IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PAUL E. BUBB, III, :

: No. 4:CV-04-2349

Plaintiff, :

: (Judge McClure)

v. :

: (Magistrate Judge Mannion)

JO ANNE B. BARNHART, :

Commissioner of Social :

Security, :

:

Defendant. :

O R D E R

February 1, 2006

BACKGROUND:

On October 26, 2004, plaintiff Paul E. Bubb, III, commenced this civil action

under 42 U.S.C. § 405(g), seeking judicial review of the Commissioner’s denial of

his claim for Supplemental Security Income, under Title XVI of the Social Security

Act. 42 U.S.C. §§ 1381-1383f.

The matter was initially referred to United States Magistrate Judge Malachy

E. Mannion.

On December 2, 2005, Magistrate Judge Mannion issued a twenty-two page

report and recommendation, which recommended that plaintiff’s appeal be denied. 

On December 19, 2005, plaintiff filed objections to the report and recommendation. 

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The Commissioner waived her opportunity to respond to plaintiff’s objections by

letter dated January 3, 2006.

The court will address plaintiff’s objections and adopt the magistrate judge’s

report and recommendation in full. After reviewing the Administrative Law Judge’s

(“ALJ”) opinion and the administrative record upon which it was based, the court

finds that Magistrate Judge Mannion properly concluded that the ALJ’s opinion

was based on substantial evidence. Therefore, the report and recommendation will

be adopted and the case will be closed.

DISCUSSION:

I. Standard of Review

We have jurisdiction to hear this claim pursuant to 42 U.S.C. § 405(g). Our

role is to determine whether there is substantial evidence in the administrative record

to support the Commissioner’s decision and findings of fact. 42 U.S.C. § 405(g);

Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). “Substantial evidence means

‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (quoting

Jesurum v. Sec’y of the U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117

(3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “It is

less than a preponderance of the evidence but more than a mere scintilla.” Id. The

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substantial evidence standard is a deferential standard of review. Id.

A district court reviews de novo those portions of a magistrate judge’s

report and recommendation to which a party objects. L.R. 72.3. The court may

“accept, reject, or modify, in whole or in part, the findings or recommendations

made by the magistrate judge.” Id.

II. Analysis

There is a five-step evaluation process to determine whether an individual is

disabled for purposes of Supplemental Security Income disability benefits. 20

C.F.R. § 416.920. 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

performing past relevant work; and (5) whether the applicant’s impairment prevents

the applicant from doing any other work, taking into consideration the applicant’s

residual functional capacity, age, education and work experience.

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

process. The ALJ concluded that plaintiff retained the residual functional capacity

to perform a wide range of work with certain non-exertional limitations, and that

such work existed in significant numbers in the regional, state and national

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economies. (Tr., Rec. Doc. No. 9, at 19.) Plaintiff argued that the Commissioner

committed two errors, namely that the ALJ erred in concluding that plaintiff did not

meet or equal a listed impairment, and that the ALJ erred in concluding that plaintiff

has the residual functional capacity to perform substantial gainful work activities. 

Magistrate Judge Mannion determined that the ALJ’s findings are supported by

substantial evidence of record. 

Plaintiff has now objected to the magistrate judge’s report and

recommendation. Plaintiff argues that the magistrate judge erred by: (1) upholding

the ALJ’s finding that plaintiff did not meet a listed impairment; (2) upholding the

ALJ’s evaluation of the medical and psychological evidence set forth in the record;

(3) upholding the ALJ’s assessment of plaintiff’s credibility in light of the medical

evidence; (4) upholding the ALJ’s analysis of plaintiff’s functional limitations; and

(5) upholding the ALJ’s finding that plaintiff could perform a wide range of work

with certain non-exertional limitations. (Rec. Doc. No. 13-1.) 

Plaintiff argues that “[t]he main issue in this case is the ALJ’s refusal to

recognize the overwhelming weight of evidence that Plaintiff is disabled” (Rec.

Doc. No. 13-2, at 1), and spends the bulk of his brief reiterating medical and

psychological evidence in the record. Our review of the record reveals that the ALJ

did “acknowledge[] that the claimant suffers from an anxiety disorder, personality

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disorder, and a pervasive developmental disorder.” (Tr., Rec. Doc. No. 9, at 17.) 

However, the ALJ found that plaintiff’s ailments do not meet or equal a listed

impairment. Furthermore, the ALJ concluded “that the claimant retains the capacity

to adjust to work that exists in significant numbers in the national economy.” (Id. at

19.) We agree with the learned magistrate judge, for the reasons set forth in his

report and recommendation, that these findings are supported by substantial

evidence of record. We now address plaintiff’s objections to the report.

Plaintiff’s first objection goes to the ALJ’s finding that plaintiff does not

meet or equal a listed impairment. The magistrate judge conducted an extensive

analysis of this issue, and we agree with his determination that the ALJ’s decision is

supported by substantial evidence of record.

Plaintiff’s second objection is that the magistrate judge erred by upholding

the ALJ’s evaluation of the medical and psychological evidence set forth in the

record. Our own review of the ALJ’s decision reveals that he did consider the

opinions of Dr. Andrew Haussmann, psychologist Michael Gillum, state agency

medical consultant Dr. James Cunningham, Ph.D., and neuropsychologist Dr.

Richard Dowell, Ph.D.. “The ALJ has broad discretion to determine the weight

accorded to each doctor’s opinion.” Balsavage v. Director, Office of Worker’s

Compensation Programs, 295 F.3d 390, 396 (3d Cir. 2002). We agree with the

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 Plaintiff cites, without elaboration, Fargnoli v. Massanari, 247 F.3d 34 (3d

Cir. 2001), to support the proposition that “[p]laintiff’s participation in school

cannot be used to show that he has the ability to engage in substantial gainful

activity.” (Rec. Doc. No. 13-2, at 5.) We do not see how Fargnoli applies to the

facts of this case. We nevertheless note that plaintiff’s academic pursuits were but

one of a number of things considered by the ALJ in arriving at his conclusion, and

were properly considered under 20 C.F.R. § 416.920(a)(4)(v) (“At the fifth and last

step, we consider our assessment of your residual functional capacity and your

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magistrate judge that the ALJ’s finding that the medical and psychological evidence

could not support a finding that plaintiff’s mental impairments resulted in marked

restrictions was supported by substantial evidence.

Plaintiff thirdly argues that the magistrate erred by upholding the ALJ’s

assessment of plaintiff’s credibility. The magistrate judge squarely addressed this

contention and we agree, for the reasons set forth by the magistrate judge, that the

ALJ’s assessment of plaintiff’s credibility was proper. See, e.g., VanHorn v.

Schweiker, 717 F.2d 871, 873 (3d Cir. 1983). 

Plaintiff’s fourth and fifth objections are that the magistrate erred by

upholding the ALJ’s analysis of plaintiff’s functional limitations and the ALJ’s

finding that plaintiff could perform a wide range of work with certain limitations. 

The ALJ considered, inter alia, plaintiff’s testimony regarding his ability to do

household chores, his enrollment and academic success in high school and

college,1 his hobbies, and the absence of any physical problems documented in the

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age, education, and work experience to see if you can make an adjustment to other

work.”) (emphasis added). 

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record. Based on a review of the entire record, the ALJ determined that despite

“the claimant’s mental impairment,” he is still “capable of performing simple,

routine, low stress, unskilled work, with not more than occasional contact with the

public and co-workers.” (Tr., Rec. Doc. No. 9, at 18.) The ALJ considered the

opinion of a vocational expert in determining the various jobs plaintiff is able to

perform given his residual functional capacity. We agree with the magistrate judge

that the ALJ’s determination that plaintiff retains the capacity to adjust to work that

exists in significant numbers in the national economy is supported by substantial

evidence of record.

CONCLUSION:

For the foregoing reasons, we will approve and adopt in full the magistrate

judge’s report and recommendation, and plaintiff’s appeal from the decision of the

Commissioner of Social Security will be denied.

NOW, THEREFORE, IT IS ORDERED THAT:

1. The magistrate judge’s report and recommendation is approved and

adopted in full for the reasons set forth therein. (Rec. Doc. No. 12.)

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

Security is denied and the action of the Commissioner is affirmed.

3. The clerk is directed to close the case file.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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