determination. See Santiago v. Apfel, 1999 WL 179756 at *2 (E.D.Pa. Mar. 23, 1999) (citing Coria

v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984)). In accordance with SSR 96-6p, the ALJ was not

required to obtain the opinion of a medical expert at the administrative hearing. The evaluation of

Dr. Perch adequately supports the ALJ’s determination. 

V. CONCLUSION

After a thorough review of the record, this court finds that ALJ’s decision is supported by

substantial evidence. Accordingly, I make the following:

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RECOMMENDATION

AND NOW, this 31st day of May, 2006, it is respectfully recommended that:

1. The Report and Recommendation be APPROVED and ADOPTED;

2. The Plaintiff’s Motion for Summary Judgment be DENIED;

3. The Commissioner’s Motion for Summary Judgment be GRANTED; and

4. Judgment be ENTERED in favor of DEFENDANT, Commissioner of the Social

Security Administration, and against PLAINTIFF, Edward J. Larkin, III.

It be so ORDERED.

 

 

 /s/ Carol Sandra Moore Wells 

 CAROL SANDRA MOORE WELLS

 United States Magistrate Judge 

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