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 IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RODNEY ERIC GRAY, : CIVIL ACTION

Plaintiff :

:

VS. :

:

JO ANNE B. BARNHART, :

Commissioner of Social Security, :

Defendant : NO. 05-2708

 REPORT AND RECOMMENDATION

LINDA K. CARACAPPA

UNITED STATES MAGISTRATE JUDGE

Plaintiff, Rodney Eric Gray, brought this action under 42

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

the Commissioner of Social Security (Commissioner) denying

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

supplemental security income (SSI) under Titles II and XVI of the

Social Security Act (Act). The parties have filed cross-motions

for summary judgment. For the reasons which follow, it is

recommended that both motions be denied and the case remanded to

the Commissioner. 

 BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is a thirty-seven (37) year-old male born on May 6,

1968 (Tr. 120). He has a high school education, and past work

experience as a truck driver (Tr. 373-374). Disability is alleged

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as of October 16, 2003 due to injuries sustained in a motor vehicle

accident (Tr. 47-49).

Plaintiff’s application was denied initially, and upon

reconsideration (Tr. 25-28). He then requested a hearing before an

Administrative Law Judge (ALJ). A hearing was commenced on July

21, 2004, but continued for plaintiff to obtain representation (Tr.

362-368). A subsequent hearing was held on October 12, 2004, at

which, plaintiff, represented by counsel, testified along with a

vocational expert (VE) (Tr. 369-396). In a decision rendered

November 1, 2004, the ALJ determined that the plaintiff’s “back

disorder, right knee disorder and right shoulder disorder are

considered severe.” The ALJ, however, further determined that the

plaintiff retains the residual functional capacity to perform a

significant range of light work. Thus, he was determined to be not

entitled to benefits (Tr. 13-22).

The ALJ's findings became the final decision of the

Commissioner when the Appeals Council denied plaintiff's request

for review on April 11, 2005 (Tr. 5-7). Presently, plaintiff has

appealed that decision to this court.

 JUDICIAL REVIEW

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

whether the Commissioner's decision is supported by substantial

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

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

amount of evidence but rather such relevant evidence as a

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

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

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

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

 To establish a disability under the Social Security Act, a

claimant must demonstrate that there is some "medically

determinable basis for an impairment that prevents him from

engaging in any 'substantial gainful activity' for a statutory

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

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

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

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

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

result of meeting or equaling certain listed impairments set forth

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

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

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

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

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

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

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

 This method of proving disability requires that the claimant

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

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

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

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

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

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

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

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

423(d)(2)(A).

This case was decided under the medical-vocational regulations

which require a five-step sequential evaluation of disability

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

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

considers in turn current work activity, the severity of

impairments, the ability to perform past work and vocational

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

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

evaluation and determined that plaintiff was capable of performing

a significant range of light work. 

 MEDICAL HISTORY

The relevant evidence in this case consists of medical reports

and testimony which are summarized as follows:

Plaintiff was involved in a motor vehicle accident on October

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1Radiculopathy- disease of the nerve roots. Dorland’s

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

1511. 

5

16, 2003 while working as a truck driver. He was given physical

therapy at the Concentra Medical Center for several weeks in

October and November. On November 20, 2003, Jeffrey Geller, M.D.,

reported that plaintiff complained of injuries to his neck, back,

right knee, and lower teeth. A cervical examination showed no pain

on motion, swelling, tenderness, and a full range of motion. A

lumbar exam was also normal. Dr. Geller stated that he found “no

physical evidence to support [plaintiff’s] complaints.” He added

that plaintiff displayed “inappropriate illness behavior,” and his

“exam does not match up with his subjective complaints” (Tr. 106).

On December 10, 2003, an MRI was performed on plaintiff’s

right knee. Dr. Helen Sax reported that was an “abnormal study.

Prominent degenerative spur arising from the medical femoral

condyle” (Tr. 199). 

Plaintiff was given an examination by Dr. Arnold Lincow on

December 14, 2003. Dr. Lincow reported that plaintiff complained

of severe pain in his neck, back, and right knee. The neck pain

radiated into his shoulders and he had pins and needles in his

right hand and fingers. Dr. Lincow diagnosed plaintiff with

“cervical, thoracic and lumbosacral strain and sprain with

associated paravertebral myofascitis pain syndrome [and] clinical

cervical and lumbar radiculopathy1 - suspect herniated discs.” Dr.

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2Cephalgia- headache. Dorland’s at 312.

3Stenosis- an abnormal narrowing of a duct or canal. 

Dorland’s at 1698.

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Lincow added that plaintiff had “traumatic sprain of the right

knee/aggravation injury- with tendonitis and traumatic effusionsuspect internal derangement, traumatic sprain of the right

shoulder with tendonitis- suspect tear of the rotator cuff,

posttraumatic anxiety/stress syndrome with cephalgia2 [and]

traumatic contusion with fracture/loosening of lower incisor.” He

concluded that plaintiff was presently disabled from doing any type

of gainful employment. He added that “[Plaintiff] is in need of

treatment in order to relieve pain, to restore motion and to

prevent chronicity” (Tr. 142-145).

On December 16, 2003, plaintiff had a CT scan performed on his

cervical spine. Dr. Howard Hutt gave the results as “mild

degenerative changes of the neural foramina as indicated from C3/4

through C5/6 without significant stenosis3. There is no

herniation. The cervical canal has adequate dimensions” (Tr. 197).

On this same date, plaintiff had a CT scan of the lumbar spine.

Dr. Hutt reported “mild stenosis from L2/3 to L4/5. There is a

mild central L5/S1 disc herniation without stenosis and a broad

central L4/5 disc herniation” (Tr. 198).

Plaintiff had an MRI of the lumbosacral spine taken on March

15, 2004. Dr. Hutt reported that it was “an abnormal study,

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central disc protrusions with herniations at L3/4 and L4/5 with

acquired neural foraminal narrowing and impingement of the anterior

thecal sac” (Tr. 195). On this same date, plaintiff also had an

MRI of the cervical spine. Dr. Hutt again reported an “abnormal

study. There is evidence of disc herniations at C4/5 and C5/6 with

acquired neural formaminal narrowing as well as impingement on the

anterior thecal sac at these levels” (Tr. 196).

Orthopedic surgeon, Norman Stempler, D.O., examined the

plaintiff on March 23, 2004. After examination and testing, he

diagnosed plaintiff with “chronic refractory lumbosacral

strain/sprain with myofascitis, myfascial syndrome, herniated

nucleus pulposus at L4-L5 and L5-S1, [and] internal derangement

right knee involving a tear of the medical meniscus” (Tr. 269-271).

Dr. Lincow saw plaintiff again on March 16 and May 28, 2004

and gave reports to plaintiff’s insurance company. He indicated

that plaintiff had just seen orthopedic surgeon, Dr. Stempler, who

diagnosed plaintiff with a “chronic lumbosacral strain and sprain.”

Dr. Lincow gave plaintiff the same diagnoses as in his last report

and added that plaintiff has sustained severe and permanent

injuries with loss of bodily functions. He must be kept off of his

feet for long periods of time to rest. He concluded that plaintiff

is totally disabled and unable to do any type of gainful employment

(Tr. 192-194, 272-274).

Plaintiff had CT scans of his lumbar and cervical spines on

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July 15, 2004. Regarding the lumbar spine, Dr. Hutt found it to be

an abnormal study as there was a degree of stenosis from L2/3 to

L4/5. He stated further that there was a “broad herniation at

L5/S1 as well as a broad herniation at L4/5 and at L3/4.” He added

that “these findings are progressive compared to prior studies”

(Tr. 280). Regarding the cervical spine, Dr. Hutt reported that

there are moderate herniations at C3/4, C4/5 and C5/6. There was

also mild stenosis with impingement on the thecal sac (Tr. 281). 

Dr. Stempler reported on August 10, 2004 that he continues to

see the plaintiff for his multitude of symptoms including cervical

and lumbar radiculopathy and knee pain. He added that plaintiff

has “an internal derangement involving an oblique tear of the mid

body of the medical meniscus. He concluded that prognosis for a

complete recovery is uncertain (Tr. 256).

Plaintiff had electrodiagnostic studies performed on July 15,

2004. Dr. Stephen Sacks reported that these showed “evidence to

support significant L4-5, L5-S1 nerve root involvement right side

greater than left as well as C4-5 nerve root involvement again

somewhat more predominant on the right side. The clinical picture

continues to show progression with chronic regional pain especially

in view if the myofascial activity noted” (Tr. 260-261).

On September 13, 2004, an MRI was performed on plaintiff’s

right shoulder. Dr. Sax reported that it was an “abnormal study.”

There was “progressive arthritic change at the acromioclavicular

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4Chrondromalacia- softening of the articular cartilage,

mostly in the patella. Dorland’s at 344.

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joint and elevation of the humeral head, both of which can

contribute to impingement” (Tr. 303). On this same date, plaintiff

had an MRI of the right knee. Dr. Sax reported an “oblique tear of

the medial meniscus,” and evidence of chondromalacia4 was noted

(Tr. 304).

A vocational expert (VE) also testified at the administrative

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

plaintiff’s vocational background who could only perform unskilled

light work, stand or walk two hours, and only occasionally reach

with the non-dominant arm. The VE responded that such an

individual could perform a significant number of jobs that exist in

the regional and national economy such as cashier, messenger, and

interviewer (Tr. 391-395). 

 DISCUSSION

The Commissioner's findings must be affirmed if they are

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

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

role of this court is to determine whether there is substantial

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

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

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

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5Light work involves lifting no more than 20 pounds at a

time with frequent lifting or carrying of objects weighing up to

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

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

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

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

considered capable of performing a full or wide range of light

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

activities. 20 C.F.R. § 404.1567(b).

6It is noted that plaintiff was represented by counsel at

his administrative hearing on October 12, 2004. However, at some

point thereafter, he dismissed his counsel and filed his summary

judgment motion pro se.

720 C.F.R. § 416.927 (d)(2) provides in part that ". . .[I]f

we find that a treating source's opinion on the issue(s) of the

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

resolve conflicts in the evidence and to determine credibility and

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

Perales, supra. 

In this case, the ALJ found that the plaintiff’s “back

disorder, right knee disorder and right shoulder disorder are

considered severe.” The ALJ, however, further determined that

plaintiff retains the residual functional capacity to perform a

significant range of light work.5 He was, thus, found not to be

entitled to benefits under the Act (Tr. 21-22). For the reasons

which follow, this court finds that the ALJ's decision is not

supported by substantial evidence, and the matter should be

remanded to the Commissioner.6

In the Commissioner’s motion for summary judgment, she asserts

that Dr. Jeffrey Geller was plaintiff’s treating physician7 and

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nature and severity of your impairment(s) is well-supported by

medically acceptable clinical and diagnostic techniques and is

not inconsistent with the other substantial evidence in your case

record, we will give it controlling weight. . ." 

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that he determined on November 11, 2003 that plaintiff was able to

return to light work after his motor vehicle accident. The

Commissioner further asserts that Dr. Geller opined that plaintiff

gave minimal efforts in physical therapy treatment and that his

legal concerns over shadowed his medical complaints (Tr. 110). The

Commissioner argues that the ALJ correctly gave controlling weight

to these opinions of Dr. Geller as plaintiff’s treating physician.

However, we are not of the opinion, as the Commissioner is,

that Dr. Geller is plaintiff’s treating physician. Plaintiff

states in his summary judgment motion that Dr. Geller was the

worker’s compensation company doctor that he was required to see

after his motor vehicle accident, and the record confirms this.

The record shows that plaintiff was injured in a motor vehicle

accident on October 16, 2003 while working as a truck driver. He

was given physical therapy at the Concentra Medical Center for

several weeks in October and November, and on November 20, 2003,

Dr. Geller of Concentra opined that he found “no physical evidence

to support [plaintiff’s] complaints” (Tr. 106).

However, Dr. Geller’s opinions are in conflict with reports

from doctors who later examined plaintiff and are also in conflict

with objective medical testing. In December 2003, Dr. Arnold

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Lincow examined the plaintiff and diagnosed him with a number of

impairments including “cervical, thoracic and lumbosacral strain

and sprain,” cervical and lumbar radiculopathy with suspected

herniated discs, a right knee injury, and a suspected tear of the

rotator cuff (Tr. 142-145). 

Dr. Lincow submitted updated reports on plaintiff’s conditions

in March and May 2004. In these reports, he opined that plaintiff

has severe and permanent injuries with loss of bodily functions

which totally disable him from any type of gainful employment (Tr.

192-194, 272-274). Plaintiff was also seen by orthopedic surgeon,

Norman Stempler, D.O., in March 2004. He found plaintiff to suffer

with “chronic refractory lumbosacral strain/sprain with

myofascitis, myfascial syndrome, herniated nucleus pulposus at L4-

L5 and L5-S1, [and] internal derangement right knee involving a

tear of the medial meniscus” (Tr. 269-271).

In addition, the objective testing supports Drs. Lincow and

Stempler opinions that plaintiff suffers with these conditions.

MRIs of plaintiff’s lumbosacral and cervial spine performed in

March 2004 resulted in “abnormal studies.” Dr. Howard Hutt

reported that the lumbar MRI showed “central disc protrusions with

herniations at L3/4 and L4/5 with acquired neural foraminal

narrowing and impingement of the anterior thecal sac.” The

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8Subjective complaints of pain do not require substantiation

by clinical findings, Smith v. Califano, supra; Farmer v.

Weinberger, 368 F. Supp. 1 (E.D. Pa. 1973), but they must bear on

the claimant's physical status, including adverse objective

medical findings, diagnoses and opinions. Baerga v. Richardson,

500 F.2d 309 (3d Cir. 1973), cert. denied, 420 U.S. 931 (1975);

Baith v. Weinberger, 378 F. Supp. 603 (E.D. Pa. 1974); see also

20 C.F.R. §§ 1526, 1529.

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cervical MRI revealed disc herniations at C4/5 and C5/6 (Tr. 196).8

 Moreover, CT scans of the lumbar and cervical spines in July

2004 revealed similar results. Dr. Hutt again reported “abnormal

studies.” The lumbar scan showed a degree of stenosis from L2/3 to

L4/5 and a broad herniation at L5/S1 and L4/5. Cervical scans

showed moderate herniations at C3/4, C4/5 and C5/6 (Tr. 281). In

addition, other electodiagnostic testing on plaintiff’s right knee

and right shoulder showed arthritic changes in the shoulder and a

medial meniscus tear in the knee (Tr. 303-304).

The conflict of the evidence in this matter is readily

apparent. On one side there are opinions from Dr. Geller, the

worker’s compensation doctor, that plaintiff does not have

impairments that are serious enough to disable him from working.

However, on the other side there are opinions from plaintiff’s

doctors and medical testing that indicate that he does indeed

suffer with several impairments which, at least, according to Dr.

Lincow disable him from all gainful employment. 

This record, however, does not contain one independent

examination of the plaintiff. It does include a state agency

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medical consultant’s opinion that plaintiff is able to perform a

significant range of light work, but this consultant did not

examine plaintiff, and only rendered an opinion from the existing

evidence. We are of the opinion, here, that this matter should be

remanded for an independent examination be conducted of the

plaintiff with such examining physician rendering an opinion as to

his residual functional capacity. In addition, on remand, to

further aid the ALJ in sorting through and considering the

conflicting evidence in this record, the ALJ should utilize the

services of a medical expert (ME) at the administrative who would

review the evidence of record and render an opinion as the

plaintiff’s ability to perform gainful employment. 

Therefore, the court makes the following: 

RECOMMENDATION

AND NOW, this day of , 2006,

it is respectfully RECOMMENDED that the Cross-Motions for Summary

Judgment be DENIED and the matter REMANDED to the Commissioner of

the Social Security Administration.

 S/Linda K. Caracappa

 ______________________________

 LINDA K. CARACAPPA

 UNITED STATES MAGISTRATE JUDGE

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