1Jo Anne B. Barnhart became the Commissioner for Social

Security effective November 14, 2001. Under FED. R. CIV. P.

25(d)(1) and 42 U.S.C. section 405(g), Jo Anne B. Barnhart is

automatically substituted as the Defendant in this action. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________

:

MARIA FABIANO, : CIVIL ACTION

 Plaintiff, :

:

v. : NO. 05-0256

:

JO ANNE B. BARNHART,1 : 

COMMISSIONER OF SOCIAL SECURITY, :

 Defendant. :

___________________________________:

ARNOLD C. RAPOPORT

United States Magistrate Judge 

REPORT AND RECOMMENDATION

Plaintiff, Maria Fabiano (“Plaintiff”), brings this

action under 42 U.S.C. section 1383©)(3), which incorporates 42

U.S.C. section 405(g) by reference, to review the final decision

of the Commissioner of Social Security (“Defendant”), denying her

claim for disability insurance benefits (“DIB”) provided under

Title II of the Social Security Act (“the Act”). 42 U.S.C. §§

401-433. Subject matter jurisdiction is based upon section

205(g) of the Act. 42 U.S.C. § 405(g). Presently before this

Court are the parties’ Cross-Motions for Summary Judgment. For

the reasons that follow, it is recommended that the matter be

remanded for further proceedings. 

I. PROCEDURAL HISTORY.

Plaintiff filed her current application for DIB on

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 1 of 30
2

October 7, 1999, alleging disability following a motor vehicle

accident on March 25, 1999. Plaintiff stopped working on March

25, 1999 due to low back and headache pain. Plaintiff alleged

her disability was caused by headaches and herniated discs at L-5

and C-5. (R. 83.) The agency denied Plaintiff’s claims

initially on January 20, 2000 (R. 38-41), and she filed a timely

request for a hearing before an Administrative Law Judge (“ALJ”). 

(R. 44-45.) 

A hearing was held on July 12, 2000, before ALJ James

S. Feight at which Plaintiff, who was represented by counsel,

appeared and briefly testified. (R. 312-321.) A supplemental

hearing was held on September 25, 2000, at which both Plaintiff

and her daughter provided testimony along with Stanley Askin,

M.D., a medical expert, and Donald Millen, M.S., a licensed

psychologist and vocational expert. (R. 322-365.) A second

supplemental hearing was held on December 27, 2000, to obtain

testimony from Richard Cohen, M.D., a psychiatrist. Plaintiff

and Mr. Millen also provided additional testimony. (R. 366-421.) 

On March 19, 2001, the ALJ issued a decision in which he found

that Plaintiff was not disabled, that she had severe degenerative

disc disease, with bulging cervical and lumbar disc; status post

tear of medical meniscus of the right knee; status post tear of

the lateral meniscus of the left knee; occipital neuritis; and

depression. (R. 30; Finding No. 3.) The ALJ found that

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 2 of 30
2Because she is considered a younger individual, Plaintiff’s

age is not considered a significant impediment to adapting to new

work situations. 20 C.F.R. § 416.963(b).

3

Plaintiff could perform her past work as a financial aid officer. 

(R. 31; Finding No. 10.) 

Plaintiff timely requested review of the ALJ’s

decision, but the Appeals Council declined review, therefore the

ALJ’s decision became the final decision of the agency. (R. 7-

10, 14-17.) Plaintiff filed her Complaint in this Court on

January 19, 2005, seeking judicial review of the Commissioner’s

decision. The matter was referred to me for preparation of a

Report and Recommendation on June 21, 2005. 

II. FACTS.

Plaintiff was fifty-four years old when she last worked

in March of 1999, making her a “younger individual” under the

Commissioner’s regulation. 20 C.F.R. § 416.963(b).2 She has a

college education and past relevant work as Assistant Director of

Financial Aid for the Community College of Philadelphia. (R. 84,

89.) She reported that her job consisted of “constantly up and

down,” sitting, standing, etc. (R. 84, 90.) At the time she

filed her claim, Plaintiff lived only with her husband, who is

eighteen years older than Plaintiff and was receiving Social

Security benefits. (R. 82.) By the time of the ALJ hearing,

Plaintiff and her husband were forced to move in with their

daughter and son-in-law and their two children, ages two and

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4

four. (R. 362.)

Plaintiff’s complaints of debilitating pain arose out

of a prior history of complaints of headaches and pain in her

back and neck. (R. 337.) She described herself as being “in

excellent physical health until approximately December of 1997,

when she simply bent over to pick up a piece of paper at home and

experienced lower back pain.” (R. 216.) Plaintiff treated with

an orthopedic surgeon, who suggested medication, rest, and mild

physical therapy, and her pain resolved in a short period of

time. (Id.) Plaintiff had a reoccurrence seven months later in

mid-1998, and again presented to the orthopedic surgeon who

suggested the same modalities. (Id.) Plaintiff’s symptoms

resolved for the most part, but came and went over the next one

and one-half years. (Id.) On June 18, 1998, Plaintiff underwent

a bone scan of her lumbar spine due to her complaints of back

pain, and the results showed minimal degenerative change at L-1. 

(R. 115-117.)

Almost one year later, Plaintiff took short-term

disability leave from her job as a financial aid officer on March

25, 1999, the date of her accident, due to low back pain and

headaches. (R. 83, 315.) Plaintiff treated with her primary

care physician, Dr. Gilbert Kasirsky, and orthopedic surgeon,

Martin A. Cohen, M.D. (R. 85, 115-116, 125.) On March 28, 1999,

at the request of Dr. Cohen, Plaintiff underwent an MRI of her

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 4 of 30
3The SLR test is designed to detect nerve root pressure,

tension, or irritation of the sciatic nerve. With the knee fully

extended, the physician raises the involved leg from the

examining table. A positive SLR is the single most important

sign of nerve root pressure produced by disc herniation. 

4Dr. Cohen also stated in a letter dated October 5, 2000,

that Plaintiff’s diagnosis included a herniated disc in her

lumbar spine (R. 291), and in a letter dated January 15, 2001,

that Plaintiff’s MRI revealed herniation at L5-S1 and an angular

tear of the L4-5 disc. (R. 300.)

5

lumbar spine. The radiologist noted a history of low back pain

and right leg buckling. (R. 125.) The MRI revealed mild disc

degeneration at L4-5 but no disc bulge, protrusion, or

herniation, and the foramina and central canal were normal. (R.

125.) At L5-S1, the MRI revealed disc degeneration and a right

paramedian disc protrusion having mild mass effect on the right

anterior thecal sac without evidence of nerve compression. (Id.) 

Plaintiff had a transitional vertebra referred to as S-1. (Id.)

Despite this finding of disc degeneration and right

paramedian disc protrusion at L5-S1, Dr. Cohen indicated in

treatment notes dated April 1, 1999, that Plaintiff’s straight

leg raising (“SLR”)3 was negative and his review of the MRI scan

revealed “posterior and right sided herniation of the disc at L5-S-1.”4 (R. 134.) As a result, Dr. Cohen medically excused

Plaintiff from work for four weeks so that she could undergo a

treatment program of Naprosyn, back exercises, hot packs, and

ultrasound. (R. 132-134.) Over the next month, Plaintiff’s SLR

alternated between negative and positive. (R. 131-133.) Formal

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6

physical therapy was discontinued on April 29, 1999. (R. 132.) 

Plaintiff reported on May 13, 1999 that she was doing the back

exercises on her own and improvement in her pain level without

any analgesics in the prior week. Her straight leg-raising test

was positive on the right. (R. 131.)

Plaintiff planned to return to work on June 1, 1999,

but was again involved in a motor vehicle accident on May 27,

1999. Plaintiff returned to Dr. Cohen with reports that she

injured her neck, experienced increased headaches, and an

exacerbation of her low back pain. An x-ray of Plaintiff’s

cervical spine was normal. (R. 123.) Dr. Cohen diagnosed acute

lumbosacral strain and exacerbation of his prior diagnosis of

herniated disc at L5-S1. (R. 130.) Dr. Cohen prescribed

continuing physical therapy but prescribed no medication because

he noted that Plaintiff was still taking medication for her

headaches. (Id.) 

On June 4, 1999, Plaintiff saw Vincent Ferrara, M.D., a

neurosurgeon, for a consultation regarding her headaches. (R.

203.) Dr. Ferrara noted that Plaintiff had been out of work for

nine weeks due to a herniated disc in her back. (Id.) Plaintiff

related that she had awakened on May 13, 1999 with a headache,

and the accident on May 27, 1999 increased her head pain. (Id.) 

Dr. Ferrara noted that the June 1, 1999 MRI of Plaintiffs’ brain

showed a large defect in the corpus collosum which diagnostically

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 6 of 30
5Midrin is an antimigraine medication.

7

could be attributed to a developmental anomaly, a prior infarct,

or old trauma. The remainder of the study was normal. (R. 164,

204.) Dr. Ferrara thought Plaintiff was having vascular

headaches, and despite the negative MRI, ordered a magnetic

resonance angiography (“MRA”) of her head. (R. 204.) An MRA on

June 10, 1999 revealed atheromatous disease along the wall of the

right internal carotid artery just distal to its origin which

produced a stenosis, severe narrowing of the supraclinoid

internal carotid artery, and possible narrowing of the right

middle carotid artery (“MCA”) bifurcation. (R. 121-122, 161-

162.) Dr. Ferrara prescribed a three to four day treatment of

Midrin.5 (R. 204.) There is no indication that Plaintiff

returned for follow-up.

On June 17, 1999, she reported that she had a

neurological consultation on June 4 with Dr. Ferrara and was

taking migraine medication and Vicodan for pain control. (R.

129, 203.) Plaintiff returned to Dr. Cohen reporting that her

back felt better due to her migraine medication. (R. 129.) 

Although Dr. Cohen noted improving lumbar radiculopathy, there

was no objective evidence of nerve compromise. In addition, Dr.

Cohen found no focal deficits neurologically in Plaintiff’s lower

extremities. (Id.)

Following several months of physical therapy at The

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 7 of 30
8

Achievement Center and with Dr. Kasirsky, Plaintiff continued to

complain of severe neck pain with radiation down her right arm,

continuing severe headache pain, and low back pain with radiation

down her right leg. Treatment notes indicated that she exhibited

decreased range of motion in her cervical and lumbar spines,

positive straight leg raising tests, decreased strength

bilaterally in her upper and lower extremities, and headaches. 

(R. 135-160, 165-202.) 

A July 9, 1999 cervical spine MRI revealed a small

spondylitic disc bulge with endplate remodeling at C5-6, but no

central or neural foraminal stenosis. There was no disc

herniation, central stenosis, or nerve root impingement. (R.

119-120.) 

In August 1999, Dr. Kasirsky referred Plaintiff to

neurologist Randy M. Rosenberg, M.D., regarding the source for

her headaches. (R. 211-213.) A September 1, 1999 MRA revealed

no gross abnormality, and the radiologist who performed the study

concluded that the examination was insufficient to exclude

aneurysm, and recommended further studies. (R. 118.) In an

October 11, 1999 letter, Dr. Rosenberg noted that although the

radiologist thought that the study was suboptimal for exclusion

of aneurysm, he thought the quality of the study was quite good,

and found nothing to suggest occlusive disease or any other

anomaly of intracranial circulation. (R. 208.) Upon

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 8 of 30
6Occipital Neuralgia - paroxysmal (a sudden recurrence or

intensification of symptoms) pain which extends along the course

of one or more nerves pertaining to the back part of the head. 

Dorland’s Illustrated Medical Dictionary, 27th ed., pp. 1126,

1164, 1233.

9

examination, Dr. Rosenberg noted no acute distress, mental status

within normal limits, sensory functioning intact, normal gait for

heel-walking, toe walking, and tandem gait, full deep tendon

reflexes. (R. 212.) Other than pain duplicated by palpation

over the greater occipital nerve, Plaintiff’s examination was

unremarkable, and described her headaches as unusual and

specifically noted that Plaintiff had no personal risk factors

for disease. (Id.) Dr. Rosenberg indicated that Plaintiff was

experiencing occipital neuralgia6 and discussed with Plaintiff

the possibility of a nerve block which he believed would be a

reasonable diagnostic therapeutic endeavor. (R. 241.) Plaintiff

admitted an aversion to any invasive study and postponed any such

nerve block strategy. (Id.)

On October 4, 1999, Plaintiff’s primary physician, Dr.

Kasirsky, completed an Attending Physician Statement for the

insurance company in which he indicated that Plaintiff had seen

Dr. Martin Cohen, an orthopedic doctor, and Drs. Ferrera and

Rosenberg, two neurologists, and her diagnosis was disc bulge at

C5-6 and headaches. (R. 214-215.) Dr. Kasirsky assessed her

functional abilities as able to sit 15 minutes, walk 15 minutes,

stand 5 minutes, and bend 2 minutes, and that she was not able to

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 9 of 30
7Although the form is not dated, information at the top and

bottom indicates that the form was faxed sometime in 2000.

10

climb, crawl, squat, lift, twist, or kneel. (Id.) He also

indicated that Plaintiff should avoid pushing/pulling, fine

manipulation, heights, operating machinery, reaching/working

above shoulder height, and was limited to operating a motor

vehicle less than two hours per day. (Id.)

Dr. Kasirsky completed an undated7 Physical Residual

Functional Capacity form indicating that Plaintiff could stay on

her feet less than one hour at a time, could stand and walk a

total of two hours in an eight hour workday, could sit less than

one hour at a time and sit a total of two hours in an eight hour

workday. (R. 289-290.) Plaintiff could alternatively sit and

stand a total of three hours without having to lie down, and

would have to lie down three hours out of eight in a workday. 

(R. 289.) Dr. Kasirsky also opined that Plaintiff could rarely

(approximately four times a day) lift two to three pounds. (Id.) 

He indicated that Plaintiff could not use her right hand for fine

manipulation and could use neither her hands nor her feet to push

or pull hand or foot controls, nor could she ever bend, squat or

crawl, and could only occasionally climb stairs and reach. (Id.)

Dr. Kasirsky indicated that Plaintiff had severe limitations

against unprotected heights, being around moving machinery,

exposure to the stress of a competitive setting on a full-time

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 10 of 30
11

basis and against driving automotive equipment, and she was

moderately limited against exposure to marked changes in

temperature and humidity, dust and fumes. (Id.) Plaintiff was

advised to elevate one or both of her lower extremities whenever

she needed for comfort, and her stamina and endurance would

interfere with her daily activities in a work environment. (R.

290.) Finally, the doctor indicated that he believed Plaintiff’s

complaints of pain and that objective medical evidence

demonstrated a condition which could reasonably be expected to

give rise to the degree of pain of which she complained,

specifically a cervical disc bulge. (Id.) 

On November 8, 1999, Plaintiff’s Progress Report from

The Achievement Center indicated that she had achieved maximum

benefit from physical therapy. (R. 136.) Plaintiff was sent to

a DDS examination by Scott L. Cohen, M.D., on December 1, 1999. 

(R. 216-223.) Dr. Cohen noted that Plaintiff had trouble

ambulating, getting on the examination table, and sitting on the

examination table for long periods, and Plaintiff had to get up

from the table and continue conversation in a standing position. 

(R. 217.) Upon physical examination, he noted that she had brisk

lower extremity reflexes at 3/4, decreased range of motion in her

cervical spine, with considerable tenderness to light touch in

her posterior cervical areas. On abduction of her arms,

Plaintiff was limited to approximately 45 degrees and had

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 11 of 30
8Paravertebral - beside the vertebral column. Dorland’s, p.

1231.

12

considerable pain in her superior trapezius areas and her muscle

strength was decreased to 4/5 bilaterally in her grip. Plaintiff

had decreased flexion and extension of her lumbar spine with a

positive SLR test bilaterally, and significant paravertebral8

muscle spasm in her lumbar spine. She was unable to squat or

straight leg bend. Plaintiff appeared mildly depressed secondary

to her pain.

Dr. Cohen’s impression was that Plaintiff had cervical

disc disease with radiculopathy and range of motion impairment,

lumbar disc disease with range of motion impairment and

limitation of functioning, and impairment in the ability to work

in her occupation due to her inability to drive and perform

activities consistent with an administrator. In a Medical Source

Statement, Dr. Cohen limited Plaintiff to lifting and carrying

two to three pounds frequently, ten pounds occasionally, and

never anything heavier than ten pounds. (R. 220-223.) He also

opined that she was limited to standing and walking one hour or

less in an eight hour day, sitting one hour, could not push or

pull with either her upper or lower extremities due to cervical

and lumbar radiculopathies, and that she could not bend, kneel,

stoop, crouch, balance, or climb. (Id.) 

In February 2000, Dr. Martin Cohen noted an area of

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 12 of 30
9Physiatrist - a physician who specializes in a branch of

medicine which deals with the diagnosis, treatment, and

prevention of disease with the aid of physical agents, such as

light, heat, cold, water, and electricity, or with mechanical

apparatus; physical medicine. Dorland’s at 1291. 

13

hypesthesia over the dorsum of Plaintiff’s right hand in the C-6,

6-7 distribution. (R. 257.) Grip strength was fair to good and

there was no intrinsic muscle weakness. Dr. Cohen provided

Plaintiff with a prescription for an aquatic exercise

conditioning program. (Id.) In April 2000, Dr. Cohen noted that

Plaintiff continued to experience sensory changes in the right

hand, with mixed sensations of hot and cold in the tips of her

fingers. (R. 255.) 

In June 2000, Plaintiff saw physiatrist9 Frederick R.

Struthers for right ear, neck and lower back pain and pounding in

her head. Plaintiff reported that prior to her accident, she

walked three miles per day. Upon examination, Dr. Struthers

found that sensation was impaired in the right C5 region,

decreased range of motion of the cervical spine and very poor

back support muscles. (R. 245-248.) Plaintiff also had positive

SLR tests bilaterally and spasms in her cervical, thoracic and

lumbar spine. He noted that Plaintiff was extremely sensitive,

and when she moved too fast she became dizzy. Plaintiff reported

depression. Dr. Struthers recommended that Plaintiff should wear

a back brace or binder and begin a walking program. Plaintiff

reported that the binder helped dramatically and took away her

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 13 of 30
10Chondromalacia patella - a premature degeneration of the

patellar cartilage, the patellar margins being tender so that

pain is produced when the patella is pressed against the femur. 

Dorland’s at 326.

14

pain. 

Plaintiff began a walking program and in June of 2000,

her right knee buckled and she fell, injuring her knees and right

elbow. (R. 254.) X-ray of Plaintiff’s right elbow showed a step

off in the radial neck suggestive of a healing radial head

fracture. (R. 253.) MRI of Plaintiff’s right knee on October

21, 2000 revealed a tear of the posterior horn of the medial

meniscus, with a possible tear of the anterior horn of the

lateral meniscus, which was small in size and was also possibly

torn. (R. 293.) Plaintiff also had a large area of bone

bruising in the medial femoral condyle, moderate joint effusion,

and stage III chondromalacia patella.10 (Id.) MRI of the left

knee taken on October 23, 2000 showed moderate sized joint

effusion, degenerative changes in the posterior horn and body of

the lateral meniscus, and tear of the anterior horn of the

lateral meniscus. (R. 292.) 

Treatment notes from physical therapy and Dr. Martin

Cohen’s notes also document Plaintiff’s complaints with sleeping

and drowsiness as a side effect of medication. At various times

following her last day of work, Plaintiff was on medications

including Neurontin, Serzone, Oxycontin, Zoloft, Elavil, and

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 14 of 30
15

Ritalin. (R. 276-288.)

Evidence in the record reveals treatment received by

Plaintiff for depression. Plaintiff began treatment with Javad

Mohsenian, M.D., a psychiatrist, following suicidal ideations. 

On July 18, 2000, Dr. Mohsenian completed a Mental Impairment

Questionnaire in which he diagnosed Plaintiff with major

depression with a GAF of 50. (R. 258-261.) Dr. Mohsenian

indicated clinical findings of irritability, depressed affect,

feelings of guilt and worthlessness, suicidality, tiredness, and

decreased energy. Plaintiff was taking Zoloft and Serzone for

depression and responded poorly to psychotherapy and

pharmacotherapy. Dr. Mohsenian indicated that her prognosis was

poor, and that she had a compulsive and perfectionist nature that

made it very difficult for her to accept her difficulties, and

stated that he anticipated that Plaintiff’s impairments would

cause her to be absent from work more than three times per month. 

Additionally, he indicated that Plaintiff was extremely depressed

with much pain, and assessed her as markedly limited in her

activities of daily living and maintaining social functioning,

that she frequently experienced deficiencies of concentration,

persistence or pace resulting in failure to complete tasks in a

timely manner, and that she experienced continual episodes of

deterioration or decompensation in work or work-like settings

which caused her to withdraw from that situation or to experience

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 15 of 30
16

exacerbation of signs and symptoms. (Id.) 

Dr. Mohsenian completed a Mental Residual Functional

Capacity Assessment on September 20, 2000. (R. 267-268.) He

indicated that Plaintiff would not respond well to work-related

stressors and that even a routine, repetitive, simple entry-level

job would actually serve as a stressor which would exacerbate her

psychological symptoms. (Id.) He also indicated on this checkbox form that Plaintiff was substantially impaired in her ability

to (1) maintain attention and concentrate for at least two

straight hours, four times per day; (2) sustain an ordinary

routine without special supervision; (3) work in coordination

with or proximity to others without being distracted; (4)

complete a normal workday and workweek without interruptions from

psychologically based symptoms and to perform at a consistent

pace without an unreasonable number and length of rests; (5)

interact appropriately with the general public or customers; (6)

accept instructions and respond appropriately to criticism from

supervisors; (7) maintain socially appropriate behavior and to

adhere in basic standards of neatness and cleanliness; (8)

respond appropriately to unexpected changes in the work setting;

(9) be aware of normal hazards and take necessary precautions;

and (10) travel in unfamiliar settings and use public

transportation. (Id.) 

Dr. Cohen authored an October 5, 2000 letter stating

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 16 of 30
11EMG and NCS stand for electromyography and nerve

conduction study, and are the recording and study of the

intrinsic electrical properties of skeletal muscle (1) by means

of surface or needle electrodes to determine merely whether the

muscle is contracting or not (useful in kinesiology); or (2) by

insertion of a needle electrode into the muscle and observing by

cathode-ray oscilloscope and loud-speaker the action potentials

spontaneously present in a muscle (abnormal) or induced by

voluntary contractions, as a means of detecting the nature and

location of motor unit lesions; or (3) by recording the

electrical activity evoked in a muscle by electrical stimulation

of its nerve, a procedure useful for study of several aspects of

neuromuscular function, neuromuscular conduction, extent of nerve

lesion, reflex responses, etc. Dorland’s at 537. 

17

that Plaintiff’s diagnoses included a herniated disc in her

lumbar spine. (R. 291.) Again, on January 15, 2001, Dr. Cohen

stated that “her most recent MRI scan of the lumbar spine

demonstrates herniation of the L5-S1 disc and angular tear of the

disc at L4-5. The treatment plan involves continue use of the

medication, and epidural steroid injection. Since the MRI scan

demonstrates the patient spinal problem that confirms the

diagnosis, EMG and NCV tests are not necessary at this time.”11

(R. 300.)

This Court has independently and thoroughly examined

the entire record. We incorporate all additional, relevant facts

in our discussion below. 

III. STANDARD OF REVIEW.

The role of this Court on judicial review is to

determine whether there is substantial evidence in the

administrative record to support the Commissioner’s final

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 17 of 30
18

decision. Any findings of fact made by the Commissioner must be

accepted as conclusive, provided that they are supported by

substantial evidence. 42 U.S.C. § 405(g). “Substantial

evidence” is deemed to be such relevant evidence as a reasonable

mind might accept as adequate to support a decision. 42 U.S.C. §

405(g); Richardson v. Perales, 402 U.S. 389, 407 (1971)(quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see

also Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992),

cert. denied, 113 S.Ct. 1294 (1993). When determining whether

the ALJ’s decision is supported by substantial evidence, the

court may look to any evidence in the record, regardless of

whether the ALJ cites to it in his decision. Hook v. Bowen, 677

F. Supp. 305, 306 (M.D. Pa. 1988); Esposito v. Apfel, 2000 WL

218119, at *6 (E.D. Pa. Feb. 24, 2000). Thus, the issue before

this Court is whether the Commissioner’s final decision of “not

disabled” should be sustained as being supported by substantial

evidence. Moreover, apart from the substantial evidence inquiry,

a reviewing court must also ensure that the ALJ applied the

proper legal standards in evaluating a claim of disability. 

Coria v. Heckler, 750 F.2d 245 (3d Cir. 1984). 

To prove disability, 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.” 42 U.S.C. §

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 18 of 30
19

423(d)(1). Each case is evaluated by the Commissioner according

to a five-step process:

The sequence is essentially as follows: (1)

if the claimant is currently engaged in

substantial gainful employment, []he will be

found not disabled; (2) if the claimant does

not suffer from a “severe impairment,” []he

will be found not disabled; (3) if a severe

impairment meets or equals a listed

impairment in 20 C.F.R. Part 404, Subpart P,

Appendix 1 and has lasted or is expected to

last continually for at least twelve months,

then the claimant will be found disabled; (4)

if the severe impairment does not meet prong

(3), the Commissioner considers the

claimant’s residual functional capacity

(“RFC”) to determine whether []he can perform

work []he has done in the past despite the

severe impairment - if []he can, []he will be

found not disabled; and (5) if the claimant

cannot perform [his] past work, the

Commissioner will consider the claimant’s

RFC, age, education, and past work experience

to determine whether []he can perform other

work which exists in the national economy. 

See id. § 404.1520(b)-(f).

Schaudeck v. Comm’r of Social Sec. Admin., 181 F.3d 429, 431-32

(3d Cir. 1999).

IV. ALJ DECISION AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.

Plaintiff’s alleged disability involves an inability to

work due to back and head pain, depression, and bilateral knee

problems. The ALJ found that Plaintiff cannot return to her past

relevant work either because of the exertional requirements or

because the manipulative demands of the job exceed the ALJ’s

limits on Plaintiff’s ability to perform manipulative functions. 

(R. 23.) The ALJ proceeded through the sequential evaluation

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 19 of 30
12The ALJ proceeded through the first four steps, finding

that: 1. Plaintiff has not been engaged in substantial gainful

activity since her alleged onset date; 2. Plaintiff has an

impairment or combination of impairments considered severe; 3.

Plaintiff’s impairments or combination of impairments do not meet

or equal the criteria of a listed impairment in Appendix 1,

Subpart P, Regulations No. 4; and 4. Plaintiff is able to perform

her past relevant work. (R. 30-31.) The ALJ found that

Plaintiff has the residual functional capacity to perform semiskilled, sedentary work which involves lifting up to ten pounds,

occasional standing/walking, and frequent sitting, and which

would allow for alternating between sitting and standing. (R.

31.) 

20

process and found Plaintiff was not disabled due to her

impairments.12 (R. 15-24.) 

In her Motion for Summary Judgment, Plaintiff asserts

that: (1) the ALJ failed to properly evaluate her residual

functional capacity and non-exertional impairments; (2) the

hypothetical to the VE was flawed; (3) the ALJ failed to discuss

and accord weight to relevant reports submitted by Plaintiff’s

treating physicians; (4) the ALJ failed to discuss the reasons

why Plaintiff did not meet or equal Listing 1.05, Disorder of the

Spine; (5) the ALJ erred in his credibility determination,

particularly with respect to pain and physical and mental

limitations; and (6) the ALJ’s finding that Plaintiff can return

to her past relevant work is not based on substantial evidence. 

The sole issue before this Court, however, is whether the

Commissioner’s final decision of “not disabled” should be

sustained as being supported by substantial evidence. With

regard to our review of Plaintiff’s claims, the various sources

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 20 of 30
13Plaintiff also alleges that an inadequate hypothetical to

the VE renders the ALJ’s decision unsupported by substantial

evidence. (Pl.’s Br. at 22-23; Pl.’s Reply Br. at 4-5.) 

21

of medical evidence, the submissions of counsel, and the

testimony at the ALJ hearing were consulted. 

Based on this Court’s independent and thorough review

of the record and for the reasons that follow, we find that the

ALJ’s decision fails to address certain fundamental pieces of

evidence. Thus, the ALJ’s decision cannot be said to be

supported by substantial evidence. We will, therefore, recommend

that the matter be remanded.

V. DISCUSSION.

Plaintiff alleges that the ALJ’s decision is not

supported by substantial evidence, in part because it lacks

consideration of relevant evidence and is defective in its

credibility determination.13 (Pl.’s Br., pp. 11-23; Pl.’s Reply

Br., pp. 1-6.) Defendant argues that the ALJ followed the five

step sequential evaluation process and that there is substantial

evidence in support of the ALJ’s decision. (Def.’s Br. at 15-

22.) Though Defendant correctly states that the ALJ followed the

five step sequential evaluation process, we find that the ALJ’s

decision lacks consideration of relevant evidence.

In reaching a decision, the ALJ must consider all of

the relevant evidence in the record. Wier v. Heckler, 734 F.2d

955, 963 (3d Cir. 1984); Cotter v. Harris, 642 F. 2d 700, 705 (3d

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 21 of 30
14This Court notes that Plaintiff was treated Dr. Martin

Cohen, an orthopedist, she was evaluated by Dr. Scott Cohen, a

consultative examiner, and Dr. Richard Cohen, a psychiatric

medical expert, testified at the ALJ hearing. The ALJ states

that he considered the opinion of Dr. Scott Cohen, but then goes

on to distinguish, in the same paragraph, the clinical findings

of Dr. Martin Cohen, without mentioning Dr. Martin Cohen’s name. 

Additionally, there is no further discussion of Dr. Scott Cohen’s

evaluation. (R. 29.)

22

Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.

1979); Gober v. Mathews, 574 F.2d 772, 776 (3d Cir. 1978). 

Furthermore, to guard against an abuse of discretion by the

Commissioner, the ALJ is required to provide some indication of

the evidence which was rejected in arriving at the decision and

the reasons therefore, so that a reviewing court can determine

whether probative evidence was properly credited or simply

ignored. See Cotter, at 705. 

Plaintiff argues that the ALJ failed to consider

relevant reports from Plaintiff’s treating physicians, Dr. Martin

Cohen14 and Dr. Gilbert Kasirsky, both of whom treated Plaintiff

for over two years, saw her frequently, and were consistent in

their assessment of her limitations and the cause thereof. 

Treating physician reports are to be given special significance. 

Morales v. Apfel, 225 F.3d 310 (3d Cir. 2000). The Morales court

stated, “[a] cardinal principle guiding disability eligibility

determinations is that the ALJ accord treating physicians’

reports great weight, especially ‘when their opinions reflect

expert judgment based on continuing observation of the patient’s

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 22 of 30
23

condition over a period of time.’” Id. at 317(quoting Plummer v.

Apfel, 186 F.3d 422, 429 (3d Cir. 1999)(quoting Rocco v. Heckler,

826 F.2d 1348, 1350 (3d Cir. 1987))). In addition, “a treating

physician’s report not only may be given more weight, it must be

given controlling weight.” 20 C.F.R. § 404.1527.

The ALJ noted some of the treatment administered by

Plaintiff’s treating physician, Dr. Martin Cohen; however, the

ALJ failed to acknowledge or discuss other highly relevant

reports submitted by Dr. Martin Cohen. In discussing the records

submitted by Dr. Martin Cohen, the ALJ stated:

Notes from Dr. Martin Cohen document the

claimant’s complaints of back pain, radiating

to her legs. The claimant reported that her

symptoms were aggravated by driving and

prolonged sitting. The claimant also

complained of difficulty sleeping, secondary

to pain. Clinical findings included

decreased range of motion, tenderness of the

PSIS, intermittent positive straight leg

raise and/or Patrick’s test, and decreased

sensation over the dorsum of the hand. No

other consistent clinical abnormalities were

documented. These records also indicate the

claimant complained of severe headaches/

migraines. His impressions included acute

cervical sprain, bulging cervical disc, and

herniated lumbar disc (Exhibits 3F and 20F). 

In a letter dated October 5, 2000, Dr. Cohen

reported that the claimant’s orthopedic

diagnoses were degenerative cervical disc

disease with cervical disc bulging at C5-6;

herniated lumbar disc; degenerative arthritis

of the right knee; and status post fracture

of radial head right elbow. He noted

physical examination had shown tenderness and

restriction of motion in both the neck and

back, and that MRI scans had been positive

(Exhibit 28F).

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 23 of 30
24

. . . . 

At the September 25, 2000, hearing, Dr.

Stanley Askin, an orthopedic medical expert,

testified that the laboratory studies only

show disc bulging, with no evidence of nerve

root involvement. He also noted that there

was no EMG showing radiculopathy. Although,

some doctors speak of an “impression” of

radiculopathy there is no objective evidence

of record to confirm the same. Dr. Askin

testified that this case appears to be one of

symptom magnification, as there is no

objectively established condition that would

be reasonably likely to cause the pain and

restrictions alleged. It is noted that there

is a law-suit arising out of the motor

vehicle accident.

. . . . 

The Administrative Law Judge finds the

testimony of the claimant to be not fully

credible. The claimant’s statements

concerning her impairments and their impact

upon her ability to work are not accepted by

the Administrative Law Judge to the extent

whose statements allege a level of disabling

symptoms which exceed what the objective

evidence and clinical findings could

reasonably be expected to produce. 

Specifically, the Administrative Law Judge

emphasizes that objective testing (i.e. xrays, MRI, and bone scan) showed only minimal

degenerative changes and disc

bulging/protrusion at L5-S1 and C5-6. There

is no evidence of any neural foraminal

encroachment or nerve root involvement. 

Moreover, there is no EMG/NCV study to

confirm complaints of radiculopathy. 

Additionally, while the claimant apparently

experiences some neck/back tenderness and

restriction motion, physical examination has

failed to reveal consistent clinical

findings, i.e. decreased sensation, reflexes,

or strength or muscle atrophy, which would

support the claimant’s allegations of severe

pain and limitation. 

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 24 of 30
25

The Administrative Law Judge has also

considered the opinions of Dr. Gilbert

Kasirsky, Dr. Frederick Struthers and Dr.

Scott Cohen, but finds that, consistent with

the testimony of the medical experts, their

impressions/diagnoses and conclusions are not

supported by the objective evidence of

record. Specifically, while Dr. Struthers

indicates that his impression is that the

claimant suffers from radiculopathy at C5, he

does not refer to any laboratory study or

clinical evidence to support this impression. 

He also speaks of an impression of lumbar

radiculopathy and herniated disc, but again

does not reference any objective study to

support his impression. Likewise, Dr. Cohen

speaks of cervical radiculopathy and lumbar

herniation, but does not point to any

objective laboratory studies to support such

a diagnosis. As for Dr. Kasirsky, he

completed three functional capacity

evaluations, each with slightly different

abilities. He attributes his extremely

limited assessments merely to a cervical disc

bulge and headaches. Finally, the

Administrative Law Judge has considered the

opinion of Dr. Javad Mohsenian and finds his

June 2000 assessment is not an accurate

reflection of the claimant’s ongoing mental

status. Rather, he finds that the September

2000 assessment, which indicates improved

functioning with therapy and medication to be

more probative. 

(R. 26, 28, 29.) This review of the treating physician’s reports 

fails to discuss Dr. Martin Cohen’s opinion in January 15, 2001

correspondence that an MRI scan showed a herniation at L5/S1 and

an annular tear at L4/5, as opposed to a “bulge” that was

reported by the radiologist. (R. 300.) Dr. Cohen echoed his

first diagnosis with an October 5, 2000 letter stating that

objective findings supported Plaintiff’s subjective complaints. 

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 25 of 30
15At the hearing, upon cross-examination of Dr. Askin, the

following exchange took place:

ALJ: Well what’s the condition, what is

that condition here?

ATTY: I think she doesn’t have normal

readings.

ALJ: Well that’s that, of bulge and the

protruding?

ATTY: Bulge and I think Judge, you know, that

there’s certain doctors would say a bulge is

a disk, is a herniated disk, just as in fact,

her treating orthopedist, calls his

interpretation of the MRI reading a

herniation. He disagrees with what’s – 

ALJ: Does he actually say that, I think it

said impression --

ATTY: Well there was an indication from Dr.

Cohen, at least on one place called it a disk

herniation. 

ALJ: I thought he said impression of.

ATTY: Not to quibble, I understand he just

mentioned disk herniation as part of his

diagnostic, you know, the September – excuse

me, July 15, 1999, I don’t have the exhibit

number. But it says herniated lumbar disk

under his impression.

ALJ: Usually the diagnosis would be, you

don’t [INAUDIBLE]. If you write that

impression, you meaning for an impression

primarily coming from the symptomatology, or

the impression coming – wouldn’t you just say

what the MRI, or what the EMG, or what the xray showed, why would you write impression?

ATTY: Well some doctors more or less, subsume

the diagnostic reading of the MRI into their

diagnosis, but I can’t interpret that for Dr.

Cohen. Okay. In the medical profession, how

does the word impression done normally?

26

(R. 291.) The medical advisor, Dr. Stanley Askin, did not review

the MRI films, rather he based his opinion on the reports in the

record. Dr. Askin noted that Dr. Cohen’s diagnosis was different

from the radiologist who viewed the MRI films.15 

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 26 of 30
ME: Yes, it’s the diagnosis.

ATTY: That’s the diagnosis?

ME: Yeah.

ALJ: Okay. Then why doesn’t he say

diagnosis?

ATTY: That’s doctors has different styles.

. . . . 

ALJ: Well if we’re going to have a reconvened

hearing with a psychiatrist, you may want to

ask Dr. Cohen where he finds the herniation

in this record?

ATTY: Okay.

(R. 334-335, 336.) 

16Competent evidence includes the opinion of a treating

physician as to the nature and severity of the claimant’s

27

The ALJ also never discussed the fact that Dr. Scott

Cohen completed a Medical Source Statement of Claimant’s Ability

to Perform Work-Related Physical Activities. (R. 216-223.) 

Because the opinions recorded in the Medical Source Statement by

Dr. Scott Cohen are consistent with an inability to perform

substantial gainful activity, the ALJ should have specifically

addressed this evidence. 

As noted supra, this Court “cannot conduct de novo

review of the Commissioner’s decision or re-weigh the evidence of

record.” Schwartz v. Halter, 134 F.Supp. 2d 640, 647 (E.D. Pa.

2001)(citing Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa.

1998)). Thus, where the ALJ has failed to adequately explain in

the record his reasons for rejecting or discrediting competent

evidence,16 “the reviewing court cannot tell if significant

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 27 of 30
impairments. See 20 C.F.R. § 404.1527(a)(2).

28

probative evidence was not credited or simply ignored.” 

Schwartz, 134 F.Supp. at 648 (citing Cotter, 642 F.Supp. at 705). 

The Third Circuit has directed that “[w]here competent evidence

supports a claimant’s claims, the ALJ must explicitly weigh the

evidence,” Dobrowolsky, 606 F.2d at 407, see also Sykes v. Apfel,

228 F.3d 259, 266 (3d Cir. 2000), and explain a rejection of the

evidence. See Schaudeck, 181 F.3d at 435 (citing Benton v.

Bowen, 820 F.2d 85, 88 (3d Cir. 1987)). 

Unless the Secretary has analyzed all

evidence and has sufficiently explained the

weight he has given to obviously probative

exhibits, to say that his decision is

supported by substantial evidence approaches

an abdication of the court’s “duty to

scrutinize the record as a whole to determine

whether the conclusions reached are

rational.”

Id. Meaningful judicial review of the ALJ’s decision is not

possible where the ALJ has not sufficiently explained the weight

given to all probative evidence, which necessarily includes the

treating physician’s assessment of claimant’s abilities and

limitations. See 20 C.F.R. §§ 404.1527(e), (a)(2). This Court

may not presume to know why the ALJ rejected relevant portions of

the opinions of Drs. Martin Cohen and Kasirsky; judicial review

is not meaningful when based on such presumptions. Woodcock v.

Barnhart, 2003 WL 1949638, at *6 (E.D. Pa. Apr. 24, 2003). 

Therefore, the matter should be remanded to allow the ALJ an

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 28 of 30
17 The Third Circuit requires the ALJ to set forth the

reasons for his decision. Burnett v. Commissioner of Social Sec.

Admin., 220 F.3d 112, 119 (3d Cir. 2000)(citing Cotter, 642 F.2d

at 704-05).

18 The Third Circuit has consistently held that because the

VE provides opinion as to the claimant’s residual functional

capacity, the hypotheticals posed to a VE must accurately

identify “all of a claimant’s impairments that are supported by

the record; otherwise the question is deficient and the expert’s

answer to it cannot be considered substantial evidence.” 

Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)(citing

Podedworny v. Harris, 745 F.2d 210 (3d Cir. 1984) and Wallace v.

Sec’y, 722 F.2d 1150, 1155 (3d Cir. 1983)(stating the expert must

have evaluated claimant’s particular impairments as contained in

the record)). 

29

opportunity to specifically weigh the evidence and explain any

rejection of competent evidence.

VI. CONCLUSION.

Remand is necessary for the ALJ to review the entire

record, including all relevant evidence submitted by Plaintiff’s

treating physicians. If the ALJ should determine that Plaintiff

does not qualify for disability for his impairment or combination

of impairments, the ALJ must articulate the weight applied to the

evidence and the reasons for rejecting Plaintiff’s claim of

disability.17 In light of this re-evaluation of the evidence,

the ALJ should also reconsider both his credibility determination

and the hypothetical proposed to the VE.18 Finally, Plaintiff

should remain cognizant that the ultimate burden of proving

disability rests with her.

Therefore, I make the following: 

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 29 of 30
30

RECOMMENDATION

AND NOW, this day of November, 2005, it is 

RESPECTFULLY RECOMMENDED that the Plaintiff’s Motion for Summary

Judgment should be GRANTED in part, the Defendant’s Motion for

Summary Judgment should be DENIED, and the matter should be

REMANDED.

BY THE COURT:

 

ARNOLD C. RAPOPORT, 

United States Magistrate Judge

Case 2:05-cv-00256-TJS Document 12 Filed 11/23/05 Page 30 of 30