UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

TIMOTHY K. HESKELL, :

:

Plaintiff, : No. 4:CV-04-2079

:

vs. : Complaint Filed 09/20/04

:

JOANNE B. BARNHART, : (Judge Muir)

Commissioner of Social Security, :

:

Defendant, : (Magistrate Judge Mannion)

ORDER

August 22, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On October 2, 2002, Plaintiff Timothy K. Heskell, filed an

application with the Social Security Administration for Social

Security Disability Insurance benefits. Heskell claimed in the

application to have been disabled since February 10, 2000, because

of problems with his back, neck, and arms; hypertension;

depression; and a learning disability. On February 18, 2004, a

hearing was held on Heskell’s application. On February 26, 2004,

the Administrative Law Judge issued a decision denying Heskell’s

application. That decision became final when the Appeals Council

denied Heskell’s request for further review. 

Heskell now challenges the denial of his application for

disability benefits in this court. He claims that the

Commissioner’s decision is not supported by substantial evidence

Case 4:04-cv-02079-MM Document 19 Filed 08/22/05 Page 1 of 10
2

because the Administrative Law Judge erred in failing to 1) give

special weight to the opinions of Heskell’s treating physicians

Drs. Kirschman, Boyek, Jones, Kingsley, Danko, and the consultant

examiner Dr. Webb; 2) address properly Heskell’s testimony

regarding his usual daily activities; 3) consider Heskell’s long

work history in connection with Heskell’s credibility; 4) present a

hypothetical question to the vocational expert which incorporated

all of Heskell’s impairments; 5) understand the bases upon which

the opinion of Dr. Williams had been based; and 6) order additional

testing to determine the limits of Heskell’s intellectual capacity.

The Clerk of Court assigned responsibility for this case to us

but referred it to United States Magistrate Judge Malachy E.

Mannion for preliminary consideration. On June 14, 2005, the

Magistrate Judge issued a 14-page report recommending that none of

Heskell’s arguments have merit, the Administrative Law Judge’s

decision is supported by substantial evidence, and that Heskell’s

appeal should therefore be denied.

Heskell timely filed objections to the Report and

Recommendation on July 1, 2005. The Social Security Commissioner

initially filed a letter on July 12, 2005, stating that she

“waive[d] the opportunity to respond to the Plaintiff’s objections

to the Report and Recommendation.” (Document 16) On July 13, 2005,

we issued an order in which we required the Social Security

Case 4:04-cv-02079-MM Document 19 Filed 08/22/05 Page 2 of 10
3

Commissioner to file either a brief opposing Heskell’s objections

or a certificate of concurrence therein. On July 27, 2005, the

Social Security Commissioner timely filed her brief in response to

Heskell’s objections. The time allowed for Heskell to file a reply

brief expired on August 15, 2005, and no such brief was filed. The

matter is ripe for disposition.

When objections are filed to a report of a magistrate judge,

we make a de novo determination of those portions of the report or

specified proposed findings or recommendations made by the

magistrate judge to which there are objections. United States v.

Raddatz, 447 U.S. 667 (1980); 28 U.S.C. §636(b)(1); M.D. Pa. Local

Rule 72.3. Furthermore, district judges have wide discretion as to

how they treat recommendations of a magistrate judge. Id. Indeed,

in providing for a de novo review determination rather than a de

novo hearing, Congress intended to permit whatever reliance a

district judge, in the exercise of sound discretion, chooses to

place on a magistrate judge’s proposed findings and

recommendations. Id.; See also Mathews v. Weber, 423 U.S. 261, 275

(1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

In an appeal of the denial of Social Security benefits, our

review of the Magistrate Judge’s report and the issues therein is

governed not only by the principles set forth in the preceding

paragraph, but also by 42 U.S.C. §405(g). In such cases our review

Case 4:04-cv-02079-MM Document 19 Filed 08/22/05 Page 3 of 10
4

is less than plenary. A decision of the Commissioner which is

supported by substantial evidence must be affirmed. See Mason v.

Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).

Substantial evidence is “‘more than a mere scintilla. It

means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Richardson v. Perales, 420 U.S.

389, 401 (1971)(quoting Consolidated Edison Co. v. N.L.R.B., 305

U.S. 197, 229 (1938)). Substantial evidence exists only “in

relationship to all the other evidence in the record,” Cotter v.

Harris, 642 F.2d 700, 706 (3d Cir. 1981), and “must take into

account whatever in the record fairly detracts from its weight.”

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971).

In his objections Heskell first argues that 

[t]he Magistrate Judge was in error when he failed to give

special significance to the treating source opinion of Dr.

Boyek and failed to consider the consultant examiner, Dr. Paul

Webb’s restrictions.

(Objections, p. 8) Heskell’s concession that he “did not indicate

any medical source that specifically deemed [Heskell] to be

disabled” is significant. (Objections, p. 10) Obviously that

observation includes the medical evidence presented by all of the

treating and consulting physicians, including Drs. Boyek and Webb.

Under the circumstances of this case, Heskell’s first

objection amounts to nothing more than his disagreement with the

Administrative Law Judge’s assessment of the medical evidence. 

Case 4:04-cv-02079-MM Document 19 Filed 08/22/05 Page 4 of 10
5

Despite this objection, we agree with the Magistrate Judge’s

determination that the Administrative Law Judge’s findings with

respect to Drs. Boyek and Webb are supported by substantial

evidence.

Heskell’s second objection is that the Administrative Law

Judge failed properly to consider Heskell’s work history which

spans twenty-seven years. Heskell argues that the Administrative

Law Judge erroneously failed to consider that history when the

Administrative Law Judge discounted Heskell’s subjective complaints

of pain. In essence, Heskell contends that his work history

required the Administrative Law Judge to accept without reservation

Heskell’s testimony concerning the severity of his impairments and

his pain.

Courts reviewing an Administrative Law Judge’s decision

“ordinarily defer to an ALJ's credibility determination because he

or she has the opportunity at a hearing to assess a witness's

demeanor.” Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.

2003)(citing Atl. Limousine, Inc. v. NLRB, 243 F.3d 711, 718 (3d

Cir.2001)). It has also been held that “[c]redibility

determinations are the province of the ALJ and only should be

disturbed on review if not supported by substantial evidence.”

Pysher v. Apfel, No. 00-1309, 2001 WL 793305, at *3 (E.D.Pa. July

11, 2001)(citing Van Horn v. Schweiker, 717 F.2d 871, 973 (3d

Case 4:04-cv-02079-MM Document 19 Filed 08/22/05 Page 5 of 10
6

Cir.1983)).” Woods v. Barnhart, 2005 WL 1923554, *2 (E.D.Pa. Aug.

8, 2005) Nonetheless, a claimant’s prior work record is a factor

to be considered by an Administrative Law Judge in assessing the

credibility of a claimant's subjective complaints of symptoms and

pain. See 20 C.F.R. § 404.1529(c)(3). 

In this case the Administrative Law Judge stated the following

with respect to Heskell’s testimony:

The undersigned Administrative Law Judge finds the testimony

of the claimant somewhat credible concerning the severity of

the symptoms and the extent of the limitations. The alleged

severity and extent, however, are not completely supported by

the objective medical evidence.

(Administrative Law Judge’s Decision, p. 4) The issue here is

whether Heskell’s complaints concerning his inability to do any

other work are fully credible. 

Our review of the record confirms that the medical evidence

supports the Administrative Law Judge’s assessment of Heskell’s

credibility. We further note that Heskell testified at the hearing

as to the various daily activities which he is able to perform,

such as preparing meals, performing light house repairs, shopping

for groceries, washing clothes, and taking out the garbage. (Id.,

p. 6)

When juxtaposed with his own testimony as to the functions and

activities he remains able to perform, the validity of Heskell’s

subjective complaints concerning his limitations is called into

Case 4:04-cv-02079-MM Document 19 Filed 08/22/05 Page 6 of 10
7

question. Heskell’s testimony regarding those activities (which

are listed above and were discussed by the Administrative Law Judge

in his decision) strongly supports the Administrative Law Judge’s

conclusions with respect to Heskell’s credibility. Based on all of

the evidence in the record, we are of the view that the

Administrative Law Judge’s assessment of Heskell’s credibility is

supported by substantial evidence.

Heskell’s third and final objection actually contains two

separate components. One portion of this objection is based on

Heskell’s assertion that the Administrative Law Judge failed to

consider Heskell’s combination of impairments in the hypothetical

questions posed to the vocational expert. Heskell argues that the

hypothetical questions posed to the vocational expert were

defective because they did not reference Heskell’s “diminished

intellectual functioning,” or the absenteeism that would be caused

by his headaches and depression. (Objections, p. 14) 

Our review of the transcript from Heskell’s hearing indicates

that the Administrative Law Judge incorporated into his

hypothetical questions all of the evidence relating to Heskell’s

intelligence. (Transcript of Hearing, p. 16) That portion of

Heskell’s objection is without merit.

It appears as though the Administrative law Judge did not

reference Heskell’s headaches and depression in the hypothetical

Case 4:04-cv-02079-MM Document 19 Filed 08/22/05 Page 7 of 10
8

questions because those impairments were not shown to have been

sufficiently severe. Consequently, the Administrative Law Judge’s

failure to reference them is not erroneous. Substantial evidence

supports the manner in which the Administrative Law Judge posed his

hypothetical questions to the vocational expert.

The remaining component of Heskell’s third objection is that

the Administrative Law Judge erred by failing to develop further

the record pertaining to Heskell’s mental impairments. The sole

authorities Heskell cites in support of this argument are the cases

of Ventura v. Shalala, 55 F.3d 900 (3d Cir. 1995), and Plummer v.

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

The facts of Ventura concern an Administrative Law Judge who

hindered development of the record by “demonstrat[ing] early on in

the hearing his impatience and hostility towards claimant's lay

representative,” and by being “coercive and intimidating” with the

claimant. Ventura, 55 F.3d at 902, 903. The other case Heskell

cites, Plummer v. Apfel, dealt with a situation in which “there was

no testimony during the hearing concerning Plummer's mental

impairments, nor did the ALJ order a psychological examination.”

Plummer, 186 F.3d at 432.

Heskell does not allege that the Administrative Law Judge’s

conduct at the hearing was in any way improper. There was much

evidence admitted concerning Heskell’s mental impairments. 

Case 4:04-cv-02079-MM Document 19 Filed 08/22/05 Page 8 of 10
9

Consequently, we are of the view that the holdings of neither

Ventura nor Plummer apply in this case. 

The regulations provide that an evidentiary record should be

further developed “when the evidence as a whole, both medical and

non-medical, is not sufficient to support a decision on [the]

claim.” 20 C.F.R. § 404.1519a(b). There is substantial evidence in

the record supporting all of the Administrative Law Judge’s

conclusions, including those concerning Heskell’s mental

impairments. 

We find no error in Magistrate Judge Mannion’s Report and

Recommendation, we will overrule Heskell’s objections to it, and we

will adopt it as our own. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Heskell’s objections (Document 15) to Magistrate Judge

Mannion’s Report and Recommendation filed June 14, 2005,

are overruled.

2. Magistrate Judge Mannion’s Report and Recommendation

filed June 14, 2005, (Document 14) is adopted in toto.

3. The Social Security Commissioner’s denial of Heskell’s 

application for disability insurance benefits is

Case 4:04-cv-02079-MM Document 19 Filed 08/22/05 Page 9 of 10
10

affirmed.

4. The Clerk of Court shall close this case.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

Case 4:04-cv-02079-MM Document 19 Filed 08/22/05 Page 10 of 10