UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HAZEL C. COOPER, : CIVIL NO. 4:04-CV-2166

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

JO ANNE B. BARNHART, :

Commissioner of :

Social Security, :

:

Defendant :

REPORT AND RECOMMENDATION

The plaintiff has brought this civil action under the

authority of 42 U.S.C. § 405(g) to obtain judicial review of

the decision of the Commissioner of Social Security denying the

claim of the plaintiff for Social Security disability insurance

benefits.

On December 28, 2002, the plaintiff, Hazel C. Cooper,

applied for disability insurance benefits. She claimed that

she became disabled on February 2, 2002, as the result of

osteoarthritis, depression, fibromyalgia, hypothyroidism and

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related pain and symptoms. She has had two thyroid surgeries. 

The claim was denied initially and on reconsideration. The

plaintiff filed a request for a hearing, and a hearing was held

before an administrative law judge (ALJ) on November 4, 2003. 

At this hearing the plaintiff and a vocational expert

testified. The plaintiff described her principal symptoms as

fatigue and pain, loss of sensation in her legs, difficulty in

sleeping, muscle spasms and depression. She can not perform

her work as a beautician. She can not stand or sit for

prolonged periods. She has help performing household chores. 

She paints, with acrylics, as a hobby. 

The vocational expert stated that there are jobs in the

economy performable by a person with the plaintiff’s age and

vocational characteristics who can perform a limited range of

light work. The described person (Tr. 52) could not perform

the plaintiff’s work as a hairdresser, but could be a cafeteria

attendant, an officer helper or a clerical assistant. But if a

sit-stand option were required, positions as a gate tender or

as a cashier or as a machine tender could be performed. If a

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person were to have a moderate to moderately severe limitation

on the ability to maintain persistence and pace, these jobs

could not be performed. Needing to lie down and unscheduled

breaks would also impact negatively on performing these jobs to

an employer’s expectations. 

On November 26, 2003, the ALJ issued her decision

denying the plaintiff benefits. Tr. 18-26. The Appeals

Council denied the plaintiff's request for review (Tr. 5),

making the ALJ's decision the final decision of the

Commissioner.

The plaintiff filed her complaint with this court on

September 28, 2004. The defendant filed an answer to the

complaint and a copy of the administrative record on

December 1, 2004. Pursuant to Local Rules 83.40.4 and

83.40.5, the plaintiff filed her brief on February 25, 2005 and

the defendant filed her brief on March 17, 2005. No reply

brief has been filed.

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If the Commissioner's decision is supported by

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

Substantial evidence means "such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.

1999)(quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.

1995). Substantial evidence is more than a mere scintilla of

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

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

A single piece of evidence is not substantial evidence

if the Commissioner ignores countervailing evidence or fails to

resolve a conflict created by the evidence. Mason v. Shalala,

994 F.2d 1058, 1064 (3d Cir. 1993). However, in an adequately

developed factual record, substantial evidence may be

"something less than the weight of the evidence, and the

possibility of drawing two inconsistent conclusions from the

evidence does not prevent [the decision] from being supported

by substantial evidence." Consolo v. Federal Maritime Comm'n,

383 U.S. 607, 620 (1966). 

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To facilitate review of the Commissioner's decision

under the substantial evidence standard, the Commissioner's

decision must be accompanied by "a clear and satisfactory

explication of the basis on which it rests." Cotter v. Harris,

642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence

must be resolved and the Commissioner must indicate which

evidence was accepted, which evidence was rejected, and the

reasons for rejecting certain evidence. Id. at 706-707. In

determining if the Commissioner's decision is supported by

substantial evidence the court must scrutinize the record as a

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

 

The Commissioner has promulgated regulations creating a

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

Commissioner must sequentially determine: (1) whether the

claimant is engaged in substantial gainful activity; (2)

whether the claimant has a severe impairment; (3) whether the

claimant's impairment meets or equals a listed impairment; (4)

whether the claimant's impairment prevents the claimant from

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

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impairment prevents the claimant from doing any other work. 

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

The disability determination involves shifting burdens

of proof. The initial burden rests with the claimant to

demonstrate that she is unable to engage in her past relevant

work. If the claimant satisfies this burden, then the

Commissioner must show that jobs exist in the national economy

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

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

1058, 1064 (3d Cir. 1993).

The plaintiff argues that the ALJ has not supplied an

adequate explanation for the rejection of the plaintiff’s claim

in that there is no explanation stated for why witnesses’

statements that supported the claim were either not considered

at all or were found not credible and not probative. The

plaintiff argues that there was error on the part of the ALJ in

the determination of the residual functional capacity in that

the ALJ determined that the plaintiff to be gainfully employed

would need to have an option to sit or stand but did not go

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beyond that generalization to determine the plaintiff’s

particular sit/stand needs and to do so in relationship to the

requirements of particular jobs. The plaintiff argues that

there was error on the part of the ALJ in the evaluation of the

plaintiff’s credibility and of her “subjective complaints”

because factors of a lengthy work history and the effects of

medications were not discussed. 

The adjudication is based upon findings made about the

claimant’s subjective symptoms and her credibility. The ALJ’s

essential credibility findings relating to subjective symptoms

are as follows: 

The claimant testified and stated in the record

that she has joint, neck, foot, shoulder and

back pain, thyroid problems, muscle spasms,

difficulty standing and sitting for prolonged

periods of time, trouble lifting more than a

gallon of milk and holding her arms up,

fatigue, requires rest between activities, has

muscle pain and weakness, difficulty going out

in public and starting and completing

activities, requires frequent change in

positions, has problems planning each day, and

has difficulty thinking and concentrating. She

also alleges feelings of depression, chest

pain, requiring naps during the day due to

chronic fatigue, disturbed sleep, medicationinduced side effects of drowsiness and nausea,

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and difficulty performing activities of daily

living such as shopping, cooking, cleaning, and

laundry (Exhibit 1E). 

The objective medical evidence establishes that

the claimant has osteoarthritis, depression,

fibromyalgia and hypothyroidism with a history

of two thyroid surgeries and radioactive

ablation treatment (Exhibits 5F and 14F),

medically determinable impairments that could

reasonably be expected to produce the

claimant’s symptoms. However, the claimant is

not entirely credible concerning the intensity,

duration and limiting effects of the symptoms. 

While the claimant alleges the above problems,

a February 2002 examination report shows that,

although the claimant had tenderness over the

L4-5 area with palpation and sciatic arch

tenderness, she was able to heel and toe walk,

was able to forward bend fairly readily, had

normal backward extension, no problems with

lateral movements, and had equal and bilateral

deep tendon reflexes. A follow-up note shows

that the claimant improved with medication and

did not require a second dosepak, that she

reported feeling much better without pain down

the legs, that as long as she was careful, her

back was in “pretty good shape,” and that she

had good muscle strength bilaterally and

negative straight leg lifting. In September

2002, the claimant was seen for an exacerbation

of her back symptoms. At this time, a nurse

practitioner reported that the claimant had

some tenderness over the sciatic arch but

negative straight leg lifting and that she was

able to heel and toe walk a little more easily

than previously. Also, an MRI report revealed

normal lordosis, lateral weight bearing plane

and lumbosacral angle, unremarkable

paravertebral soft tissues, well-maintained

disc spaces, and a developmentally narrowed

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central canal with bony hypertrophy of the

arthrodial joints and soft tissue hypertrophy

of ligamentum flavum at L4-5 creating moderate

central canal stenosis. Progress notes also

show that, while the claimant was diagnosed

with an enlarged right-sided thyroid cyst, it

subsequently spontaneously resolved and

returned back to its normal size (Exhibit 5F). 

In December 2002, the claimant required needle

aspirate biopsy of her right thyroid nodule

following enlargement rapidly overnight due to

a hemorrhage (Exhibit 7F). Also in December

2002, it was noted that the claimant reported

tenderness of the wrists, elbows and shoulders

but had no significant degenerative change or

synovitis, no objective inflammation or

significant degenerative change of the lower

extremities, a normal motor examination and

intact sensation; in February 2003, her

treating physician recommended she exercise and

in March 2003, Joyce Burd, M.D., reported that

there was no evidence of objective inflammation

of the peripheral joints, good range of motion

of the shoulders, and that a lot of the acute

back pain was improved (Exhibit 8F). 

Additionally, in March 2003, the claimant

underwent a thyroidectomy and subsequent

radioactive ablation treatment. In July 2003

she was noted to be mildly clinically

hypothyroid after having been off her thyroid

medication for iodine treatment. In July 2003,

the claimant reported feeling very well and

that her energy level was improving, and that

she was more stable from a rheumatological

standpoint (Exhibit 14F). Moreover, in

September 2003, Dr. Burd reported that the

claimant was in no acute distress, had no

synovitis of the lower or upper extremities,

and reported only some diffuse discomfort down

the legs with straight leg raising (Exhibit

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17F). There is also no indication that the

claimant has required significant ongoing

treatment for her depression.

Tr. 20-21. 

The plaintiff argues that it was error for the ALJ not

to articulate why she found witnesses who supported the

plaintiff’s claim not to be credible. These witnesses did not

testify but submitted statements. Tr. 128-132, 163, 164. The

defendant acknowledges that these were not specifically

discussed, but presents factual arguments reconciling the

contents of these statements with the ALJ’s findings. At the

appellate stage, it is not the role of the court to make fact

findings, nor is it the role of the court to speculate as to

how certain evidence in the record was weighed or might have

been weighed by the fact finder. The ALJ did not exclude the

hearsay statements of out-of-court witnesses. The one witness

employed a form designed for completion by an out-of-court

witness. There is no apparent reason why these statements

should not have been considered, and there is no indication

that these ostensibly probative statements were considered. 

The plaintiff had a lengthy work history, also not ostensibly

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considered by the ALJ, and these witnesses’ statements

described among other things her observed declining workplace

abilities. They were relevant and as far as we can see were

probative. The witnesses’ statements are consistent with the

plaintiff’s testimony, which the ALJ found not to be “entirely

credible.” Corroboration of a party’s testimony by other

witnesses is, naturally and often, a factor that causes a fact

finder to assign greater credibility to the party’s testimony

than otherwise might have been the case. Therefore, in

determining that the plaintiff was not adequately credible to

satisfy the ALJ, it was important that the ALJ demonstrate that

the corroborating witnesses’ statements had been taken into

consideration in that determination. 

The Third Circuit Court of Appeals has held it to be

required that the ALJ consider and weigh all of the material

non-medical evidence. Burnett v. Commissioner of Social

Security Administration, 220 F.3d 112, 122 (3d Cir. 2000). 

This means that the ALJ must at the least state the substance

of a material statement from a non-medical witness and provide

some explanation of how it is factored into the decision. 

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The plaintiff argues that her residual functional

capacity was not determined in the manner prescribed by the

Commissioner’s regulations and rulings in that the ALJ did not

specify her findings as to the plaintiff’s ability to sit and

to stand. The plaintiff argues that a blanket finding that a

claimant needs to be able to alternate sitting and standing is

not enough. 

The ALJ found in “Findings,” Tr. 25, that the plaintiff

“has the residual functional capacity to perform light work as

defined by the Commissioner of the Social Security

Administration that offers opportunities to alternate between

sitting and standing, that requires no more than occasional

bending, stooping, kneeling, crouching, crawling, pushing,

pulling, climbing stairs, twisting or squatting, and does not

involve concentrated exposure to high humidity and temperature

extremes.” Tr. 25. The ALJ asked the vocational expert

whether “a sit/stand option” would affect “any of the jobs you

testified to including the past work and two other jobs?” 

Tr. 55. The ensuing testimony identified light jobs with a

sit/stand option as a gatekeeper or as a cashier as to which

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the vocational expert stated that there is not a “total

sit/stand option.” Tr. 56-58. Without further consideration

of the suitability of these jobs for someone whose sitting and

standing requirements are substantially those of the plaintiff,

the ALJ found that the plaintiff can work as a gate keeper or

as a cashier. We can not conclude that this finding is based

on substantial evidence. 

One residual functional capacity assessment limited the

plaintiff to standing and walking no more than one hour in an

eight hour day. The ALJ rejected this residual functional

capacity assessment in part because the assessment appears to

be based upon the plaintiff’s allegations and because the

plaintiff is not entirely credible. Without evaluating

particular testimonial assertions of the plaintiff and without

considering corroborating witnesses’ statements, the ALJ found

the plaintiff not to be entirely credible. Then, that general

negative credibility finding is applied to the credibility of

functional capacities’ evaluations made about the plaintiff, on

the theory that subjective symptoms being reported to a medical

evaluator were from a non-credible source. Insofar as the ALJ

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has narrowed her general negative credibility assessment of the

plaintiff to a determination that the plaintiff has not been

credible about her capacity to sit and her capacity to stand, a

reasoned decision must contain some explanation of that

determination rather than the imputation of a “not entirely

credible” finding to negate a residual functional capacity

report. 

This case should be remanded for further consideration

of all of the evidence relevant to the plaintiff’s credibility,

including her work history, the effects of her medications and

all witnesses’ statements. If, after the consideration of all

of that evidence, the ALJ determines that a job with a sitstand option can be performed but that no further refinement of

the sit/stand option is necessary, that should be explained. 

For the foregoing reasons, it is recommended that this

case be remanded to the Commissioner for further consideration. 

 /s/ J. Andrew Smyser 

J. Andrew Smyser

Magistrate Judge

DATED: April 21, 2005. 

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