UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT J. DAVIES, :

Plaintiff : CIVIL ACTION NO. 4:05-1569

v. : (MCCLURE, D.J.)

 (MANNION, M.J.)

JO ANNE B. BARNHART, :

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 claims for

Social Security Disability Insurance Benefits (“DIB”) and Supplemental

Security Income (“SSI”), under Titles II and XVI of the Social Security Act

(“Act”). 42 U.S.C. §§ 401-433, 1381-1383f.

I. Procedural Background

The plaintiff protectively filed concurrent applications for DIB and SSI

on April 11, 2003. (TR. 55-58, 190-91). The plaintiff alleged that he became

disabled on December 16, 2002 due to depression and a tongue abnormality.

(TR. 69).

After his claim was denied initially, the plaintiff requested a hearing.

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 1 of 18
2

(TR. 29-32, 33, 193-96). A hearing was held before an administrative law

judge (“ALJ”) on November 19, 2004. The plaintiff and a vocational expert

(“VE”) testified. (TR. 201-19). On January 28, 2005, the ALJ issued an

unfavorable decision. (TR. 15-25). 

The plaintiff filed a request for review of the ALJ’s Decision. (TR. 12).

On June 9, 2005, the Appeals Council denied the request for review. (TR. 6-

8). Thus, the ALJ’s decision became the final decision of the Commissioner.

42 U.S.C. § 405(g). Currently pending is the plaintiff’s appeal, filed on August

4, 2005, of the Commissioner’s decision. (Doc. No. 1).

II. Disability Determination Process

A five-step process is required to determine if a claimant is disabled

under the Act. 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

impairment prevents the claimant from doing any other work. 20 C.F.R.

§§ 404.1520, 416.920. 

The instant action was ultimately decided at the fourth step, when the

ALJ determined that the plaintiff could perform his past relevant work as a

bowling machine maintenance mechanic, truck driver, and electronic

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 2 of 18
3

wheelchair assembler/rehabilitation specialist. (TR. 25).

III. The ALJ’s Decision

Using the disability determination process outlined above, the ALJ

determined that: (1) the plaintiff had not engaged in substantial gainful activity

since December 16, 2002; (2) the plaintiff’s anxiety, depression, and

substance dependence were “severe” under 20 C.F.R. §§ 404.1520(c) and

416.920(c), but; (3) did not meet or medically equaled any impairment listed

in Appendix I, Subpart P, Regulations No. 4; and (4) the plaintiff could perform

his past relevant work as a bowling machine maintenance mechanic, truck

driver, and electronic wheelchair assembler/rehabilitation specialist. The ALJ

further found that the plaintiff was not credible regarding his alleged limitations

and had the residual functional capacity (RFC) to perform at all physical

exertional levels. (TR. 24-25). 

In determining, at step three, that the plaintiff’s impairments did not

meet or equal any listed impairments, the ALJ noted paying special attention

to Listings 12.04, affective disorders, 12.06, anxiety disorders, and 12.09,

substance addiction disorders. (TR. 22). 20 C.F.R. pt. 404, subpt. P, app.1.

The ALJ concluded that the medical record and the plaintiff’s symptoms fell

short of the criteria for all three listings. (TR. 22). 

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 3 of 18
1

Although the plaintiff alleged that he had stopped working at his most

recent job due to disability, at the hearing he testified that the plant where he

worked routinely shut down once every year for one month and then called its

workers back, but that the plant had never called him back after his most

recent layoff. (TR. 213).

4

IV. Evidence of Record

The plaintiff was fifty-years-old at the time of the ALJ’s decision, making

him a person “closely approaching advanced age” under the Regulations.

(TR. 51). 20 C.F.R. §§ 404.1563(c), 416.963(c). The plaintiff has a high

school education and past relevant work experience as a bowling machine

maintenance mechanic, truck driver, and electronic wheelchair

assembler/rehabilitation specialist. (TR. 24, 70).

The plaintiff has not worked since December 16, 2002, his alleged

disability onset date. (TR. 69, 204). He claimed that the inability to

concentrate or drive made him unable to work.1 (TR. 69). The record does

not reveal any medical treatment tied to that date; the closest medical record

is from a March 27, 2002 follow-up visit regarding a cardiac catheterization

that had gone “well.” (TR. 129). The plaintiff’s physician, Cheryle A. Stone,

M.D., noted that the plaintiff had been diagnosed with tongue cancer in

January 2002 but was otherwise doing well and was back at work. Id. 

On March 28, 2003, Dr. Stone reported that the plaintiff had recently

been hospitalized following an alcoholic seizure. (TR. 128). Dr. Stone also

noted that the plaintiff had recently begun taking Paxil, following his father’s

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 4 of 18
5

recent death, and that Dr. Stone had encouraged the plaintiff to seek

counseling in addition to taking medication. Id. The plaintiff denied suicidal

thoughts or plans. Id. Dr. Stone “strongly encouraged” the plaintiff to seek

counseling for alcohol abuse and depression but noted that the plaintiff did

not commit to following her advice. Id. Dr. Stone diagnosed depression and

alcohol abuse with alcohol withdrawal seizure. Id. 

On April 11, 2003, Dr. Stone again recommended counseling after the

plaintiff admitting to not followingthrough with her previous recommendations.

(TR. 127). Dr. Stone noted that she tried to impress on the plaintiff that there

was “a long sequence of events leading up to this episode”; that the plaintiff

“w[ould] lose his driver’s license” if he had another seizure; and that he “could

ultimately die from the consequences of alcohol.” Id. 

On May 9, 2003, the plaintiff told Dr. Stone that Paxil was helping his

depression although he has having trouble sleeping. Dr. Stone recommended

that the plaintiff stop drinking and smoking and increase his exercise. (TR.

126).

On July 15, 2003, the plaintiff reported that he was “sleeping lousy” and

starting to get panic attacks. He also reported a tongue lesion. (TR. 125). Dr.

Stone diagnosed chronic insomnia, noting that the plaintiff stayed up all night

and napped all day. Id. Dr. Stone also noted that the plaintiff continued to

“smoke heavily and drink at least two beers a day.” Dr. Stone noted telling

the plaintiff that “his sleeping problem will never completely resolve unless he

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 5 of 18
2

A GAF of 51-60 indicates moderate mental health symptoms, or

moderate difficulty in social, occupational, or school functioning. Diagnostic

and Statistical Manual of Mental Disorders, Text Revision (DSM-IV-TR) 34

(4th ed. 2000). 

6

stops smoking and drinking.” Id.

In September 2003, the plaintiff reported having a seizure after three

days of abstention from alcohol use. (TR. 119). Dr. Stone diagnosed alcohol

withdrawal and again recommended that he cease smoking and drinking

alcohol. (TR. 118-25). Dr. Stone told the plaintiff that the only way he could

stop drinking without experiencing withdrawal seizures was to enter a

program where his alcohol withdrawal could be monitored and medication

given to prevent seizures. (TR. 120). 

The plaintiff underwent an initial psychiatric evaluation on January 8,

2004, with Rakesh Sharma, M.D. (TR. 148-49). The plaintiff was alert,

cooperative, and oriented to time, place, and person, although shaky at times.

(TR. 149). The plaintiff described his mood as “down.” Dr. Sharma noted that

his affect was constricted but appropriate to thought content. Id. He denied

any suicidal or homicidal ideations. His memory was intact and his attention

span was good. Dr. Sharma diagnosed depressive disorder and alcohol

dependency; assessed a global assessment of functioning (“GAF”) score of

fifty-five; and recommended a partial program for follow-up and observation.2

Id. 

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 6 of 18
7

Dr. Sharma saw the plaintiff for a follow-up evaluation on February 10,

2004. (TR. 186). The plaintiff reported that the partial program had helped

him and that he used alcohol mostly on Fridays. The plaintiff was alert and

denied suicidal or homicidal ideations. His impulse control was good, but his

judgment and insight were poor. Dr. Sharma recommended that the plaintiff

start going to Alcoholics Anonymous (“AA”) meetings or participate in an

alcohol dependency treatment program. Id. On February 17, 2004, the

plaintiff was taken to an emergency room following another alcohol withdrawal

seizure after the plaintiff had stopped drinking for ten days. (TR. 158-62).

The plaintiff sought treatment with Brenda T. Goodrich, M.D., on April

28, 2004, for a persistent cough and chest congestion. (TR. 152). Upon

examination, the plaintiff’s lungs were clear, with no wheezes. Dr. Goodrich

noted that the plaintiff smoked two packs per day and that she had

encouraged the plaintiff to quit. Id. Dr. Goodrich diagnosed acute bronchitis

and a tobacco use disorder. (TR. 153). A routine chest x-ray ordered by Dr.

Goodrich showed a chronic obstructive pulmonary disease (COPD) pattern

only, with no acute disease. (TR. 151). Dr. Goodrich prescribed cough syrup.

(TR. 153).

Dr. Goodrich completed a Pennsylvania Department of Public Welfare

Employability form on behalf of the plaintiff on June 15, 2004. (TR. 187). In

it, Dr. Goodrich opined that the plaintiff was permanently disabled. Dr.

Goodrich listed the plaintiff’s primary diagnoses as COPD, depression,

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 7 of 18
8

tobacco abuse, and a seizure disorder. Id. 

At the hearing, the ALJ asked the VE whether jobs existed that an

individual with the plaintiff’s vocational profile could perform. (TR. 217-19).

The ALJ asked the VE to consider an individual of the plaintiff’s age,

educational, and work background who had mild difficulties with maintaining

concentration, persistence, and pace due to substance abuse; depression

symptoms; an anxiety disorder; mild difficulties with social functioning; and a

GAF of fifty-five. (TR. 217). The VE responded that such an individual could

perform the plaintiff’s past medium work as an assembler, bowling pin

machine mechanic, and truck driver. Id. 

The plaintiff testified that he was “working very hard” to cut down on his

alcohol consumption, but admitted that he was not getting help from AA or

any counseling sources. (TR. 205-06). The plaintiff testified that he had four

alcohol withdrawal seizures in the previous two-and-one-half years. (TR.

206). When asked if he thought he would be able to return to work if he

stopped drinking, the plaintiff responded that he would not, because he

attributed his depression not to his drinking but to his father’s June 2002

death. (TR. 206-07). The plaintiff testified that he had trouble with

concentration. (TR. 206). He described how he could watch a television

program in the morning but later not to able to say what he had watched, and

stated that he only drove to food and drug stores. Id. Regarding his physical

work ability, the plaintiff stated that he had emphysema which limited his

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 8 of 18
9

ability to climb stairs; that he was not sure if he had any trouble lifting items

that weighed 20-30 pounds; that he had no trouble sitting; and that he had no

trouble with his hands or fingers. (TR. 209). The plaintiff also testified that

he had back problems, but presented no medical evidence in that regard.

(TR. 211). 

V. Discussion

The plaintiff argues that the ALJ erred in: (1) not finding that the plaintiff

was disabled under Medical Vocational Rule 201.14; (2) evaluating whether

the plaintiff’s impairments met or equaled a listing; (3) not having a medical

advisor at the hearing; (4) not giving controlling weight to Dr. Goodrich’s

opinion of disability; (5) finding the plaintiff not credible; and (6) formulating

the hypothetical question to the VE. 

A. Standard of Review.

 When reviewing the denial of disability benefits, we must determine

whether the denial is supported by substantial evidence. Brown v. Bowen,

845 F.2d 1211, 1213 (3rd Cir. 1988); Mason v. Shalala, 994 F.2d 1058 (3rd

Cir. 1993). Substantial evidence “does not mean a large or considerable

amount of evidence, but rather such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Pierce v. Underwood,

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 9 of 18
10

487 U.S. 552 (1988); Hartranft v. Apfel, 181 F.3d 358, 360. (3d Cir. 1999). 

It is less than a preponderance of the evidence but more than a mere scintilla.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

 To receive disability benefits, the plaintiff must demonstrate an "inability

to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result

in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months." 42 U.S.C. § 432(d)(1)(A). Furthermore,

[a]n individual shall be determined to be under a

disability only if his physical or mental impairment or

impairments are of such severity that he is not only

unable to do his previous work but cannot, considering

his age, education, and work experience, engage in

any other kind of substantial gainful work which exists

in the national economy, regardless of whether such

work exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work. For

purposes of the preceding sentence (with respect to

any individual), “work which exists in the national

economy” means work which exists in significant

numbers either in the region where such individual

lives or in several regions of the country.

42 U.S.C. § 423(d)(2)(A).

B. Whether the ALJ erred in not finding that the plaintiff was equivalent

to Medical Vocational Rule 201.14.

The plaintiff argues that the ALJ should have found him disabled based

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 10 of 18
11

on the Medical Vocational Guidelines (“grids”). (Doc. No 10 at 6-7). Use of

the grids is only relevant, however, at the fifth step of the sequential

evaluation process. 20 C.F.R. §§ 404.1520, 416.920. In the present case,

the ALJ rested his determination at the fourth step of the evaluation process.

The grids were not relevant to the ALJ’s disability determination. Thus, the

ALJ did not err in not relying on them. 

Moreover,MedicalVocationalRule 201.14, which the plaintiff cites, Doc.

No. 10 at 6-7, relates to an individual whose past relevant work was skilled or

semi-skilled and whose skills are not transferable. 20 C.F.R. pt. 404, subpt.

P, app. 2 § 201.14. This does not describe the plaintiff, whom the ALJ found

capable of returning to his past relevant skilled and semi-skilled work. (TR.

25, 215-16). 

C. Whether the ALJ erred in evaluating whether the plaintiff’s

impairments met or equaled a listing.

The plaintiff next contends that the ALJ glossed over step three of the

sequential evaluation process, failing to discuss why the plaintiff did not meet

or equal a listed impairment. (Doc. No. 10 at 7). The plaintiff’s contention

that the ALJ summarily stated that the plaintiff’s impairments did not meet or

equal a listed impairment without “identifying the relevant listed impairments,”

discussing the evidence, or explaining the reasoning” is incorrect. (Doc. No.

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 11 of 18
12

10 at 7). The plaintiff cites only the ALJ’s summarized findings at the end of

the decision, without bothering to take note of the paragraph in the text of the

ALJ’s decision, taking up more than half of a page, in which the ALJ

discussed why the plaintiff’s impairments did not meet Listings 12.04,

affective disorders, 12.06, anxiety disorders, and 12.09, substance addiction

disorders. (TR. 22). 20 C.F.R. pt. 404, subpt. P, app.1. In this paragraph,

the ALJ explained why the plaintiff did not meet the B or C criteria of any of

the three listings. (TR. 22). 20 C.F.R. pt. 404, subpt. P, app.1., Listings

12.04, 12.06, 12.09. 

D. Whether the ALJ erred in not having a medical advisor at the

hearing.

The plaintiff’s third argument is that the ALJ erred in not having a

medical advisor present at the hearing. The plaintiff contends that, because

the record did not include a physical RFC evaluation from any treating

physician, the ALJ should have consulted a medical advisor. The plaintiff

contends that, because the ALJ did not consult a medical advisor, the ALJ’s

physical RFC finding is an impermissible medical opinion.

Medical advisers, primarily used in complex cases, serve to explain

medical problems in terms understandable to the layman examiner.

Richardson v. Perales, 402 U.S. 389, 408 (1971). Medical advisers are not

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 12 of 18
3

Notably, the plaintiff’s statement that he drove a car conflicts with one

of his two cited reason for being unable to work. (TR. 69, 82). 

13

meant to fill in medical information that the plaintiff did not bring forward. See

id. (noting that a medical adviser is neutral). Rather, the plaintiff bears the

burden of producing evidence to show a disability. 20 C.F.R. §§ 404.1512,

404.1513(d); 416.912, 416.913(d); Bowen v. Yuckert, 482 U.S. 137, 146, n.5

(1987). Not only is the proffer of a RFC opinion not relevant to the role of a

medical advisor, but to fault the ALJ for not submitting an RFC opinion from

a medical advisor, to fill in a gap left in the evidence by the plaintiff, would

effectively shift the burden of production to the ALJ.

Moreover, the plaintiff did not allege any physical limitations in his

disability application paperwork. (TR. 69). The plaintiff reported that he did

not need any special help with personal care, that he cleaned his own home,

that he drove, and that he did his own shopping.3 (TR. 81). The plaintiff

attributed his failure to leave the house and participate in social activities to

depression and panic attacks rather than to physical limitations. (TR. 85). 

 E. Whether the ALJ erred in not giving controlling weight to Dr.

Goodrich’s opinion of disability.

The plaintiff argues that the ALJ erred in discounting Dr. Goodrich’s

opinion, expressed in a state welfare benefits form, that the plaintiff was

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 13 of 18
14

permanently disabled. (Doc. No. 10 at 9). The ALJ did not credit this opinion,

noting that it was not controlling within the meaning of Social Security Ruling

96-2p. (TR. 21).

The ALJ’s determination is supported by substantial evidence. “[A]

statement by a plaintiff’s treating physician supporting an assertion that [he]

is ‘disabled’ or ‘unable to work’ is not dispositive of the issue. Adorno v.

Shalala, 40 F.3d 43, 47, 48 (3d Cir. 1994) (citations omitted). See also 20

C.F.R. §§ 404.1527(e)(1), 416.927(e)(1) (relating that a “statement by a

medical source that you are‘disabled’ or ‘unable to work’ does not mean that

we will determine that you are disabled.”). Social Security Ruling 96-2p’s rule

that an attending physician’s medical opinion be granted either controlling

weight or some lesser level of deference applies, by its terms, only to

“medical” opinions. Opinions as to the ultimate issue of disability, on the other

hand, are not entitled to deference; this issue is reserved to the

Commissioner. 20 C.F.R. §§ 404.1527(e)(1), (e)((2), 416.927(e)(1), (e)(2).

Moreover, the record does not support Dr. Goodrich’s opinion that the

plaintiff was disabled due to COPD, depression, tobacco abuse, and a seizure

disorder. “[F]orm reports in which a physician’s obligation is only to check a

box or fill in a blank are weak evidence at best” and of suspect reliability when

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 14 of 18
15

not accompanied by written reports. Claussen v. Chater, 950 Fed. Supp.

1287, 1291 (D.N.J. 1996) (citing Mason v. Shalala, 994 F.2d 1058 (3d Cir.

1993). Taking the impairments listed by Dr. Goodrich in order, first, the

record contains no definite diagnosis of COPD. (TR. 151-53). An April 2004

chest x-ray showed a COPD pattern only, with no acute disease. (TR. 151).

Second, the plaintiff’s depression, as evaluated by Dr. Sharma, resulted in a

GAF of fifty-five, indicating only moderate limitations. (TR. 148-49, 186).

Third, as for Dr. Goodrich’s opinion that the plaintiff’s tobacco use was

disabling, it should be noted that Dr. Goodrich prescribed only cough syrup

after diagnosing acute bronchitis and a tobacco use disorder. (TR. 153). And

although the plaintiff smokes, he has been repeatedly advised to quit. (TR.

125, 126, 153). Finally, the record contains no diagnosis of a seizure

disorder, but documents four seizures, all of which were induced by alcohol

withdrawal. (TR. 85, 91-111, 154, 172-82). The plaintiff takes no seizure

medications and is permitted to drive. (TR. 82, 84). 

F. Whether the ALJ erred in finding the plaintiff not credible.

The plaintiff contends that the ALJ’s finding that the plaintiff’s allegations

regarding his limitations were not fully credible was in error. (TR. 25; Doc. No

10 at 9-10). The ALJ found the plaintiff’s “subjective allegations of totally

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 15 of 18
4

A single reference to back pain was found in the medical record. An

August 2003 progress note states that the plaintiff reported that he had

recently experienced stiffness in his groin after getting up from his recliner,

16

disabling symptomatology” not credible “in light of the medical evidence.”

(TR. 23). The ALJ also found that the fact that the plaintiff was “not

forthcoming” regarding the role alcohol played in his alcohol withdrawal

seizures undermined his credibility. Id. Notably, the plaintiff repeatedly failed

to heed his physicians’ advice to enter an alcohol treatment program. (TR.

118-28, 186). Such failure to follow prescribed treatment, such as using

prescribed medication, may undermine a claim of debilitating pain. Jesurum

v. Sec’y of Health and Human Serv., 43 F.3d 114, 119 (3d Cir. 1995). 

The ALJ also found the plaintiff’s subjective complaints unsupported

by the record; substantial evidence support this finding. (TR. 23). While

the plaintiff alleged memory deficits, as the ALJ pointed out, the plaintiff’s

treating psychiatrist, Dr. Sharma, never documented deficiencies in this

area. Instead, Dr. Sharma noted that the plaintiff’s memory was intact and

that his attention span was good. (TR. 149, 186). The ALJ also noted

that the plaintiff was able to perform many daily activities despite his claims

of disabling back pain, which is otherwise unmentioned in the medical

record.4 (TR. 119-33, 152-83). The plaintiff reported that he was able to

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 16 of 18
and that he had slept in the same recliner for the previous year without

problems. The plaintiff stated that he had no back pain, and that he had back

problems in the past but that this was not the same. (TR. 124). 

17

cook, clean, shop, and even drive, despite citing the inability to drive as a

disabling condition. (TR. 69, 81-82). 

G. Whether the ALJ erred in formulating the hypothetical question to

the VE.

Lastly, the plaintiff contends that the ALJ erred in formulating the

hypothetical question to the VE. (Doc. No. 10 at 10-11). The plaintiff

contends that the ALJ erred in not factoring the plaintiff’s emphysema and

back problems into the hypothetical question. (Doc. No. 10 at 10-11). Only

those impairments and resulting limitations supported by the record are

required to be included in the hypothetical. Chrupcala v. Heckler, 829 F.2d

1269, 1276 (3d Cir. 1987). Here, the record was devoid of evidence relating

to the plaintiff’s emphysema or back impairments; the medical record

contained not so much as a diagnoses of either. (TR. 119-33, 152-83). Thus,

the ALJ did not err in not including those impairments in the hypothetical.

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 17 of 18
18

VI. Conclusion

On the basis of the foregoing, IT IS RECOMMENDED THAT the

plaintiff’s appeal of the decision of the Commissioner, (Doc. No. 1), be

DENIED. 

S/ Malachy E. Mannion 

MALACHY E. MANNION

United States Magistrate Judge

Dated: July 28, 2006

O:\shared\REPORTS\2005 Reports\05-1569.01.wpd

Case 4:05-cv-01569-JFM Document 12 Filed 07/28/06 Page 18 of 18