1Plaintiff’s application for Supplemental Security Income (“SSI”) was denied at the

intake stage because of her husband’s income as a plumber. Plaintiff is not challenging this

denial. (R. 123, 370, 389). 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

 MARION SMITH : CIVIL ACTION NO. 4:CV-04-854

 :

 Plaintiff : 

: (Judge McClure)

 :

 v. : (Magistrate Judge Blewitt)

 :

JOANNE B. BARNHART, :

Commissioner of :

Social Security, :

 :

 Defendant :

 REPORT AND RECOMMENDATION

 This is a Social Security disability case pursuant to 42 U.S.C. § 405(g) and 1383 (c)(3).

The Plaintiff, Marion Smith, is seeking review of the decision of the Commissioner of Social Security

("Commissioner") which denied her claim for Disability Insurance Benefits (“DIB”) under Title II of

the Social Security Act (“Act”), 42 U.S.C. §§ 401-433. 

I. PROCEDURAL HISTORY.

 The Plaintiff filed a protective application for DIB1 on January 4, 2002, alleging an

inability to work since May, 1994, due to major anxiety, depression, Obsessive Compulsive

Disorder (“OCD”), possible bipolar disease and chemical imbalance. (R. 112). Her claim was

initially denied and a hearing was held before an Administrative Law Judge (“ALJ”) on January 14,

2003 and continued on April 23, 2003. (R. 13, 351-355, 357-425). An impartial Vocational Expert

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2

(“VE”), an impartial medical expert (“ME”) as well as the Plaintif, who was represented by counsel,

testified at the hearing. (R. 13). 

The ALJ denied Plaintiff’s application on May 09, 2003. (R. 13-21). Plaintiff requested

review of the ALJ’s Decision by the Appeals Council. The Appeals Council denied Plaintiff’s request

for review (R. 4-6), thus making the ALJ’s Decision the final decision of the Commissioner. 42

U.S.C. § 405(g) and 1383 (c)(3). That decision is the subject of this appeal. In compliance with the

Procedural Order issued in this matter, the parties have filed briefs in support of their respective

positions. (Docs. 10, 11). 

II. STANDARD OF REVIEW.

When reviewing the denial of DIB benefits, we must determine whether the denial is

supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3rd Cir. 1988); Mason

v. Shalala, 994 F.2d 1058 (3rd Cir. 1993). This court may not undertake a de novo review of the

Commissioner’s decision and should not re-weigh the evidence of the record. See Monsour

Medical Center v. Heckler, 806 F. 2d 1185, 1190 (3d Cir. 1986). If the Commissioner’s decision is

supported by substantial evidence, it must be affirmed. See 42 U.S.C. § 405(g). Substantial evidence

“does not mean a large or considerable amount of evidence, but rather such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487

U.S. 552 (1988); Hartranft v. Apfel, 181 F.3d 358, 360. (3d Cir. 1999). It is less than a

preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389,

401 (1971). Of course, we exercise plenary review over questions of law. See Krysztoforski v.

Chater, 55 F. 3d 857 (3d Cir. 1995).

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3

To receive disability benefits, the Plaintiff must demonstrate an "inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months." 42 U.S.C. § 432(d)(1)(A). Furthermore, 

[a]n individual shall be determined to be under a disability only if his 

physical or mental impairment or impairments are of such severity that he 

is not only unable to do his previous work but cannot, considering his age, 

education, and work experience, engage in any other kind of substantial 

gainful work which exists in the national economy, regardless of whether

such work exists in the immediate area in which he lives, or whether a 

specific job vacancy exists for him, or whether he would be hired if he 

applied for work. For purposes of the preceding sentence (with 

respect to any individual), “work which exists in the national economy” 

means work which exists in significant numbers either in the 

region where such individual lives or in several regions of the country.

42 U.S.C. § 423(d)(2)(A).

III. ELIGIBILITY EVALUATION PROCESS.

A five-step evaluation process is used to determine if a person is eligible for disability

benefits. See 20 C.F.R. § 404.1520 (1990). See also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.

1999). If the Commissioner finds that a Plaintiff is disabled or not disabled at any point in the

sequence, review does not proceed any further. 20 C.F.R. §§ 404.1520, 416.920 (2003).

 The first step of the process requires the Plaintiff to establish that she has not engaged

in "substantial gainful activity." See C.F.R. §§ 404.1520(b), 416.920(b). The second step involves

an evaluation of whether the Plaintiff has a severe impairment. See 20 C.F.R. §§ 404.1520(c),

416.920(c). The Commissioner must then determine whether the Plaintiff's impairment or

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4

combinationof impairments meets or equals those listed in Appendix1, SubpartP,RegulationNo. 4.

 If it is determined that the Plaintiff's impairment does not meet or equal a listed

impairment, the Commissioner must continue with the sequential evaluation process and consider

whether the Plaintiff establishes that she is unable to perform her past relevant work. See 20 C.F.R.

§ 404.1520(e), 416.920(e). The Plaintiff bears the burden of demonstrating an inability to return

to her past relevant work. Plummer, 186 F.3d at 428. Then the burden of proceeding shifts to the

Commissioner to demonstrate that other jobs exist in significant numbers in the national economy

that the Plaintiff is able to perform, consistent with her medically determinable impairments,

functional limitations, age, education and past work experience. 20 C.F.R. §§ 404.1520(f),

416.920(f). This is step five, and at this step, the Commissioner is to consider the Plaintiff’s stated

vocational factors. Id.

The ALJ concluded that the Plaintiff was not disabled within the meaning of the Social

Security Act. ( R. 21). In reaching this determination, the ALJ first found that Plaintiff had not

engaged in substantial gainful work activity since her alleged onset date (May 21, 1994). ( R. 13;

20, § 2). Further, the ALJ determined that the medical evidence established that Plaintiff’s

impairments, namely anxiety with depressed mood, dermatitis and headaches , were severe within

the meaning of the Regulations at 20 C.F.R. §§ 404.1520(b) and 416-.920(b), ( R. 14; 20, ¶ 3), but

not severe enough to meet or equal the criteria for establishing disability under the listed

impairments as set forth in Appendix 1, Subpart P, Regulations No. 4. (R. 20, ¶ 4). In addition, the

ALJ found that Plaintiff’s cervical and lumbar sprain conditions, and OCD were medically

determinable impairments but not severe under the regulations. (R. 16). The ALJ also found that

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 4 of 35
2 Light work. Light 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. If someone can do light work, we determine that

he or she can also do sedentary work, unless there are additional limiting factors such as loss of

fine dexterity or inability to sit for long periods of time.

20 C.F.R. 416.967(b).

3 Sedentary work. Sedentary work involves lifting no more than 10 pounds at a

time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.

Although a sedentary job is defined as one which involves sitting, a certain amount of walking

and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and

standing are required occasionally and other sedentary criteria are met. 

20 C.F.R. 416.967(a).

5

Plaintiff’s borderline personality disorder and depression were not medically determinable

impairments because they had been diagnosed after the Plaintiff’s last insured date. (R. 16).

The ALJ found that Plaintiff’s allegations regarding her limitations are not totally credible.

( R. 20, ¶ 5). When assessing Plaintiff’s Residual Functional Capacity (“RFC”), the ALJ found that

Plaintiff retains the RFC to perform light work2 which includes sedentary work3. (R. 19). The ALJ

found that Plaintiff’s limitations should not prevent her from performing a significant range of light

work. (R. 20, ¶ 12). The ALJ concluded that Plaintiff was able to perform a significant number of

acceptable jobs existing in the national economy. (R. 20, ¶ 13). Thus, Plaintiff was found not to

be disabled. (R. 20, ¶ 14).

The relevant time period for this case is May 21, 1994 (alleged onset date) through

September 30, 1997 (date Plaintiff was last insured for DIB benefits). 

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6

IV. DISCUSSION.

This appeal involves the denial of Plaintiff’s application for DIB. The issue in this case

is whether the Commissioner’s decision that Plaintiff is not disabled within the meaning of the

regulations and able to perform a significant range of light work, including sedentary work, is

supported by substantial evidence.

As mentioned above, the ALJ found that, as of her last insured date, the Plaintiff had

severe impairments, namely, anxiety with depressed mood, dermatitis and headaches. (R. 14). She

determined that these impairments were considered severe pursuant to 20 C.F.R. §§ 404.1520(b).

(R. 20, ¶ 3). The ALJ also found that Plaintiff’s lumbar and cervical strains, OCD, and borderline

personality disorder were medically determinable but not severe impairments. (R. 16). The ALJ

determined that none of Plaintiff’s impairments met or medically equaled a listed impairment. (R.

20, ¶ 4). Finally, the ALJ found that plaintiff’s depression was not a medically determinable

impairment. (R. 16). Thus, the ALJ concluded that the Plaintiff retained the RFC to engage in a

significant range of light work, including sedentary work. (R. 20 , ¶ 12).

The ALJ noted that Plaintiff’s 1999 OCD diagnosis was irrelevant because it was outside

of the relevant time period. (R. 16). The ALJ also stated as well that Plaintiff’s borderline personality

disorder was not severe because there was no evidence of significant limitations or treatment

related to this condition prior to 1999. (R. 15, 16, 17, 18). 

The ALJ found that the Plaintiff had the RFC to lift/carry up to ten pounds frequently and

twenty pounds occasionally. The ALJ found as well that Plaintiff needed to alternate positions every

two hours for fifteen minutes during normal breaks. The ALJ limited Plaintiff to perform light work

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7

alternating positions every two hours for fifteen minutes of normal breaks without exposure to

fumes, dust, gases and poor ventilation. The ALJ further limited Plaintiff to jobs which did not

require climbing ladders or scaffolding or which require handling fast moving machinery.

The ALJ acknowledged that from the non-exertional standpoint, Plaintiff may have

difficulty sustaining attention and concentration for prolonged periods of time; limitations in dealing

with co-workers and supervisors; understanding, remembering and carrying-out simple decisions;

making simple work-related decisions and appropriately handling routine changes on a regular basis

due to her depression, anxiety, sleep disturbance, fatigue, anger and irritability. She was limited to

no more than occasional interaction with the public. (R. 20, ¶ 7). The ALJ noted that Plaintiff was

not able to perform her past relevant work; therefore, transferability of skills was not an issue. (R.

20, ¶ 8). 

Essentially, the Plaintiff argues that, in reaching a determination, the ALJ failed to give

proper weight to the opinion of Plaintiff’s treating physicians concerning their diagnosis of

borderline personality disorder, depression, dermatitis and OCD. (Doc. 10, p. 9). In addition,

Plaintiff argues that the ALJ erred when she found that Plaintiff’s depression, anxiety, dermatitis and

borderline personality disorder did not meet of equaled a listed impairment. (Doc. 10, p. 18).

Finally, Plaintiff disputes the ALJ’s credibility determination of Plaintiff’s subjective symptoms and

adds that the Commissioner failed to meet its burden at step five. (Doc. 10, P. 19). Plaintiff does

not dispute the ALJ’s decision regarding her cervical and lumbar sprains. 

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8

A. Background

The Plaintiff was born on October 09, 1956. (R. 60; Doc. 10, p. 1; Doc. 11, p. 2). She

was 37years old at the time of her alleged disability onset date of May 21, 1994. (R. 13; Doc. 10,

p. 1; Doc. 11, p. 2). Thus, Plaintiff was a younger person under the Regulations. See 20 C.F.R. §§

404.1563(c), 416.963(c). The Plaintiff had not engaged in substantial gainful activity at any time

subsequent to her alleged disability onset date. (R. 20, ¶ 2 ). She has a tenth grade education and

completed a nine-months clerical course. (R. 395, Doc. 11, p. 2). Plaintiff’s past work experience

includes jewelry sales-person and stock clerk. (R. 113; Doc. 11, p. 2).

At the hearing before the ALJ, Plaintiff testified that on a typical day, she would get up

at 10:00 AM, drink coffee and smoke “a lot.” Then, she would sit and pick at her skin with her

fingernails, would not answers the phone or the doorbell and kept her curtains closed. (R. 406-407).

On her good days, Plaintiff cooks dinner, vacuums the floor, watches television and goes to bed at

around one or two in the morning. (R. 408). Plaintiff further stated that she had been sick for as

long as she can remember. (R. 392). In her application for DIB, Plaintiff described how some

mornings she just sits and starts picking at her skin and then goes to the bathroom to “scrap” her

skin in order to “clean it.” She does this for four to five hours a day “off and on.” (R. 102). 

Plaintiff dropped out of high school when she was in the tenth grade because she

became pregnant with her first daughter. She was married at sixteen but that marriage only lasted

fourteen months. She remarried in 1998 and was still married at the time of the hearing before the

ALJ. (R. 251). Plaintiff reported that she had a chaotic life and had been sexually abused by a

neighbor when she was a child. She stated that she still had social interaction with that neighbor

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but tries to block the memory of the abuse. (R. 251). She also reported that her mother had suffered

from severe depression and that her daughter had also been diagnosed with depression and panic

after a failed suicide attempt. (R. 251). Plaintiff’s family history with regards to depression is

remarkable because in addition to her mother and daughter’s diagnosis, her nephew had

committed suicide (R. 298; Doc. 10, p. 3) and one of her cousins had killed his wife and three

children before committing suicide. Plaintiff’s medical history contains several references to

Plaintiff’s own suicidal ideations but she had also asserted that she would never go through with

it because she had been “close to the devastation that suicide causes” in the surviving family

members. (R. 224, 251). Plaintiff stated that she had struggled with suicidal thoughts and depression

for at least twenty five years. (R. 298, 309). In August 1999, the Plaintiff indicated that she had seen

a therapist in the remote past, but never went to a psychiatrist. (R. 251).

In March 1994, Plaintiff was working at a grocery store when a display fell and injured

her neck and spine. (R. 84- 86). She was placed on light duty by her family physician but was fired

in June, 1994 because her employer had no light work available. (R. 92; 139; Doc 10, p. 2).

Plaintiff stated that her boss at the grocery store was constantly yelling and kicking objects which

aggravated her anxiety condition (R. 409-410) and that she was “glad” when he fired her. (R. 99).

B. Medical Evidence

Plaintiff alleges an inability to work since May 21, 1994, due to anxiety, depression,

dermatitis and OCD. (R. 112; Doc. 11, p. 3). In assessing Plaintiff’s complains, the ALJ noted that

Plaintiff complained of poor social interaction and inability to handle stress. (R. 17). However, the

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4At the hearing, Plaintiff testified that, in the past, she could not see the link between

her depression and the trauma due to the sexual abuse she suffered as a child. (R. 411).

5During a therapy session on August 6, 1999, and at the hearing before the ALJ on

April 23, 2003, Plaintiff stated that she had asked her doctor to take her off Prozac because she

10

ALJ determined that none of Plaintiff’s impairments were of sufficient severity to meet or medically

equal a listed impairment. ( R. 20, ¶ 4; Doc. 11, p. 2).

Plaintiff’s treatment history for her anxiety, neuro-dermatitis and depression prior to her

alleged onset date is patchy and unclear. As early as May of 1990, Plaintiff complained to her

family physician, Gary Ardison, M.D., that she had suicidal thoughts, headaches and episodes

during which she “lost control.” (R. 189). At the time, Plaintiff attributed her mood changes to

premesntrual syndrome (“PMS”)4. Dr. Ardison prescribed Tranxene for anxiety and Fiorinal for

headaches. (R. 189; Doc. 10, p. 1-2). On November 30, 1993, Plaintiff complained to Dr. Ardison

of increased stress and a constant desire to “run away from her problems.” (R. 190). On July 1,

1994, Plaintiff called Dr. Ardison after hours, she was almost hysterical and complained that she

had difficulty sleeping and coping; chest discomfort and inability to breath well. (R. 187; Doc. 10,

p. 3). Dr. Ardison opined that Plaintiff should start a long term treatment with antidepressants and

to “consult on a regular basis to deal with her condition.” (R. 186-187; Doc. 10, p. 3). Dr. Ardison

prescribed Xanax for depression and Benadryl as a sleep aid.

Dr. Ardison noted that he was not sure why plaintiff was on Tranxene (even though he

was the one who had prescribed it to Plaintiff eight months earlier) (R. 189). He switched Plaintiff’s

anti-depression medication to Prozac on July 5, 1994. (R. 186-187). In August 1994, Plaintiff told

Dr. Ardison that she was no longer depressed and wanted to stop taking Prozac5. (R. 186). Dr.

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 10 of 35
was having suicidal ideations, which she attributed to the medication, and was scared. (R. 251,

399).

11

Ardison documented his impression that Plaintiff still showed symptoms of anxiety and had

developed dermatitis of her arms, legs, and every part of her body that she could reach due to her

severe compulsion to pick at her skin. The diagnosis was chronic anxiety and neuro-dermatitis. (R.

186). Dr. Ardison advised the Plaintiff to continue taking Prozac for another month and he then

would consider the possibility of switching her to Zoloft. (R. 186; Doc. 10, p. 3).

Dr. Ardison’s treatment notes contain several references to Plaintiff’s medication

treatment for depression. (R. 174-190; 297-300). On September 1995, Plaintiff was taken off

Prozac (R. 185); On November 18, 1996, she went off Zoloft which was prescribed again on

December 25, 1997, and on March 31, 1998. There is also a history of a prescription for Fiorinal

presumably to treat Plaintiff’s headaches. (R. 184-190).

Scott Cherry, M.D., a neurologist, performed a neurological evaluation in May 9, 1995.

(R. 139-140, 158-159). Plaintiff complained of back pain, weakness in her legs, and migraine

headaches occurring several times a week. Plaintiff informed Dr. Cherry that she was under

significant stress due to the loss of her job and that she was taking Prozac to treat her depression.

In June 1995, Plaintiff underwent a Functional Capacity Evaluation which concluded that she could

engage in light work. (R. 144-154).

On November 8, 1999, Plaintiff wentto York Hospital’s emergency department. (R. 169-

173). She complained of light-headness , dizziness and fatigue and reported to be under treatment

with Paxil for depression and Keflex to control her compulsive behavior of constantly picking her

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12

skin with her finger nails. (R. 170). She stated that she had compulsively picked at her skin for

about five years and complained of headaches which had been going on for years. (R. 172).

On August 6, 1999, Plaintiff consulted with Dr. Elaine Douglas, a psychiatrist, seeking

treatment for her mental conditions. Plaintiff stated that this was the first time she sought psychiatric

treatment, however, she recounted a life-long struggle with mood lability and depression. (R. 250-

151). Dr. Douglas observed that Plaintiff looked disheveled and upset and that she was cooperative

but evasive about dealing with certain difficult subjects. (R. 252). With regards to Plaintiff’s OCD,

Dr. Douglas also noted that Plaintiff had visible skin sores. Dr Douglas’ initial impressions were

major depression, OCD and border personality trait or disorder. (R. 252). Plaintiff’s treatment

history with Dr. Douglas extends through several years. (R. 204-258, 302-334, 339). In December

of 2002, Dr. Douglas diagnosed Plaintiff with “recurrent major depression and borderline

personality disorder.” (R. 331-334). 

On January 15, 2003, Dr. Douglas drafted a letter in which she acknowledged that she

had not treated Plaintiff at any time prior to August 1999. However, Dr. Douglas opined that

Plaintiff had a lifelong history of mood lability and prominent dysphoria. Her diagnosis was that she

suffered from OCD and a severe personality disorder. In addition, Dr. Douglas expressed that,

during treatment, it became clear to her that Plaintiff’s psychiatric illness considerably pre-dated her

diagnosis. Dr. Douglas further noted that, based on her treatment of Plaintiff’s mental conditions

for the previous four years, she “strongly“ believed that Plaintiff was completely disabled due to her

“severe psychiatric and medical illness” and that, taking into account only her psychiatric illness,

she was not capable of functioning in a work setting. (R. 339).

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13

By June 23, 2000, Plaintiff’s dermatitis had worsened, she reported that Keflex and an

antibiotic had not helped her control her compulsion. The physician noted that the only part of

Plaintiff’s body where she did not have an “excoriated rash” was the portion of her back where her

hands could not reach. (R. 177). On September 22, 2000, Plaintiff asked her doctor to prescribe

her Bactrim to help clear her skin. (R. 177). On July 10, 2000, Dr. Ardison described Plaintiff’s

dermatitis as “chronic.” (R. 178). 

Plaintiff was diagnosed and treated with follicular thyroid cancer and occult papillary

thyroid cancer at York Endocrinology and Rheumatology and successfully underwent a total

thyrodectomy on October 18, 2001. (R. 192). On January 10, 2002, treatment notes from Gayle

Andrews-Murray, M.D., noted that Plaintiff’s depression was severe. (R. 192). 

During a psychotherapy session on February 14, 2002, the Plaintiff expressed her

frustration on the slow progress she had made after so many years of psychiatric treatment. (R. 204).

She also said that she had difficulties being out in public due to the multiple scars she had selfinflicted on her skin (R. 204). At the end of the session, Michael J. Eshleman, Ph.D., noted that

Plainitff’s OCD remained severe. (R. 205) 

On April 17, 2002, Plaintiff still had neuro-dermatitis with open sores in her upper and

lower extremities, face, and abdomen. (R. 299). During the course of a therapy session on August

9, 2002, Dr. Eshleman described the nature of Plaintiff’s psychiatric problems as “chronic” and

“complex.” (R. 307). Dr. Eshleman noted that Plaintiff had gone into crisis mode and advised her

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14

to educate her family about her chronic mental illnesses (Post Traumatic Stress Syndrome,

Borderline Personality features and chronic major depression). (R. 313). 

In reference to the memories of the abuse she suffered as a child, the Plaintiff stated that

she was tired of “fighting this” and tired of fighting her physical and mental illnesses. (R. 324). She

had feelings of self-blame and hate because she thought she should have fought harder to prevent

being abuse. She stated that she felt “dirty” and that those feelings had affected her relationship

with her husband. (R. 316). Dr. Eshleman noted that Plaintiff’s face was scabbed, that her skin

picking was “quite severe” to the point that she was “disfigured.” (R. 317, 324). Dr. Douglas

described Plaintiff’s skin picking compulsion as “self-punitive.” (R. 234).There are three

documented episodes of decompensation of unspecified length all during 2003. (R. 334).

The record also contains notes of Plaintiff’s treatment for her back pain at KVD

Orthopedics (R. 84-86; 142-168; 273-287; 288-296) and with Mary Crawford, D.C., at Red Lion

Chiropractic (R. 132-138). On December 15, 1994, Plaintiff consulted with Dr. J. Joseph Danyo,

M.D., and complained of burning pain across her shoulders; lower back and right hip pain;

numbness in tights and legs; and frequent headaches. (R. 166). The X-rays showed some narrowing

at L5-S1 and the diagnostic was neck strain and left sciatica. The results of the MRI of the spine was

normal. (R. 163; Doc. 10. P. 4)

On March 25, 1995, Dr. Danyo reported that physical therapy had significantly

improved Plaintiff’s back and neck pain but that Plaintiff should engage in activities only “as

tolerated.” (R. 161). On May 9, 1995, Dr. Danyo noted that, although Plaintiff still had pain and

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15

numbness, that was “as good as it was going to get” and listed her prognosis as “guarded.” (R. 160;

Doc. 10, p. 4). 

On May 31, 1995, Dr. Danyo reported that, after examining Plaintiff and reviewing the

results of her MRI, Plaintiff’s spinal cord was normal, with was no evidence of herniation, stenosis

or compression. (R. 155). 

The ALJ determined that Plaintiff’s impairments, namely, anxiety with depressed mood,

dermatitis and headaches, were considered severe under the regulations during the relevant time

period. (R. 16). However, the ALJ determined that the medical evidence did not support a finding

that Plaintiff’s impairments were disabling because, although Plaintiff met the requirements of Part

A of listing 12.06 (Anxiety Related Disorders), the limitations on her activities of daily living did not

meet the requirements of Part B of the same listing. In reaching this determination, the ALJ

considered Plaintiff’s testimony at the hearing that she was able to vacuum, cook, make the bed

and help take care of her grandchildren. The ALJ also considered that, although Plaintiff was angry

and irritable, she was able to maintain a relationship with her family members and was able to go

out in public. (R. 16; Doc. 10, p. 22). The ALJ noted a lack of hospital stays or repeated episodes

of decompensation of extended duration. (R. 16).Thus, the ALJ determined that Plaintiff’s

impairment, although severe, were not disabling. (R. 20, ¶ 3-4).

Next, the ALJ decided that Plaintiff’s cervical and lumbar strain were are not severe

under the regulations. In reaching this conclusion, the ALJ considered the results of an MRI and

Plaintiff’s normal range of motion during the relevant time period. (R. 16). Additionally, the ALJ

discussed Plaintiff’s diagnosis of borderline personality disorder and noted that “the evidence does

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16

not show significant limitations or treatment related to this condition.” (R. 16). With regards to

Plaintiff’s OCD, the ALJ discounted or gave “limited weight” to Plaintiff’s physician 1999 diagnosis

because it was outside of the relevant time period. (R. 16, 18).

The ALJ determined that the record did not establish the existence of depression as a

medically determinable mental impairment as of Plaintiff’s last day insured. (R. 16). The ALJ

explained that in August, 1994, Plaintiff reported that she was feeling better after she started taking

Prozac to treat her depression and that in September, 1995, Plaintiff had indicated to her family

physician that she was no longer depressed. (R. 16). 

The ALJ also considered the medical opinions of the state agency’s physicians, who

determined that Plaintiff did not have a severe mental impairment, including depression, and that

she had the RFC to engage in light work, which includes sedentary work. (R. 17). The ALJ

summarized Plaintiff’s testimony at the hearing with regards to her subjective symptoms. (R. 15-16).

The ALJ recognized that Plaintiff’s testimony was “generally credible, but not to the extent of the

limitations alleged” because “the signs, findings, and observable phenomena are not consistent

with the degree of her alleged limitations. (R. 17).

The ALJ compared Plaintiff’s testimony with the medical evidence in the record and

based her determination on Plaintiff’s failure to seek counseling or hospital treatment until

1999. (R. 16). The ALJ noted that, absent anti-depression medication prescribed by her family

doctor, there is no formal psychiatric care until August, 1999. (R. 17). Thus, the ALJ found Plaintiff’s

subjective complaints about the frequency and severity of her impairments to be out of proportion

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17

with the objective medical evidence in the record. Thus, the ALJ found Plaintiff’s testimony

regarding her limitations not totally credible (R. 20, ¶ 5).

Finally, after taking into consideration Plaintiff’s residual functional capacity (“RFC”), the

ALJ found that Plaintiff was not able to perform her past relevant work and had no transferable job

skills. (IR. 20, ¶ 11). However, The ALJ found that Plaintiff had the RFC to engage in a significant

range of light work. (R. 20, ¶ 12). The ALJ also took into account Plaintiff’s complaints of poor social

interaction; her difficulties standing, bending and lifting due to her back problems; her family

problems which had exacerbated her anxiety level; and that she was unable to handle job stresses.

(R. 16).

C. Vocational Expert.

A Vocational Expert (“VE”) testified at the ALJ hearing on April 21, 2003. (R. 54-55; 419-

424; Doc. 11, p. 9). The ALJ asked the VE whether there were jobs in the national economy which

an individual with Plaintiff’s age, education and work experience could perform. The ALJ added

that Plaintiff was restricted to light work where she was able to alternate her posture every two

hours for fifteen minutes and other environmental, mental and social limitations.. (R. 420-421). The

VE responded that such a person could perform a significant number of jobs existing in the national

economy such as machine tender. (R. 422; Doc. 11, p. 10). 

Plaintiff’s counsel asked the VE to describe the process he used to compute the number of

machine tender jobs available in the economy. The VE responded that he was not capable of

describing the method he used and that he just looks at published data and “extracts” the numbers.

(R. 423-424). 

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 17 of 35
18

D. Medical Expert.

Robert Brown Jr., M.D., provided expert medical testimony via a telephone conference at

the hearing before the ALJ. (R. 340-348; 359-387; Doc. 11, p. 7). Dr. Brown stressed the lack of

medical records pre-September 30, 1997, with regards to Plaintiff’s anxiety and depression. (R.

364). Dr. Brown testified that there was insufficient treatment records regarding Plaintiff’s

symptoms but that she was taking antidepressant medication for at least two years prior to her date

last insured. (R. 383-384; Doc. 11, p. 7). Dr. Brown opined that, at the time, Plaintiff’s borderline

personality disorder was mild (R. 365), and that Plaintiff’s degenerative disc disease of her cervical

and lumbar spine were part of the normal aging process. (R. 366; Doc. 11, p. 8). Dr. Brown

acknowledged that Plaintiff had a degenerative disc disease that would only “get worse as the years

go by.” (R. 366). The ME also testified that, at the time of the hearing, Plaintiff’s cervical and lumbar

strain, borderline personality disorder and anxiety with depressed mood were severe illnesses (R.

365) and that the physical pain from Plaintiff’s disc disease aggravated her anxiety and depressed

mood.” (R. 364). Dr. Brown opined that, prior to September 30, 1997, plaintiff’s cervical and

lumbar strains, anxiety with some depressed mood, borderline personality disorder and dermatitis

were not severe. (R. 15). 

Based on his review of Plaintiff’s medical record, Dr. Brown opined that Plaintiff’s medical

conditions, as they existed at the time of the hearing, met the severity requirements of listings 12.08

(Personality Disorders) and 12.04 (Affective Disorders) and that either one of these impairments in

combination with Plaintiff’s vertebrogenic disorder would render Plaintiff disabled under the

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 18 of 35
6According to the Plaintiff, her daughter stated that her boyfriend had been abusing

her. Plaintiff threatened him with putting a knife through his chest. The police were called and

her daughter’s boyfriend left the house. Plaintiff’s daughter tried to commit suicide by taking an

overdose of Paxil. (R. 250, 412).

19

regulations. (R. 374). Dr. Brown also opined that a 1999 family incident6 triggered the worsening

and deterioration of Plaintiff’s medical condition. (R. 374; 367-368). In making his assessment,

Dr. Brown relied in part on the state agency report (R. 259-272) which deemed Plaintiff’s mental

impairments as not severe and determined that Plaintiff was capable of performing unskilled,

simple, routine, light work for the period prior to September 30, 1997. (R. 375-377). 

On May 9, 2003, the ALJ issued a Decision finding that, after considering all relevant

medical evidence and the testimony presented at the hearing, the Plaintiff was not disabled within

the meanings of the Regulations. ( R. 13-21). We find that the ALJ’s Decision is not supported by

substantial evidence in the record as a whole and it is based instead on an erroneous application

and interpretation of the law as well as an erroneous application of Agency regulations. 

D. Analysis

As stated above, the Plaintiff argues that the ALJ failed to give proper weight to the opinion

of Plaintiff’s treating physicians concerning their diagnosis of borderline personality disorder,

depression, dermatitis and OCD. (Doc. 10, p. 9, 23). Plaintiff states that the ALJ erroneously gave

greater weight to the opinion of the ME than to the opinions of physicians whom had treated the

Plaintiff for years. The ALJ’s reasoning for rejecting the diagnosis of Plaintiff’s mental impairments

was that she had not been formally diagnosed before her last day insured. For the reasons stated

below, this constitutes reversible error.

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 19 of 35
7Social Security rulings are the SSA’s interpretation of the statute it administers. SSRs

do not have the force of law, however, once published, they are binding on all components of

the SSA. Newell, supra.

20

In order to receive disability benefits under Title II of the Act, a claimant must show that she

met the statutory definition of “disability” prior to the expiration of her insured status. 42 U.S.C.

§ 423(a)(1)(A). Generally an impairment must be demonstrable by medically acceptable clinical and

laboratory diagnostic techniques. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §§ 404.1527(a), 404.1529(b).

However, once the existence of an impairment has been established by suitable medical evidence,

the onset date of such impairment may be established by evidence other than clinical and

laboratory evidence. There are three factors are to be considered: (1) claimants allegations, (2)

work history, and (3) medical and other evidence. SSR 83-207; Newell v. Comm’r of Soc. Sec., 347

F. 3d 541, 548 (3d Cir. 2003).

The ME testified that there is a “significant gap in the medical record from 1995 until

1999 (R. 368), and that there is little evidence of treatment for the earlier period. (R. 373). Dr.

Ardison’s records cover a significant period of time but lacks detailed notes with regards to

Plaintiff’s symptoms thus making it difficult to evaluate the disability onset date. (R. 383-384).

Plaintiff argues, and we agree, that SSR 83-20 as well as Third Circuit case law provides

that “retrospective diagnosis of an impairment, even if uncorroborated by contemporaneous

medical records, but corroborated by lay evidence relating back to the claimed period of

disability, can support a finding of past impairment. Newell, supra, citing Loza v. Apfel, 219 F.

3d 378 (5th Cir. 2000); Likes v. Callahan, 112 F. 3d 189 (5th Cir. 1997). (Doc. 10, p. 24).

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 20 of 35
21

The evidence in the record must be evaluated in accordance with the procedures

established by law. 20 C.F.R. § 402.35(b)(1); Walton v. Halter, 243 F. 3d 703 (3d Cir. 2001).

SSR 83-20 also mandates that in disabilities of non-traumatic origin, the determination of onset

involves consideration of Plaintiff’s allegations and work history and that “any reasonable doubts

on severity are to be resolved in favor of the claimant.” Dr. Douglas opined that Plaintiff’s

mental impairments, specifically her OCD and severe personality disorder, “considerably predated” her diagnosis and that her “emotional lability” “clearly dated back to her initial date of

work cessation.” Dr. Douglas also opined that Plaintiff’s “psychiatric illness alone would make it

unlikely that she could function for any period of time in a work setting.” (R. 339). In fact, the

ME acknowledged that no one develops a borderline personality disorder at age fifty. This

illness, the ME explained, has a long, slow process that starts in a person’s late teens, and young

adult life. (R. 386). Therefore, the ME testified, if Plaintiff had such a diagnosis “by definition it

would have to had it’s antecedents present before that” even if only in mild degree. (R. 361,

363). 

SSR 83-20 states in relevant part that “with slowly progressing impairments it is

sometimes impossible to obtain medical evidence establishing the precise date an impairment

became disabling. Determining the onset date is particularly difficult when the alleged onset

date and the last date worked are far in the past and adequate medical records are not

available.” The ruling goes on to instruct the fact finder to “infer the onset date from the medical

and other evidence and if reasonable inferences cannot be made about the progression of an

impairment based on the medical record, it may be necessary to explore other sources of

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 21 of 35
22

information such as the claimant’s family members, friends, former employers for the pertinent

period regarding the course of a certain condition.

The ALJ adopted the ME’s opinion that Plaintiff’s impairments were not severe and that

she could perform simple, unskilled work. (R. 16, 376-377). The ME conceded that he had

received Plaintiff’s voluminous medical records the same day he testified at the hearing (R. 359)

even though the hearing had been adjourned three months earlier precisely to obtain the

opinion of the ME in order to develop the record. (R.351-355). 

The ME stated that, in order to reach his conclusions, he relied on the state agency’s

evaluation (R. 368-369) even though the state consultant did not express an opinion but was

merely “doing check marks.” (R. 369). The state agency’s evaluation noted that since there was

no “input for treatment” as of September 30, 1997, Plaintiff’s impairments were not severe. (R.

271). However, the ME agreed that Dr. Douglas’ assessment was supported by signs and

findings and consistent with the record as a whole and stated that Plaintiff had a “steady

worsening of her overall condition-physically, mentally, emotionally- and it just marches on.” (R.

371).

The Third Circuit has consistently held that the opinion of treating physicians must be

given greater weight than that of a medical advisor or other non examining physician if the

opinion is supported and not inconsistent with other substantial evidence on the record. Dorf v.

Bowen, 794 F. 2d 896 (3d Cir. 1986). It is improper to credit the testimony of a consulting

physician who has not examined the claimant when such testimony conflicts with testimony of

the claimant’s treating physician.

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 22 of 35
23

The cardinal rule is that the ALJ must accord treating physicians’ reports great weight,

especially when, as in this case, their opinion reflects expert judgment based on continuing

observation of the patient’s condition over a prolonged period of time . Morales v. Apfel 225 F.

3d 310 (3d Cir. 2000).

The ALJ agreed with the opinion of the non-examining, non-treating ME (R 16) and

rejected Plaintiffs psychiatrist’s opinion that Plaintiff’s borderline personality disorder was a

chronic condition dating back to May, 1994. (R. 339). The basis for this rejection was that

“despite the complaints noted in the treatment notes, the claimant did not seek any therapy”

prior to her last insured date. (R. 18).

At the hearing, Plaintiff explained that Dr. Arditon had suggested to her to seek mental

health treatment but she did not do it because she had been in denial of her mental illness and

when group therapy was suggested she refused as well because she was uncomfortable talking

about her problems in front of other people. (R.399-401). “An ALJ must not draw any

inferences about an individual’s symptoms and their functional effects from a failure to seek or

pursue regular medical treatment without first considering any explanation that the individual

may provide that may explain infrequent or irregular medical visits or failure to seek medical

treatment.” SSR 96-7p. 

As stated above, the Commissioner’s decisions are reviewed on a substantial evidence

standard and an ALJ’s assessment of the evidence is entitled to substantial deference. However,

an ALJ may not make speculative inferences or reject a treating physician’s opinion on the basis

of the ALJ’s credibility judgments or lay opinion. Substantial evidence is not merely

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 23 of 35
24

quantitative. “A single piece of evidence will not satisfy the substantiality test if the Secretary

ignores, or fails to resolve, a conflict created by countervailing evidence.” Evidence is not

substantial “if it is overwhelmed by other evidence -- particularly certain types of evidence (e.g.,

that offered by treating physicians) -- or if it really constitutes not evidence but mere

conclusion.” Dorf, supra, at 901. “The search for substantial evidence is a qualitative exercise

without which our review of social security disability cases ceases to be deferential and

becomes instead a sham.” Calcek v. Commissioner of Social Security, 2003 WL 21911069,

(M.D. Pa. 2003), citing Kent v. Schweiker, 710 F. 2d 110 (3d Cir. 1983).

The ALJ’s decision to adopt the opinion of a non-consultative source over the opinions of

Plaintiff’s treating physicians, which are supported by hundreds of pages containing medical

notes spanning more than twelve years of medical treatment was error. This error is aggravated

when we consider that the ME had just received Plaintiff’s record the same morning he was

scheduled to testify (R. 359), did not hear Plaintiff’s testimony at the hearing (R. 387), and had

expressly agreed with Dr. Douglas’ diagnosis. We find that the ME’s opinion is not more

consistent with the record as a whole than Dr. Douglas’ opinion. 

 With regards to Plaintiff’s dermatitis, after finding that Plaintiff’s dermatitis was severe (R.

14), the ALJ failed to address why this condition did not meet a listed impairment. Except for an

observation documented by the intake officer that Plaintiff had “bad acne” (R. 123), there is no

further mention of Plaintiff’s severe dermatitis condition in the Commissioner’s records.

Plaintiff’s family physician, Dr. Ardiston, formally diagnosed Plaintiff’s neuro-dermatitis and

chronic anxiety as early as September 25, 1995. (R.185). Nevertheless, without explaining her

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 24 of 35
25

conclusions, the ALJ adopted the ME’s opinion that Plaintiff’s dermatitis was not severe and

should not prevent her from working. (R. 379-380). 

As the ME explained, the basis for his assessment was that “these people” will see a

little blemish and pick on it until they form a sore or scab and that if Plaintiff would just wear

long pants and long sleeves, there would be less skin picking. (R. 380). The ME added that in

order to determine whether skin picking was a condition that affected Plaintiff’s ability to work,

he needed to know how many hours per day she spend in such obsessions and compulsions. (R. 

382). Since the ME did not have the benefit of hearing the Plaintiff testify, the answer to this

dispositive question remains unanswered. (Doc. 10, p. 22). 

The Commissioner argues that Plaintiff’s dermatitis was not a severe impairment because

Plaintiff was able to occasionally do crocheting. (Doc. 11, p. 19). In light of Plaintiff’s extensive

history of neuro-dermatitis to the point of being described as “disfigured” we do not agree with

the Commissioner’s reasoning. Such reasoning, as well as several cites to portions of the record

would presumably support the ALJ’s findings. However, the defendant cannot do what the ALJ’s

report did not. The ALJ failed to make any reference to her reasons for stopping the evaluation

of Plaintiff’s dermatitis at step two of the sequential evaluation process. It is the ALJ’s

responsibility to explicitly provide reasons for her decisions. See Fagnoli v. Halter, 247 f 3d

34,42 (3d Cir. 2001).

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 25 of 35
26

Next, Plaintiff argues that the ALJ erred when he found that Plaintiff’s depression,

anxiety, dermatitis, OCD and borderline personality disorder did not meet or equaled a listed

impairment. (Doc. 10, p. 18). The ALJ evaluated Plaintiff’s capabilities for two different time

periods: before and after September 30, 1997. The ALJ decided that Plaintiff’s cervical and

lumbar sprain conditions, borderline personality disorder and OCD were not severe under the

regulations and stopped the inquiry as to these impairments at step two of the sequential

evaluation process described above. With regards to Plaintiff’s depression, the ALJ found that it

was not a medically determinable impairment. (R. 16).

The ALJ stated that there is no evidence that Plaintiff’s mental impairments were severe

during the relevant time period because she was able to vacuum, cook, make beds, help to take

care of her grandchildren, listen to music and watch television. The ALJ also found that although

Plaintiff was angry and irritable she was able to maintain a relationship with her family

members. (R. 16). Disability does not mean exclusion from all forms of human and social

activity. Additionally, sporadic and transitory activities cannot be used to show ability to engage

in substantial gainful activity. Harris v. Secretary of HHS, 959 F. 2d 723 (8th Cir. 1992). 

SSR 85-28 cautions that great care should be exercised when denying a claim at step

two. The “severe impairment” standard is a threshold test and it is not a demanding one. It is a

de minimis screening devise to dispose of groundless claims. “A denial at step two is certain to

raise a judicial eyebrow.” McCrea v. Com’r of Soc. Sec., 370 F. 3d 357 (3d Cir. 2004). 

The ALJ stated that since Plaintiff did not establish that she was disabled by her last

insured date, all other medical information is “irrelevant.”(R. 370). However, as stated

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 26 of 35
27

above,“even non-contemporaneous records” are “relevant to the determination of a disability

onset date. Newell, supra at 549. The ALJ failed to properly consider the contemporary

evidence in order to perform a retrospective analysis. Even a cursory review of the record offers

a glimpse into Plaintiff’s psychiatric illness. It was error for the ALJ to ignore agency regulations

and to require objective medical evidence to determine the onset date of Plaintiff’s established

impairments. Mendes v. Barnhart, 105 Fed. Appx. 347 (3d Cir. 2004). As stated above, once the

existence of a medically determinable impairment has been established, SSR 83-20 instructs the

ALJ to consider other types of evidence in order to determine an onset date when medical

records are insufficient.

Starting as early as 1990, Plaintiff’s medical record shows an overwhelming amount of

the sort of evidence contemplated by SSR 83-20. While it is true that Plaintiff did not seek

psychiatric treatment prior to her last insured date, it is also true that she applied for DIB

benefits three years after she started treatment for her mental conditions (R. 372) and that in

1997, Plaintiff had tried to go back to work but resigned after just one day due to the anxiety

produced by her mental illness. (R. 392-393).

The ALJ was required to consider non-contemporaneous evidence presented to perform

a retrospective analysis for an earlier onset date. It was also error for the ALJ to ignore the

procedures delineated in SSR 83-20. These errors were aggravated given the fact that Plaintiff’s

counsel alerted the ALJ that SSR 83-20 provides an ALJ with an analytical framework for

determining a disability onset date. (R. 353). The ALJ’s finding that there was no evidence that

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 27 of 35
8 Q. during that earlier period, ma’am, did you think about suicide?

A. yes, ma’am.

Q. did you ever try it?

A. I did in 1977.

Q. so you never attempted it. (R. 405).

28

Plaintiff’s OCD, borderline personality disorder and dermatitis were severe before September

30, 1997, is not supported by substantial evidence.

It is granted that the existence of an impairment, even the existence of a severe

impairment, would not in itself entitle the Plaintiff to disability benefits. However, since te ALJ

stopped the inquiry at step two and found that plaintiff’s borderline personality disorder and

OCD were medically determinable impairments, the ultimate question of whether and when

those impairments precluded the performance of substantial gainful activity was never properly

developed. 

In reference to Plaintiff’s depression, it is troublesome that, in her decision that Plaintiff’s

depression was not a determinable medical impairment, the ALJ stated that Plaintiff had no

repeated episodes of decompensation (R. 16) and that Plaintiff had testified that, although she

had suicidal ideations, she never attempted suicide. (R. 15). In fact, the medical evidence

documents at least three episodes of decompensation in the year 2003 alone. In addition,

Plaintiff’s testimony at the hearing was that she had one suicide attempt in 1977

8

. The ALJ also

stated that Dr. Douglas’ 1999 OCD diagnosis was “rule out” OCD (R. 16), however, rather than

dismissing an OCD diagnosis, the psychiatrist expressed the need to further explore the extent

of Plaintiff’s “obsessive/compulsive symptoms which now present as neuro-dermatitis.” (R. 253).

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 28 of 35
29

The ALJ’s conclusions seem to be drawn from statements taken out of context thus, cannot

provide adequate support for an ALJ’s determination on the severity of Plaintiff’s illnesses.

Hippensteel v. Social Security Administration, 302 F. Supp. 2d 382 (M.D,Pa. 2001). 

It was error to deny Plaintiff’s application at step two and to conclude that Plaintiff’s

depression was not a medically determinable impairment based on Plaintiff’s failure to seek

treatment earlier. Not only does the record contains evidence that Plaintiff had tried therapy in

past years even thought those records were not introduced (R. 224, 251), but as stated above,

“lack of medical evidence as to an established impairment is not an adequate basis to support a

conclusion that a claimant was not disabled prior to her last insured date.” The fact that Plaintiff

was “one of the millions of people who did not seek treatment for her mental disorder until late

in the day” is not a substantial basis to reject than an impairment existed. Newell, supra, citing

Nguyen v. Chater, 100 F. 3d 1462 (9th Cir. 1996).

Finally, Plaintiff disputes the ALJ’s determination of her credibility regarding Plaintiff’s

subjective symptoms and contends that the Commissioner failed to meet her burden at step

five. (Doc. 10, P. 19). Plaintiff challenges the ALJ’s finding that her testimony was “generally

credible, but not to the extent of the limitations alleged.” (R. 17; Doc. 10, p. 25). An ALJ is given

great discretion regarding credibility determinations. Van Horn v. Schweiker, 717 F. 2d 871, 873

(3d. Cir. 1983). A court should affirm an ALJ’s credibility finding unless the Plaintiff can

demonstrate that the ALJ was patently wrong. Herr v. Sullivan, 912 F.2d. 178, 182 (7th Cir.

1990). 

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 29 of 35
30

The ALJ based her credibility determination on, once again, Plainitff’s failure to seek

formal psychiatric care until two years after her last insured date and on the fact that Plaintiff

was being treated just with medication. (R. 17). Following the Court’s holding in Newell, supra,

this argument cannot be used to support the ALJ’s credibility findings with respect to Plaintiff’s

testimony regarding her symptoms and limitations. (SSR 96-7p prohibits to draw inferences

about an individual’s symptoms and their functional effects from a failure to seek regular

medical treatment without first considering the individual’s explanation to his infrequent or

irregular medical visits or failure to seek medical treatment).

Plaintiff also challenges the admissibility of the VE’s testimony arguing that the VE failed

to explain the methods he used to reach his conclusions with regards to the number of jobs

existing in the national economy. (R. 424; Doc. 10, p. 26). Citing Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), Plaintiff states that “expert opinion is only

admissible to the extent that is based on scientific knowledge sufficient to meet the

requirements of evidentiary reliability.”

The Supreme Court holding in Daubert was superseded by statute (see Fed. R. Evid. 702)

but the “abuse of discretion” standard of review for challenges to the admission of expert

testimony enunciated in Daubert is still appropriate and widely used. See Magistrini v. One

Hour Martinizing Dry Cleaning, 68 Fed. Appx. 356 (3d Cir. 2003). However, Rule 702 is not

applicable to Social Security cases due to the inquisitorial nature of these proceedings. Even in

court, however, an expert is free to give a bottom line, provided that the underlying data and

reasoning are available on demand. See Fed. R. Evid. 704(a). 

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 30 of 35
31

In any event, after the VE conceded his inability to explain his methodology, the Plaintiff

did not make a contemporary objection to the admissibility of his testimony thus, Plaintiff is

precluded from challenging this un-preserved issue. “When no one questions the vocational

expert's foundation or reasoning, an ALJ is entitled to accept the vocational expert's conclusion.”

If the basis of the vocational expert's conclusions is questioned at the hearing, however, then the

ALJ should make an inquiry, similar though not necessarily identical to that of Fed. R. Evid. 702,

to find out whether the purported expert's conclusions are reliable. See SSR. 00-4p (an ALj must

give an explanation only if the discrepancy was identified--that is, if the claimant, or the ALJ on

his behalf, noticed the conflict and asked for substantiation). Raising a discrepancy only after

the hearing is too late. Donahue v. Barnhart, 279 F.3d 441(7th Cir. 2002). Plaintiff’s challenge is

merely to the number of jobs that Plaintiff could perform available in the national economy.

When the ALJ’s failure to solicit the testimony contemplated in S.S.R. 00-4p is harmless, Courts

in this Circuit will not reverse the decision of the ALJ. Jackson v. Barnhart, 120 Fed. Appx. 904,

(3d Cir. 2005). 

As stated above, Social Security disability proceedings are inquisitorial rather than

adversarial in nature. An ALJ has a responsibility to develop the facts and an affirmative duty to

“assist those who apply for benefits’ “even if that means assisting the applicant’s counsel.” 

While mindful of the SSA’s burden in “weeding-out spurious and groundless claims,” this Court

has stated that “society as a whole suffers when we deprive the disabled, our most vulnerable

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 31 of 35
9Conaboy, J., citing Jon C. Dubin: Poverty, Pain and Precedent: The Fifth Circuit’s

Social Security Jurisprudence, 25 St. Mary’s L.J. 81, 129 (1993).

32

and infirm citizens, of their rights and privileges.”9 The “beneficent purpose” of the disability

laws is to help people with special needs, “not to put barriers in the way of those who seek

help.” Social Security proceedings are “extremely important to the claimants, who are in real

need in most cases and who claim not charity but that which is rightfully due as provided for in

the Social Security Act.” See Hippensteel, spura, citing Hess v. Secretary of HHS, 497 F.2d 837

(3d Cir. 1974).

The ALJ erred when she discounted all medical evidence post-September 30, 1997, as

“irrelevant.” This case was not properly developed because Plaintiff’s claim was denied at step

two of the sequential evaluation process with respect to Plaintiff’s mental impairments and

dermatitis. Finally, the ALJ failed to comply with the analytical framework described in SSR 83-

20 in her determination of Plaintiff’s disability onset date.

In conclusion, the ALJ’s determination that, based on the objective medical evidence,

Plaintiff is not disabled under the Regulations is not supported by the record. The ALJ failed to

sufficiently address all relevant medical evidence and Plaintiff’s testimony regarding her

subjective symptoms. Substantial evidence in the record as a whole does not support the ALJ’s

findings.

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 32 of 35
33

V. Recommendation.

Based on the foregoing, it is respectfully recommended that Plaintiff’s appeal of the

Commissioner’s Decision be GRANTED and that this matter be REMANDED to the

Commissioner for consideration of Plaintiff’s claims regarding her documented impairments

beyond the step two disposition and for a determination as to Plaintiff’s disability onset date.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: May 18, 2005

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 33 of 35
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

 MARION SMITH : CIVIL ACTION NO. 4:CV-04-854

 :

 Plaintiff : 

: (Judge McClure)

 :

 v. : (Magistrate Judge Blewitt)

 :

JOANNE B. BARNHART, :

Commissioner of :

Social Security, :

 :

 Defendant :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated May 18, 2005. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

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

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 34 of 35
35

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: May 18, 2005 

Case 4:04-cv-00854-JFM Document 12 Filed 05/18/05 Page 35 of 35