UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRYAN SMITH, : CIVIL NO. 4:04-CV-1746

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

JO ANNE B. BARNHART, :

Commissioner of :

Social Security, :

:

Defendant :

REPORT AND RECOMMENDATION

The plaintiff has brought this civil 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

claim of the plaintiff for Social Security disability insurance

benefits.

On March 28, 2002, the plaintiff, Bryan D. Smith,

applied for disability insurance benefits. He claimed that he

became disabled on May 24, 2002, as the result of degenerative

disc disease of the lumbar spine. The claim was denied

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initially and on reconsideration. The plaintiff filed a

request for a hearing, and a hearing was held before an

administrative law judge (ALJ) on June 18, 2003. Tr. 228-252. 

At this hearing the plaintiff and a vocational expert

testified. The plaintiff stated that he was born on

February 9, 1961. He was injured while working. He was

working for an employer who was not complying with the law as

to employee benefits and tax withholdings. He had back

surgery. He wears a brace and uses a cane. He now continues

to have back pain after his surgery. He also has leg pain. 

His most comfortable stated position is in a recliner tilted

backwards, and he needs to alternate sitting and standing

frequently. He takes Oxycontin, which causes stomach cramps,

fatigue and a poor feeling. He feels that he can not handle

working. His surgeon tells him that he can do light work; his

family doctor tells him not to do anything. He does not feel

that he has improved since his surgery. 

A vocational expert testified that a person after

recovery from low back surgery who needs to change positions

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from sitting to standing frequently, who must walk occasionally

and who could lift up to ten pounds occasionally and five

pounds frequently could perform jobs as a video monitor, as a

ticket taker or as an assembler of small parts. If the

plaintiff’s testimony is accepted, the vocational expert

stated, the plaintiff can not perform substantial gainful

activity. 

On July 21, 2003, the ALJ issued her decision denying

the application of the plaintiff for benefits. Tr. 18-25. The

Appeals Council denied the plaintiff's request for review (Tr.

5), making the ALJ's decision the final decision of the

Commissioner.

The plaintiff filed his complaint with this court on

August 9, 2004. The defendant filed an answer to the complaint

and a copy of the administrative record on November 1, 2004. 

Pursuant to Local Rules 83.40.4 and 83.40.5, the plaintiff

filed his brief on February 14, 2004 and the defendant filed

her brief on March 21, 2004. No reply brief has been filed.

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If the Commissioner's decision is supported by

substantial evidence it must be affirmed. 42 U.S.C. § 405(g). 

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). Substantial evidence is more than a mere scintilla of

evidence but less than a preponderance. Brown v. Bowen, 845

F.2d 1211, 1213 (3d Cir. 1988). 

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). 

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To facilitate review of the Commissioner's decision

under the substantial evidence standard, the Commissioner's

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. In

determining if the Commissioner's decision is supported by

substantial evidence the court must scrutinize the record as a

whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). 

 

The Commissioner has promulgated regulations creating a

five-step process to determine if a claimant is disabled. The

Commissioner 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 claimant's impairment prevents the claimant from

doing past relevant work; and, (5) whether the claimant's

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impairment prevents the claimant from doing any other work. 

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

The disability determination involves shifting burdens

of proof. The initial burden rests with the claimant to

demonstrate that he is unable to engage in his past relevant

work. If the claimant satisfies this burden, then the

Commissioner must show that jobs exist in the national economy

that a person with the claimant's abilities, age, education,

and work experience can perform. Mason v. Shalala, 994 F.2d

1058, 1064 (3d Cir. 1993).

In this case the ALJ determined that the plaintiff has

not engaged in substantial gainful activity since the alleged

onset date, that he has an impairment that is severe, that his

impairments do not meet or equal any listed impairments, and

that he is not able to perform his past relevant work. The

ALJ further determined that the plaintiff has the residual

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1. 

“Residual Functional Capacity” is “that which an individual is still able to

do despite the limitations caused by his or her impairment(s).” Burnett v.

Commissioner of Social Security Adm., 220 F.3d 112, 121 (3d Cir. 2000)

(quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)). 

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functional capacity1 to perform sedentary jobs such as those

identified by the vocational expert.

On the basis of these findings, the ALJ found the

plaintiff not to be disabled. 

The plaintiff argues that the ALJ may not make a step

three listings decision without a medical advisor at the

hearing, at least where the medical evidence already in the

record does not provide a basis for making this decision. The

plaintiff cites Ferguson v. Schweiker, 765 F.2d 31 (3d

Cir. 1985). 

The ALJ’s step three listings decision is: 

The medical evidence indicates that the

claimant has degenerative disc disease of the

lumbosacral spine, an impairment that is severe

within the meaning of the Regulations, but this

impairment is not documented by objective

findings of a severity to meet or medically

equal one of the impairments listed in Appendix

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I, Subpart P, Regulations No. 4. Particular

attention was given to Section 1.04 A of the

impairments set forth in the Listing of

Impairments but a finding of disability cannot

be made at step three of the sequential

evaluation as the claimant does not have the

requisite neurological, laboratory, or

diagnostic requirements for listing level

severity. 

Tr. 20. 

Although it might appear to us that the ALJ has made a

correct factual determination by application of Section 1.04 A

to the plaintiff’s spinal disorder impairment, we do not know

from the ALJ decision which factor or factors under Section

1.04 is the basis for the decision. We do not know what

evidence has been relied upon in making the decision. The

Listings step is obviously a critical step in the disability

analysis, and a merely conclusory statement that a cited

listing is not met does not explain the decision. Burnett v.

Schweiker, 220 F.3d 112 (3d Cir. 2000). The ALJ must state

critical findings and reasons. The ALJ must consider whether

there is a disorder of the spine. If so, it must be determined

whether there is evidence of nerve root compression

characterized by the kinds of symptoms described in that

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Listing. This is the Commissioner’s own description of an

impairment and its symptoms that, if present, are disabling

without consideration of residual functional capacity. 20 CFR

§ 1520(d). Dr. Anton, the neurosurgeon, does not frame a

description in terms of nerve root compression specifically;

however, his description of the plaintiff’s impairment and his

performance of an L5-S1 discectomy (Tr. 188, 192) suggests that

nerve root compression was present before surgery. He states

that there is “no major compression on the thecal sac anymore.” 

Tr. 192. Dr. Anton also reports the persistence of symptoms

after surgery. A remand for a Listings 1.04 A analysis is

necessary. More specific and focused input from a treating

physician or other medical expert may be necessary. 

The plaintiff argues that the ALJ erroneously rejected

the opinion of his regular treating physician that he is

totally disabled. The ALJ described a doctor’s evaluation of a

patient’s physical condition as it relates to the ability to

work as “an accommodation to his patient for the purpose of

public assistance.” Tr. 20. The ALJ provides no explanation

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for the factual basis for this finding as to the doctor’s state

of mind in completing a form concerning his patient. 

The ALJ found the plaintiff not to have been credible,

without referring to the testimony considered by the ALJ not to

be credible. The rejection of testimony of a witness without

specifying the testimony rejected does not permit a review of

the decision that has resulted from the rejection of that

testimony. The decision must be explained. Cotter v. Harris,

supra. The ALJ stated as reasons for rejecting the plaintiff’s

credibility that a pain clinic appointment had not been made,

that there is evidence of improvement in the plaintiff’s

condition, and that “his daily activities are not indicative of

someone who is totally disabled.” Tr. 21. The ALJ should note

and explain the testimony that was rejected on this basis. 

The plaintiff argues that the ALJ in finding that the

plaintiff can perform a range of sedentary work has not

considered and made findings reconciling the plaintiff’s need

to change positions from seated to standing and vice-versa on a

frequent basis. Tr. 245. The vocational expert’s assumption

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was that the worker needs to frequently change positions. 

Tr. 249-250. Even though no express finding was made as to the

need to change positions, the record supports the ALJ finding

of a residual functional capacity for the jobs the vocational

expert had identified if the evidence supports the other

components of the question to the vocational expert. There is

not error in the findings in this aspect of the decision. 

The case should be remanded for further consideration

of the plaintiff under Listing 1.04 A, consideration of

Dr. Cartaginise’s opinion without assuming a motivation on the

Doctor’s part that lacks evidentiary support, and consideration

of the plaintiff’s credibility that is framed in terms of the

truthfulness of things that he has said. 

 /s/ J. Andrew Smyser 

J. Andrew Smyser

Magistrate Judge

DATED: April 21, 2005. 

 

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