1

 Supplemental Security Income (SSI) under Title XVI of the Social Security Act. 20

C.F.R. § 416.

2

 This Court has jurisdiction over Hemphill’s appeal pursuant to 42 U.S.C. § 405(g). 

3

 For a detailed description of the facts, see Joint Statement of Undisputed Facts attached

as “Exhibit A” to Magistrate Judge Faith Angel’s Report and Recommendation (R&R).

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARTIN HEMPHILL : CIVIL ACTION

:

: NO. 04-976

v. :

:

:

JO ANNE B. BARNHART, :

COMMISSIONER OF SOCIAL :

SECURITY ADMINISTRATION :

MEMORANDUM AND ORDER

Juan R. Sanchez, J. July 27, 2005

Martin Hemphill seeks judicial review of the Social Security Administration’s denial of

disability income.1 Hemphill argues the Administrative Law Judge (ALJ) failed to follow the

Court’s remand order to fully develop the record and reconsider the weight given to the medical

evidence. Hemphill also argues the ALJ’s decision is not supported by substantial evidence.

2

 After

carefully considering the entire record, this Court overrules Hemphill's objections, grants the

Commissioner’s motion for summary judgment, and denies Hemphill’s motion for summary

judgment. 

FACTS3

Hemphill was born in April, 1951, and is classified as a “person closely approaching

advanced age.” (Tr. 614); See 20 C.F.R. § 416.963(d). Hemphill has a high school equivalent

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2

education. (Tr. 637). The ALJ was not able to determine the existence of Hemphill’s past relevant

work. (Tr. 254). Hemphill alleges he was disabled as of his 50th birthday due to degenerative disc

disease and degenerative joint disease of the lumbar spine. X-ray and MRI studies of the lumbar

spine taken on March 8, 2000 confirm degenerative disc and joint disease. (Tr. 176-77).

After two unsuccessful attempts and after a hearing on August 18, 2000, the ALJ denied

Hemphill’s claim. (Tr. 12-27, 32, 36, 38, 42, 57-60 212-39). The Appeals Council denied a request

for review and Hemphill appealed to the District Court. (Tr.6-11, 4). 

Judge Mary A. McLaughlin remanded this case to the ALJ with instructions to articulate the

weight given to Hemphill’s treating physician, Dr. Ferdinand Aczon, and the supporting medical

evidence. (Tr. 521-39). On remand, the ALJ heard testimony from Hemphill, Vocational Expert Dr.

William O’Toole, and Medical Expert Dr. Stanley Askin, an orthopedic surgeon. (Tr. 261-63, 279-

90). The ALJ denied benefits on February 3, 2003. (Tr. 260-97, 245-65). The Appeals Council

denied a request for review. (Tr. 234-44). Both parties filed cross-motions for summary judgment.

This Court referred the case to U.S. Magistrate Judge Faith Angel for a Report and Recommendation

(R&R). Judge Angel recommends granting summary judgment in the Commissioner’s favor. (R&R

1-8).

DISCUSSION

A. Standard of Review 

This Court reviews Hemphill’s objections to the R&R de novo. 28 U.S.C. § 636(b)(1). This

Court, however, must uphold the ALJ’s factual determinations if they are supported by “substantial

evidence.” 42 U.S.C. § 405(g). Substantial evidence is “such evidence as a reasonable mind might

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

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 “I find a severe back impairment which does not meet or equal in severity the

requirements of Appendix 1, including 1.04. There is no evidence of lumbar spine stenosis

resulting in pseudoclaudication. There is no evidence of spinal arachnoiditis. Regarding Listing

1.04 A, there is no evidence of compromise of a nerve root or the spinal cord with muscle

weakness, muscle atrophy, or consistent sensory or reflex loss. (Tr. 252). 

3

Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). It is “more than a mere scintilla but may be

somewhat less than a preponderance of the evidence.” Rutherford v. Barnhart, 399 F.3d 546, 552

(3d Cir. 2005). Where an agency’s fact finding is supported by substantial evidence, this Court is

bound by those findings, even if this Court would have decided the factual inquiry differently.

Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001). 

B. Remand Order

Judge McLaughlin’s remand order directed the ALJ to develop the record by listing the

relevant medical impairments. On remand, the ALJ specified the impairments listed in 20 C.F.R.

404, Subpart P, Appendix 1.04.4 The ALJ cited to the relevant impairments and concluded there was

no evidence to support they existed.

The ALJ also followed the remand instruction to adequately reconsidered the weight given

to Hemphill’s treating physician, Dr. Aczon. (Tr. 535-36). The ALJ again discounted Dr. Aczon’s

opinion. The ALJ noted Dr. Aczon is a family practitioner, not an orthopedist, a physiatrist, a

neurologist or a neurosurgeon. (Tr. 253). His treatment notes contain scattered references to

unspecified limitations of motion, tenderness, and muscle spasm. Id. The ALJ recognized Dr.

Aczon’s opinion that Hemphill was disabled and unable to seek gainful employment, but gave the

opinion no weight. 20 C.F.R. § 416.927(e). Although his conclusions are not inconsistent with the

medical evidence, his opinion merely reiterates Hemphill’s subjective allegations of pain. Medical

opinion must be supported by objective observation’s during the examination. 20 C.F.R. § 404

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5

 If the opinion of a treating physician conflicts with that of a non-treating physician, the

ALJ may choose whom to credit but "cannot reject evidence for no reason or for the wrong

reason.”Morales v. Apfel 225 F.3d 310, 317 (3d Cir. 2000).

6

 Factors which the Commissioner may take into account in deciding what weight to give

the treating source’s opinion include: (i) length of the treatment relationship and the frequency of

examination; (ii) nature and extent of the treatment relationship; (iii) whether the medical source

presents and explains relevant evidence to support an opinion; (iv) whether the opinion is more

consistent with the record as a whole; and (v) whether the medical source has a specialty in the

relevant medical field. 20 C.F.R.§ 416.927 (d)(2)(I) and (d)(2)(ii), and (d)(3) through (d)(6).

4

Subpart P Appendix 1.01 D.5 Furthermore, the ALJ stated Dr. Aczon’s conclusions are not

supported by the medical record as a whole, and noted inconsistency with other medical evidence.

(Tr. 254). The Commissioner will generally give “controlling weight to a treating source’s opinion

on the issue(s) of the nature and severity of the impairment(s) if the opinion is well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence.” 6 20 C.F.R. § 416.927(d). Although the X-rays and the MRI show

degenerative disk disease, the medical opinion’s are contradictory. Where there is inconsistency in

medical evidence, the ALJ may request the advice of a medical expert. Richardson, 402 U.S. at 408.

The ALJ sought the advice of Dr. Askin, a board certified orthopedist, who opined the record

showed no medical reason Hemphill could not work. (Tr. 279-90). According to Dr. Askin, the

issue, is whether Hemphill can work through the pain. (Tr. 282-83). The ALJ used Dr. Askin’s

testimony to attempt to reconcile the opinion evidence. Id. Dr. Aczon said Hemphill had a functional

capacity below the sedentary level. (Tr. 597-604, 620, 153-56, 605-13). Dr. Mosen Alavi, a

consulting internist opined Hemphill retained a functional capacity for work between light and

sedentary;whereasDr.UmarSofi, another consulting internist, found Hemphill’s functional capacity

to be light. State agency physicians, Dr. V. Shah and Dr. Theodore Waldron, and Dr. Askin stated

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7

 The ALJ’s analysis merely consisted of a statement that the claimant alleged an unlisted

impairment that failed to equal the severity of any disabling condition contained in 20 C.F.R. §

404 Subpart P Appendix 1. Burnett, 220 F.3d at 120; See 20 C.F.R. § 416.920. The record,

much like the ALJ’s analysis, was vague and did not contain adequate medical documentation of

the claimant’s condition. Id. 

5

Hemphill retained a medium work capacity. Where there are contradictory medical opinions, the

ALJ will weigh the evidence to determine whether Hemphill is disabled. 20 C.F.R. 416.927(c)(4).

At Hemphill’s hearing, Dr. Askin reviewed the medical evidence and answered the ALJ and

Hemphill’s questions. (Tr. 279-90). The ALJ reviewed the objective medical evidence and the

doctors’ opinions properly. Consequently, the ALJ’s decision complied with the remand order. 

Hemphill contends Dr. Askin’s opinion should not be afforded much weight because it is an

attempt to minimize his pain. Specifically, Hemphill states “[i]t appears that Dr. Askin’s position

was no matter how severe degenerative disk or joint disease may be, a person would be capable of

medium work if he or she were willing to put up with the pain.” (Pl. Brief 16). Dr. Askin’s opinion,

however, is simply Hemphill’s condition is not severe enough to warrant a finding of an inability to

work per se. In reviewing the record as a whole, the ALJ appropriately weighed Dr. Askin’s

testimony. 

Based on this Circuit’s holding inBurnett, Judge McLaughlin remanded because the ALJ had

not properly developed the record. 7 (Tr. 535-36); Burnett v. Commissioner, 220 F.3d 112, 120 (3d.

Cir. 2000). The Burnett Court held because the ALJ’s conclusion was so devoid of evidentiary

support, it was “hopelessly inadequate” and “beyond meaningful judicial review.” Id. Here, the

ALJ’s decision, unlike Burnett, was sufficiently developed for meaningful judicial review. The ALJ

had sufficient medical evidence and medical opinion to conduct a proper analysis.

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8

 The five step sequential analysis is as follows:

1. If the Claimant is working or doing substantial gainful activity, a finding of not disabled 

is directed.

2. If the 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.

3. If the impairment meets or equals criteria for a listed impairment or impairments in

App. 1 of Subpart P of Part 404 of 20 C.F.R., a finding of disabled is directed.

4. If the Claimant retains residual functional capacity (RFC) to perform past relevant

work, a finding of not disabled is directed. If not, or if Claimant had no past relevant

work, we must analyze the claim under step 5.

5. The Commissioner will then consider the claimant’s RFC, age, education, and past

work experience in conjunction with the criteria listed in App 2 to determine if the

claimant is or is not disabled. 20 C.F.R. 404.1520(b)-(f), 416.9020(b)-(f). 

6

This Court finds the ALJ complied with the remand order by properly developing the record

for meaningful judicial review. The ALJ cited the relevant impairments listed in 20 C.F.R. 404,

Subpart P, Appendix 1, evaluated and weighed the evidence and opinions in compliance with the

remand order. 

C. Five Step Sequential Analysis

Under the Social Security Act, a claimant is disabled if there is a medically determinable

basis for an impairment preventing the claimant from engaging in any “substantial gainful activity”

for a twelve month period. 20 C.F.R. § 404.1505(a). A claimant is considered unable to engage in

any substantial gainful activity “only if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work, but cannot, considering his age,

education, and work experience, engage in any other kind of substantial gainful work which exists

in the national economy.” 42 U.S.C. § 423(d)(2)(A). The Social Security regulations set forth a fivestep sequential analysis to determine disability. 20 C.F.R. § 416.920. 8

 

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9

 The purpose of the listings of impairments is to describe for each of the major body

systems, impairments which are considered severe enough to prevent a person from doing any

gainful activity. 20 C.F.R. § 404.1525. 

10 The ALJ’s opinion properly included references to the medical evidence which

supports Hemphill’s claims. Fargnoli, 247 F.3d at 40; Cotter, 642 F.2d at 706. For example, the

ALJ cited to an MRI showing moderate congenital stenosis, degenerative disc disease, a small

herniated disc causing moderate to severe stenosis, and a moderately large herniated disc causing

severe stenosis. (Tr. 251). The ALJ also referenced X-rays which show moderate degenerative

disc disease. Id. A nerve conduction study and electromyogram, however, were negative for the

right lower extremity and MRIs did not reflected impingement of the spinal cord or compression

of any nerve roots. (Tr. 252). See 20 C.F.R. § 404 Subpart P Appendix 1.04. (Tr. 252).

11 The objective medical evidence does not show signs of a per se disability. The

evidence shows few positive signs consistent with Hemphill’s claim of severe pain or extreme

limitations. (Tr. 252). Dr. Alavi, observed Hemphill appeared alert, oriented and comfortable,

climbed on and off the examining table without difficulty, reported no weakness or numbness in

his leg, had no extremity or joint abnormalities, without sensory or motor deficits, even though

Hemphill showed discomfort and was limping. (Tr.146-48). Dr. Saeid Alemo, a neurosurgeon at

the Multispecialty Pain Clinic, observed Hemphill had positive right sided straight leg raising,

sensory distribution and decreased lumbar motion, but had no muscle weakness, no pathological

7

At step three of the five step SSI evaluation process, the claimant is per se disabled if the ALJ

finds claimant’s impairments meet or equal the criteria for an impairment listed in 20 C.F.R. § 404

Subpart P Appendix 1.9 20 C.F.R. § 416.920(d). The claimant bears the burden to present medical

findings at step 3, but “it is the ALJ’s responsibility to identify the relevant listed impairment(s)” and

“develop the arguments both for and against granting benefits.” Fargnoli, 247 F.3d at 40 (citing

Burnett, 220 F.3d at 120). The ALJ’s decision must explain why the claimant’s impairments did or

did not meet a listed impairment. Id. at 112. This level of analysis is necessary to allow this Court

to determine whether the Commissioner’s decision is supported by substantial evidence. Cotter v.

Harris, 642 F.2d 700, 706 (3d Cir. 1980). There is some evidence supporting Hemphill’s position

that he is disabled, including subjective allegations of pain.10 There is substantial evidence, however,

for the ALJ to find against Hemphill.11 Richardson, 402 U.S. at 399. Based on her decision at step

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reflex abnormalities, negative left-side straight leg-raising, and no foot drop during heel and toe

walking. (Tr. 176-79). Dr. Buck, a specialist at the Liberty Pain Management Center, observed

decreased reflexes although muscle bulk and sensation were normal. (Tr.182-83). Dr. Sofi

observed Hemphill was alert, oriented, in no objective distress, walked and got on and off the

examining table without assistance, had a grossly non-focal neurological examination, exhibited

no joint deformities and a normal range of motion. (Tr. 591-92; 595-96).

12 Medium work activity includes the ability to lift, carry, push, and pull up to 50 pounds

at a time, and the same up to 25 pounds frequently; walk or stand for up to six hours per

workday; and sit for up to six hours per workday. 

13 Hemphill claims the Social Security Rulings direct a lower functional capacity where

the individual’s exertional capacity is reduced in terms of the regulatory definition If the

Guidelines direct opposite conclusions, an exertional capacity that is slightly reduced could

indicate a finding of "Not Disabled." On the other hand, if the exertional capacity is significantly

8

three, the ALJ determined the claimant retains the residual functional capacity of medium work

activity12. (Tr. 256). The ALJ sufficiently developed the record to allow for judicial review and her

conclusions regarding step three are supported by substantial evidence. 

At step five, the Commissioner considers Hemphill’s work capacity, age, education, and past

work experience to determine if the claimant is disabled. 20 C.F.R. § 416.920(f). The ALJ may also

consider Hemphill’slimitations, including pain, to determine his disability. The Medical-Vocational

Guidelines direct a finding based on the ALJ findings at step five.

Hemphill contends the ALJ erred in applying a medium functional capacity to the guidelines

because Hemphill’s limitations are exertional and non-exertional. If Hemphill’s limitations of pain

are only exertional, the Medical Vocational Guidelines direct a definitive finding. 20 C.F.R.

§416.969 (c). If Hemphill’s limitations are exertional and non exertional, the Guidelines may not

be used as a rigid rule, but are used as a framework to determine disability. 20 C.F.R. §416.969 (d).

The Magistrate Judge opined the ALJ did not take into account non-exertional limitations, although

medical evidence would support such a conclusion.13 The standard of review allows this Court to

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reduced, it could indicate a finding of "Disabled." SSR 83-12.

9

review the entire record de novo. 28 U.S.C. § 636(b)(1).The record as a whole supports a finding that

Hemphill’s limitations are exertional and non-exertional. Social Security Ruling 83-12, therefore,

would allow the ALJ to find a lower work capacity of modified light, not sedentary. Consequently,

the guidelines still direct the ALJ to find Hemphill not disabled. 

D. Claimant’s Credibility

Hemphill argues the ALJ improperly discounted Hemphill’s credibility. In general, an ALJ

“must give great weight to a claimant's subjective testimony of the inability to perform even light

or sedentary work when this testimony is supported by competent medical evidence.” Schaudeck v.

Commissioner of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999). The ALJ is free to, “reject such

claims if he does not find them credible.” Id.

In assessing a claimant’s credibility, the ALJ must 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 the symptoms; 4) the type, dosage, effectiveness,

and side effects of any medication the individual takes or has taken to alleviate 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 individuals functional

limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 416.927. In this case, the

ALJ did not find Hemphill’s allegations regarding his limitations credible. (Tr. 253). The ALJ

specifically considered Hemphill’s daily activities, the nature and frequency of his pain, factors that

Case 2:04-cv-00976-JS Document 25 Filed 07/27/05 Page 9 of 11
14 The ALJ noted Hemphill had a conservative treatment and has not been under the care

of a specialist. Hemphill testified he could drive, play cards, walk a couple of blocks, go up one

flight of stairs, watch TV, fold laundry, do light shopping, do home repairs, do light cooking, use

public transportation, use a computer, take out the trash and make a bed. 

10

aggravate the condition, the type of medicine used, and his course of treatment.14 (Tr. 248-55). The

ALJ's conclusion regarding Hemphill’s credibility is supported by substantial evidence.

CONCLUSION

This Court must not weigh the evidence or substitute its conclusions for those of the factfinder. McCrea v. Commissioner of Soc. Sec. Admin., 370 F.3d 357, 362 (3d Cir 2004). The ALJ

does not need to describe each and every piece of medical evidence, but must list the evidence relied

upon. Fargnoli, 247 F.3d at 43. The ALJ fully evaluated and explained the medical evidence and

opinions considered and conducted the appropriate work capacity determination. The ALJ discussed

the medical evidence and its effects on Hemphill with sufficient specificity to comport with the

regulations. Accordingly, this Court holds the ALJ’s findings, viewed in light of the record as a

whole are supported by substantial evidence.

ORDER

AND NOW, this 27th day of July, 2005, after consideration of the pleadings and record,

and after review of the Report and Recommendation of the United States Magistrate Judge Faith

Angel, and Plaintiff’s objections, it is hereby ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED. 

2. The Plaintiff’s motion for summary judgment and appeal is DENIED.

3. The Defendant’s motion for summary judgment is GRANTED.

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11

4. Judgement is hereby entered in favor of Defendant and against Plaintiff. 

BY THE COURT:

____________________________

Juan R. Sánchez, J.

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