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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

STILLWATER ROSE, :

: CIVIL NO. 3:04-CV-2465

Plaintiff :

: (Judge Jones)

v. :

: (Magistrate Judge Smyser)

JOANNE B. BARNHART, :

COMMISSIONER OF SOCIAL :

SECURITY, :

:

Defendant. :

MEMORANDUM AND ORDER

June 21, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On April 23, 2003, the plaintiff Stillwater Rose (“Plaintiff” or “Rose”)

applied for disability insurance benefits (“DIB”) and alleged that he had been

disabled since December 30, 2001, as a result of arthritis, spinal disc deterioration,

depression, and anxiety. (See Reproduced Record (“R.R.”) at 12; see also Rep. &

Rec. at 1). 

After Plaintiff’s claim was denied, an administrative hearing in the case was

held before an Administrative Law Judge (“ALJ”) on July 1, 2004. (See R.R. at

12, 272-292; see also Rep. & Rec. at 2). On August 26, 2004, the ALJ issued her

decision denying Plaintiff benefits and the Appeals Council denied Plaintiff’s

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request for review, making the decision of the ALJ the “final decision” of the

Commissioner. 42 U.S.C. § 405(g); see R.R. at 3. 

Plaintiff filed an action in the United States District Court for the Middle

District of Pennsylvania on November 12, 2004. (See Rec. Doc. 1). The case was

referred to United States Magistrate Judge J. Andrew Smyser for preliminary

review. 

On April 18, 2005, Magistrate Judge Smyser issued a report recommending

that Plaintiff’s appeal from the decision of the Commissioner of Social Security be

denied as he found that the decision of the Commissioner was supported by

substantial evidence. The Magistrate Judge therefore recommended that the

Plaintiff’s appeal be denied. (See Rep. & Rec. at 9). Plaintiff filed objections to

the Magistrate Judge’s report on April 27, 2005, to which the Defendant responded

on May 11, 2005. (See Rec. Docs. 8, 9). The matter is therefore ripe for

disposition. 

FACTUAL BACKGROUND:

Plaintiff was born on April 21, 1953 and has a high school education. His

past work experience includes employment as a teacher’s assistant, remodeling

company owner and operator, and musician. Plaintiff alleges that he became

disabled on December 30, 2001 due to arthritis, deteriorating discs in the spine,

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depression, and anxiety. 

STANDARD OF REVIEW:

When objections are filed to a report of a magistrate judge, we make a de

novo determination of those portions of the report or specified proposed findings or

recommendations made by the magistrate judge to which there are objections. See

United States v. Raddatz, 447 U.S. 667 (l980); see also 28 U.S.C. § 636(b)(1);

Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they 

treat recommendations of a magistrate judge. See id. Indeed, in providing for a de

novo review determination rather than a de novo hearing, Congress intended to

permit whatever reliance a district judge, in the exercise of sound discretion,

chooses to place on a magistrate judge's proposed findings and recommendations. 

See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark,

749 F.2d 5, 7 (3d Cir. 1984).

We have plenary review of all legal issues. See Schaudeck v. Com'r of

Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). However, our review of the

administrative law judge's findings of fact pursuant to 42 U.S.C. § 405(g) is to

determine whether those findings are supported by “substantial evidence.” Factual

findings which are supported by substantial evidence must be upheld. See e.g.,

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

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Substantial evidence is "'more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.'" 

Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated Edison Co.

v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence exists only "in

relationship to all the other evidence in the record," Cotter v. Harris, 642 F.2d 700,

706, n9 (3d Cir. 1981), and "must take into account whatever in the record fairly

detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488

(1951). Therefore, a reviewing court must scrutinize the record as a whole. See

Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); see also Dobrowolosky v.

Califano, 606 F.2d 403, 407 (3d Cir. 1979). 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 an administrative agency's finding from being supported

by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607,

619-20 (1966).

DISCUSSION:

As the Magistrate Judge explained, the Commissioner utilizes a sequential

evaluation process in evaluating disability insurance and supplemental security

income claims. See 20 C.F.R. § 404.1520 and 416.920. This process requires the

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Commissioner to consider, in sequence, whether a claimant (1) engaged in

substantial gainful activity after the onset of the alleged disability, (2) has a severe

impairment, (3) has an impairment that meets or equals the requirements of a listed

impairment, (4) can return to his or her past work and (5) if not, whether he or she

can perform other work in the national economy. 

In applying the foregoing, the ALJ determining the following: Plaintiff has

not engaged in substantial gainful activity since the alleged onset date; that he has

an impairment that is severe; that his impairments do not meet or equal any listed

impairment; and that he is not able to perform his past relevant work. (See R.R.

18-19; see also Rep. & Rec. at 6). The ALJ further concluded that Plaintiff has the

residual functional capacity to perform a significant range of light work jobs and to

perform jobs identified by the vocational expert (“VE”). The ALJ found the

Plaintiff not to be disabled on the basis of these findings. See Rep. & Rec. at 6-7.

In his objections to the Magistrate Judge’s report, Plaintiff states that he

objects to the ALJ’s conclusion that he is capable of maintaining the regular

schedule required in a competitive work environment. Plaintiff asserts that the

evidence and testimony do not present substantial evidence in support of the

determination that his impairments would permit him to maintain a normal work

schedule. (See Rec. Doc. 8 at 2-3). “The evidence and testimony showed that the

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plaintiff had a long and regular work history despite a diagnosis of depression and

anxiety for which he was taking medication for 13 years.” Id. at 2. Twice,

Plaintiff points the Court’s attention to his hospitalization in October 2002 due to

depression, and maintains that he has not returned to work since his discharge. 

 We initially note that as the Defendant submits both in his initial brief to the

Court and in his response to Plaintiff’s objection to the report, the relevant time

period in this case is important to consider. The relevant time period began on

December 30, 2001, the alleged date of Plaintiff’s disability, and ended on June 30,

2002, the date that Plaintiff’s insured status expired for the purposes of DIB. (See

R.R. at 13, 52-54, 88). In order to be entitled to DIB, Plaintiff bears the burden of

demonstrating that he became disabled on or before June 30, 2002, the date his

insured status expired. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B), 20 C.F.R. §§

404.101(a), 404.131(a) (2005); see also Matullo v. Bowen, 926 F.2d 240, 244 (3d

Cir. 1990). 

The majority of the evidence which Plaintiff has submitted and relied upon

post-dates the date when his insured status expired for the purposes of DIB, June

30, 2002. In fact, the only date submitted to the Court in Plaintiff’s objections

concerning evidence in support of his DIB claim is the aforementioned October

2002 hospitalization, which clearly occurred after Plaintiff’s insured status expired

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 A review of the record in this case reveals that the only evidence that Plaintiff may rely

upon in support his contention that he was disabled prior to June 30, 2002 is Dr. David Tanner’s

medical notes. The record contains office records from Dr. Tanner, which cover the period from

January 30, 2001 to June 3, 2003. (R.R. at 2, 146-62). 

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for purposes of DIB. We are in agreement with the Defendant that Plaintiff loses

sight of the fact that while the ALJ was not required to consider any of the

aforementioned evidence which post-dates June 30, 2002, for the sake of

completeness, the ALJ did consider such evidence in her decision denying Plaintiff

benefits.1

 

For the reasons that follow, we find that substantial evidence supports the

ALJ’s findings and we will accordingly adopt the Magistrate Judge’s report for the

reasons cited herein.

Although Plaintiff phrases the “issue” portion of his objections in terms of

inability to maintain a normal work schedule, we agree with the Defendant that the

essence of the objections set forth present essentially the same argument proposed

in a previous submission to the Court, namely, that there is no basis in the record

for the ALJ to have determined that Plaintiff’s allegations regarding his

impairments were not entirely credible. 

To the contrary, we find that a careful review of the record reveals that

substantial evidence supports the ALJ’s determination that Plaintiff’s testimony

was not entirely credible. We will first highlight relevant portions of Plaintiff’s

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testimony in that regard. Second, we will discuss why the ALJ’s determination

that Plaintiff’s subjective complaints were not entirely credible is supported by

substantial evidence. 

At the administrative hearing, Rose testified that he stopped working on a

regular basis in December 2001 because of pain and his emotional condition. 

(R.R. at 286-87). He testified that he could not work because of depression and

panic/anxiety attacks. (R.R. at 275). Plaintiff denied that he had any problems

with alcohol and stated that he had not used alcohol for seventeen years. (R.R. at

277). Plaintiff also testified that he had a problem with nerve damage in the index

finger of his non-dominant left hand. (R.R. at 277-78). Plaintiff asserted that he

had damaged his ribs in the past, had diminished hearing in both ears, chronic

degenerative arthritis in the hands, knees, and elbows, as well as emphysema. 

(R.R. at 281-83). Finally, Plaintiff testified that he was missing two discs in his

spine. (R.R. at 283). 

As the Defendant submits, in describing his daily activities, Plaintiff stated

that he took out the garbage, did dishes, and fed his three dogs and two cats. (R.R.

at 279). Plaintiff explained that he went to band rehearsals but asserted that he had

difficulty leaving his home. Id. When questioned by the ALJ as to how he was

able to manage playing in a band given his alleged difficulty leaving his home, he

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stated that he rearranged the times that he took his medication so that he could

“feel comfortable leaving the house and performing[.]” (R.R. at 280). 

Additionally, Plaintiff testified that his activities included mowing the lawn with a

self-propelled mower, as well as cooking and cleaning for his family. (R.R. at

281). 

After having recounted the relevant portions of Plaintiff’s testimony, we will

not explain why the ALJ’s determination that Plaintiff’s subjective complaints

were not entirely credible is supported by substantial evidence. First, a review of

the record reveals that Plaintiff’s subjective complaints were not supported by the

opinions of his treating and examining physicians. (See R.R. at 16). Plaintiff may

not rely upon diagnoses alone, but he must also show that he has associated

functional limitations that prevent him from performing any substantial gainful

activity. Petition of Sullivan, 904 F.2d 826, 845 (3d Cir. 1990). Second,

Plaintiff’s subjective complaints were not supported by objective medical

evidence, including, but not limited to Dr. Madhusudan’s physical examination

findings which showed that all of Plaintiff’s joints were normal, he was a “well

adult,” his EKG was normal, and that the exercise stress test showed no evidence

of ischemia. Third, Plaintiff’s subjective complaints were inconsistent with the

activities he performed, including the following: doing light housework, cooking,

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driving, caring for his personal hygiene, feeding multiple pets, mowing the lawn,

taking out the garbage, loading and unloading groceries, and playing in a band. 

(R.R. at 15, 63-65, 279-81). Finally, Plaintiff’s subjective complaints are

inconsistent with evidence in the record revealing that he has had no significant

active care other than routine maintenance. The ALJ accurately stated that there

has been no significant active care other than for routine maintenance and there

have been no significant increases or changes in prescribed medication reflective

of an uncontrolled condition. See id.; see also Mickles v. Shalala, 29 F.3d 918,

930 (4th Cir. 1994)(stating that an unexplained inconsistency between the

claimant’s characterization of the severity of his condition and the treatment he

sought to alleviate his condition was highly probative of the claimant’s credibility). 

We additionally note that as the Defendant submits, credibility

determinations as to a claimant’s testimony regarding his limitations are for the

ALJ to make. Van Horn v. Schweiker, 717 F.2d 871, 873 93d Cir. 1983). An

ALJ’s credibility determination need only be supported by substantial evidence on

the record as a whole. See Miller v. Commissioner of Soc. Sec., 172 F.3d 303, 304

n.1 (3d Cir. 1999). 

Although as the Magistrate Judge points out, the ALJ did not indicate the

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exact statements of the Plaintiff, the credibility of which was the focus of the

credibility findings, the ALJ did state that she has reservations has to whether the

claimant’s assertions concerning “his impairments and their impact on his

condition can be considered fully credible.” (R.R. at 16). For the reasons cited

herein, we are in agreement with the Magistrate Judge that there is substantial

evidence supporting the ALJ’s finding that Plaintiff’s allegations regarding his

limitations were not entirely credible. 

Moreover, to the extent that Plaintiff argues that substantial evidence

supports the conclusion that his impairments would not permit him to maintain a

normal work schedule or be capable of acceptable work performance, these

assertions are meritless in light of the evidence of record in this case. 

Contrary to Plaintiff’s argument, the record does not show that he has

functional limitations that would preclude him from maintaining consistent work

performance. As the Defendant accurately explained in his first submission to the

Court, the ALJ posed a hypothetical question the VE in this case which

incorporated all of Plaintiff’s limitations that were supported by the record. The

Third Circuit Court of Appeals has instructed that the hypothetical question posed

by the ALJ to the VE must accurately portray the claimant’s individual physical

and mental impairments. Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). 

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However, a hypothetical question need only reflect those impairments that are

supported by the record. Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.

1987); see also Burns v. Barnhart, 312 F.3d 113, 129-30 (3d Cir. 2002). 

The ALJ accommodated Plaintiff’s mental impairments, to the extent they

were credible, by posing a hypothetical question to the VE which limited him to

jobs that would not require interaction with the public or frequent interaction with

coworkers or supervisors, travel to unfamiliar places, competing time demands,

and any more stress than typically found in routine, repetitive unskilled work. 

(R.R. at 288-90). In addition, the ALJ accommodated Plaintiff’s physical

impairments, to the extent they were credible, by posing a hypothetical question to

the VE which limited him to light work requiring a sit/stand option, no more than

occasional bending, kneeling, stooping, crouching, crawling, and climbing stairs,

as well as no concentrated exposure to environmental irritants such as dust, gases,

odors, fumes, and poor ventilation. (R.R. at 288-90). We therefore conclude that

because the ALJ’s hypothetical question to the VE fairly set forth all of Plaintiff’s

limitations, the VE’s testimony regarding the existence of jobs that Plaintiff could

perform constitutes substantial evidence supporting the ALJ’s determination that

Plaintiff is not disabled. Chrupcala, 829 F.2d at 1276. 

NOW, THEREFORE, IT IS ORDERED THAT:

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1. Magistrate Judge Smyser’s Report and Recommendation (doc. 7) is

adopted in its entirety for the cited stated herein. 

2. Plaintiff’s appeal of the decision of the Commissioner of Social

Security is denied.

3. The Clerk is directed to close the file on this case.

s/ John E. Jones III

 John E. Jones III

United States District Judge

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