UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT E. LEE, : CIVIL NO. 4:05-CV-0958

:

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 supplemental security income

benefits.

On June 17, 2003, the plaintiff, Robert E. Lee, applied

for supplemental security income benefits. He claimed that he

became disabled on March 1, 2002, as the result of

hypertension, kidney disease, status post kidney transplant and

Case 4:05-cv-00958-JFM Document 8 Filed 12/01/05 Page 1 of 10
2

limitations attendant to that status, and chronic renal failure

attendant to chronic kidney transplant rejection, chronic

alcoholism, lung disease and hepatitis. The claim was denied

initially and on reconsideration. The plaintiff filed a

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

administrative law judge (ALJ) on November 15, 2004. Tr. 258-

277. 

On January 28, 2005, the ALJ issued his decision

denying the plaintiff benefits. Tr. 12-19. The Appeals

Council denied the plaintiff's request for review (Tr. 9),

making the ALJ's decision the final decision of the

Commissioner.

The plaintiff filed his complaint with this court on

May 11, 2005. The defendant filed an answer to the complaint

and a copy of the administrative record on July 11, 2005. 

Pursuant to Local Rules 83.40.4 and 83.40.5, the plaintiff

filed his brief on August 9, 2005 and the defendant filed her

brief on September 1, 2005. No reply brief has been filed.

Case 4:05-cv-00958-JFM Document 8 Filed 12/01/05 Page 2 of 10
3

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). 

Case 4:05-cv-00958-JFM Document 8 Filed 12/01/05 Page 3 of 10
4

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 for

purposes of a claim for supplemental security income benefits

based upon a claim of a disability. 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;

Case 4:05-cv-00958-JFM Document 8 Filed 12/01/05 Page 4 of 10
5

and, (5) whether the claimant's 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 impairments that are severe, that his

impairments do not meet or equal any listed impairments, and

that he has no past relevant work. The ALJ further determined 

Case 4:05-cv-00958-JFM Document 8 Filed 12/01/05 Page 5 of 10
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)). 

6

that the plaintiff has the residual functional capacity1 to

perform a limited range of light work and to perform jobs

identified by the vocational expert.

On the basis of these findings, the ALJ found the

plaintiff not to be disabled. 

The ALJ’s Step Three analysis of the issue whether the

plaintiff’s impairments meet or medically equal listed

impairments addressed the plaintiff’s impairments each

discretely and individually. There is no consideration given

to whether the plaintiff’s impairments in combination are

medically equal to any listed impairment. Burnett v.

Commissioner, 220 F.3d 112 (3d Cir. 2000); Cotter v. Harris,

supra; 20 C.F.R. § 404.1526(a). Given this claimant’s several

and serious severe impairments, this oversight was quite likely

not harmless error. We think that a remand for reconsideration

of the Step Three issue involving the impairments in

Case 4:05-cv-00958-JFM Document 8 Filed 12/01/05 Page 6 of 10
7

combination is necessary. Having noted this, we will turn to

the plaintiff’s arguments. 

The plaintiff argues that the plaintiff’s kidney status

appears from the medical evidence in the record to be worsening

and that the ALJ failed to adequately explain his reasons for

rejecting the claimant’s credibility. We agree with the

plaintiff here that the ALJ did not provide adequate reasons

for rejecting the plaintiff’s credibility or for denying the

claim. The ALJ did not explain the reasoning for finding the

plaintiff to have the capacity to perform substantial gainful

activity. 

The defendant asks the court to conclude that the ALJ

reasoned carefully and well when he “found the objective

medical evidence suggested plaintiff could perform a ‘moderate’

amount of ‘physical function’ (Tr. 14) given his ‘moderate’

objective findings (Tr. 16).” (Doc. 7, p.15). However, we do

not agree with the defendant. Instead, we must observe that

the phrasing used by the ALJ in combination with the reasoning

ostensibly found by the ALJ to justify a finding adequate to

Case 4:05-cv-00958-JFM Document 8 Filed 12/01/05 Page 7 of 10
2. 

It should be observed that the ALJ’s Tr. 15 summary of the

plaintiff’s testimony contains some statements attributed to the plaintiff

which, if not fully credible, might tend to make it less likely that the

plaintiff can perform substantial gainful activity rather than more likely. 

(continued...)

8

support a rejection of the plaintiff’s claim is clearly flawed. 

The ALJ has not explained adequately what is meant at Tr. 16 by

“moderate objective findings of record,” and the court does not

have a basis to hold that this critical finding is supported by

substantial evidence. Moreover, the ALJ has not explained

adequately what is meant by the Tr. 16 statement that “the

claimant’s subjective complaints are not fully credible” and

has not explained adequately what is meant by the statement

that the [not fully credible] subjective complaints are

“somewhat inconsistent with the moderate objective findings of

record.” In fact, the ALJ has not identified even one such

“subjective complaint” to illustrate how and why it is

inconsistent with the “findings of record.” The ALJ has not

even specifically rejected the plaintiff’s testimonial

assertions about his residual functional capacity, which the

ALJ had summarized at Tr. 15. In fact, in summarizing the

plaintiff’s testimonial assertions, the ALJ stated that the

claimant “spoke clearly and appeared truthful.”2 In fact, the

Case 4:05-cv-00958-JFM Document 8 Filed 12/01/05 Page 8 of 10
2. (...continued)

The plaintiff had stated that he is able to sit without restriction, is

able to use his arms, hands and fingers normally, and is able to lift ten

pounds. A rejection of the credibility of these statements might mean that

the plaintiff had understated his abilities, but this is not said by the

ALJ to be his meaning. We do not know what was meant. 

9

ALJ’s characterization of the statements made by the plaintiff

in his testimony as “complaints” is unexplained but requires

explanation. In reading the plaintiff’s answers to the ALJ’s

questions during the November 15, 2004 hearing, we would not

find a basis to characterize the answers as complaints. The

plaintiff appears to have directly and plainly answered the

ALJ’s questions and not to have stated complaints about his

condition, about his reduced capacity or about any other

matter. The ALJ has not referred here adequately to

specifically what is meant by “subjective complaints,” but has

implied by his statement of his analysis that it is these

“subjective complaints” that are seen to be most material in

the plaintiff’s claim. In rejecting some but not all of the

“subjective complaints” the ALJ has not adequately explained

how and why the surviving, credible subjective complaints do

not support a finding of an inability to perform substantial

gainful activity. In using the abstract rhetorical phrasing

used here (“not fully credible,” “subjective complaints,”

Case 4:05-cv-00958-JFM Document 8 Filed 12/01/05 Page 9 of 10
10

“somewhat inconsistent with,” “moderate objective findings of

record” and “moderate amount of physical function”) the ALJ has

effectively insulated the findings here from a meaningful

review based upon the substantial evidence standard of review. 

But since this court is required to determine whether the

Commissioner’s findings are supported by substantial evidence,

and since the court can not fulfill that requirement without

clear and understandable findings to review, this case should

be remanded to permit and to require the Commissioner to make

clear findings. Cotter v. Harris, supra. If the case’s

disposition turns on the question whether subjective complaints

are credible, the ALJ must make clear credibility findings. 

It is recommended that the case be remanded to the

Commissioner. 

/s/ J. Andrew Smyser

J. Andrew Smyser

Magistrate Judge

Dated: December 1, 2005. 

Case 4:05-cv-00958-JFM Document 8 Filed 12/01/05 Page 10 of 10