UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VINCENT L. WISE, : CIVIL NO. 4:06-CV-0954

:

Plaintiff : (Judge McClure)

:

v. : (Magistrate Judge Smyser)

:

LINDA S. McMAHON, :

Acting 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 April 19, 2004, the plaintiff, Vincent L. Wise,

applied for disability insurance benefits. Tr. 120. He

claimed that he became disabled on May 15, 2003, as the result

of insulin diabetes mellitus, bipolar disorder, paranoid

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schizophrenia, stomach and digestive problems and asthma. Tr.

170-173. 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 September 22, 2005. Tr. 25-58.

At this hearing the plaintiff and a vocational witness

testified. The ALJ stated at the outset of the hearing: 

ALJ: The claimant is 34 years old, has a seventh grade

education, past work as a deli clerk, dishwasher and

janitor. The record indicates that he has insulin

dependent diabetes, bipolar disorder, asthma, peptic

ulcer disease, hepatitis C. He’s also been diagnosed

with paranoid schizophrenia and there’s a history of

polysubstance abuse. In your submission of August 23,

you think he meets 12.05(c) because of the IQ scores

that were obtained in Exhibit 3F. I let you all know

to meet 12.05(c), you have to show that these IQ scores

are, first of all, valid, second of all, persistent

prior to the age of 18, in which case, you need school

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 records.

Tr. 27-28. Counsel for the plaintiff stated in his opening

statement that the claim was that the plaintiff “meets or

equals the listings at either 12.05(c) or 12.05(d).”

Vincent L. Wise, the plaintiff, stated in his testimony

that he had received social security disability benefits from

1991 to either 1999 or 2000. He then returned to work

activity. He lost jobs due to low blood sugars that

necessitated his absences. He last worked as a WalMart deli

clerk. He had that job for about a year. He was able to work,

on a weekly basis, only about 10 to 20 hours. On one occasion

he was picked up at work by an ambulance because he had a very

high blood sugar and was sick. When he has a high blood sugar

he feels disoriented. This disorientation last from one half

hour to 45 minutes. When he “eats something” at the onset of

such a feeling, the spell of disorientation can be avoided. 

His blood sugar is not under control, and he has had a

dozen low blood sugar reactions in the last year. He

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administers insulin injections to himself, four times a day. 

His other medications are Lithium, 450 milligrams three times a

day, Risperdal, two milligrams once a day, Reglan, 10

milligrams four times a day, Aciphex, 20 milligrams twice a

day, and the insulin. 

He gets mental health treatment at the Stevens Center,

Dr. Vicki Ackert, and the Lithium and Risperdal were prescribed

there. 

He stated that he has problems dealing with people. He

was not willing on an occasion to fill a customer’s order for

deli meats. 

He stated that he gets up some morning at 4:00 a.m. and

routinely at 6:30 a.m. and checks his blood sugar. He checks

it four or five times a day. The first morning reading is

usually high. The others vary between 40 and 500, and

sometimes they are higher. 

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He stated that he does not “baby sit” his several

children, and that “friends...come over and take care of that.” 

Tr. 37. He is not able to drive himself. He does not have a

driver’s license. He is “paranoid of having low blood sugar

behind the wheel” that might lead to bodily harm to someone. 

Tr. 38. He does some housework. He occasionally goes out of

the house with his wife. He takes only one shower a week,

sometimes two, due to a lack of energy. Asked about leaving

home to visit other persons, he said, “[t]he furthest I go is

maybe outside just to see what the weather is like and back in. 

That’s it.” Tr. 39. He has visits at his house from

relatives.

He stated that he can be on his feet for three hours. 

As an example of the sort of thing that limits his ability to

be on his feet for longer, he told of a visit that he had made

to a friend’s house and of a conversation in a standing

position (presumably, in context, for more than three hours)

with the friend on the friend’s front porch. 

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He stated that he has stomach problems with “pretty

much everything” he eats.

He stated that he can read if the print is slightly

larger than newspaper print. He stated that his stomach

medications, Aciphex and Reglan, helped his acid reflux stomach

problems at first, but not at all after that. 

He stated that he had one hospitalization in the last

two years for a high blood sugar. He has not had

hospitalizations related to his psychological problems. He has

not used any controlled substances, or alcohol or cigaretts,

for about two years. His weight has ranged from 120 to 130

pounds. He thinks that he could not return to work because he

gets sick when standing too long. He does not get sick when he

is sitting. Tr. 46. 

He stated that he can not identify any behavior on his

part, or any food or drink, that may cause him to have “out of

range” blood sugar readings. Tr. 48. 

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The vocational witness, Mitchell Schmidt, stated that

Vincent Wise worked in light and medium unskilled work

positions in the past. He stated that a person with Wise’s

work experiences, of Wise’s age and Wise’s education, who

“suffers from insulin dependent diabetes, bipolar disorder with

depression, gastrointestinal reflux disease, hepatitis C and

borderline intelligence,” if the person were limited to lifting

and carrying no more than 10 pounds frequently, 20 pounds

occasionally, pushing and pulling 20 pounds with force,

performing simple, repetitive one or two step tasks, and if the

person were limited to jobs involving no more than a low level

of stress, not involving public contact or direct interaction

with co-workers and not involving more than a moderate level of

attention and concentration, could perform the work performed

by Vincent Wise in the past such as deli clerk if public

interaction were not involved. Tr. 50-52. The hypothetical

person also could perform other jobs in the economy identified

by the vocational witness. The vocational witness stated that

more than one absence a month on a recurring basis would

probably cause a person not to be able to sustain employment. 

A person who could work only 10 to 20 hours a week in a 40 hour

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per week job could not sustain employment, the vocational

witness stated. 

The plaintiff’s attorney summarized the plaintiff’s

position before the ALJ, stating that due to the insulin

dependency and bipolar disorder, the poorly controlled diabetes

of Mr. Wise, and the effects of workplace physical and mental

stressors, Wise meets the criteria of listings 12.05(c) and

12.05(d). 

On October 19, 2005, the ALJ issued his Decision,

denying the application of the plaintiff for benefits. (Tr.

17-24). The Appeals Council denied the plaintiff's request for

review (Tr. 8-11), making the ALJ's decision the final decision

of the Commissioner.

The plaintiff filed his complaint with this court on

May 9, 2006. The defendant filed an answer to the complaint on

June 28, 2006 (doc. 6) and a copy of the administrative record

on August 9, 2006 (doc. 9). Pursuant to Local Rules 83.40.4

and 83.40.5, the plaintiff filed his brief on October 11, 2006

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(doc. 12) and the defendant filed her brief on November 13,

2006 (doc. 13). No reply brief has been filed. A substitute

transcript was filed with leave of court on January 17, 2007

(docs. 15, 16, 17).

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

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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). 

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)

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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. 

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 he is unable to engage in his 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).

In this case the ALJ determined that the 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 impairments, and

that he is not able to perform his past relevant work. The ALJ

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1. “Residual Functional Capacity” is “that which an individual is still able

to do despite the limitations caused by his or her impairment(s).” Burnett v.

Commissioner of Social Security Adm., 220 F.3d 112, 121 (3d Cir. 2000) (quoting

Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)).

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further determined that the plaintiff has the residual

functional capacity to perform a range of unskilled light work 1

and to perform jobs that had been identified by the vocational

expert (router, switch clerk, garment sorter).

On the basis of these findings, the ALJ found the

plaintiff not to be disabled.

The plaintiff’s first argument is that the ALJ erred in

not finding that he suffers from acidosis and retinitis. The

ALJ stated at Tr. 18 that there is no evidence of acidosis and

at Tr. 21 that there was a hospitalization for ketoacidosis. 

Apart from noting one hospital admission for ketoacidosis in

2004, the plaintiff points to no evidence that undermines or

contradicts the findings of the ALJ on these symptoms. Given

that the listing 9.08 Diabetes mellitus criterion as to

acidosis is “[a]cidosis occurring at least on the average of

once every 2 months documented by appropriate blood chemical

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tests 1 pH or PCO2 or bicarbonate levels,” the apparent

inconsistency noted by the plaintiff is immaterial. 

The plaintiff’s second argument is that the ALJ erred

in accepting a 70 or lower IQ score. 

The ALJ’s stated rationale was:

I have evaluated the claimant’s borderline intellectual

functioning under listing 12.05C. The claimant’s

representative argued at the hearing that the claimant

meets listing 12.05. However, I find that the claimant

does not meet the threshold diagnostic requirement of

the listing. There is no evidence of significantly

subaverage intellectual functioning with deficits in

adaptive functioning manifested during the

developmental period. None of the claimant’s treating

sources indicated that the claimant is retarded. There

was never a reference to his intellectual capacity as

an abnormal condition as his diabetes condition was

documented since age 9. The consultative psychological

examiner, Dr. Nutter, reported WIAS-III scores of 81

verbal, 70 performance, and 74 full scale (Exhibit 3F). 

Dr. Nutter reported a diagnoses of borderline

intellectual functioning and not mental retardation. 

There was no suggestion by Dr. Nutter that the

claimant’s mental functioning was at the retarded level

and there was no suggestion that his borderline

intellectual functioning related back to prior to age

22. Dr. Nutter did not state that the scores were

valid and that they are a true reflection of the

claimant’s intellectual ability currently or before age

22. The claimant has a long history of abusing multiple

chemicals and there is no medical evidence of record to

suggest that the claimant’s borderline intellectual

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functioning is not due to drug abuse. The claimant was

heavily abusing alcohol at the time of the consultative

examination. Dr. Nutter did not address the validity

of the IQ scores and did not address the effect of

substance abuse on the scores. Substance use would

slow his ability on the performance subtests and lower

his scores as these are timed tests. The claimant’s

treating psychiatrist diagnosed the claimant with

bipolar disorder and never indicated or suggested that

the claimant was also retarded. The treating mental

health providers never suggested problems due to

intellectual functioning. Based on all of the above

and the record as a whole, I find that the borderline

intellectual functioning does not meet listing level

severity. 

Tr. 18-19. We can not reasonably conclude that the finding

that there is not in the plaintiff a significantly subaverage

intellectual functioning with deficits in adaptive functioning

manifested during the developmental period is not supported by

substantial evidence or by an adequate explanation. 

The plaintiff argues that his borderline intellectual

functioning is sufficient to meet the first requirement of

12.05. This is presented as his third argument. The court is

required under 42 U.S.C. § 405(g) to determine whether the

Commissioner’s decision is supported by substantial evidence. 

The court has no mandate to find the facts. The ALJ, contrary

to the plaintiff’s argument, did address the question whether

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the plaintiff has symptoms that meet or equal the listing 12.05

criteria and determined that he does not. Although the ALJ

also used the terminology that the plaintiff is not retarded,

he did not demonstrate in his articulation of his rationale

that he was deciding whether the plaintiff is retarded rather

than whether he meets the 12.05 criteria. 

The plaintiff also argues, in his fourth argument, that

the ALJ erred in placing weight upon the fact that Dr. Nutter

had not stated that the scores were valid in deciding that a

12.05 listed impairment was not made out. In stating that Dr.

Nutter had not stated that the scores were valid and that they

are a true reflection of the claimant’s intellectual ability

currently or before age 22, the ALJ was correctly noting and

applying the specific listings requirement of a valid IQ score

and was performing a reasonable critique and analysis of the

validity of this particular IQ score. We do not believe that

it is correctly asserted that the ALJ substituted or inserted

his own medical opinion in place of Dr. Nutter’s. 

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The plaintiff’s fifth argument is that the ALJ erred in

rejecting evidence of the plaintiff’s moderate deficiencies of

concentration, persistence or pace and moderate difficulties in

maintaining social functioning. The ALJ found that the

plaintiff has average ability to maintain attention or

concentration. 

This argument of the plaintiff has some weight. The

ALJ accepted doctors’ reports of moderate restrictions in

ability to understand, to remember and to carry out detailed

instructions, and to respond appropriately to work pressures. 

Tr. 21. The ALJ, however, then found the plaintiff to have

average ability to maintain attention or concentration. We do

not necessarily see the basis for equating “moderate

restrictions” and average ability. However, the plaintiff has

not shown the arguable difference to give rise to a difference

in outcome under the statute, regulations or case law. 

The plaintiff’s sixth argument is that the ALJ

erroneously failed to find functional limitations on the part

of the plaintiff. The plaintiff argues that the ALJ failed to

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draw reasonable inferences from the report of Dr. Klieman about

the limitation caused by the plaintiff’s diabetes. The ALJ

found that the plaintiff’s diabetes precludes him from

performing heavy or medium work, but to be able to perform a

range of unskilled light work. The ALJ here considered and

discussed all of the evidence, explaining his findings. The

arguments of the plaintiff are arguments that other inferences

should have been drawn. Under the substantial evidence

standard to review, the presentation of other reasonable

inferences does not warrant a reversal where the inferences

drawn are supported by evidence and an explanation of the

findings is provided. 

The plaintiff argues that the ALJ erred in rejecting

treating physicians’ opinions that the plaintiff is disabled. 

These opinions were considered by the ALJ, but he gave little

weight to them because the ALJ found that accompanying

treatment notes reflected that the plaintiff was functioning

generally well and because he found that the plaintiff’s

diabetic condition is well controlled when he is compliant with

treatment and abstains from drugs and alcohol. The plaintiff

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throughout his arguments does not either demonstrate or assert

that there is a basis to question the ALJ’s finding that the

plaintiff’s diabetic condition is well controlled when he is

compliant with treatment and abstains from alcohol and drugs. 

The plaintiff argues that the ALJ erroneously found him

not to be credible. However, the ALJ did explain his

credibility finding, generally, by referring to “inconsistent

statements” and demeanor, and did point to medical evidence

that supports a finding of limitations from the disease that

are less than disabling. The ALJ did find and cite medical

opinions support for his findings; most particularly, Dr.

Smith’s and Dr. Klieman’s reports cited and discussed at Tr.

21. Tr. 460-507.

It is recommended that the appeal of the plaintiff be

denied. 

/s/ J. Andrew Smyser

J. Andrew Smyser

Magistrate Judge

Dated: February 1, 2007. 

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