1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DUANE M. LINDSEY, )

)

Plaintiff, )

)

v. ) Civil Action No. 05-241 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN, J.

Plaintiff, Duane M. Lindsey, (hereinafter “Plaintiff” or “Lindsey”), 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 denying his claims for disability insurance

benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social

Security Act, 42 U.S.C. § 401 et seq, and § 1381 et seq. Lindsey filed applications for DIB and

SSI on January 11, 2002, alleging disability since November 1, 2001 due to leg and lower back

pain (Administrative Record, hereinafter “AR”, 143-145; 186; 304-306). His applications were

denied, and he requested a hearing before an administrative law judge (“ALJ”) (AR 126-130;

307-310). A hearing was held before an administrative law judge (“ALJ”) on September 12,

2002 (AR 42-58). Following this hearing, the ALJ found that he was not entitled to a period of

disability, DIB or SSI under the Act (AR 311-319). The Appeals Council granted Lindsey’s

request for review, vacated the unfavorable decision, and remanded the case to the ALJ for

further administrative proceedings (AR 330-333). 

The ALJ conducted subsequent hearings on February 18, 2004 and November 19, 2004

(AR 59-117). On January 24, 2005, the ALJ again found that Lindsey was not entitled to a

period of disability, DIB or SSI under the Act (AR 21-28). His request for review by the Appeals

Council was denied (AR 10-13), 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 set forth below, we will grant the

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 1 of 17
2

Defendant’s motion and deny the Plaintiff’s motion. 

I. BACKGROUND

Lindsey was born on January 1, 1966, and was thirty-eight years old on the date of the

ALJ’s decision (AR 22; 143). He has a ninth grade education, and past work experience as a

dishwasher, truck loader, food prep cook, fork lift operator, spray painter, assembler, materials

handler, machine operator, warehouseman, maintenance worker, driver and security guard (AR

22).

Lindsey was injured in a pedestrian/motor vehicle accident in November 1996 and

suffered an open fracture of his right leg, resulting in a steel rod and metal screws being placed in

his right leg from his knee to his ankle (AR 233). He also sustained a non-displaced fracture of

his left leg (AR 233). Lindsey was off work for approximately three to four months following

the accident (AR 233). He returned to work as a material handler in a plastics factory until 1998,

and between 1998 and 2001, he held a series of other jobs before he stopped working in

November 2001 (AR 186-187; 195; 233). 

In November 2000, Lindsey presented to Community Health Net complaining of leg and

back pain (AR 279). On physical examination, Merja Wright, M.D., reported that he had good

mobility with no palpable discomfort in his lower back, although he had a hard time bending

forward (AR 279). His straight leg raise test showed tight hamstrings but no discomfort (AR

279). His right knee showed surgical scars and weakness, especially in the ACL structure (AR

279). Dr. Wright was able to feel the rod in his knee, and his calf was slightly larger than the

other but no swelling was present (AR 279). His left knee was slighty loose in the ACL, but was

otherwise normal (AR 279). Dr. Wright assessed lumbar pain, bilateral knee pain and weakness

(AR 279). He recommended Advil and an exercise program for his lower back and knees (AR

279). 

Lindsey underwent a physical examination at Hamot Medical Center in December 2000

(AR 233). He exhibited full motion with no spasm, and a straight leg raise test and neurological

test was negative (AR 233). Rod prominence was noted in his right knee, and his bilateral knee

examination was “ok” (AR 233). It was noted that he was a small built man “not built for heavy

lifting” (AR 233). Diagnostic studies were ordered, Flexeril was prescribed, and back exercises

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 2 of 17
3

were recommended (AR 233). R. A. Rahner, M.D., an orthopedic surgeon, reported that x-rays

of Lindsey’s legs showed that his previous fractures were well-healed and generally in good

alignment with no indication of arthritis (AR 232; 244). X-rays of his lumbar spine showed

sacralization at the L5 disc level, but no facet degeneration or disc narrowing (AR 232). Dr.

Rahner concluded that Lindsey had mechanical low back pain and possible right leg pain

secondary to retained metal fixation (AR 232). He recommended that he continue back

stretching and strengthening exercises, and possibly consider removal of the rod and screws in

his right tibia (AR 232). Dr. Rahner opined that Lindsey was suitable for employment with no

repetitive or heavy lifting in excess of 25 pounds (AR 232). 

On January 31, 2001, Lindsey underwent a consultative evaluation performed by John M.

Ferretti, D.O., an internist (AR 244-248). Lindsey reported a history of low back pain since 1999

for which he was not undergoing treatment (AR 244). He reported seeing Dr. Rahner in

December 2000 for knee pain and x-rays were conducted (AR 244). According to Lindsey, Dr.

Rahner told him there was no significant disease and he was prescribed Flexeril and Vicodin as

needed (AR 244). On physical examination, Dr. Ferretti reported that his deep tendon reflexes

were symmetrical and active in both his upper and lower extremities (AR 245). His motor

strength was functional at 5/5, and there was no evidence of muscle atrophy or restrictions in

range of motion (AR 245). Lindsey exhibited a normal gait, and had no difficulty in sitting,

bending, standing, walking lifting or grasping (AR 245). His neurologic status was intact (AR

245). Lumbar spine x-rays showed only minor degenerative changes present in the lower

thoracic spine with a narrowed transitional L5-S1 disk space (AR 248). Dr. Ferretti formed an

impression of chronic low back pain of uncertain etiology (AR 245). 

On February 7, 2002, a consultative examination was performed by John C. Kalata, D.O.,

a family practitioner (AR 258-265). Utilizing a cane, Lindsey walked into the office in a slow

manner and appeared to have an antalgic type gait (AR 258). Lindsey complained of lower back

pain and leg pain, but denied taking any medication for his pain (AR 258). He claimed his legs

tensed up and he had difficulty walking (AR 258). On physical examination, Dr. Kalata reported

that he had some atrophy of the quadriceps in his lower extremities, and had a scar on his right

knee with a palpable rod in his right leg (AR 260). Straight leg raise testing was 75 degrees on

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 3 of 17
4

the left and 50 degrees on the right (AR 260). Lindsey also had a decreased range of motion in

his knees, hips, and lumbar region (AR 260, 262-263). Dr. Kalata concluded that Lindsey had

ambulatory dysfunction, and chronic pain in his legs and low back secondary to the previous leg

fractures (AR 260). 

Dr. Kalata completed a medical source statement of Lindsey’s ability to perform workrelated physical activities (AR 264). He opined that Lindsey was limited to lifting and carrying 2

to 3 pounds at a time, could stand and walk 1 hour or less in an 8-hour day, was limited in

pushing/pulling with his lower extremities, could not stoop, crouch or balance, but could

occasionally bend and climb, and had no limitations in sitting (AR 264-265). Dr. Kalata listed

“leg pains [and] back pains” as supportive medical findings for the limitations imposed (AR 264-

265).

A state agency disability claims adjudicator completed a residual physical functional

capacity assessment form on March 12, 2002 (AR 266-273). The adjudicator opined that

Lindsey could lift and carry 20 pounds occasionally and 10 pounds frequently, could stand and/or

walk 6 hours in an 8-hour workday, and could sit 6 hours in an 8-hour workday (AR 267). H. W.

Wallace, a state agency regional medical consultant, completed a medical consultant’s review

form on April 3, 2002, and stated that he agreed with all of the adjudicator’s conclusions,

including the functional limitations set forth in the assessment (AR 272). 

An MRI of Lindsey’s lumbar spine conducted in June 2002 showed a shallow disc

protrusion at L4/L5 which minimally abutted the L5 nerve root sleeve on the right, and no

indication of spinal canal stenosis (AR 290). Due to complaints of chest pain, Lindsey also

underwent a stress test in June 2002 to rule out coronary artery disease (AR 278, 291-293). He

was able to exercise for 14 minutes at a peak workload of 5.0 miles per hour on an 18 percent

incline, which was equivalent to 15 METS (AR 292). He was diagnosed with an adequate ECG

stress test, negative for angina, negative for the ECG diagnosis of ischemia, a normal perfusion

scan, and an “excellent exercise capacity” (AR 293). In July 2002, Lindsey reported to Yvonne

T. Hoogland, M.D., a Community Health Net physician, that medication helped his pain (AR

277).

Dr. Hoogland referred Lindsey for a physical therapy evaluation in March 2003 (AR 401). 

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 4 of 17
1

“Waddell signs” consist of eight enumerated clinical findings an examiner investigates

while evaluating a patient complaining of back pain. Attorneys Medical Deskbook 3d § 11:2

(2005). The presence of three or more of these clinical findings is “usually considered sufficient

to make a diagnosis of functional disorder or deliberate deception (malingering) and to rule out

physical abnormality.” Id. 

5

He was discharged from physical therapy on May 12, 2003 due to his failure to appear for a

follow-up appointment following his initial evaluation on March 21, 2003 (AR 436). The

physical therapist noted that at his initial evaluation, Lindsey demonstrated positive Waddell

signs on examination which was indicative of non-organic or non-mechanical pain (AR 436).1

On April 12, 2003, Lindsey underwent a consultative examination performed by Bharathi

S. Voora, an internist (AR 404-413). Lindsey reported that he suffered from back pain since his

accident in 1996 for which he took Ibuprofen (AR 404-405). He further reported that he was

undergoing physical therapy at Hamot (AR 406). Dr. Voora observed that his gait and station

were normal, and concluded that it was unnecessary for him to utilize a cane (AR 406). On

physical examination, Dr. Voora found his motor function was 5/5 in both his upper and lower

extremities and equal bilaterally (AR 407). His reflexes were 2+ in both elbows and wrists, and

1+ in both knees and ankles (AR 407). He had a slight decrease in the range of motion of his

right knee, but he had normal motion in his lumbar spine (AR 410-411). Dr. Voora found no

atrophy of his muscles, and his straight leg raise test was negative bilaterally in both the supine

and sitting position (AR 407). 

Dr. Voora completed a medical source statement of Lindsey’s ability to perform workrelated physical activities, and concluded that he could frequently lift and carry up to 25 pounds,

had no limitations in standing, walking, sitting, pushing or pulling, and had no postural

limitations (AR 408-409). 

Community Health progress notes reflect that Lindsey underwent surgery on May 12,

2003 for attempted removal of the metal rod from his right leg (AR 432). 

In September 2003, a Community Health Net physical form showed that on physical

examination, Lindsey had a slight decrease in the range of motion in his right knee secondary to

pain, but his gait, muscle strength and stability were normal (AR 429-430). Ibuprofen, physical

therapy and exercises were recommended for his pain (AR 430). 

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 5 of 17
6

Lindsey returned to Community Health Net on December 19, 2003 complaining of back

pain (AR 424). On physical examination, he had steady ambulation and full active range of

motion of the lumbar spine and both legs (AR 425). He was assessed with low back pain and

given Bextra samples, and told to follow-up with Dr. Hoogland in two to three weeks (AR 425). 

Progress notes dated December 22, 2003 stated that he was a “no show” for his follow-up

appointment (AR 425). He returned on December 29, 2003 stating that he needed disability

papers completed (AR 425). Progress notes indicated that he had not seen Dr. Hoogland since

May 2003 (AR 424). He was to keep his office visit in January 2004 for completion of the

forms, but he failed to appear for the appointment (AR 424).

Lindsey was seen by David Williams, D.O. from Saint Vincent Health System, on

February 24, 2004 (AR 439-441). Lindsey reported things had “been going well,” although he

stated that the night before he had a burning sensation in his right knee (AR 439). He also

complained of shortness of breath with activity, such as when he walked excessively or when he

worked hard (AR 439). His physical examination was unremarkable, and Dr. Williams assessed

him with chronic muscle/skeletal pain/disability (AR 439-440). Dr. Williams noted that he had

received a letter from Lindsey’s attorney requesting an assessment of Lindsey’s ability to do tasks

(AR 440). Dr. Williams informed Lindsey that he did not feel qualified to assess his ability to

work in a 15 to 20 minute office visit (AR 440). He referred him to physical therapy for

evaluation and treatment, and informed Lindsey that he would complete the forms after the

evaluation if warranted (AR 440). 

On March 8, 2004 Lindsey was seen at Health South for physical therapy evaluation and

treatment (AR 452). Although his physical therapist assessed his rehabilitation potential as

“good,” Lindsey discontinued treatment after one session and was discharged due to

noncompliance (AR 443; 452).

Lindsey apparently sought emergency treatment for low back pain on September 6, 2004

(AR 456). He was prescribed Vioxx and Vicodin (AR 456). 

Lindsey returned to Community Health Net on October 22, 2004 for follow-up of his low

back pain and was seen by Anthony Snow, M.D. (AR 458-459). Dr. Snow reported that Lindsey

had tenderness in the lumbosacral spinal area and into the buttock bilaterally, and diagnosed

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 6 of 17
7

chronic lumbosacral spinal pain (AR 459). Dr. Snow discontinued the Flexeril, prescribed

Parafon Forte and Naprosyn, and ordered a spine x-ray (AR 459). 

Dr. Snow completed a medical source statement of Lindsey’s ability to perform workrelated activities (AR 461-462). He opined that Lindsey could lift and carry 2 to 3 pounds

frequently and up to 10 pounds occasionally, could stand and walk 1 hour or less in an 8-hour

day, could sit 8 hours with a sit/stand option, had a limited ability to push/pull with his upper

extremities secondary to low back pain, and no ability to engage in postural activities (AR 461-

462). 

Approximately two months later, on December 21, 2004, Dr. Snow wrote a note stating

that he had incorrectly answered the question regarding Lindsey’s ability to sit, and that the

correct answer was that he could only sit for a maximum of 4 hours in an 8-hour day (AR 460). 

Lindsey testified at all three hearings held by the ALJ on September 12, 2002, February

18, 2004, and November 19, 2004 (AR 42-58, 59-117). At the first hearing, Lindsey testified

that he was unable to work due to a lower back problem and because his legs were “bad” (AR

52). He was able to lift approximately 25 pounds, but was unable to sit for prolonged periods

(AR 53-54). He was able to “walk all day,” although he used a cane which had not been

prescribed by a physician (AR 53-54). He lived with his father and was able to wash dishes,

cook and grocery shop (AR 53-54).

At the second hearing, Lindsey testified that he had surgery in May 2003 to remove the

rod from his right leg, and that he had lower back problems (AR 70-71). He claimed to suffer

from back pain upon bending or lifting, and was only able to sit for a maximum of 20 minutes

(AR 71). Lindsey testified that his back pain had worsened and radiated into his hips (AR 76). 

He became “short-winded” while walking, and suffered sharp pains in his right leg, and claimed

he was unable to walk a block (AR 71, 73). Lindsey further testified that his cane had been

prescribed by the physician who performed the surgery on his right leg, and without it he became

unbalanced (AR 73-75). He further testified he suffered from dizziness and lightheadedness (AR

75). His pain medications caused drowsiness, which caused him to lie down 4 to 5 times a day

for approximately 30 to 45 minutes (AR 73; 80). He lived with his father and performed no

household chores (AR 82-83). 

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 7 of 17
8

At the final hearing, Lindsey testified that he suffered from severe low back pain due to a

herniated disc which was causing pressure on the sciatic nerve (AR 99). He claimed to be in

constant pain, and suffered from leg numbness (AR 99). He was able to sit for approximately

half an hour, and then had to stand and move around for approximately 15 to 20 minutes (AR

100). He put ice on his back 3 times a day for half an hour (AR 101). He testified that his pain

medications caused concentration problems and tiredness (AR 101-102). He claimed his

condition had worsened since the last hearing (AR 103). He discontinued physical therapy with

his physician’s permission because it was too painful (AR 103). Lindsey admitted that he was

not seen at Community Health Net between December 2003 and October 2004 (AR 105). 

The vocational expert was asked to consider an individual of Lindsey’s age, education,

and vocational background, who could occasionally lift no more than 10 pounds, could stand or

walk no more than 2 two hours per day, sit for the remainder of the day, and required a sit/stand

option at half hour intervals (AR 112-113). The expert testified that such an individual could

work as a hand packer, sorter/grader or telephone solicitor (AR 113). 

The ALJ subsequently issued a written decision which found that Lindsey was not

entitled to a period of disability, DIB or SSI within the meaning of the Social Security Act (AR

21-31). His request for an appeal with the Appeals Council was denied making the ALJ’s

decision the final decision of the Commissioner (AR 10-13). He 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

Title II of the Social Security Act provides for the payment of disability insurance

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 8 of 17
9

benefits to those who have contributed to the program and who have become so disabled that

they are unable to engage in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). Title

XVI of the Act establishes that SSI benefits are payable to those individuals who are similarly

disabled and whose income and resources fall below designated levels. 42 U.S.C. § 1382(a). A

person who does not have insured status under Title II may nevertheless receive benefits under

Title XVI. Compare 42 U.S.C. § 423(a)(1) with 42 U.S.C. § 1382(a). In order to be entitled to

DIB under Title II, a claimant must additionally establish that his disability existed before the

expiration of his insured status. 42 U.S.C. § 423(a), (c). The ALJ found that Lindsey met the

disability insured status requirements of the Act (AR 30). SSI does not have an insured status

requirement. 

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

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 Lindsey’s case at the fifth step. At step two, the ALJ determined that

the residual effects of his lower extremity fractures and chronic back pain with mild lumbar disc

abnormalities were severe impairments, but determined at step three that he did not meet a listing

(AR 25-26). At step four, the ALJ determined that he could not return to his past work, but

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 9 of 17
10

retained the residual functional capacity to perform work that involved lifting no more than 10

pounds occasionally, could stand or walk up to 2 hours per day and sit for the balance of an 8-

hour workday, with a sit/stand option at one-half hour intervals (AR 28). At the final step, the

ALJ determined that Lindsey could perform the jobs cited by the vocational expert at the

administrative hearing (AR 29-30). The ALJ additionally determined that his allegations

regarding his limitations were not credible (AR 30). Again, we must affirm this determination

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

the ALJ’s evaluation of the medical evidence and his hypothetical question posed to the

vocational expert. 

A. Evaluation of the medical evidence

Although Lindsey sets forth a number of errors allegedly committed by the ALJ, he

fundamentally argues that the ALJ improperly rejected the opinion of his treating physician, Dr.

Snow, and the opinion of the consulting examiner, Dr. Kalata. 

With respect to Dr. Snow’s opinion, we note at the outset 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 v. Harris, 642 F.2d 700, 705 (3rd Cir. 1981). 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 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.”).

We find that the ALJ evaluated Dr. Snow’s opinion consistent with the above standards. 

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 10 of 17
11

Dr. Snow opined in October 2004 that Lindsey could lift and carry 2 to 3 pounds frequently and

up to 10 pounds occasionally, could stand and walk 1 hour or less in an 8-hour day, could sit 8

hours with a sit/stand option, had a limited ability to push/pull with his upper extremities

secondary to low back pain, and no ability to engage in postural activities (AR 461-462). He

revised this opinion in December 2004, stating that he had incorrectly answered the question

regarding Lindsey’s ability to sit, and that he could only sit for a maximum of 4 hours in an 8-

hour day (AR 460). The ALJ found that Dr. Snow’s opinion was apparently based upon

Lindsey’s subjective complaints of pain since physical examination revealed tenderness in the

lumbosacral area and buttock (AR 27). The ALJ noted that no other physical abnormalities were

observed and no objective testing of any nature was performed (AR 27). Finally, he observed that

no explanation or rationale was provided for the severe limitations that were assessed in regard to

his functional capacity or the inability to perform any postural movements whatsoever (AR 28). 

Consequently, the ALJ accorded little weight to Dr. Snow’s opinion (AR 27). 

We conclude that the ALJ could properly decline to give Dr. Snow’s opinion controlling

weight. A treating source’s medical opinion concerning the nature and severity of the claimant’s

alleged impairments will only be given controlling weight if the Commissioner finds that the

treating source’s opinion is “well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence” in the record. 

20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). As the ALJ observed in his thorough review of the

medical evidence, Dr. Snow’s opinion was unsupported by the clinical findings as set forth in the

progress notes. Although Dr. Snow’s opinion functionally rendered Lindsey disabled, his clinical

examination only revealed some tenderness in the lumbosacral spinal area and into the buttock

bilaterally, and no other objective tests were performed (AR 459). See Grandillo v. Barnhart,

105 Fed.Appx. 415, 418-19 (3rd Cir. 2004) (rejecting treating physician’s opinion as inconsistent

with his own clinical findings); Allison v. Barnhart, 100 Fed.Appx. 106, 109 (3rd Cir. 2004)

(same). 

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 11 of 17
2We reject Lindsey’s contention that the ALJ should have re-contacted Dr. Snow in the

event of a conflict in the functional capacity assessment. Here, the ALJ specifically found no

internal conflict existed which would necessitate recontacting Dr. Snow (AR 21-22). 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. Snow for further

clarification under the circumstances here.

12

Lindsey argues that Dr. Snow had access to his medical records at Community Health

Net, and suggests, by implication, that his opinion was based upon the records as a whole. 

However, Dr. Snow’s opinion does not reference any other Community Health Net treatment

notes in support of his opinion, and, more critically, these treatment notes do not support the

limited functional restrictions assessed by Dr. Snow. Although Lindsey complained of back and

leg pain, his physical examinations were relatively benign. When initially seen in November

2000, he had good mobility with no palpable discomfort in his lower back, although he did have

a hard time bending forward (AR 279). His straight leg raise test showed tight hamstrings, but

no discomfort (AR 279). In July 2002, he reported to Dr. Hoogland that medication helped his

pain (AR 277). In September 2003, Lindsey had only a slight decrease in the range of motion in

his right knee secondary to pain, but his gait, muscle strength and stability were normal (AR 429-

430). In December 2003, he had steady ambulation and full active range of motion of the lumbar

spine and both legs (AR 425). 

Moreover, Dr. Snow’s opinion was inconsistent with the other medical evidence of

record.2 Dr. Rahner, a treating physician who is a specialist in orthopedics, reported that

Lindsey’s fractures were well-healed with no indication of arthritis, and while x-rays of his

lumbar spine showed sacralization at the L5 disc level, no facet degeneration or disc narrowing

was present (AR 232, 244). Dr. Rahner opined that Lindsey was suitable for employment with

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 12 of 17
3Lindsey claims in his brief that because Dr. Rahner did not provide any medical opinion

or treatment records in this case, his opinion cannot be used by the ALJ to bolster other opinions. 

See Plaintiff’s Brief p. 14. However, as the above discussion reveals, Lindsey is incorrect, and

these records were included for the ALJ’s consideration. 

13

no repetitive or heavy lifting in excess of 25 pounds (AR 232).3 Likewise, Dr. Ferretti, a

consulting examiner, reported that Lindsey’s motor strength was functional at 5/5, and there was

no muscle atrophy or restrictions in range of motion (AR 245). He exhibited a normal gait, and

had no difficulty sitting, bending, standing, walking, lifting or grasping (AR 245). Only minor

degenerative changes were present in the lower thoracic spine with a narrow transitional L5-S1

disc space (AR 248). 

Dr. Snow’s opinion was also at odds with Dr. Voora’s opinion, a consulting examiner,

who found that Lindsey’s station and gait were normal with no need for a cane, he had no

atrophy of his muscles, and had 5/5 motor function in both his upper and lower extremities (AR

406-407). She further found that he had a full range of motion in all areas, except for a slight

decrease in his right knee (AR 410-411). The ALJ accorded substantial weight to Dr. Voora’s

opinion, finding that her examination was thorough, even though the dictation was partially cut

off (AR 28). He concluded that the objective findings reported in her examination of Lindsey

were consistent with those reported by Dr. Ferretti (AR 28). 

Lindsey contests the substantial weight the ALJ accorded Dr. Voora’s opinion, claiming

that he improperly bolstered Dr. Voora’s opinion with Dr. Ferretti’s opinion, which had been

rendered two years earlier. We fail to see the error in this regard. Dr. Voora’s findings were, in

fact, consistent with Dr. Ferretti’s findings, notwithstanding the fact that Dr. Ferretti’s

examination occurred two years earlier. If anything, this consistency demonstrates that Lindsey’s

condition had not deteriorated, and lends further credence to the ALJ’s determination that

Lindsey was not precluded from working. 

Lindsey further contests the ALJ’s reliance on Dr. Wallace’s opinion, a state agency

medical consultant, who agreed with the state agency adjudicator’s assessment that Lindsey was

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 13 of 17
14

capable of light work. Lindsey claims that since there is no evidence which suggests that Dr.

Wallace is an acceptable medical source, the ALJ’s reliance on his opinion was error. We reject

this argument for several reasons. Dr. Wallace’s opinion was set forth on a form entitled

“Medical Consultant’s Review of Physical Residual Functional Capacity Assessment,” and fairly

read, suggests that Dr. Wallace was, in fact, a physician. Even assuming he was not a physician

and was simply a state agency adjudicator, it is clear from the ALJ’s decision that he did not fully

adopt his opinion, since he assessed Lindsey’s exertional capacity in the sedentary range. 

Consequently, we find no reversible error in this regard.

Lindsey further claims that Dr. Snow’s opinion is supported by Dr. Kalata’s opinion, a

consultative examiner who examined Lindsey pursuant to the request of the Commissioner. Dr.

Kalata opined that Lindsey was limited to lifting and carrying 2 to 3 pounds at a time, could

stand and walk 1 hour or less in an 8-hour day, was limited in pushing/pulling with his lower

extremities, could not stoop, crouch or balance, but could occasionally bend and climb, and had

no limitations in sitting (AR 264-265). Lindsey claims that the ALJ erred in according Dr.

Kalata’s opinion limited weight, since it is consistent with Dr. Snow’s opinion and negates his

ability to perform sedentary work. 

We find no error in this regard. We first note that the treating physician rule does not

apply to a consulting physician’s opinion. Mason v. Shalala, 994 F.2d 1058, 1067 (3rd Cir. 1993)

(doctrine had no application to physician who examined claimant once). Nonetheless, the

Commissioner’s regulations provide that the ALJ must consider 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 opinion is consistent with the entirety of the

evidence. See generally 20 C.F.R. § 416.927(d)(1)-(6). 

The ALJ here evaluated Dr. Kalata’s opinion consistent with the above standards. 

Following his decision to accord Dr. Snow’s opinion little weight, the ALJ considered Dr.

Kalata’s reported findings based upon his physical examination of Lindsey, and concluded that

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 14 of 17
4Parenthetically, we reject Lindsey’s argument that the ALJ failed to fully comply with

the Appeals Council’s prior remand order in evaluating his RFC. The Appeals Council ordered

the ALJ to update the medical evidence, give further consideration to Lindsey’s RFC with

specific references to the evidence of record in support of assessed limitations, and further

evaluate examining source opinions, explaining the weight accorded such opinion evidence (AR

332). Although Lindsey has not articulated specific errors committed by the ALJ, we

nonetheless conclude that the ALJ fully followed the Appeals Council’s directives in this regard. 

15

his opinion was inconsistent with the remaining treating or examining physicians’ opinions (AR

28). Specifically, he noted that although Dr. Kalata felt there was some atrophy of the quadriceps

muscles, no other physician described such a condition (AR 28). He further noted that all other

physicians had found normal 5/5 muscle strength, and described a normal station and gait

without the need for a cane (AR 28). He finally observed that only Dr. Kalata diagnosed

“ambulatory dysfunction,” an imprecise term (AR 28). All of these findings (without repeating

such findings here) are supported by the record, and, consequently, we find no error in this

regard.4 

B. Hypothetical question posed to the vocational expert

Lindsey further challenges the ALJ’s hypothetical question posed to the vocational

expert. The law is well established that “[w]hile the ALJ may proffer a variety of assumptions to

[a vocational] expert, the vocational expert’s testimony concerning a claimant’s ability to

perform alternative employment may only be considered for purposes of determining disability if

the question accurately portrays the claimant’s individual physical and mental impairments.” 

Podedworny v. Harris, 745 F.2d 210, 218 (3rd Cir. 1984). In other words, “[a] hypothetical

question must reflect all of a claimant’s impairments that are supported by the record; otherwise

the question is deficient and the expert’s answer to it cannot be considered substantial evidence.” 

Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3rd Cir. 1987), citing, Podedworny, supra. See also

Wallace v. Secretary of Health and Human Services, 722 F.2d 1150 (3rd Cir. 1983). 

Here, Lindsey in essence argues that the ALJ’s hypothetical relative to his functional

restrictions was not supported by acceptable medical evidence of record and failed to accurately

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 15 of 17
16

portray his limitations. Because we have already determined that no error occurred in the ALJ’s

evaluation of the medical evidence, it was not error for the ALJ to rely on the vocational expert’s

testimony. We therefore find no error in this regard.

IV. CONCLUSION

An appropriate Order follows.

 

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 16 of 17
17

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DUANE M. LINDSEY, )

)

Plaintiff, )

)

v. ) Civil Action No. 05-241 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, this 30th day of May, 2006, 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.

11] is DENIED, and the Defendant’s Motion for Summary Judgment [Doc. No. 13] is

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

Commissioner of Social Security, and against Plaintiff, Duane M. Lindsey. The clerk is directed

to mark the case closed. 

s/ Sean J. McLaughlin

United States District Judge

cm: All parties of record. 

Case 1:05-cv-00241-SJM Document 15 Filed 05/30/06 Page 17 of 17