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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTOPHER M. KOPINETZ, : CIVIL NO. 4:04-CV-2169

:

Plaintiff : (Judge Jones)

:

v. : (Magistrate Judge Mannion)

:

JOANNE B. BARNHART, :

COMMISSIONER OF SOCIAL :

SECURITY, :

:

Defendant. :

MEMORANDUM AND ORDER

January 18, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On August 28, 2002, the plaintiff, Christopher M. Kopinetz (“Plaintiff” or

“Kopinetz”), filed protective applications for Social Security Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”) alleging disability

since July 25, 2001 due to pain in his back and upper and lower extremities. After

Plaintiff’s claim was denied initially, an administrative hearing was held before an

Administrative Law Judge (“ALJ”) on August 6, 2003. The ALJ heard testimony

from Plaintiff and V. Gerald Alberigi, a vocational expert. In a decision dated May

27, 2004, the ALJ denied Plaintiff’s applications. Plaintiff’s request for review of

the ALJ’s decision was denied by the Appeals Council on July 28, 2004, making

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the decision of the ALJ the “final decision” of the Commissioner. 42 U.S.C. §

405(g). 

Plaintiff filed the instant action in the United States District Court for the

Middle District of Pennsylvania on September 28, 2004 for judicial review of the

Commissioner’s final decision. The case was referred to United States Magistrate

Judge Malachy E. Mannion for preliminary review. 

On December 28, 2005 the Magistrate Judge issued a report recommending

that Plaintiff’s appeal from the decision of the Commissioner be denied. 

Objections to the Magistrate Judge’s report were due by January 17, 2006 and to

date none have been filed. 

STANDARD OF REVIEW:

When no objections are filed to the report of a Magistrate Judge, we need

only review that report as we in our discretion deem appropriate. See Thomas v.

Arn, 474 U.S. 145, 151-52(1985). In an appeal of the denial of Social Security

Benefits, our review of the Magistrate Judge’s report and the issues contained

therein is governed not only by that principle but also by 42 U.S.C. §405(g). In

such cases our review is less than plenary. A decision of the Commissioner which

is supported by substantial evidence must be affirmed. See 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 s. Harris, 642 F.2d 700,

706 (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

(1971). 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,

620 (1966).

DISCUSSION:

Our review of this case confirms the Magistrate Judge’s determinations and,

while we have not been presented with any reason to revisit them, we will briefly

address some of the salient aspects of this Social Security appeal. 

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The Commissioner has promulgated regulations creating a five-step process

to determine if a claimant is disabled. This process requires the Commissioner to

consider, in sequence: (1) whether the claimant is engaged in substantial gainful

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

claimant’s impairments meet or equal a listed impairment; (4) whether the

claimant’s impairment prevents the claimant from doing past relevant work; and

(5) whether the claimant’s impairment prevents the claimant from doing any other

work. See 20 C.F.R. § 404.1520; see also 20 C.F.R. § 416.920 (2004). 

As Magistrate Judge Mannion noted, using the sequential disability

determination procedure as outlined above, the ALJ found that: (1) Plaintiff had

not engaged in substantial gainful activity since the alleged onset of disability; (2)

Plaintiff’s herniated disc, tendinitis of the right shoulder, and neck pain were

“severe” impairments under 20 C.F.R. §§ 404.1520(c) and 416.920(b); (3) those

impairments did not meet or equal one of the listed impairments in Appendix 1,

Subpart P, Regulations No. 4; (4) Plaintiff retained the residual functional capacity

(“RFC”) to perform a significant amount of light work; and (5) applying MedicalVocational Rule 202.2, there were a significant number of jobs in the national

economy Plaintiff could have performed. (Rep. & Rec. at 3-4). The instant action

was ultimately decided at the fifth stage of the process where the ALJ concluded

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that considering Plaintiff’s age, educational background, work experience, and

RFC, he was capable of making a successful adjustment to work that exists in

significant numbers in the national economy. Id. at 3. At issue is accordingly

whether there exists substantial evidence to support the ALJ’s decision.

As the Magistrate Judge explains, Plaintiff makes the following two

arguments: (1) that the ALJ erred by incorrectly assigning the weight of a treating

physician to Dr. Ira Sachs’ (“Dr. Sachs”) opinion and (2) that the ALJ erred by

failing to give adequate weight to Plaintiff’s subjective complaints of pain. 

First, although Plaintiff argues that the ALJ incorrectly assumed that Dr.

Sachs was a treating physician, thereby mistakenly placing too much weight on his

opinion that Plaintiff could perform light work, we find this argument to be

meritless. We agree with the Magistrate Judge that the ALJ did not refer to Dr.

Sachs as Plaintiff’s treating physician but instead stated that Dr. Sachs provided an

“[i]ndependent medical evaluation.” Id. at 12; Tr. at 16. Moreover, the ALJ never

granted Dr. Sachs’ opinion controlling weight, which would signal a belief that he

was a treating physician. See 20 C.F.R. § 404.1527(d)(2) (stating that the wellsupported opinion of a treating source will be given controlling weight). 

Conversely, the ALJ relied upon Dr. Sachs’, Dr. Allen’s, and Dr. Einsig’s opinions

concerning Plaintiff’s ability to perform light work. We also do not find that the

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ALJ wrongly ignored the opinion of Dr. Dawson, Plaintiff’s treating physician. 

The record does not contain any opinion from Dr. Dawson concerning Plaintiff’s

functional limitations or his ability to perform work-related activities during the

relevant time period and, although Dr. Dawson was aware that Plaintiff was

pursuing disability claims, he provided no opinion regarding Plaintiff’s work

capabilities in the record. (Rep. & Rec. at 13).

Second, although Plaintiff argues that the ALJ failed to give adequate weight

and consideration to his testimony regarding his functional limitations, the ALJ

determined that Plaintiff’s claimed limitations were not entirely credible, which is

supported by substantial evidence. As the Magistrate Judge notes, “an 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 Casias v. Secretary of Health & Human

Servs., 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.”). 

Although an ALJ must give serious consideration to a claimant’s subjective

complaints of pain, even where those complaints are not fully confirmed by

objective medical evidence, Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir.

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1985), subjective complaints, without more, do not in themselves constitute a

disability. Green v. Schweiker, 749 F.2d 1066, 1070-71 (3d Cir. 1984). In this

case, we find that the ALJ did not completely discount Plaintiff’s claims of pain,

but took them into account in his RFC assessment and corresponding hypothetical

question to the vocational expert (“VE”). We are in agreement with the Magistrate

Judge that there is substantial evidence to support the ALJ’s conclusion that

Plaintiff’s complaints were inconsistent with the medical evidence.

In conclusion, our review of this case confirms the Magistrate Judge’s

determinations and we have not been presented with any reason to revisit them. 

Because we find no error in Magistrate Judge Mannion’s Report and

Recommendation and, because no objections have been filed, we will adopt the

Magistrate Judge’s findings as our own.

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NOW, THEREFORE, IT IS ORDERED THAT:

1. The Report and Recommendation (doc. 8) filed on December 28,

2005, is adopted in its entirety. 

2. Plaintiff’s appeal of the decision of the Commissioner is DENIED.

2. The Clerk of Court shall close the file on this case.

s/ John E. Jones III

John E. Jones III

United States District Judge

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