1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARGARET A. CARTER, )

)

Plaintiff, )

) Civil Action No. 04-291 Erie

)

v. )

)

JO ANNE BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN, J.

Plaintiff, Margaret A. Carter, commenced the instant action pursuant to 42 U.S.C. §§

405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of

Social Security, who found that she was not entitled to supplemental security income (“SSI”)

under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Carter protectively filed

an application for SSI on May 1, 2002 alleging that she was disabled since May 1, 2002 due to

bipolar disorder (Administrative Record, hereinafter “AR”, at 79-83, 93). Her application was

denied initially, and Carter requested a hearing before an administrative law judge (“ALJ”) (AR

70-73, 75). A hearing was held on April 8, 2003, and following this hearing, the ALJ found that

Carter was not disabled at any time through the date of his decision, and therefore was not

eligible for SSI benefits (AR 35-52, 161-165). Carter requested review by the Appeals Council,

and on August 8, 2003, the Appeals Council remanded the decision to the ALJ for further

administrative action (AR 166-171). 

A supplemental hearing was held on January 14, 2004, and following this hearing, the

ALJ again found that Carter was not disabled at any time through the date of his decision and

therefore was not eligible for SSI benefits (AR 14-22). Carter’s request for review by the

Appeals Council was denied (AR 7-9), rendering the Commissioner’s decision final under 42

U.S.C. § 405(g). The instant action challenges the ALJ’s decision. Presently pending before the

Court are cross-motions for summary judgment. For the reasons that follow, we will deny

Plaintiff’s motion and grant Defendant’s motion. 

Case 1:04-cv-00291-SJM Document 11 Filed 10/26/05 Page 1 of 18
1The GAF score considers psychological, social, and occupational functioning on a

hypothetical continuum of mental health-illness. Scores between 21 and 30 indicate “[b]ehavior

is considerably influenced by delusions or hallucinations OR serious impairment in

communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal

preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job,

home or friends). See Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR 34

(4th ed. 2000).

2

I. BACKGROUND

Carter was born on July 23, 1960 and was forty-three years old at the time of the second

administrative decision (AR 15, 79). She had a high school education, with a past relevant work

history as a cashier and sales clerk (AR 94).

Carter began treatment with Jennifer Pasternak, M.D., Ph.D., for bipolar disorder on

September 24, 2001 (AR 130-132). Carter reported a history of psychiatric trouble and a prior

use of Zoloft (AR 130). She denied being depressed and reported she could manage at work, but

her husband described her function as poor (AR 130). She suffered from nightmares, restless

sleep, and a decreased appetite, but her energy level was “ok” (AR 130). Carter reported her

main problem as “confusion” (AR 130). On mental status examination, Dr. Pasternak indicted 

that she appeared extremely restless, hesitant, and had trouble answering questions (AR 131). 

Carter was unable to describe her mood, and Dr. Pasternak noted that her affect was constricted

and “kind of bizarre” (AR 131). Her speech was normal in rate and volume but disorganized

and rambling (AR 131). Dr. Pasternak found that her insight was fair to good, and her judgment

was fair (AR 131). She was diagnosed with bipolar disorder, manic with psychotic features, and

assigned a current Global Assessment of Functioning (GAF) score of 30 (AR 131-132).1 Dr.

Pasternak increased her Zyprexa (AR 132). 

Carter returned to Dr. Pasternak on October 1, 2001 and reported that she was doing

better although she was not back to normal (AR 129). She was sleeping better with Zyprexa and

had no problem tolerating it (AR 129). Her speech was still mildly disorganized but it was much

less pressured and easier to understand (AR 129). Dr. Pasternak assessed bipolar manic, showing

some improvement, and gave Carter an excuse to remain off work for six weeks to recover

adequately (AR 129). On October 19, 2001, Carter reported that overall she continued to do

better, with no more odd thoughts and she was sleeping through the night (AR 128). She

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claimed she was still irritable at times and became angry at her family for doing chores she felt

she should be doing, but was, however, able to do more around the house (AR 128). Dr.

Pasternak noted that her affect was slightly dysphoric, but found no evidence of disorganization,

and noted that Carter was able to tell a long and complex story without difficulty (AR 128). Dr.

Pasternak discussed adding another mood stabilizer, but Carter preferred one medication, so Dr.

Pasternak increased her Zyprexa dosage (AR 128). 

On October 29, 2001, Carter reported she felt a little better, was less irritable, was

sleeping well, and was wanting to do more for herself than she used to (AR 127). She reportedly

felt almost ready to go back to work after her trip to Las Vegas (AR 127). Dr. Pasternak reported

that her speech was coherent, although slightly hesitant (AR 127). She was “much improved” in

her concentration, with no evidence of anxiety, dysphoria or euphoria (AR 127). Dr. Pasternak

opined that her bipolar disorder was “stabilizing” on Zyprexa, and advised her to be careful about

gambling since her judgment was likely to be still impaired by the mania (AR 127). 

On November 29, 2001, Carter reported that she had a good time on her vacation, but

since her return she had started sleeping 18 hours a day (AR 126). She had returned to work, and

Dr. Pasternak noted that she appeared anxious about going back to work (AR 126). She was

coherent and able to tell about her vacation with an organized train of thought (AR 126). She

was able to concentrate, but had some mild anxiety (AR 126). Her dosage of Zyprexa was

decreased (AR 126). 

On December 28, 2001, Carter reported being depressed with suicidal ideations (AR

125). She claimed she was sleeping all the time, was tearful, frightened, and not interested in

anything (AR 125). Dr. Pasternak noted her affect was dysorphoric and nearly tearful, but her

speech was organized without any evidence of psychosis (AR 125). She assessed bipolar

disorder, previosly manic with psychotic features, now depressed (AR 125). Voluntary

hospitalization was discussed, and Dr. Pasternak increased her Zyprexa and started her on a trial

of Celexa to target her depression and anxiety (AR 125). 

Carter returned to Dr. Pasternak on January 11, 2002 and reported that hospitalization for

a couple of days had been helpful (AR 125). While hospitalized, she had been started on

Wellbutrin which she felt was helpful (AR 124). Carter described feeling overwhelmed at home

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and at work, but stated she was working through it “ok,” and felt much better with no further

suicidal thoughts (AR 124). Dr. Pasternak found her affect mildly dysphoric with no evidence of

disorganization (AR 124). She assessed bipolar disorder with recent psychotic mania, with some

residual depressive symptoms (AR 124). She was continued on Wellbutrin and Zyprexa (AR

124). Dr. Pasternak discussed with Carter her recommendation that she engage in

psychotherapy, but Carter felt uncomfortable with this suggestion (AR 124). 

On February 11, 2002, Carter’s main complaint was a lack of energy and reportedly could

not always get through her day at work (AR 123). Dr. Pasternak noted that Carter had called her

previously expressing suicidal thoughts, but an aunt had been able to dispel them without

difficulty (AR 123). Dr. Pasternak found her affect mildly dysphoric with mild to moderate

psychomotor retardation, but her speech was coherent with no evidence of disorganization (AR

123). She was assessed with bipolar disorder with periods of abnormal thinking (AR 123). Dr.

Pasternak increased her Zyprexa and continued her Wellbutrin (AR 123). Carter

continued to claim she had no energy when seen on March 11, 2002 (AR 122). She further

claimed that work was a real effort (AR 122). She had rare suicidal thoughts when she became

discouraged (AR 122). Her affect was dysphoric, but her speech was coherent and goal directed

(AR 122). Dr. Pasternak increased her Wellbutrin and continued the Zyprexa (AR 122). Carter

declined hospitalization (AR 122). 

On March 29, 2002, Carter reported feeling better, and while her concentration was still

“up and down,” overall she had more energy and more motivation (AR 121). Her suicidal

thoughts and sleep problems had resolved, although she was sometimes “a little restless” (AR

121). Her affect was still constricted but more reactive, she appeared less uncomfortable, and her

speech was coherent and goal directed (AR 121). Dr. Pasternak diagnosed bipolar disorder

depressed, with beginning early response to Wellbutrin (AR 121). 

On April 11, 2002, Carter reported that she was “not doing that well,” in that she was

depressed and had suicidal thoughts again (AR 120). She found it hard to concentrate at work,

her thinking was not as clear, and she had a hard time telling Dr. Pasternak what medications she

was on (AR 120). Dr. Pasternak noted Carter’s affect was dysphoric, more constricted and she

appeared frightened or uncomfortable (AR 120). She also exhibited some minimal

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disorganization in her speech (AR 120). She was diagnosed with bipolar disorder depressed,

with some increased disorganization (AR 120). At Carter’s request, Dr. Pasternak stopped the

Wellbutrin and started her on Zoloft (AR 120). On April 26, 2002, she reported doing better

with clearer thinking, but she was still depressed (AR 119). She denied any suicidal thoughts

(AR 119). Dr. Pasternak noted she was dysphoric with some poverty of speech, but there was no

evidence of disorganization and her affect was less constricted (AR 119). Dr. Pasternak felt

Carter did better on a higher dose of Zyprexa, and she continued her on Zyprexa and Zoloft (AR

119). Dr. Pasternak supported Carter’s decision to quit work (AR 119). 

By May 20, 2002, Carter was doing better on the higher dose of Zyprexa (AR 118). She

felt less depressed, was able to get more done and was sleeping less (AR 118). Dr. Pasternak

noted that overall she was doing somewhat better and had no problems with the Zoloft (AR 118). 

Her affect continued to be dysphoric but her speech was well organized without distress or

confusion (AR 118). Her medications were continued (AR 118). 

Carter continued to report improvement in her condition on June 24, 2002 (AR 157). She

stated that she felt like herself much of the time but was still easily overwhelmed (AR 157). She

had no suicidal ideation, no significant depression, no evidence of euphoria or return of any

manic symptoms, and was much more active (AR 157). Carter’s speech was coherent and goal

directed, her answers were more complete, and her affect brightened when discussing a future

trip to Las Vegas (AR 157). Dr. Pasternak diagnosed bipolar disorder, improving, and continued

her medications (AR 157).

On July 11, 2002, Larry Smith, Ph.D., a state agency reviewing psychologist, completed a

Mental Residual Functional Capacity Assessment form (AR 133-135). Dr. Smith concluded that 

Carter was not significantly limited in a number of areas, but was moderately limited in her

ability to understand, remember and carry out detailed instructions; maintain attention and

concentration for extended periods; perform activities within a schedule, maintain regular

attendance and be punctual within customary tolerances; work in coordination with or proximity

to others without being distracted; complete a normal workday and workweek without

interruptions from psychologically based symptoms and perform at a consistent pace without an

unreasonable number and length of rest periods; interact appropriately with the public; accept

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criticism from supervisors; get along with coworkers; respond appropriately to changes in the

work setting; and travel to unfamiliar places or use public transportation (AR 133-134). In

making this evaluation, Dr. Smith noted that the medical evidence showed that Carter was

socially appropriate on evaluation; cognitively intact; capable of performing household chores

and other activities of daily living; and able to understand, retain and follow instructions and

perform routine work tasks (AR 135). He accepted and gave “great weight” to the opinions of

Dr. Pasternak (AR 135). On a Psychiatric Review Technique form completed the same date, Dr.

Smith concluded that Carter had a mild degree of limitation in her activities of daily living, with

a moderate degree of difficulty in social functioning and in maintaining concentration,

persistence or pace (AR 142). 

On August 12, 2002, Carter reported that she had a good time in Las Vegas and continued

to feel better (AR 156). She denied any depression or suicidal thoughts and her concentration

was good (AR 156). Dr. Pasternak noted that she appeared less nervous and there was no

evidence of disorganization (AR 156). 

On October 11, 2002, Carter claimed that she was not doing as well as last time in that

her thinking was not as clear and she became confused at times (AR 155). Her affect was more

constricted and Dr. Pasternak found that she seemed to be processing somewhat more slowly

with increased psychomotor retardation (AR 155). She was not anxious or frankly disorganized

(AR 155). Dr. Pasternak found a slight increase in her thought disorder with intolerable weight

gain on Zyprexa (AR 155). She recommend a trial of Geodon (AR 155). 

Carter reportedly felt the same on November 1, 2002, with no real improvement in her

concentration or focus (AR 154). Her affect continued to be constricted but she broadened when

asked about it (AR 154). She was assessed with bipolar disorder with some mild thought

disorder tolerating Geodon (AR 154). On December 5, 2002, there was no evidence of increased

thought disorder, her appetite was more normal, and her depression was still present but she had

no suicidal ideation (AR 153). Dr. Pasternak increased her Geodon and continued her on Zoloft

(AR 153). On December 26, 2002, Carter informed Dr. Pasternak that her primary care

physician had discontinued her Zyprexa due to a problem with her sugar while she was in the

hospital being treated for an E-coli infection (AR 152). Carter denied excess depression and

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thought her mood was better (AR 152). Dr. Pasternak noted that her affect was initially

constricted but she laughed spontaneously and appropriately a couple of times (AR 152). There

was no evidence of mania or over brightness of mood (AR 152). She was continued on Geodon

and Zoloft (AR 152). 

On January 2, 2003, Carter claimed she was getting quite confused again since the

Zyprexa was stopped abruptly when she was hospitalized (AR 151). Dr. Pasternak reported that

when Carter had called her previously, she recommended that she restart the Zyprexa at a low

dose since Carter was becoming more psychotic (AR 151). Her concentration improved after a

few days on the Zyprexa, she denied any depression, and there was no evidence of mania (AR

151). Dr. Pasternak noted an increase in psychosis since the Zyprexa was stopped (AR 151). 

Carter reported on January 16, 2003 that her thinking was clearer since going back to

Zyprexa and discontinuing the Geodon (AR 150). She denied any depression and felt she was

doing “ok” (AR 150). Dr. Pasternak indicated that she was medically restabilized (AR 150). 

Carter was engaged during the exam, was able to answer questions appropriately and did not

appear confused in any way (AR 150). Dr. Pasternak changed her medication from Zyprexa to

Risperidone since the Zyprexa may have induced hyperglycemia, and continued the Zoloft (AR

150-151).

By January 27, 2003, Carter was doing much better (AR 149). She had better focus, a

normal appetite, no depression and no evidence of manic breakthrough (AR 149). Dr. Pasternak

reported that her affect was much more normal and reactive, her focus was obviously better, and

she exhibited coherent speech (AR 149). There was no evidence of disorganization, no

cogwheeling was present and none could be elicited (AR 149). Dr. Pasternak opined that she

was tolerating well the medication change (AR 149). On February 18, 2003, Dr. Pasternak

reported that Carter’s affect was more reactive than she had seen in quite some time (AR 196). 

There was no evidence of mania or suicidal ideation, and her speech was coherent and goal

directed (AR 196). Her focus was good and there was no evidence of cogwheeling (AR 196). 

Dr. Pasternak opined that Carter’s psychosis was resolved and her mood reasonably stable, but

she still had a very low motivation level (AR 196). She continued her on Risperidone and Zoloft

(AR 196).

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In a medical source statement of Carter’s ability to engage in work-related activities dated

March 3, 2003, Dr. Pasternak opined that Carter had a good ability to maintain personal

appearance; a fair ability to follow work rules, relate to co-workers, deal with the public, use

judgment, interact with supervisors, maintain attention/concentration, understand, remember, and

carry out simple job instructions, relate predictably in social situations, and demonstrate

reliability; and a poor ability to deal with work stresses, function independently, understand,

remember, and carry out complex job instructions and behave in an emotionally stable manner

(AR 146-147). Dr. Pasternak noted that Carter’s concentration was impaired, and that she tended

to be easily overwhelmed and withdrawn when under stress, and her thoughts became

“disordered” (AR 147). 

On March 17, 2003, Carter reported she was not doing as well, and spent all of her free

time in bed (AR 195). She claimed she had trouble organizing herself, and her focus was

adequate about five days a week (AR 195). There was no evidence of mania, she denied being

depressed and had no suicidal ideation (AR 195). Her affect was constricted and her speech was

coherent but with some poverty (AR 195). There was no cogwheeling at rest, but cogwheeling

was elicited at the wrist (AR 195). Dr. Pasternak assessed bipolar disorder with decreased ability

to function on a moderate to high dose of Risperidone (AR 195). Dr. Pasternak decreased her

Risperidone since it caused a negative syndrome and continued her on the Zoloft (AR 195). On

April 7, 2003, Dr. Pasternak started Carter on a trial of Tegretol and discussed the possibility of

eventually decreasing the Risperidone and Zoloft (AR 194). Carter’s focus was better, her affect

was much less constricted, and her speech was coherent and goal directed (AR 194). 

Carter reported feeling quite a bit better on the Tegretol, and noticed an improvement

quickly following a dosage increase (AR 193). Her thinking was clearer, and she was less

overwhelmed and able to do more (AR 193). Dr. Pasternak indicated that her mood was good

and stable (AR 193). On June 9, 2003, Carter told Dr. Pasternak that she had a great time on her

most recent trip to Las Vegas and was also doing “ok” since returning home (AR 192). She had

no problem with depression or confusion, and had no trouble focusing (AR 192). Her affect was

more reactive, and her speech was coherent and goal directed (AR 192). Dr. Pasternak felt she

had some improvement with the Tegretol (AR 192). On July 7, 2003, Carter reported more

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fatigue, but had no manic or hypomanic symptoms (AR 191). Her affect was more dysphoric but

still somewhat reactive, her speech was coherent and goal directed, and there was no

cogwheeling (AR 191). She had fleeting suicidal ideation without plan or intent (AR 191). Dr.

Pasternak suspected her depression was the result of discontinuing the Zoloft, and restarted the

Zoloft (AR 191). 

When seen by Dr. Pasternak on August 4, 2003, Carter was feeling quite better and her

depression was mostly gone (AR 190). Her energy was slightly better, she had no suicidal

ideation, and her appetite and weight were stable (AR 190). Dr. Pasternak found her engaged

with a mildly constricted affect, with no evidence of mood lability or disorganization (AR 190). 

Her depression was improving, and she was continued on Tegretol, Zoloft and Risperidone (AR

190). Carter reported that her mood swings were under control on August 29, 2003 (AR 189). 

She had no problem with depression and was sleeping less (AR 189). She felt she was much

better than a year ago (AR 189). She still had episodes of confusion where she was unable to get

anything done (AR 189). She had no side effects or other problems with her medication (AR

189). Dr. Pasternak indicated that Carter had improvements in mood swings on the Tegretol, but

still had periods of what sounded like some mild disorganization or cognitive slowing (AR 189). 

On October 6, 2003, Carter complained that she was feeling more tired (AR 188). Her

periods of confusion were gone and her mood swings were under good control (AR 188). Her

affect was more blunted and she appeared tired and sedated (AR 188). Her speech was coherent

and goal directed with no evidence of confusion (AR 188). Dr. Pasterak felt she was oversedated

on the higher dose of Risperidone and decreased her dosage (AR 188). She continued the

Tegretol and Zoloft, and started a trial of Abilify (AR 188). On November 3, 2003, Carter

informed Dr. Pasternak that she had not started the Abilify because she was having good results

with her current regime (AR 187). She denied feeling overly tired, and only had confusion once

a week which was not as severe (AR 187). She had no problems with depression or her temper

(AR 187). Her affect was more reactive than it had been, and her speech was more spontaneous

(AR 187). Dr. Pasternak opined that her bipolar disorder was better with a decrease in her

antispychotic medication (AR 187).

Finally, Dr. Pasternak completed a second medical source statement of Carter’s ability to

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engage in work-related activities on December 15, 2003 (AR 184-186). Dr. Pasternak opined

that Carter had a good ability to follow work rules; a fair ability to relate to coworkers, interact

with supervisors, function independently, understand, remember, and carry out simple job

instructions, maintain personal appearance, and behave in an emotionally stable manner; a poor

ability to deal with the public, use judgment, deal with work stresses, maintain

attention/concentration, relate predictably in social situations and demonstrate reliability; and no

ability to understand, remember, and carry out complex job instructions (AR 184-185). Dr.

Pasternak stated that Carter suffered from bipolar disorder, continued to have periods of

confusion and was easily overwhelmed by stress, becoming unable to function (AR 185).

Carter testified at the first hearing held by the ALJ on April 8, 2003, that she suffered

from depression and saw a psychiatrist every two to three weeks (AR 42-43). She stated that she

did not feel her medication had helped her condition at all, but that her psychiatrist was going to

change her medication regime (AR 43-44). She claimed she was unable to concentrate, became

confused, and experienced sleep difficulties (AR 44). She was able to drive, maintain personal

hygiene, and had no difficulty getting along with people (AR 42, 44-45). She stated she was

unable to perform routine household chores due to a lack of focus on certain tasks, but was able

to grocery shop and go the VFW club and socialize approximately three times per week (AR 45,

47-48, 50). 

Carter and Karen Krull, a vocational expert, testified at the supplemental hearing held by

the ALJ on January 14, 2004 (AR 53-66). Carter testified that her mental condition had

improved since the last hearing, and that her medication seemed to be helping, but she was still

unable to work (AR 57-58-59). She became a “little confused” at times, but not as much as in

the past (AR 59). She claimed she constantly worried about death, and experienced attention and

concentration problems (AR 59). Carter testified that she was however, able to concentrate on a

magazine article from beginning to end and remember what she read, and was able to follow a

television program from beginning to end and understand what happened (AR 60). She was able

to perform household chores, but not every day due to confusion and concentration problems

(AR 61-62). Carter indicated that her sleep difficulties had improved (AR 62). She continued to

occasionally go to the VFW with her husband (AR 63).

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The ALJ asked the vocational expert if work existed for an individual of Carter’s age,

education and past work experience, who had no exertional limitations, but needed to perform a

job that was simple and repetitive in nature, requiring no more than incidental interaction with

the public, who could not perform team-type activities, and who was not able to engage in high

stress type work requiring high quotas or adherence to close quality production standards (AR

64). The vocational expert testified that such an individual could perform work as a

janitor/cleaner, laundry worker and kitchen worker (AR 65). 

Following the supplemental hearing, the ALJ issued a written decision which found that

Carter was not eligible for SSI benefits within the meaning of the Social Security Act (AR 14-

22). Carter’s request for an appeal with the Appeals Council was denied making the ALJ’s

decision the final decision of the Commissioner (AR 7-9). She subsequently filed this action. 

II. STANDARD OF REVIEW

The Court must affirm the determination of the Commissioner unless it is not supported

by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence does not mean a large or

considerable amount of evidence, but only “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65 (1988)

(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see Richardson v.

Parales, 402 U.S. 389, 401 (1971). It has been defined as less than a preponderance of evidence

but more than a mere scintilla. See Richardson, 402 U.S. at 401; Jesurum v. Secretary of the

United States Dept. of Health and Human Servs., 48 F.3d 114, 117 (3d Cir. 1995).

III. DISCUSSION

A person is "disabled" within the meaning of the Social Security Act if he or she is unable

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. § 423(d)(1)(A). 

The Commissioner uses a five-step evaluation process to determine when an individual meets

this definition:

In the first two steps, the claimant must establish (1) that he is not

engaged in “substantial gainful activity” and (2) that he suffers

from a severe medical impairment. Bowen v. Yuckert, 482 U.S.

137, 140-41 (1987). If the claimant shows a severe medical

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impairment, the [Commissioner] determines (3) whether the

impairment is equivalent to an impairment listed by the

[Commissioner] as creating a presumption of disability. Bowen,

482 U.S. at 141. If it is not, the claimant bears the burden of

showing (4) that the impairment prevents him from performing the

work that he has performed in the past. Id. If the claimant satisfies

this burden, the [Commissioner] must grant the claimant benefits

unless the [Commissioner] can demonstrate (5) that there are jobs

in the national economy that the claimant can perform. Ferguson

v. Schweiker, 765 F.2d 31, 37 (3rd Cir. 1985).

Jesurum, 48 F.3d at 117. The ALJ resolved Carter’s case at the fifth step. At step two, the ALJ

determined that her bipolar disorder was a severe impairment, but determined at step three that

she did not meet a listing (AR 15-16). At step four, the ALJ determined that she was unable to

return to her past relevant work, but retained the residual functional capacity to perform work

that was simple and repetitive in nature, requiring no more than incidental interaction with the

public, did not require team-type activities and high stress type work requiring high quotas or

adherence to close quality production standards (AR 19). At the final step, the ALJ determined

that Carter could perform the jobs cited by the vocational expert at the administrative hearing

(AR 21). The ALJ additionally determined that her statements concerning her impairment and its

impact on her ability to work were not entirely credible (AR 22). Again, we must affirm this

determination unless it is not supported by substantial evidence. See 42 U.S.C. § 405(g).

Carter contends, in essence, that her mental impairment precludes her from working and

that the ALJ’s conclusion to the contrary is unsupported by substantial evidence. She argues that

the ALJ ignored certain medical evidence in violation of Cotter v. Harris, 642 F.2d 700 (3rd Cir.

1981), and selectively read the medical evidence in refusing to accord proper weight to Dr.

Pasternak’s medical opinion. We have carefully reviewed the record and find that Carter’s

arguments are without merit.

Carter first argues that the ALJ ignored certain evidence in violation of Cotter v. Harris,

642 F.2d 700 (3rd Cir. 1981). Cotter dictates that the “administrative decision should be

accompanied by a clear and satisfactory explication of the basis on which it rests.” Cotter, 642

F.2d at 704. The Third Circuit further explains:

In our view an examiner’s findings should be as comprehensive

and analytical as feasible and, where appropriate, should include a

statement of subordinate factual foundations on which ultimate

factual conclusions are based, so that a reviewing court may know

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the basis for the decision. This is necessary so that the court may

properly exercise its responsibility under 42 U.S.C. § 405(g) to

determine if the ... decision is supported by substantial evidence. 

Cotter, 642 F.2d at 705 (quoting Baerga v. Richardson, 500 F.2d 309, 312 (3rd Cir. 1974)). 

Carter argues that the ALJ failed to mention three visits with Dr. Pasternak which support

her disability claim. Specifically not discussed by the ALJ are Dr. Pasternak’s treatment notes

dated November 29, 2001, December 28, 2001 and October 11, 2002. These visits summarily

reflect that Carter was sleeping up to 18 hours per day, was anxious about returning to work after

vacation, had mild anxiety and suicidal ideations, was tearful, frightened and confused at times

(AR 125-126, 155). We are of the opinion that such omission does not dictate a remand. 

Consideration of all the evidence does not mean that the ALJ must explicitly refer to each and

every finding contained in a report. Fargnoli v. Massanari, 247 F.3d 34, 42 (3rd Cir. 2001) (ALJ

not required to discuss every treatment note). Furthermore, Dr. Pasternak’s notes on these

occasions are of minor significance, since a review of the ALJ’s decision reveals that he did not

ignore this evidence; to the contrary, the ALJ specifically noted similar findings reflected in other

treatment notes on different dates. For example, while the ALJ did not specifically mention that

Carter was sleeping 18 hours per day, he did recognize that she suffered from fatigue, a lack of

motivation, and was spending all her free time in bed (AR 17-18). The ALJ also recognized that

she suffered from periods of confusion since this was also documented in other treatment notes

on different dates (AR 17-18). The fact that the ALJ did not specifically mention these visits in

making his disability determination is of no moment, since this evidence was specifically

considered by the ALJ. We therefore find no error in this regard. 

Carter further claims that the ALJ selectively read the medical records in rejecting Dr.

Pasternak’s medical opinion. We note that a treating physician’s opinion is given controlling

weight only when it is well-supported and consistent with the other evidence of record, see 20

C.F.R. § 404.1527(d)(2), and may only be rejected on the basis of contradictory medical

testimony. Frankenfield v. Bowen, 861 F.2d 405, 408 (3rd Cir. 1988). When medical testimony

conflicts or is inconsistent, the ALJ is required to choose between them. Cotter, 642 F.2d at 705. 

In making that choice, a treating physician’s conclusions are to be examined carefully and

accorded more weight than a non-treating physician’s opinion. Podedworny v. Harris, 745 F.2d

Case 1:04-cv-00291-SJM Document 11 Filed 10/26/05 Page 13 of 18
14

210, 217 (3rd Cir 1984). Where an ALJ chooses to reject the opinion of a treating physician, he

must adequately explain in the record his reasons for doing so. Sykes v. Apfel, 228 F.3d 259, 266

(3rd Cir. 2000) (“Where the Secretary is faced with conflicting evidence, he must adequately

explain in the record his reasons for rejecting or discrediting competent evidence.”). 

Here, Dr. Pasternak completed a medical source statement relative to Carter’s ability to

engage in work-related activities. This form required Dr. Pasternak to rate Carter’s abilities as

being either “unlimited,” “good,” “fair,” “poor” or “none” in each of the relevant subcategories

(AR 184). The form defined the terms as follows:

Unlimited - ability to function in this area is not limited by a

mental impairment.

Good - ability to function in this area is more than satisfactory.

Fair - ability to function in this area is limited, but satisfactory.

Poor - ability to function in this area is seriously limited, but not

precluded.

None - no useful ability to function in this area.

(AR 184). Dr. Pasternak opined in December 2003 that Carter had a good ability to follow work

rules; a fair ability to relate to coworkers, interact with supervisors, function independently,

understand, remember, and carry out simple job instructions, maintain personal appearance, and

behave in an emotionally stable manner; a poor ability to deal with the public, use judgment, deal

with work stresses, maintain attention/concentration, relate predictably in social situations and

demonstrate reliability; and no ability to understand, remember, and carry out complex job

instructions (AR 184-185). Dr. Pasternak also opined that Carter continued to have periods of

confusion and was easily overwhelmed by stress, becoming unable to function (AR 185). The

ALJ reasoned that Dr. Pasternak’s December 2003 opinion was inconsistent with her own

progress notes, and inconsistent with her medical opinion rendered in March 2003 (AR 20). The

ALJ concluded that Carter was not disabled based upon a review of the medical evidence, as well

as Carter’s testimony and demeanor at the hearing, and the state agency psychologist’s opinion

that she was not disabled (AR 20). 

Carter first criticizes the ALJ’s finding that Dr. Pasternak’s opinion was inconsistent with

her treatment notes. She contends that such finding was based upon the ALJ’s selective

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15

utilization of Dr. Pasternak’s treatment notes. We disagree. While the ALJ did not specifically

mention the entire treatment note entry in discounting Dr. Pasternak’s opinion, fairly read, Dr.

Pasternak’s treatment notes overall reflect that Carter’s condition continued to improve. As

noted by the ALJ, following adjustments to her medication regime, Carter reported feeling quite

a bit better and Dr. Pasternak reported her mood as good and stable (AR 193). Her depression

was mostly gone, her mood swings were under control and she was sleeping less (AR 189). 

When most recently seen by Dr. Pasternak in November 2003, the ALJ observed that she had

good results with her current medication regime, denied fatigue, and only had confusion once a

week which was not severe in nature (AR 187). 

Further, as noted by the ALJ, Dr. Pasternak’s December 2003 opinion was inconsistent

with her March 2003 opinion. In March 2003, Dr. Pasternak opined that Carter had a good

ability to maintain personal appearance; a fair ability to follow work rules, relate to co-workers,

deal with the public, use judgment, interact with supervisors, maintain attention/concentration,

understand, remember, and carry out simple job instructions, relate predictably in social

situations, and demonstrate reliability; and a poor ability to deal with work stresses, function

independently, understand, remember, and carry out complex job instructions and behave in an

emotionally stable manner (AR 146-147). Despite the fact that Dr. Pasternak’s treatment notes

from March 2003 until December 2003 showed a consistent improvement in her condition, the

December 2003 opinion showed a deterioration in her condition. Notably, during the November

2003 office visit, upon which the December 15, 2003 opinion was based, Carter herself professed

improvement in her condition. She reported feeling “pretty good,” denied feeling overly tired,

and denied any depression (AR 187). She only suffered from confusion about once a week

which was not severe (AR 187). Dr. Pasternak indicated that her affect was more reactive than it

had been and she exhibited more spontaneous speech, and that her bipolar disorder was “now

doing better” with a decrease in her antipsychotic medications (AR 187). Thus, as implicitly

recognized by the ALJ, there is an inconsistency between Dr. Pasternak’s December 15, 2003

opinion and Carter’s condition when last seen by her on November 3, 2003. 

Carter claims that the ALJ should have sought clarification of Dr. Pasternak’s opinion. 

The ALJ, however, apparently felt that the record was sufficiently developed for purposes of

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16

ruling on Carter’s claim. Section 416.912(e)(1) provides that the Administration will take action

to re-contact medical sources and obtain additional medical information where the existing

evidence is insufficient to determine whether a claimant is disabled. 20 C.F.R. § 416.912(e)(1). 

We believe the ALJ could permissibly render a decision based upon the evidence in the present

record without further development and, therefore, find no error in the ALJ’s failure to re-contact

Dr. Pasternak for further clarification under the circumstances here. 

Carter further challenges the ALJ’s reliance on the state agency psychologist’s opinion in

concluding that she was not disabled. Dr. Smith concluded that Carter was not significantly

limited in a number of areas, and was only moderately limited in her ability to understand,

remember and carry out detailed instructions; maintain attention and concentration for extended

periods; perform activities within a schedule, maintain regular attendance and be punctual within

customary tolerances; work in coordination with or proximity to others without being distracted;

complete a normal workday and workweek without interruptions from psychologically based

symptoms and perform at a consistent pace without an unreasonable number and length of rest

periods; interact appropriately with the public; accept criticism from supervisors; get along with

coworkers; respond appropriately to changes in the work setting; and travel to unfamiliar places

or use public transportation (AR 133-134). 

It is long-settled that the findings of a non-examining physician may be substantial

evidence defeating contrary opinions. Jones v. Sullivan, 954 F.2d 125, 129 (3rd Cir. 1991) (ALJ

did not err in rejecting opinion of treating physician in favor of opinions from state agency

physicians, where treating physicians’ opinions were conclusory and unsupported by the medical

evidence). The Commissioner’s regulations do acknowledge that, as a general principle,

opinions from examining sources are given more weight than opinions from non-examining

sources. See 20 C.F.R. § 404.1527(d)(1). However, this is merely a general guideline; it does

not require that, in every case, an examining physician’s medical opinion must, as a matter of

law, be favored over that of a non-examining physician. Instead, the Commissioner must

consider a number of competing factors, such as the extent to which there is a treating

relationship, the extent to which the opinion is supported by a logical explanation, the degree of

the medical source’s specialization in a relevant field, and the extent to which the source’s

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opinion is consistent with the entirety of the evidence. See generally id. at § 404.1527(d)(1)-(6). 

The ALJ concluded that Dr. Pasternak’s opinion was inconsistent with her treatment notes and

previous opinion, and considered Dr. Smith’s assessment reasonable in light of the evidence in

the record (AR 20). Since the ALJ analyzed the medical evidence consistent with the required

standards, we find that his determination is supported by substantial evidence.

Finally, Carter argues that the ALJ impermissibly relied on her daily activities in

concluding that she was not disabled. She further argues that he selectively reviewed her

abilities. Carter cites cases from this circuit for the proposition that her involvement in sporadic

and transitory household activities cannot be used to show ability to engage in substantial gainful

work activity. For example, in Smith v. Califano, 367 F.2d 968 (3rd Cir. 1981), the ALJ relied on

“sporadic and transitory activities” to demonstrate plaintiff’s ability to engage in substantial

gainful activity and did not point to any medical testimony to corroborate his finding of not

disabled. Id. at 972. The court stated, “It is well established that sporadic or transitory activity

does not disprove disability.” Id. Rather, to disprove disability, the ALJ must cite to medical

evidence that supports a finding of not disabled. Id. 

Hence, an ALJ cannot rely solely on his or her interpretations of the claimant’s demeanor

and testimony to prove that the claimant is not disabled. See Frankenfield, 861 F.2d at 408;

Smith, 637 F.2d at 972. He or she cannot simply disregard medical evidence to the contrary by

pointing to activities in which the claimant has been engaging. Id. The ALJ must instead use

medical evidence that corroborates his finding. Id. 

In this case, while Carter is correct that the ALJ cited her daily activities to support his

conclusion, his conclusion was also supported by medical evidence. Thus, the daily activities

listed by the ALJ were not the basis for his conclusion that Carter was not disabled, they merely

supported it. We therefore find no error in this regard.

IV. CONCLUSION

An appropriate Order follows.

 

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18

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARGARET A. CARTER, )

)

Plaintiff, )

) Civil Action No. 04-291 Erie

)

v. )

)

JO ANNE BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, this 26th day of October, 2005, and for the reasons set forth in the

accompanying Memorandum Opinion, 

IT IS HEREBY ORDERED that the Plaintiff’s Motion for Summary Judgment [Doc. No.

7] is DENIED, and the Defendant’s Motion for Summary Judgment [Doc. No. 9] is GRANTED. 

JUDGMENT is hereby entered in favor of Defendant, Jo Anne B. Barnhart, Commissioner of

Social Security, and against Plaintiff, Margaret A. Carter. The clerk is directed to mark the case

closed. 

s/ Sean J. McLaughlin

United States District Judge

cc: All parties of record. 

 

 

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