UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DAVID E. DOHERTY, SR., : CIVIL NO. 4:05-1249

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

JO ANNE B. BARNHART, :

Commissioner of Social :

Security, :

Defendant :

:

REPORT AND RECOMMENDATION

The plaintiff has brought this action under the authority

of 42 U.S.C.§ 405(g) to obtain judicial review of the decision

of the Commissioner of Social Security denying the plaintiff’s

claims for disability insurance benefits (DIB) and supplemental

security income (SSI). 

The plaintiff applied for DIB and SSI on March 12, 2002,

alleging disability due to hepatitis C since February 8, 2002. 

Tr. 174-76, 516-18, 119. His applications were denied

initially. Tr. 119, 126-29. On August 13, 2002, the plaintiff

filed a request for a hearing. Tr. 123. Although the request

was not timely, the ALJ determined that there was good cause

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for missing the deadline. Tr. 23, 39-41, 124-25. 20 C.F.R. §§

404.933©), 416.1433©). 

On March 20, 2003, the plaintiff and his girlfriend

testified at an administrative hearing. Tr. 32-79. A

vocational expert (VE) and a medical expert testified at a

supplemental hearing which was held on August 19, 2003. 

Tr. 80-118. On September 17, 2003, the administrative law

judge (ALJ) issued a decision denying the plaintiff’s claims. 

Tr. 20-31. The plaintiff requested review from the Appeals

Council, which denied his request. Tr. 542-48, 8-19. Thus,

the ALJ’s decision became the final decision of the

Commissioner. 42 U.S.C. § 405(g). The plaintiff then

commenced this action for judicial review of the Commissioner’s

final decision. Doc. No. 1. 

The plaintiff was forty-four-years old at the time of the

ALJ’s decision. Tr. 28. He has a tenth-grade education and

past work experience as a carpenter, a drywall laborer, and

most recently, a forklift operator. Tr. 47-51. The

plaintiff’s employer placed him on medical leave on February 8,

2002; he has not worked since. Tr. 42-43. 

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The plaintiff’s family physicians were first Roger L.

Harcourt, M.D., and then Nicole Post, M.D., who assumed Mr.

Doherty’s care after Dr. Harcourt retired in December 2002. Tr. R.

245-75, 373-85, 398-418, 78, 391-96, 441, 489-95. 

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The plaintiff was diagnosed with hepatitis C in January 2001. 

Tr. 197. From July 2001 to July 2002, the plaintiff received

interferon therapy while under the care of David N. Speranza,

M.D. Records from Dr. Speranza show that the therapy was

effective, but the plaintiff experienced a number of side

effects, including depression, for which he was given antidepressant medication, arthralgia and myalgia, insomnia, vision

impairment, tinnitus, fatigue, nausea, vomiting, and migraine

headaches. Tr. 318-49, 359-68. After his interferon therapy

ended, the plaintiff continued to seek treatment for his

headaches, diagnosed as migraines, from his family physicians1

and from neurologists Allen E. Tyler, M.D., and Scott Cherry,

M.D. Tr. 245-85, 391-418, 441, 457-49, 507-08.

The Commissioner has promulgated regulations creating a

five-step process to determine whether a claimant is disabled. 

The ALJ must sequentially determine: (1) whether the claimant

is engaged in substantial gainful activity; (2) whether the

claimant has a severe impairment; (3) whether the claimant’s

impairment meets or equals a listed impairment; (4) whether the

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claimant's impairment prevents the applicant from doing past

relevant work; and (5) whether the claimant's impairment

prevents the claimant from doing any other work. 20 C.F.R. §§

404.1520, 416.920. 

In this case, the ALJ determined that (1) the plaintiff

had not engaged in substantial gainful activity since his

alleged disability onset date; (2) the plaintiff’s headaches

and hepatitis C are severe; (3) but do not meet or medically

equal any listed impairment(s); (4) the plaintiff is unable to

perform his past relevant work; but (5) has the residual

functional capacity (RFC) to perform a significant range of

light work. Tr. 24-28. The VE gave examples of such jobs

(i.e. packer and dispatcher) and testified as to the numbers in

which they exist in the regional and national economies. 

Tr. 29, 113. See 20 C.F.R. §§ 404.1560, 416.960 (requiring the

Commissioner to demonstrate that work the claimant can perform

exists in significant numbers in the national economy). 

Because the plaintiff was found to be able to perform work that

exists in significant numbers in the national economy, the ALJ

determined that the plaintiff is not disabled. Tr. 23. 20

C.F.R. §§ 404.1520(g), 416.920(g). 

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We review the Commissioner’s decision to determine whether

it is supported by substantial evidence. Substantial evidence

means "such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion." Plummer v. Apfel, 186

F.3d 422, 427 (3d Cir. 1999)(quoting Ventura v. Shalala, 55

F.3d 900, 901 (3d Cir. 1995). A single piece of evidence is

not substantial evidence if the Commissioner ignores

countervailing evidence or fails to resolve a conflict created

by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d

Cir. 1993). However, in an adequately developed factual

record, substantial evidence may be "something less than the

weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent

[the decision] from being supported by substantial evidence.” 

Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). 

To facilitate review of the Commissioner's decision

under the substantial evidence standard, the decision must 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). Conflicts in the evidence must be resolved and

the Commissioner must indicate which evidence was accepted,

which evidence was rejected, and the reasons for rejecting

certain evidence. Id. at 706-707. 

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The plaintiff first argues that the ALJ erred in not

evaluating the testimony of his girlfriend, Denise Smeltzer,

presented under oath at the hearing of March 20, 2003. Tr. 74-

79. Burnett v. Commissioner, 220 F.3d 112, 122 (3d. Cir.

2000), requires that an ALJ state some reason for disregarding

a lay witness’ testimony when that testimony could have

bolstered a claimant’s credibility. Burnett, 220 F.3d at 122. 

This requirement is rooted in the basic Cotter requirement that

the decision be explained Because, in the present case, the

ALJ found the plaintiff not to be credible, she should have

stated how she evaluated Ms. Smeltzer’s corroborative

testimony. Tr. 25. Burnett, 220 F.3d at 122. 

For example, the plaintiff testified that he blacks out at

least three or four times a week. Tr. 63-64. The ALJ

questioned Ms. Smeltzer about this, and she testified that she

helps the plaintiff on a daily basis, she stated that he is on

a lot of medications and becomes confused. She stated that he

is motivated to do things that a man of his age would generally

be able to do -carry groceries, mow the yard- and that he has a

hard time accepting that he can not. She stated that she has

seen him become lightheaded, change color, and lose his

balance. Tr. 74-77. Because the ALJ did not discuss Ms.

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Smeltzer’s testimony, we cannot be sure how the ALJ evaluated

the plaintiff’s testimony regarding these “blackouts” and thus

determine whether substantial evidence supports the ALJ’s

determination that the plaintiff was not credible. Tr. 25. 

Next, the plaintiff argues that the ALJ failed to address

several medical reports which, he asserts, support his claims. 

These include David T. Francois, M.D.’s notation regarding a

possible basis for the plaintiff’s arthralgia problems, as well

as reports concerning the plaintiff’s sinusitis, vision

problems, tinnitus, and migraine headaches. Tr. 455, 391, 444-

45, 463-71, 319, 322, 325-27, 329-32, 509-11. 

As the plaintiff points out, the ALJ discussed only that

medical evidence which supported the ALJ’s conclusion that the

plaintiff was not credible regarding the intensity, duration,

and limiting effects of his symptoms. Tr. 25-26. For example,

the ALJ notes that a February 18, 2002 head CT scan was

unremarkable. Tr. 25, 324. Yet the ALJ failed to resolve this

report with other evidence in the record which supported the

plaintiff’s allegations regarding the limiting effects of his

headaches. For instance, even after the negative head CT, the

plaintiff continued to complain of severe headaches and nausea,

leading Dr. Speranza to halt the plaintiff’s interferon therapy

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for a few weeks in February 2002. Tr. 321-27. The medical

expert who testified at the supplemental hearing, Richard

Menin, M.D., noted that while the plaintiff’s flu-like symptoms

improved after his hepatitis C treatment ended, his headaches

remained. Tr. 88-89. Dr. Menin stated that although he could

not evaluate the plaintiff’s symptoms, the fact that the

plaintiff had sought evaluation from several physicians

indicated that the headaches “dominat[ed] his life a good

deal.” Tr. 90. 

As the Commissioner concedes, the ALJ did not evaluate

each piece of relevant medical evidence and testimony in the

record. Tr. 25-27. Doc. 9 at 14-15. The Commissioner

correctly notes that the ALJ did not need to do so as long as

her discussion of the medical evidence permits this court to

discern the basis of her decision. Fargnoli v. Massanari, 247

F.3d 34, 42 (3d. Cir. 2001). Here, it did not. 

Several physicians treated the plaintiff over the course

of his interferon therapy, for both the therapy itself as well

as its various side effects. Tr. 245-317, 318-49, 353-423,

428-49, 452-71, 473-508. Yet the ALJ lumped all of this

medical evidence together in one paragraph in a discussion we

find insufficient under Fargnoli, 247 F.3d at 42. Tr. 25-26. 

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 Presumably, the ALJ’s reference to an opinion that the

plaintiff was temporarily disabled was that of Dr. Post, the

plaintiff’s treating physician, who opined on a Pennsylvania

Department of Welfare form that the plaintiff was temporarily

disabled from March 19, 2002 until December 31, 2003. Tr. 27, 472.

If this is the opinion that the ALJ rejected because it

“indicate[d] that the plaintiff was ‘temporarily disabled for less

than a 12-month period,” the ALJ’s basis for the rejection is

incorrect; the dates actually cover a twenty-month period. Tr.

472.

9

Particularly problematic was the ALJ’s failure to

distinguish the evidence from the plaintiff’s treating family

physicians, Roger L. Harcourt, M.D., and Nicole Post, M.D.,

from the stack of medical evidence, and evaluate their opinions

under the appropriate regulations. Tr. 25-26, 245-75, 373-85,

398-418, 78, 391-96, 441, 489-95. 20 C.F.R. §§ 404.1527(d),

416.927(d). Both provided the ALJ with opinions, which the ALJ

did not separately discuss or weigh. Tr. 27, 374-80, 391, 446-

47, 472.

The ALJ simply assigned “little weight” to all of the

“various opinions of disability,” finding they were “either not

supported by the medical findings, indicate that the

[plaintiff] is ‘temporarily’ disabled for less than a 12-month

period, are based on a one-time examination of the [plaintiff],

or are inconsistent with the fact that the [plaintiff] improved

with medication and therapy.”2 Tr. 27. This skimpy assessment

leaves us to cobble together our own review of the medical

evidence in order to try to discern which opinions the ALJ

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rejected for which reasons. Such an endeavor, however, is

beyond this court’s reviewing role. It is not up to us to

speculate as to how the ALJ assigned weight to the numerous

physicians and their opinions or to devise our own analysis of

the medical records. Fargnoli, 247 F.3d at 44 n.7 (citing

S.E.C. v. Chenery Corp., 318 U.S. 194, 196 (1947).

Finally, the plaintiff contends that the ALJ erred in

determining that the plaintiff had the residual functional

capacity (RFC) for a significant range of light work. Tr. 28. 

The ALJ gave “little weight” to “an assessment showing that the

claimant was not capable of working an 8-hour day” and another

“showing that the claimant was capable of sedentary work,”

finding them inconsistent with the medical findings. Tr. 27. 

Here again, the ALJ has failed to develop the record in way

that facilitates our review. Fargnoli, 247 F.3d at 42. 

The ALJ did not even acknowledge who provided the two RFC

assessments, much less note that they came from the plaintiff’s

treating physicians, Drs. Harcourt and Post. Tr. 27, 374-82,

446-47. In doing so, the ALJ ignored that “[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

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on a continuing observation of the patient's condition over a

prolonged period of time." Morales v. Apfel, 225 F.3d 310, 317

(3d Cir. 2000) ((citing Plummer v. Apfel, 186 F.3d 422, 429

(3d Cir.1999)(quoting Rocco v. Heckler, 826 F.2d 1348, 1350

(3d Cir.1987)). 

On the basis of the foregoing, it is recommended that the

appeal of the plaintiff be granted and this matter be remanded

to the Commissioner for reconsideration of the testimony of 

Ms. Smeltzer, of the credibility of the plaintiff as to his

symptoms and limitations, and of the medical evidence.

/s/ J. Andrew Smyser

J. Andrew Smyser

Magistrate Judge

Dated: February 9, 2006. 

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