IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LORI DUNCAN : CIVIL ACTION

: NO. 05-255

Plaintiff, :

:

v. :

:

JO ANNE BARNHART, :

COMMISSIONER OF SOCIAL : 

SECURITY, :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. FEBRUARY 7, 2006

Plaintiff, Lori Duncan, brings this action under 42

U.S.C. § 405(g) seeking judicial review of a final decision by

the Commissioner of the Social Security Administration denying

plaintiff’s claim for disability insurance benefits. Before the

Court are the parties’ cross motions for summary judgment (docs.

no. 6 and 7), a Report and Recommendation of the Magistrate Judge

recommending that the Court grant plaintiff’s motion and deny

defendant’s motion (doc. no. 10), and defendant’s objections to

the Magistrate Judge’s Report and Recommendation (doc. no. 11).

Commissioner has raised several objections to the

Magistrate Judge’s Report and Recommendation. She alleges that

the Magistrate Judge erred in determining that the Administrative

Law Judge’s (“ALJ”) opinion was not supported by substantial

evidence at steps four and five of the sequential evaluation. 

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Plaintiff filed a malpractice lawsuit for the injuries 1

sustained to her right hand. Much of the medical testimony

submitted to the ALJ came from deposition testimony collected in

the malpractice lawsuit.

2

First, the Commissioner notes that Drs. Nardella and Osterman,

plaintiff’s treating physicians, provided enough evidence for the

ALJ to conclude plaintiff was not totally disabled, despite the

physicians’ ultimate conclusions that she was. Second, the

Commissioner argues that the ALJ did properly consider the

vocational assessment of plaintiff by Dr. Walker. Third, the

Commissioner asserts that the record supports the ALJ’s finding

that plaintiff’s allegations of pain improved after surgery and

therapy. Fourth, the Commissioner argues that the ALJ’s use of

the Medical Vocation Guidelines (“GRIDS”) was proper, as

plaintiff’s nonexertional limitations were insufficient. 

Plaintiff did not respond to these objections. 

I. FACTS AND PROCEDURAL BACKGROUND

Plaintiff suffers from bilateral carpel tunnel

syndrome, right radial neuroma and severed tendons in her left

hand. Tr. at 45-46. She sustained the damage to her right hand

in October 1996 while delivering twins when a nurse attempted to

insert an intravenous needle (“IV”). Tr. at 71, 631. After the 1

injury to her right hand, plaintiff claimed limited use of that

hand and began to rely more heavily on her left hand. In

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3

September 1999, plaintiff injured her left hand when she broke a

glass dish, severing tendons and nerves in her long and ring

fingers. Tr. at 161-171. She complains of persistent pain and

loss of use of both hands.

Plaintiff is a 42-year-old woman with a high school or

high school equivalent education and one year of community

college. Her past relevant work was as a claims processor, which

involved extensive use of her hands. She worked for an insurance

provider, collecting the medical documentation necessary to

process an insurance claim. She described the activities

involved as requiring her to write, type, lift books weighing

five to ten pounds and sitting for long periods. Tr. at 628-29. 

She has not had meaningful gainful employment since her injury in

1996. She attempted to return to work on one occasion, but was

unsuccessful because of her complaints of pain.

Plaintiff filed an application for disability benefits

on July 2, 2001 which was denied. Tr. at 35-38. She then

requested and received a hearing before an ALJ on February 11,

2003. The ALJ denied plaintiff’s claim and the appeals council

denied plaintiff’s request for review. Before the Court is her

appeal of the ALJ’s decision. In accordance with the procedures

adopted by the Court, the parties’ motions for summary judgment

were referred to a Magistrate Judge for report and

recommendation. 

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II. DISCUSSION

A. Standard of Review

The Court’s review of the Magistrate Judge’s Report and

Recommendation is de novo. 28 U.S.C. § 636(b). Therefore, the

Court “may accept, reject or modify, in whole or in part,” the

Magistrate Judge’s findings and recommendations. 28 U.S.C. §

636(b)(1). 

In a hearing held before an ALJ, plaintiff was denied

social security benefits. The role of the Court is to determine

whether the ALJ’s decision is supported by “substantial

evidence.” 42 U.S.C. § 405(g). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565

(1988). “It is less than a preponderance of the evidence but

more than a mere scintilla.” Jesurum v. Sec’y of Health & Human

Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v.

Perales, 402 U.S. 389, 401 (1971)). The “administrative decision

should be accompanied by a clear and satisfactory explication of

the basis on which it rests.” Cotter v. Harris, 642 F.2d 700,

704 (3d Cir. 1981), reh’g denied, 650 F.2d 481 (3d Cir. 1981). 

B. Establishing Eligibility Under the Social Security Act.

To establish a right to disability insurance benefits,

a claimant must show that she suffers from a disability as

defined under the Social Security Act. The Social Security Act

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defines a disability as a medically determinable physical or

mental impairment that prevents the claimant from engaging in any

“substantial gainful activity” for a continuous twelve-month

period. 42 U.S.C. § 423(d)(1)(A). The impairment must be so

severe that the claimant “is not only unable to do his [her]

previous work but cannot, considering his [her] age, education

and work experience, engage in any other kind of substantial

gainful work which exists in the national economy.” Id. §

423(d)(2)(A).

The Commissioner has established a five-step inquiry

for determining whether a claimant is eligible for disability

benefits under the Act. To prevail, a claimant must establish

(1) that she is not engaged in substantial gainful activity, and

(2) that she suffers from a severe impairment. See Jesurum, 48

F.3d at 117 (citing Bowen v. Yuckert, 482 U.S. 137, 140-41

(1987)). If the claimant shows these two elements, the

Commissioner determines (3) whether the impairment is listed by

the Secretary as one creating a presumption of disability. Id. 

If the claimant’s medical impairment is not “listed,” the

claimant bears the burden of proving that (4) the impairment

nonetheless prevents her from performing work that she has

performed in the past. Id. The relevant inquiry is “whether the

claimant retains the residual functional capacity to perform

[her] past relevant work.” Fargnoli v. Halter, 247 F.3d 34, 39

Case 2:05-cv-00255-ER Document 12 Filed 02/08/06 Page 5 of 19
6

(3d Cir. 2001). If the claimant satisfies this burden, the

Secretary must grant her benefits unless the Secretary can

demonstrate (5) that there are jobs in the national economy that

the claimant can perform. Jesurum, 48 F.3d at 117 (citing

Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)).

C. The ALJ’s Decision.

The ALJ determined that plaintiff was not disabled

within the meaning of the Social Security Act. At step four of

the inquiry, the ALJ found that plaintiff retained her residual

function capacity (“RFC”) to return to her past relevant work. 

Assuming, arguendo, that plaintiff could not return to her past

relevant work, the ALJ addressed step five of the inquiry to

evaluate whether there are jobs in the national economy that

plaintiff could perform. The ALJ then employed the GRIDS to find

the existence of occupations in the national economy that

plaintiff’s is capable of performing. Therefore, the ALJ

determined that under step four or, in the alternative, step five

of the inquiry, plaintiff is not entitled to disability benefits.

Plaintiff, according to the ALJ, is capable of

performing the full range of light work. Tr. at 25. Light work

consists of lifting not more than twenty pounds, frequent lifting

or carrying of objects up to ten pounds, and may require a good

deal of walking or standing, or sitting with some pushing and

pulling of arm or leg controls. 20 C.F.R. §§ 404.157(b) and

Case 2:05-cv-00255-ER Document 12 Filed 02/08/06 Page 6 of 19
7

414.967(b). Moreover, plaintiff’s past relevant work as a claims

processor is classified as light work, as she testified that it

involves sitting and lifting books weighing not more than ten

pounds. The ALJ determined, therefore, that plaintiff was able

to return to her past relevant work as a claims processor. Tr.

at 26.

D. Application of the Substantial Evidence Standard.

The Magistrate Judge determined that the ALJ failed to

accord any weight to the opinion of plaintiff’s treating

physician Dr. Osterman, that plaintiff could not perform her past

work. In addition, the Magistrate Judge determined the ALJ did

not accord weight to the opinions of two other physicians, Drs.

Honish and Nardella, that plaintiff was totally disabled. The

ALJ also, according to the Magistrate Judge, failed to properly

consider the opinions of the vocational evaluator or to properly

evaluate plaintiff’s credibility about her own symptoms. 

Finally, the Magistrate Judge concluded the ALJ improperly relied

on the GRIDS at step five of the inquiry because an ALJ cannot

use the GRIDS where a claimant presents competent evidence of

nonexertional limitations. Plaintiff presented such evidence, in

the Magistrate Judge’s opinion, and therefore the ALJ should have

at least addressed the plaintiff’s nonexertional limitations. 

The Commissioner objects to these findings as follows,

arguing that there is substantial evidence to support the finding

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The record contains only letters from Dr. Honish regarding 2

causation and plaintiff’s inability to work. The record does not

indicate whether Dr. Honish treated plaintiff for any injuries.

8

of the ALJ. 

1. According improper weight to the physicians’ 

opinions.

The Commissioner objects to the Magistrate Judge’s

finding that the ALJ did not accord the proper wight to the

opinions of Drs. Nardella and Osterman. Dr. Nardella was

plaintiff’s treating physician for her right hand, which was

injured in 1996 by an improperly inserted IV. Dr. Osterman was

plaintiff’s treating physician for the injury to her left hand,

which she injured with a broken dish in 1999. Dr. Honish

contributed medical opinions about causation in plaintiff’s

underlying malpractice lawsuit.2

As the Magistrate Judge correctly notes, “opinions of a

claimant’s treating physician are entitled to substantial and at

times even controlling weight.” Fargnoli v. Massanari, 247 F.3d

34, 43 (3d Cir. 2001) (citing 20 C.F.R. § 404.1527(d)(2)). 

However, “a [naked] statement by a plaintiff’s treating physician

supporting an assertion that she is ‘disabled’ or ‘unable to

work’ is not dispositive of the issue.” Adorno v. Shalala, 40

F.3d 43, 47-48 (3d Cir. 1994). “The ALJ must review all the

medical findings and other evidence presented in support of the

attending physician’s opinion of total disability [and i]n doing

Case 2:05-cv-00255-ER Document 12 Filed 02/08/06 Page 8 of 19
9

so, the ALJ must weigh the relative worth of a treating

physician’s report against the reports submitted by other

physicians who have examined the claimant.” Id.; see also

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (stating that

if, however, an ALJ chooses to reject the opinion of the treating

physician, he is prohibited from making “speculative inferences

from medical reports and may reject a treating physician's

opinion outright only on the basis of contradictory medical

evidence and not due to his or her own credibility judgments,

speculation or lay opinion”) (quotations omitted).

Section 404.1527 of Title 20 of the Code of Federal

Regulations provides a framework in which to analyze the weight

to be accorded a treating physician’s opinions. The treating

physician’s opinion is given controlling weight where “the nature

and severity of [the claimant’s] impairment(s) is well-supported

by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [the] case record. . . .” 20 C.F.R. §

404.1527(d)(2).

An examination of the opinions of Drs. Nardella and

Osterman within this framework reveals that there are proper

justifications for the ALJ’s decision. Although both physicians

state that plaintiff was totally disabled, the Commissioner

points out that their opinions were based primarily on

Case 2:05-cv-00255-ER Document 12 Filed 02/08/06 Page 9 of 19
10

plaintiff’s subjective complaints of pain. Tr. at 540-41, 583-

84, 586. In addition, Dr. Nardella testified that a neuroma

would not affect the motor function of plaintiff’s hand. Tr. at

589. Dr. Osterman stated that plaintiff had normal objective

diagnostic and laboratory findings despite her complaints of

pain. Tr. at 530-31. Finally, Dr. Nardella determined plaintiff

had no atrophy in her muscles to signal an inability to use her

hand. Tr. at 601. These factors show that the ALJ’s decision to

deny plaintiff permanent disability benefits was based on

substantial evidence. To wit, the treating physicians’ own

reports contradicted their statements that plaintiff was

disabled, as both Drs. Nardella and Osterman noted that

plaintiff’s test results were not consistent with her allegations

of constant pain. Tr. at 525-31, 586. 

2. The vocational assessment by Dr. Walker.

The Commissioner objects to the Magistrate Judge’s

finding that the ALJ “failed to properly consider Plaintiff’s

vocational assessment” done by Dr. Walker. Def.’s Obj. at 5. 

Through his vocational assessment of plaintiff, Dr. Walker

determined that plaintiff was disabled. Tr. at 180. His opinion

was based on, inter alia, reports submitted by plaintiff’s

physicians, copies of plaintiff’s tax returns, hospital and

billing records, plaintiff’s deposition transcript and notes of

daily activities taken by plaintiff. Tr. at 180. His only

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11

direct observations of plaintiff were as she filled-out

questionnaires at his office. Tr. at 185 (noting she “massaged

her right hand” and “verbalized complaints of right-hand pain”). 

An opinion that plaintiff cannot perform her past

relevant work is an administrative finding reserved to the

Commissioner and is not a medical opinion. See S.S.R. 96-5p. 

This was the basis of the ALJ’s rejection of Dr. Walker’s

opinion, i.e. that “Dr. Walker’s opinion does not hold

controlling weight.” Tr. at 23. The Magistrate Judge asserts

that this is an improper basis to reject the opinion of a witness

who has made direct observations of the claimant. The ALJ had

other evidence with which to reject the opinion of Dr. Walker,

namely that he made no direct observations of plaintiff aside

from his single meeting with her. Therefore, the ALJ correctly

stated that the opinion of Dr. Walker did not have controlling

weight and properly could be considered as less important to the

ALJ’s final determination of disability. 

3. Plaintiff’s allegations of pain and plaintiff’s 

credibility.

The Commissioner objects to the Magistrate Judge’s

determination that the ALJ’s finding of improvement is “highly

questionable in light of the record.” Mag. R. & R. at 16. 

Although plaintiff consistently complained of pain, Dr. Nardella

saw signs of improvement during the course of treating plaintiff. 

Case 2:05-cv-00255-ER Document 12 Filed 02/08/06 Page 11 of 19
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Dr. Nardella noted that plaintiff’s condition had improved with

occupational hand therapy and desensitizing, and her overall

sensitivity had lessened by almost eighty percent since her first

visit with him. Tr. at 591-92. Most importantly, there was

medical testimony that plaintiff’s carpal tunnel surgery was

successful. Tr. at 497. 

The ALJ was permitted to consider the medical opinions

as a whole, rather than focus on the overall finding of

disability that was largely based on plaintiff’s consistent

subjective complaints. See Plummer v. Apfel, 186 F.3d 422, 431

(3d Cir. 1999). In Plummer, the claimant also suffered from

carpel tunnel syndrome and complained of sporadic pain that

prevented her from performing fine finger functions. Id. at 430. 

Her treating physician opined that she could not perform fine

finger manipulation. Id. at 430-31. The Third Circuit

determined that there was substantial evidence for the ALJ’s

decision to limit the probative weight of the treating

physician’s testimony because it was based “primarily on

claimant’s subjective complaints.” Id. at 430 (quoting ALJ’s

opinion). Here, there was substantial evidence in the medical

records, taken as a whole, that plaintiff’s condition improved

over time such that she was not disabled.

Moreover, plaintiff’s credibility was at issue because

on one hand she complained of pain and an inability to use her

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13

hands, and on the other hand she testified that she performed

household chores and drove her children to school. The

Magistrate Judge determined that the ALJ’s “credibility

component” of his opinion was “problematic because it was based

on her ability to perform daily tasks and a finding of

improvement.” Mag. R. & R. at 16 (citing S.S.R. 96-7p).

When assessing a claimant’s credibility, the ALJ must

consider the following factors in addition to the objective

medical evidence: (1) daily activities; (2) location, duration,

frequency and intensity of pain; (3) things that aggravate the

symptoms; (4) the type, dosage and effects of any medication; (5)

treatment received other than medication; (6)any measures other

than treatment used to relieve pain; and (7) any other factors

concerning claimant’s functioning or restriction based on pain. 

See S.S.R. 96-7p. Here, the ALJ noted the scope of the

plaintiff’s daily activities as important factors in his

credibility determination, as plaintiff testified that she is

able to cook, clean, shop for groceries, dial a touch-tone

telephone, use a remote control, load the washer and dryer and is

usually able to tie her shoes. Tr. at 24 (ALJ opinion). The

activities show that plaintiff can perform handling and fingering

activities. Tr. at 24. Although not explicitly stated in the

ALJ’s opinion, those are daily activities that can be considered

under S.S.R. 96-7p to assess a claimant’s credibility when there

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are subjective allegations of pain and symptoms.

Moreover, the ALJ noted that plaintiff showed effective

pain management with medication. To relieve her pain, plaintiff

took “only Excedrin at night and Celebrex during the day.” Tr.

at 24. Moreover, Drs. Nardella and Osterman noted an improvement

in plaintiff’s pain in 1999 and 2000. Tr. at 24. This suggests

that the level of treatment is inconsistent with the level of

complaints of pain, a factor that the ALJ is permitted to

consider under S.S.R. 96-7p.

Therefore, the ALJ had substantial evidence before him

with which he could reject plaintiff’s subjective allegations of

pain consistent with S.S.R. 96-7p. Moreover, plaintiff’s own

admissions about her daily activities support that conclusion. 

In addition, the objective medical evidence supports the ALJ’s

conclusion as noted in the above discussion of the medical

opinions of plaintiff’s treating physicians. 

4. Use of the GRIDS.

The Commissioner objects to the Magistrate Judge’s

finding that the ALJ’s use of the GRIDS at step five was

improper. The Magistrate Judge is correct in stating that, at

step five, the ALJ is allowed to use the GRIDS if there are

exertional limitations on the claimant’s ability to work. Mag.

R. & R. at 16. 

Exertional limitations affect one’s ability to meet the

Case 2:05-cv-00255-ER Document 12 Filed 02/08/06 Page 14 of 19
15

strength demands of a job, including sitting, standing, walking,

lifting, carrying pushing or pulling. 20 C.F.R. § 404.1659a(b). 

The GRIDS directly apply to exertional limitations. Id. 

Nonexertional limitations are those which affect anything other

than strength demands, including nervousness, anxiety or

depression, difficulty remembering instructions, paying attention

or concentrating, visual or auditory difficulties, or difficulty

performing manipulative or posterior functioning such as reaching

and handling. Id. § 404.1659a(c). The GRIDS do not apply if the

impairments only affect nonexertional limitations. Id. If there

is a combination of both exertional and nonexertional

limitations, the GRIDS will be applied if a rule directs a

conclusion that the impairment affects strength, otherwise the

rules provide a framework to guide the decision. Id. § 404.1659a

(d).

Here, the Commissioner asserts there were exertional

limitations from plaintiff’s carpal tunnel syndrome because she

“alleged strength related complaints.” Def.’s Obj. at 10. 

Namely, those limitations were that she lacked the hand strength

needed to hold, grip and lift without pain. Tr. at 634-36

(plaintiff’s testimony before the ALJ). The ALJ concluded that

the nonexertioanl limitations were minimal because plaintiff

demonstrated manual dexterity in her ability to perform daily

household chores. Therefore, use of the GRIDS was proper because

Case 2:05-cv-00255-ER Document 12 Filed 02/08/06 Page 15 of 19
16

there were exertional limitations on plaintiff’s ability to work.

Moreover, the Third Circuit has recently acknowledged

that “the Agency has used, and the courts are thus directed to

employ, the grids as a framework when nonextertional limitations

are also at issue.” Allen v. Barnhart, 417 F.3d 396, 401 (3d

Cir. 2005). In Allen, the Third Circuit determined that it was

not error for the ALJ to apply the GRIDS without the testimony of

a vocational expert. Id. at 403-04. Therefore, the ALJ’s use of

the GRIDS at step five was correct, despite the existence of

nonexertional limitations. Id. at 404 (“from the standpoint of

common sense, the grids’ use for exertion level are not totally

irrelevant if a claimant has only a nonexertional impairment, for

there would still be an applicable exertional level, i.e., the

claimant could do work requiring heavy exertion”).

III. CONCLUSION

Pursuant to 42 U.S.C. § 405(g), there is substantial

evidence to support the ALJ’s decision to deny plaintiff social

security benefits. Although plaintiff’s treating physicians

ultimately concluded that she was disabled, their opinions were

based on her subjective complaints of pain and their testimony

showed that plaintiff’s condition improved with treatment. The

ALJ was not required to afford any greater weight to the opinion

of the vocational expert. Moreover, there was considerable

Case 2:05-cv-00255-ER Document 12 Filed 02/08/06 Page 16 of 19
17

evidence to support a finding that plaintiff lacked credibility. 

Finally, the ALJ was permitted to use the GRIDS despite the

existence of evidence concerning nonextertional limitations. The

Commissioner’s objections to the Magistrate Judge’s Report and

Recommendation will be sustained. For the foregoing reasons, the

Court will grant the Commissioner’s motion for summary judgment

and deny plaintiff’s motion for summary judgment.

An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LORI DUNCAN : CIVIL ACTION

: NO. 05-255

Plaintiff, :

:

v. :

:

JO ANNE BARNHART, :

COMMISSIONER OF SOCIAL : 

SECURITY, :

:

Defendant. :

ORDER

AND NOW, this 7th day of February, 2006, upon

consideration of the parties’ cross-motions for summary judgment,

and after review of the Report and Recommendation of United

States Magistrate Judge Peter B. Scuderi (doc. no. 10) and

Commissioner’s Objections thereto (doc. no. 11), it is hereby

ORDERED for the reasons provided in the accompanying memorandum

that:

1. Defendant’s Objections (doc. no. 11) are

SUSTAINED;

2. Plaintiff’s motion for summary judgment (doc. no.

6) is DENIED; and

3. Defendnat’s motion for summary judgment (doc. 

no. 7) is GRANTED.

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IT IS FURTHER ORDERED that JUDGMENT is entered in favor

of defendant and against plaintiff.

AND IT IS SO ORDERED.

S/Eduardo C. Robreno

EDUARDO C. ROBRENO, J.

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