UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MARIO GALEA, :

Plaintiff : CIVIL ACTION NO. 4:04-1076

v. : (MCCLURE, D.J.)

(MANNION, M.J.)

HHS, Commissioner of Social :

Security,

:

Defendant

:

REPORT AND RECOMMENDATION

The record in this action has been reviewed pursuant to 42 U.S.C. §§

405(g) and 1383(c)(3) to determine whether there is substantial evidence to

support the Commissioner’s decision denying the plaintiff’s claim for

Supplemental Security Income, (“SSI”), under Title XVI of the Social Security

Act, (“Act”). 42 U.S.C. §§ 1381-1383f.

Based upon a review of the record, it is recommended that the plaintiff’s

appeal from the decision of the Commissioner of Social Security, (Doc. No.

1), be DENIED.

I. Procedural Background

The plaintiff protectively filed his application for SSI benefits on July 3,

2003 in which he alleged disability since July 15, 2001 due to anxiety and

depression. (TR. 11, 39, 44).

After his claim was denied (TR. 25-30), the plaintiff’s application

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eventually came on for hearing before an administrative law judge, (“ALJ”), on

January 27, 2004. The plaintiff was represented at his hearing before the ALJ

by the same counsel representing him in this appeal. In addition to the

plaintiff’s testimony, the ALJ heard testimony from Janice Galea, plaintiff’s

mother, and Carmine Abraham, a vocational expert. (TR. 145-186). 

On February 5, 2004, the ALJ issued a decision in which he found that

the plaintiff had not engaged in substantial gainful activity since his alleged

onset date of July 15, 2001; that the medical evidence of record established

that the plaintiff had a depressive disorder and an anxiety disorder which were

severe, but that the plaintiff did not have an impairment, or combination of

impairments, severe enough to meet or equal the criteria of any of the listed

impairments set forth in Appendix I, Subpart P, Social Security Administration

Regulations No. 4. The ALJ found that the plaintiff did not have any physical

impairments which caused exertional limitations and he could have done the

full range of all levels of exertional work. The ALJ determined that the plaintiff

did, however, have psychological problems which restricted him to work

activity which was not detailed or complex and involved working with things

and not people; that the plaintiff was a 29 year old younger individual with a

high school and college education, whose past work activity was as a

computer graphic artist designer which was sedentary in exertion and skilled

in nature. The ALJ also found that the plaintiff did not have the residual

functional capacity to perform his past work activity because he was unable

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Residual functional capacity is defined as follows:

Your residual functional capacity.

(a) General. Your impairment(s), and any related symptoms,

such as pain, may cause physical and mental limitations that

affect what you can do in a work setting. Your residual functional

capacity is what you can still do despite your limitations. 20

C.F.R. § 404.1545(a).

3

to perform the full demands of that position, but that the plaintiff had the

residual functional capacity1

 to perform the jobs which were identified and

enumerated by the impartial vocational expert (“VE”). 

Based on the VE’s testimony, the ALJ determined that there were other

jobs which existed in significant numbers in the national economy which the

plaintiff could have performed, consistent with his medically determinable

impairments, functional limitations, age, and education; therefore, the plaintiff

was found “not disabled” using the framework of vocational rule 204.00 of the

Medical-Vocational Guidelines for decision-making. The ALJ concluded that

the plaintiff had not been under a disability, as defined in the Social Security

Act, at any time since his alleged onset date of July 15, 2001. Therefore, he

was not eligible for supplemental security income. (TR. 17).

Plaintiff filed a request for review of the ALJ’s decision. (TR. 6-7). On

March 18, 2004, the Appeals Council concluded that there was no basis upon

which to grant his request for review. (TR. 3-5). Thus, the ALJ’s decision

stood as the final decision of the Commissioner. 

Currently pending before the Court is the plaintiff’s appeal of the

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decision of the Commissioner of Social Security filed on May 14, 2004. (Doc.

No. 1).

II. Disability Determination Process

A five step process is required to determine if an applicant is disabled

for purposes of social security disability insurance. The Commissioner must

sequentially determine: (1) whether the applicant is engaged in substantial

gainful activity; (2) whether the applicant has a severe impairment; (3)

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

whether the applicant's impairment prevents the applicant from doing past

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

applicant from doing any other work. See 20 CFR § 416.920 (2000).

 The instant action was ultimately decided at the fifth step of the process

when the ALJ determined that the plaintiff was not under a disability as

defined in the Social Security Act, at any time through the date of his decision.

There existed other jobs, in significant numbers in the national economy,

which the plaintiff could have performed consistent with his medically

determinable impairments, functional limitations, age, education and work

history. (TR. 16). 

III. Evidence of Record

The plaintiff was born on February 16, 1974 and was twenty-nine (29)

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Inactivity; lack of energy. TABERS CYCLOPEDIC MEDICAL

DICTIONARY at 107 (19th ed. 2001).

5

years old at the time of the ALJ’s decision. (TR. 39, 148). He has a college

education and past relevant work experience as a computer graphic

specialist. (TR. 13, 45, 50, 151). 

The medical evidence of record establishes that on January 14, 1998,

the plaintiff saw Danila A. de Soto, M.D. for a psychiatric evaluation. Dr. De

Soto mentioned that the plaintiff complained of problems with depression and

difficulty getting readjusted after leaving college. (TR. 65). He also informed

Dr. de Soto that his girlfriend had called off their relationship in November of

1997 and that since that time he had been feeling more depressed. (TR. 65).

He reported difficulty sleeping, decreased appetite, poor energy, poor

motivation, decreased concentration and feelings of anergia2

 with a decrease

in his motivation. (TR. 65). Mental status exam findings show that the

plaintiff’s mood was anxious and depressed, but that his thought processes

were relevant and his memory was grossly intact. (TR. 66). Dr. de Soto

diagnosed the plaintiff with major depression. (TR. 66). He ruled out schizoid

personality. (TR. 66). Dr. de Soto started the plaintiff on Zoloft.

Psychotherapy and progress notes indicate that plaintiff responded well to

these forms of treatment. (TR. 66). As a result of treatment, the plaintiff

became less depressed and began getting more involved in activities

including art work and computer programming. (TR. 74). In fact, plaintiff’s

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endogenous depression - Any depressive disorder occurring in the

absence of external precipitants and believed to have a biologic origin.

Spellman’s Medical Dictionary, 478 (27th Ed. 2000).

6

mental status improved to the point where he returned to school to study

computer aided design. (TR. 71). Dr. de Soto’s office records show that

plaintiff was able to adjust well to this environment. (TR. 69). The last time

Dr. de Soto saw the plaintiff was in December of 1999. (TR. 67). 

In February of 2001, the plaintiff finished school and accepted a job as

a computer graphic specialist. Unfortunately, the plaintiff was laid off in July,

2001, because of a staff reduction. (TR. 44). At that time he began having

problems with increasing depression, apathy and low self-esteem. Office

records from Dr. Kevin G. Williams, M.D., plaintiff’s family physician, show that

plaintiff was restarted on Zoloft which improved in his symptoms. (TR. 81-83).

Progress notes of September 20, 2001 show that the plaintiff was a little

anxious, but did not appear tearful or depressed. Dr. William’s impression

was endogenous depression.3

 (TR. 83). He reported that plaintiff was

tolerating his prescribed medication and doing quite well on it. (TR. 83). 

In December, 2002, plaintiff began seeing a psychiatrist in Clarks

Summit for his depression. This physician changed plaintiff’s medication to

Effexor. His office records show that this medication helped plaintiff’s

symptoms to some degree. (TR. 76-80). However, the plaintiff stopped

seeing his physician in April of 2002 because of financial difficulty and no

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insurance. (TR. 81). Dr. Williams referred plaintiff to the local Mental

Health/Mental Rehab for psychiatry and psychological evaluation and

treatment. (TR. 81). 

On July 29, 2002, the plaintiff saw Gail Beldia, M.D. for an evaluation.

Mental status exam findings showed that plaintiff’s affect was somewhat

restricted, but not anxious. (TR. 87). He described his mood as anxious and

depressed. (TR. 87). Plaintiff reported feeling somewhat threatened when

away from his family. (TR. 87). Dr. Beldia noted plaintiff was trying to find a

job, but had been rejected from one company and had not heard from the

other companies he applied to. (TR. 88). He also reported difficulty making

relationships with females and being uncomfortable around people. (TR. 88).

Dr. Beldia’s impressions were a possible social phobia and an occupational

problem. (TR. 87). She ruled out generalized anxiety disorder. Dr. Beldia

rated the plaintiff’s global assessment functioning (“GAF”) as 60-65. (TR. 87).

According to the DSM- IV Manual, this score reflects that the claimant was

having mild to moderate difficulty with social and occupational functioning. Dr.

Beldia made adjustments to plaintiff’s medication and recommended

outpatient counseling. (TR. 88). 

On November 22, 2002, plaintiff saw Ashokkumar C. Patel, M.D. for a

consultative evaluation. (TR. 92-96). Dr. Patel mentioned that the plaintiff

reported seeing a counselor at Tri-County Mental Health/Mental Rehab,

seeing Dr. Nezezon and taking Effexor - XR which he explained was helpful.

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Overwhelming symptoms of anxiety that occur on leaving home; a form

of social phobia. TABER’S CYCLOPEDIC MEDICAL DICTIONARY at 56 (19th

ed. 2001). 

8

(TR. 92). Mental status exams show that the plaintiff’s mood was a little

anxious but that his speech was clear, coherent, well balanced and without

any looseness of association. There was no evidence of any psychotic

thought processes. The plaintiff denied suicidal or homicidal ideations,

hallucinations, obsessions or compulsive rituals. (TR. 92). Dr. Patel diagnosed

plaintiff as having a generalized anxiety disorder and dysthymia. (TR. 92). 

Dr. Patel completed a questionnaire which revealed that plaintiff’s

conditions did not seriously interfere with his ability to function considering that

he was unlimited in understanding, remembering and carrying out simple job

instructions and maintaining personal appearance. (TR. 95-110). He had a

good ability to follow work rules, relate to co-workers, deal with the public, use

judgment, behave in an emotionally stable manner, relate predictably in social

situations and demonstrate reliability. (TR. 95). He had a fair ability to

interact with supervisors, deal with work stresses, function independently and

maintain attention and concentration. (TR. 95).

Office records from Dr. Williams show that in December of 2002, the

plaintiff said that he still had a lot of agoraphobia4

 and some depression but

that it was not as severe as it was previously. (TR. 118). Plaintiff reported

that he was doing a little graphic design for his own use and conversing with

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Section 12.04 of the Listings defines affective disorders as follows:

Characterized by a disturbance of mood, accompanied by a full or partial

manic or depressive syndrome. Mood refers to a prolonged emotion that

colors the whole psychic life: it generally involves either depression or elation.

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04(2001). 

9

his friends. (TR. 118). An office note dated September 26, 2003, reveals that

a plaintiff was comfortable and doing a little work on the side, even opening

a website. Although he said he was not getting out of the house much, he did

report keeping in contact with college friends. (TR. 116). 

IV. Discussion

In support of his appeal, plaintiff presents several arguments. Plaintiff

first argues that substantial evidence does not support the ALJ’s decision that

plaintiff did not have an impairment that met or exceeded the criteria set forth

in Appendix I, Subpart P, Social Security Administration Regulations No. 4

(“Listings”). Next, plaintiff asserts that the ALJ erred in finding plaintiff’s

testimony not fully credible. Finally plaintiff states that the ALJ erred in

discounting the opinion of plaintiff’s treating physician. 

A. WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S

DECISION THAT THE PLAINTIFF’S IMPAIRMENTS DO NOT

MEET OR EQUAL ANY OF THE LISTINGS. 

The Listings recognize that affective disorders can be so severe as to

constitute a Social Security Disability.5

 The plaintiff argues that the ALJ erred

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The required level of severity for these disorders is met when the

requirements in both A and B are satisfied, or when the requirements in C are

satisfied. 20 C.F.R. Pt.404, Subpt. P, App. 1, § 12.04 (2001). 

7

Section A factors are listed as “medically documented persistence,

either continuous or intermittent, of one of the following.

1. Depressive syndrome characterized by at least four of the following:

a. anhedonia or pervasive loss of interest in almost all

activities; or

b. appetite disturbance with change in weight; or

c. sleep disturbance; or

d. psychomotor agitation or retardation; or

e. decreased energy; or

f. feelings of guilt or worthlessness; or

g. difficulty concentrating or thinking; or

h. thoughts of suicide; or

I. hallucinations, delusions, or paranoid thinking; or

2. Manic syndrome characterized by at least three of the following:

a. hyperactivity; or

b. pressure of speech; or

c. flight of ideas; or

d. inflated self esteem; or

e. decreased need for sleep; or

f. easy distractibility; or

g. involvement in activities that have a high probability of

painful consequences which are not recognized; or

h. hallucinations, delusions or paranoid thinking; or

10

at step three of the sequential evaluation in finding that plaintiff’s mental

disorders did not meet or equal listing 12.04. The Commissioner enumerates

certain findings that govern when the requirements of the Listing are met.6

First, an applicant must exhibit at least four of nine specified disorders

(section12.04 A factors).7

 Second, the applicant must also exhibit at least two

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3. Bipolar syndrome with a history of episodic periods manifested by the

full symptomatic picture of both manic and depressive syndromes (and

currently characterized by either or both syndromes). 20 C.F.R. Pt. 404,

Subpt. P, App.1, § 12.04 (2004). 

8

Section B factors are described as “Resulting in at least two of the

following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or 

3. Marked difficulties in maintaining concentration, persistence or pace;

or

4. Repeated episodes of decompensation, each of extended duration.

20 C.F.R. Pt. 404, Subpt. P, App.1, § 12.04 (2004).

11

of four specified consequences of the disorders (“Section 12.04 B factors”).8

It is clear that the Third Circuit requires the ALJ to identify the relevant

listed impairments and to provide an explanation of the reasoning for a finding

that a claimant does not meet or equal a listed impairment. See Burnett v.

Commissioner, 220 F.3d 112, 120 (3d Cir. 2000). In Burnett, our Court of

Appeals held that at step three in the sequential determination process, an

ALJ may not summarily conclude that a claimant does not meet any of the

listed impairments, but rather, must discuss the relevant listed impairments

and discuss whether and why the plaintiff’s impairments do or do not meet or

equal the requirements of the relevant impairments. 

A claimant must prove that his condition meets or equals the specific

clinical requirements of an impairment in the listing of impairments before he

can be considered to be disabled per se without consideration of vocational

factors such as age, education and work experience. Sullivan v. Zebley, 493

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U.S. 521, 530 (3d Cir. 1990); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988) (citations omitted). Plaintiff claims that he satisfies the elements of

Listing 12.04 and that the ALJ erred in finding that he did not meet or equal

this listing. 

To be entitled to disability benefits, a claimant must show that all, and

not only some, of the criteria for the listing are met. Zebley, 493 U.S. at 530.

An impairment that meets only some of the criteria for a listed impairment “no

matter how severely, does not qualify.” Id. The Commissioner makes the

legal determination as to whether an impairment meets or equals a listing.

See 20 C.F.R. § 404.1527(e)(1) and (2). 

At step three in the sequential evaluation the ALJ assessed the plaintiff’s

depressive disorder under §§ 12.04 and 12.06 of the Listings, and found that

he did not meet the threshold requirements of either listing. Specifically, with

regard to § 12.04, the ALJ found that a review of the “B” criteria revealed that

the plaintiff’s psychological impairments caused no more than moderate

limitations on his activities of daily living, his ability to maintain social

functioning and his ability to concentrate. (TR. 12). Additionally, the ALJ

determined that no extended periods of decompensation are documented on

the record and that none of the “C” criteria of § 12.04 were met. (TR. 12).

Therefore, the ALJ concluded that a finding of disability could not be made at

step three of the evaluation process. 

Plaintiff argues that beyond the threshold requirements of § 12.04, he

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also meets the “B” criteria. However, the only evidence plaintiff presents to

support his contention consists of his testimony and that of his mother. (Doc.

7, pp.11-12). The credibility of the plaintiff’s subjective complaints will be

discussed at length below, however, it should be noted at this point that the

ALJ found the plaintiff’s testimony regarding his symptoms and limitations not

fully credible. (TR. 15). 

It is true, as the plaintiff alleges, that he was diagnosed with depression,

however the law is clear that the existence of a medical condition alone does

not demonstrate a disability for purposes of the Act. See Petition of Sullivan,

904 F.2d 826, 845 (3d Cir. 1990). Thus, the ALJ’s determination does not

deal with whether the plaintiff suffers from depression or anxiety, but whether

it results in a functional disability that prevents the plaintiff from performing

substantial gainful activity. Here, a review of the record establishes that the

plaintiff’s depression and anxiety do not rise to the level of severity required

under the “B” criteria of §12.04. 

GAF assessments by the plaintiff’s treating physicians only indicated

mild to moderate limitations in activities of daily living and social functioning.

(TR. 87-91,142). Dr. Nezezon assessed the plaintiff with a GAF indicating

only moderate limitations and Dr. Beldia assessed plaintiff with a GAF

indicating mild to moderate limitations in those areas. (TR. 87-91,142).

Similarly, in a report dated November 21, 2002, Dr. Patel indicated that the

plaintiff had a good ability to follow work rules, relate to co-workers, deal with

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the public and use judgment; a fair ability to interact with supervisors, deal

with work stresses, function independently and maintain attention or

concentration. (TR. 95). Additionally, Dr. Patel found that the plaintiff had a

very good ability to maintain his personal appearance and a good ability to

behave in an emotionally stable manner, relate predictably in social situations

and demonstrate reliability. (TR. 96).

The record also establishes that the plaintiff does not have marked

restrictions in maintaining concentration, persistence or pace. Dr. Nezezon

reported that the plaintiff was oriented as to time, person and place and that

his thought processes were logical and goal oriented. (TR. 142). Records

dated November, 1998 through December of 1999, indicate that Dr. de Soto

consistently reported that the plaintiff was well groomed, cooperative and

calm. (TR. 67-75). He noted that the plaintiff’s affect was appropriate, speech

was coherent and spontaneous and that his thought process was relevant.

(TR. 67-75). The plaintiff’s memory and judgment were consistently intact and

he showed no signs of suicidality or homicidality. (TR. 67-75). 

The record is devoid of evidence indicating that the plaintiff suffered

from repeated episodes of decompensation or deterioration in work or worklike settings. (TR. 92-96). Additionally, it should be noted that the plaintiff

was not fired from his last job due to limitations from his depression, but due

to company cut backs. (TR. 149). The fact that the plaintiff was laid off for

business reasons supports the ALJ’s finding that the plaintiff is capable of

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returning to work. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). In

Hunter, the plaintiff testified that he had stopped working due to a layoff and

not for any physical reasons. The Court found that the plaintiff’s own

testimony, that he left his prior employment due to an altercation with co -

workers, supported the ALJ’s conclusions that he could return to his former

work. Id. at 35.

Accordingly, we find that substantial evidence supports the ALJ’s

decision at step three, that the plaintiff’s impairments do not meet the

requirements of any of the listed impairments.

B. WHETHER THE ALJ ERRED IN DISCOUNTING PLAINTIFF’S

TESTIMONY REGARDING HIS SYMPTOMS AND

LIMITATIONS. 

Plaintiff contends that even if his impairments did not meet the level of

severity required by Listing 12.04, the ALJ should have found him disabled at

step five of the sequential evaluation because considering plaintiff’s age,

education, past work experience and residual functional capacity, including his

own testimony regarding his symptoms and limitations, he is not capable of

performing work in the national economy. (Doc. 7, p.12). 

The Social Security Regulations provide a framework under which a

plaintiff’s subjective complaints are to be considered. 20 C.F.R. §404.1529.

First, symptoms, such as pain, shortness of breath, fatigue, et cetera, will only

be considered to affect a claimant’s ability to perform work activities if such

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symptoms result from an underlying physical or mental impairment that has

been demonstrated to exist by medical signs or laboratory findings. 20 C.F.R.

§40431529(b). Once a medically determinable impairment which results in

such symptoms is found to exist, the Commissioner must evaluate the

intensity and persistence of such symptoms to determine their impact on the

claimant’s ability to work. 20 C.F.R. §404.1529(b). In so doing, the medical

evidence of record is considered along with the claimant’s statements. 20

C.F.R. §404.1529(b). Social Security Ruling 96-7 gives the following

instruction in evaluating the credibility of the claimant’s statements regarding

his symptoms:

In general, the extent to which an individual’s statements about

symptoms can be relied upon as probative evidence in determining

whether the individual is disabled depends on the credibility of the

statements. In basic terms, the credibility of an individual’s statements

about pain or other symptoms and their functional effects is the degree

to which the statements can be believed and accepted as true. When

evaluating the credibility of an individual’s statements, the adjudicator

must consider the entire case record and give specific reasons for the

weight given to the individual’s statements. 

SSR 96-7p. “[A]n ALJ’s findings based on the credibility of the applicant are

to be accorded great weight and deference, particularly since an ALJ is

charged with the duty of observing a witness’s demeanor and credibility.’

Walters v. Commissioner of Social Sec., 127 F.3d 525, 531 (6th Cir. 1997); see

also Cassias v. Secretary of Health & Human Services., 933 F.2d 799, 801

(10th Cir. 1991) (‘We defer to the ALJ as trier of fact, the individual optimally

positioned to observe and assess witness credibility,’).” Frazier v. Apfel, 2000

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WL 288246 (E.D.Pa. March 7, 2000). 

Here, in assessing the plaintiff’s RFC, the ALJ considered his subjective

complaints and limitations pursuant to 20 C.F.R. 404.1529, 20 C.F.R 416.929

and Social Security Ruling 96-7p. Plaintiff testified that he had problems with

social anxiety and depression, had difficulty dealing with people in public

situations and had a problem driving to social occasions. He described a

phobia of performing new jobs and tasks and stated that he was

uncomfortable using the telephone. At the time of the ALJ’s decision, the

plaintiff was seeing Dr. Nezezon and a counselor at Tri-County Mental Health

every two months. He stated that although he was taking his prescribed

medication, he did not believe it was helping him. The plaintiff’s mother

testified to essentially the same thing, noting that she and her husband did

most things for the plaintiff.

The AlJ found the plaintiff’s testimony to be less than fully credible. The

ALJ found that the objective evidence of record disclosed that the plaintiff had

depressive and anxiety disorders which could cause limitations, but not to the

extent alleged by the plaintiff. (TR. 15). The ALJ found that the mental health

professionals who treated the plaintiff opined that his impairments only cause

moderate limitations on his ability to function. (TR.15). The plaintiff

complained of having problems with depression and anxiety for quite some

time, however he was still capable of doing well academically. He was also

able to secure a job that he did well at up until the time he was laid off.

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Additionally, the ALJ found that the plaintiff’s treatment was not intensive for

such a significant impairment. The plaintiff did have the Access card which

would allow him more intensive treatment and he was receiving public

assistance and food stamps as well. The record also reveals that the plaintiff

attempted to find work after his alleged onset date of disability. The ALJ

found that his attempt to obtain employment was indicative that, by plaintiff’s

own estimation, he was able to perform some sort of work activity despite his

alleged anxiety and depression. (TR. 15, 88).

The plaintiff’s testimony establishes that the plaintiff can work, but that

he experiences difficulty in obtaining employment as a result of his anxiety

dealing with other people. This is supported by his mother’s testimony, his

academic record as well as his work history. However, the Regulations

provide, in relevant part, “we will determine that you are not disabled if your

residual functional capacity and vocational factors make it possible for you to

do work which exists in the national economy, but you remain unemployed

because of - your inability to get work.. .” 20 C.F.R § 404.1566(c)(1). 

Accordingly, the ALJ found that the plaintiff did not have any physical

impairments which would cause exertional limitations and concluded that he

could do the full range of all exertional work levels. The ALJ determined,

however, that the plaintiff did have psychological problems which restricted

him to work activity that is not detailed or complex and involved working with

things and not people. (TR.16).

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Additionally, none of plaintiff’s treating physician’s opined that he was

unable to work. Dr. Beldia assessed plaintiff with minor to moderate mental

limitations and Dr. Nezezon assessed plaintiff with minor limitations. (TR. 87-

91, 142). Dr. Patel’s assessment, which was discussed above, also supports

a finding that the plaintiff is capable of returning to work. 

Based on the foregoing, we find that the plaintiff’s lack of aggressive

mental health treatment, his ability to do well academically and his ability to

maintain employment strongly undermines his contention of disabling mental

symptoms. Accordingly, substantial evidence supports the ALJ’s finding that

the plaintiff’s subjective complaints were less than fully credible. 

C. WHETHER THE ALJ ERRED IN FAILING TO ACCORD

CONTROLLING WEIGHT TO DR. NEZEZON’S OPINION THAT

PLAINTIFF WAS SIGNIFICANTLY IMPAIRED IN HIS ABILITY

TO WORK.

Finally, the plaintiff argues that it was erroneous for the ALJ not to fully

credit the report of Dr. Nezezon, plaintiff’s treating physician. The ALJ is

required to evaluate every medical opinion received. 20 C.F.R. §

404.1527(d). Although he must consider all medical opinions, the better an

explanation a source provides for an opinion, particularly through medical

signs and laboratory findings, the more weight the ALJ will give that opinion.

20 C.F.R. § 404.1527 (d). Automatic adoption of the opinion of the treating

physician is not required. See Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir.

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1991). 

In Jones, 954 F.2d 125, the court held that, in the absence of

contradictory medical evidence, an administrative law judge must accept the

medical judgement of a treating physician. However, the court also noted that

these opinions need not be accepted where they are conclusory and

unsupported by the medical evidence or where the opinions are contradicted

by the opinions of other physicians, including state agency physicians, who

reviewed the findings of the treating physicians and concluded that these

findings do not reveal a condition that would preclude gainful employment.

In Williams v. Sullivan, 970 F.2d 1178 (3d Cir. 1992), the court noted

that while the administrative law judge may not base a decision upon his own

interpretations of the significance of medical data, this does not prevent the

administrative law judge from weighing medical reports against an internal

contradiction and other contradictory medical evidence.

Here, the ALJ addressed Dr. Nezezon’s opinions. The doctor’s notes

revealed that he only saw claimant on five occasions since he first saw him

on November 18, 2002. (TR.141). Dr. Nezezon diagnosed plaintiff as having

a generalized anxiety disorder, a social anxiety disorder and major

depression. (TR.142). Dr. Nezezon opined that these conditions seriously

impaired plaintiff’s ability to function. (TR.143-44). However, he rated the

plaintiff’s GAF as 60, which represents that plaintiff’s mental status causes

only a moderate impairment on his ability to function. (TR.142). The ALJ

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gave Dr. Nezezon’s opinion considerable weight, with regard to plaintiff’s

GAF. However, he did not accord any weight to Dr. Nezezon’s opinion that

plaintiff’s conditions severely impaired his ability to function because he found

that it was inconsistent with the other evidence of record. The ALJ

determined that substantial evidence in the record confirmed that plaintiff had

only moderate difficulty with social and occupational functioning. (TR. 86-91,

92-96). 

Plaintiff argues that his GAF rating of 60 indicates an overall moderate

level of impairment, which, he argues, is not inconsistent with a finding that in

a significant number of areas relevant to plaintiff’s ability to perform a job, he

is significantly impaired. (Doc.7, p.14). Dr. Nezezon did not assess the

plaintiff with a GAF of 60 on merely one occasion; he assessed plaintiff with

a past (twelve months) and present GAF indicating only moderate difficulties

in social, occupational and school functioning. (TR.142). Dr. Nezezon did not

indicate, at any time during plaintiff’s treatment, that plaintiff had a GAF

indicating serious mental limitations. We disagree with the plaintiff’s argument

that his GAF score is not inconsistent with a finding of significant impairment.

We find that a consistent GAF score of 60 and above is highly probative as to

the severity of plaintiff’s impairments. In this case, it cannot be argued that

plaintiff’s moderate impairments render him unable to engage in substantial

gainful activity. 

Dr. Nezezon’s other psychological evaluations also undermine his

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opinion. When evaluated by Dr. Nezezon, plaintiff was always neatly

groomed and dressed appropriately. (TR.142). Although plaintiff’s speech

was generally slow, subdued, and limited, Dr. Nezezon noted that plaintiff’s

thought processes were logical, goal directed and oriented to person, place

and time. (TR.142). Plaintiff’s memory, insight and judgment were always fair

and he never appeared psychotic according to Dr. Nezezon. (TR.142). 

Additionally, Dr. Nezezon’s opinion was not supported by the other

objective evidence and medical opinions in the record. Dr. Beldia assessed

the plaintiff’s GAF between 60 and 65 and Dr. Patel opined that plaintiff was

not significantly limited due to his mental impairments. (TR. 95-96).

Therefore, we find that substantial evidence exists in the record to support the

ALJ’s decision to accord limited weight to Dr. Nezezon’s opinion that plaintiff’s

mental condition seriously affected his ability to function because it was not

supported by his own findings, including his GAF assessment, Dr. Beldia’s

GAF assessment, or by Dr. Patel’s opinion. 

The plaintiff argues that “if the ALJ really felt that Dr. Nezezon’s report

was internally inconsistent, then he should have contacted the doctor and

asked for an explanation.” (Doc.7, p.14). In support of his argument, plaintiff

cites to Duncan v. Barnhart, 368 F.3d 820, 824 (8th Cir. 2004). However,

Duncan is easily distinguishable from the case at hand. In Duncan, the

treating physician assessed plaintiff with a one time GAF of 65. However, in

the year prior to that assessment, the Court noted that the plaintiff’s highest

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GAF score was a 50, indicating serious symptoms or impairments. Id. at 824.

The Court stated, “while Dr. Singh’s (treating physician) current GAF

assessment of 65 may not have been inconsistent with the remainder of her

opinions, the ALJ erred by simply disregarding the entirety of Dr. Singh’s

opinion, particularly when Dr. Singh otherwise consistently documented

[plaintiff’s] impairments.” Id. 

Here, Dr. Nezezon consistently assessed the plaintiff with a GAF of 60.

Unlike Duncan, plaintiff’s treating physician assessed his GAF at 60 for over

one year. As mentioned above, Dr. Nezezon never once reported that the

plaintiff had a GAF indicating serious impairments. As a whole, Dr. Nezezon’s

reports support the ALJ’s findings that the plaintiff is not disabled under the

Act. 

Additionally, regardless of the inconsistencies within Dr. Nezezon’s

report, the record as a whole does not support his opinion that the plaintiff was

significantly impaired in his ability to perform a job. Contrary to plaintiff’s

assertion, Dr. Nezezon’s opinion was not only rejected on the basis of internal

inconsistencies but also because it was not supported by the record as a

whole. Therefore, we find that the ALJ was not required to contact Dr.

Nezezon to explain the inconsistencies in his reports. 

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V. Recommendation

Based upon the evidence of record, it is recommended that the plaintiff’s

appeal of the decision of the Commissioner of Social Security (Doc. No. 1) be

DENIED.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States Magistrate Judge

Dated: March 16, 2005

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