1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTHONY HARVEY, )

)

Plaintiff, )

) Civil Action No. 05-37 Erie

)

v. )

)

JO ANNE BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN, J.

Plaintiff, Anthony Harvey, 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 he was not entitled to supplemental security income (“SSI”) under Title

XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Harvey filed an application for SSI on

August 30, 2002, alleging that he was disabled since May 5, 2002 due to degenerative joint

disease of the lumbar spine (Administrative Record, hereinafter “AR”, at 75-77, 91). His

application was denied initially, and Harvey requested a hearing before an administrative law

judge (“ALJ”) (AR 63-69). A hearing was held on July 24, 2003 and following this hearing, the

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

therefore was not eligible for SSI benefits (AR 18-30). Harvey’s request for review by the

Appeals Council was denied (AR 5-8), 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. 

I. BACKGROUND

Harvey was born on September 18, 1961 and was forty-one years old on the date of the

ALJ’s decision (AR 22, 75). He had a high school education, with a past relevant work history

as a landscaper, laborer, floor care specialist, forklift driver, laundry service laborer, and security

guard (AR 22).

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On July 12, 2002, Harvey presented to the emergency room with a chief complaint of

lower back pain and numbness after lifting his daughter (AR 135). He reported a history of back

problems since he was eighteen years old (AR 136). On physical examination, there was no pain

on palpation, his motor strength and reflexes were within normal limits, and he had no sensory

deficits (AR 136). He was diagnosed with low back pain, prescribed medication, and discharged

in good condition (AR 136).

Harvey began treating with Armando Ricci, D.O., on August 7, 2002 for complaints of

recurrent back pain (AR 160). On physical examination, Harvey had normal muscle strength, but

had decreased lumbar flexion (AR 159). Dr. Ricci recommended diagnostic testing (AR 159). 

An x-ray of Harvey’s lumbar spine conducted on August 10, 2002 showed minimal L5-

S1 facet joint degenerative disc disease (AR 142). Satisfactory alignment and normal disc

heights were observed, with normal appearing SI joints, and no significant bony abnormality was

seen (AR 142). On August 12, 2002, Lipitor was added to Harvey’s medication regime based on

lab test results (AR 156). An MRI conducted August 19, 2002 showed mild disc bulges at L2-3

and L4-5 with no significant spinal canal or neuroforaminal narrowing (AR 144). Harvey was

scheduled for a neurosurgical consultation (AR 155-156). 

Harvey was examined by Elio DeMeira, M.D., on September 16, 2002 (AR 146-147). He

reported a history of back and leg pain, headaches, shoulder, hip, knee, and ankle pain (AR 146). 

He claimed he was unable to perform any heavy activities (AR 146). Harvey stated he had no

problems sitting, but standing was “a bit of a problem” for him (AR 146). Although he had

problems walking, he reported he was able to walk approximately one hour at the mall over the

previous weekend (AR 146). On physical examination, Dr. DeMeira found Harvey had normal

tendon reflexes, no objective motor or sensory deficits, no muscle atrophy, normal lumbar

lordosis, and no back spasms (AR 146).

Dr. DeMeira reviewed his MRI scan, and diagnosed developmental spinal stenosis and

mild lumbar degenerative disc disease (AR 145). Dr. DeMeira considered Harvey’s stenosis to

be congenital and present for many years, and that mild degenerative changes were causing him

to become symptomatic (AR 145). Dr. DeMeira opined that eventually Harvey would need a

decompressive lumbar laminectomy, but since his symptoms were intermittent and relatively

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mild, he recommended only symptomatic treatment (AR 145). 

On September 23, 2002, Harvey requested a letter from Dr. Ricci detailing his back

problems and any work limitations since his parole officer questioned why he was not working

(AR 153). On September 25, 2002, Dr. Ricci wrote that Harvey had intermittent back pain, and

that an MRI revealed mild disc bulging at L2-3 and L4-5 and mild central canal stenosis (AR

152). He did not set forth any work limitations, and indicated that Harvey required only

symptomatic treatment (AR 152). 

Harvey returned to Dr. Ricci on October 3, 2002 and complained of headaches with

photosensitivity, and increased back pain and lower extremity numbness (AR 151). On physical

examination, Dr. Ricci noted he had normal muscle strength (AR 151). Harvey was assessed

with a possible migraine and prescribed Imitrex (AR 151). An EMG was scheduled for his

complaints of lower extremity numbness, and physical therapy was discussed (AR 151). He was

also encouraged to lose weight (AR 151).

Harvey was seen by Dr. DeMeira on October 10, 2002 for follow up, who reported that

his condition was unchanged since his previous examination (AR 191). Harvey had no muscle

atrophies, and his tendon reflexes were normal in both extremities (AR 191). Dr. DeMeira

recommended only symptomatic treatment and advised against surgical treatment (AR 191).

On October 16, 2002, Harvey reported increased back pain and leg weakness to Dr. Ricci

(AR 181). Physical therapy was recommended, as well as a pain management and neurological

consultation (AR 181). Harvey was unwilling to travel to Pittsburgh for a pain management

consultation (AR 181). 

EMG testing conducted on October 31, 2002 revealed “very mild remote S1

radiculopathies” (AR 193). 

Harvey was evaluated by Jeffrey Esper, D.O., a neurologist, on December 18, 2002 for

complaints of muscle weakness and spasms (AR 187-188). He reported his symptoms had

improved following discontinuance of Lipitor (AR 187). He had increased his exercises,

stretching and weight lifting, and had no problem with his activities of daily living (AR 187). He

claimed he intermittently experienced paresthesias of his lower extremities (AR 187). On

physical examination, Dr. Esper reported he was neurologically intact with unremarkable cranial

Case 1:05-cv-00037-SJM Document 11 Filed 08/11/05 Page 3 of 11
1Nucleoplasty is a minimally invasive procedure for treating individuals with low back

and leg pain due to disc protrusions or herniations. The procedure involves radiofrequency

energy to decompress the disc and allow for a retraction of any protrusion or herniation that may

be irritating nearby nerve roots. See Capitol Spine and Pain Centers,

http://www.treatingpain.com/pages/int_pain/nucleoplasty.html.

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nerves, had 5/5 muscle strength, symmetric reflexes, a stable gait, and was able to toe, heel and

tandem walk (AR 188). 

Dr. Esper opined that Harvey had a history consistent with a myopathy, most likely

secondary to his Lipitor use, and was instructed not to take any cholesterol lowering agent in the

future (AR 188). Dr. Esper further opined that Harvey was improving by doing exercises at

home, but scheduled a physical therapy evaluation (AR 188). He indicated that Harvey’s spinal

stenosis did not warrant surgical intervention, but encouraged him to keep his neurological

evaluation appointment scheduled in Pittsburgh (AR 188).

Harvey returned to Dr. Ricci on December 31, 2002 complaining of back pain (AR 175). 

He reported drinking four to five beers per day, and Dr. Ricci noted he was somewhat depressed,

but Harvey refused anti-depressant medication (AR 175). Dr. Ricci advised him to cease alcohol

use (AR 175).

On January 7, 2003, Harvey was evaluated by Stephen Burke, physical therapist (AR 184-

186). Mr. Burke noted that Harvey used no assistive device to ambulate, and no significant

deviations were noted in his gait (AR 185). He exhibited normal lordosis, had intact sensation,

symmetric reflexes, no motor atrophy, and no motor deficits (AR 185). He did exhibit

significantly limited forward flexion (AR 185). Mr. Burke recommended Harvey join the

YMCA to perform land-based and aquatic exercise programs for conditioning, strengthening, and

flexibility exercise (AR 186).

Harvey underwent nucleoplasty1 in March 2003 to relieve back pain (AR 173). On

March 26, 2003, Harvey complained of headaches and back pain, but Dr. Ricci noted he was

neurologically intact (AR 171). 

On April 23, 2003, Harvey complained of back pain and frequent headaches (AR 170). 

Dr. Ricci concluded that the headaches were probably a migraine component, and prescribed a

low dose of Inderal (AR 169). 

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Harvey and Leon Reid, a vocational expert, testified at the hearing held by the ALJ on

July 24, 2003 (AR 37-62). Harvey testified that he lived with his girlfriend, her two sons and his

fifteen month old daughter (AR 41-42). He cared for his daughter during the day while his

girlfriend worked (AR 50). Harvey claimed he suffered from a migraine headache daily, lasting

two to three hours and occasionally all day (AR 47). He took medication to relieve the pain,

closed the blinds and tried to decrease the noise level (AR 47). He also claimed to suffer from

constant lower back pain (AR 47). Harvey testified that he experienced relief from his back pain

for two or three months following nucleoplasty, but that his pain returned (AR 46). Medication

erased fifty percent of the pain, and he also engaged in physical therapy at home (AR 47-48). His

medication regime caused sleepiness, drowsiness and some dizziness (AR 48, 50). 

Harvey testified that he could lift approximately twenty-five pounds, and that he currently

lifted his daughter who was twenty-four pounds (AR 49). He was unable to lift and carry any

weight all day long (AR 49). He suffered increased pain when standing, but was able to sit for

approximately one half hour (AR 49). He stated he could walk for approximately four city

blocks before requiring a break (AR 50). Harvey indicated he spent six hours out of an eight

hour day in a recliner (AR 50). On bad days, he spent most of the time laying on the floor, but on

good days, he was able to prepare dinner, straighten the living room and vacuum (AR 52). 

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

education, and work history, who was limited to light work with no more than simple, routine,

repetitious tasks with one- or two-step instructions performed in a low stress environment that

involved few decisions (AR 59). The vocational expert testified that such an individual could

perform Harvey’s past work as a security guard, and could perform other work that existed in

significant numbers in the national economy, including work as a production inspector and

assembler (AR 59-60). 

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

not eligible for SSI benefits within the meaning of the Social Security Act (AR 22-27). Harvey’s 

request for an appeal with the Appeals Council was denied making the ALJ’s decision the final

decision of the Commissioner (AR 5-8). He subsequently filed this action. 

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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

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 Harvey’s case at the fourth step. At step two, the

ALJ determined that his degenerative disc disease and headaches were severe impairments, but

determined at step three that he did not meet a listing (AR 23). At step four, the ALJ determined

that Harvey had the residual functional capacity to perform work that did not require exertion

above the light level, with no more than simple, routine, repetitious tasks, with one- or two-step

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instructions, performed in a low stress environment, meaning one that required few decisions

(AR 23). The ALJ concluded that Harvey’s past relevant work as a security guard was within

this residual functional capacity (AR 25). The ALJ also engaged in the final step, and

determined that Harvey could perform the jobs cited by the vocational expert at the

administrative hearing (AR 25). Finally, the ALJ found that Harvey’s assertions regarding his

functional limitations were not totally credible (AR 26). Again, we must affirm this

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

Harvey fundamentally takes issue with the ALJ’s finding that he can perform light work.

He generally contends that this finding is contrary to the medical evidence and his testimony. It

is undisputed that Harvey suffers from degenerative disc disease and headaches, and the ALJ

specifically found that the medical evidence demonstrated these impairments were severe (AR

23). However, disability is determined not by the mere presence of impairments, but rather by

the functional restrictions placed on an individual by those impairments. See Jones v. Sullivan,

954 F.2d 125, 129 (3rd Cir. 1991). Thus the critical issue is the extent of Harvey’s residual

functional capacity.

“‘Residual functional capacity is defined as that which an individual is still able to do

despite the limitations caused by his or her impairment(s).’” Burnett v. Comm’r of Soc. Sec.

Admin., 220 F.3d 112, 121 (3rd Cir. 2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3rd

Cir. 1999); see also 20 C.F.R. § 404.1545(a). An individual claimant’s RFC is an administrative

determination expressly reserved to the Commissioner. 20 C.F.R. § 416.927(e)(2). In making

this determination, the ALJ must consider all evidence before him. Burnett, 220 F.3d at 121. 

Social Security Ruling (“SSR”) 96-5p provides:

The assessment is based upon consideration of all relevant

evidence in the case record, including medical evidence and

relevant nonmedical evidence, such as observations of lay

witnesses of an individual’s apparent symptomatology, an

individual’s own statement of what he or she is able or unable to

do, and many other factors that could help the adjudicator

determine the most reasonable findings in light of the evidence. 

 

SSR 96-5p (1996), 1996 WL 374183 *5.

Harvey first argues that the ALJ erred in determining that he was able to perform fulltime sustained work activities as required by Social Security Ruling (“SSR”) 96-8p. In order to

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show that a claimant is in fact capable of undertaking jobs that exist in the national economy, the

Commissioner must prove that the claimant retains the residual functional capacity to work on a

“regular and continuing basis.” Stunkard v. Secretary of Health and Human Services, 841 F.2d

57, 60 (3rd Cir. 1988) (quoting Kangas v. Bowen, 823 F.2d 775, 777 (3rd Cir. 1987) (citing 20

C.F.R. § 404.1545(b))). Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, defines

“regular and continuing basis” as “8 hours a day, for 5 days a week, or an equivalent schedule.” 

SSR 96-8p, 1996 WL 374184 at *2. Harvey contends that the ALJ failed to address this issue. 

We disagree. It is apparent from the ALJ’s decision that, given his citation to SSR 96-8p, his

RFC assessment was based upon Harvey’s ability to perform work-related tasks on a regular and

continuing basis (AR 23). Moreover, Harvey has failed to point to any evidence in the record

which demonstrates he is precluded from performing work-related tasks on a regular and

continuing basis. We therefore find this argument without merit. 

Harvey also claims that the ALJ’s RFC determination is not supported by the medical

evidence, citing Doak v. Heckler, 790 F.2d 26, 29 (3rd Cir. 1986). In Doak, the Third Circuit

concluded that the record did not support the ALJ’s finding that the claimant could do light work,

since the medical records fairly read suggested an inability to do so. Doak, 790 F.2d at 29. Here

however, although no treating physician specifically expressed an opinion relative to Harvey’s 

RFC, their medical findings were consistent with the physical limitations credited by the ALJ. 

As observed by the ALJ, Harvey’s medical records from his various treating physicians revealed

that his physical examinations were consistently unremarkable (AR 24). In addition, diagnostic

studies showed only mild disc bulges at L2-3 and L4-5, and no significant spinal canal or

neuroforaminal narrowing (AR 144). Lumbar spine x-rays showed normal alignment, disc

heights, and SI joints, and only minimal degenerative disc disease (AR 142). An EMG and nerve

conduction study revealed “very mild” remote S1 radiculopathies (AR 193). 

Harvey argues that the medical evidence does not include an RFC assessment of his

abilities. He suggests, in other words, that there need be direct medical evidence in the form of

an opinion to support a finding that he can engage in light work. But in construing the

administrative record, an ALJ may rely on what the record does not say, as well as what it does

say. Dumas v. Schweiker, 712 F.2d 1545, 1553 (2nd Cir. 1983) (citations omitted). Here, the

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In a related argument, Harvey contends that the ALJ failed to explain what portions of

Dr. Ricci’s treatment notes he accepted or rejected. This argument is difficult to discern. A

review of the ALJ’s hearing decision reveals that the ALJ not only reviewed Dr. Ricci’s

treatment notes, but thoroughly discussed his findings in connection with fashioning his RFC. 

The ALJ accepted Dr. Ricci’s conclusions as to the severity of Harvey’s impairments, and

specifically found he suffered from degenerative disc disease and headaches. 

9

record is conspicuously devoid of any medical evidence indicating Harvey’s impairments

resulted in physical limitations apart from those credited by the ALJ. Indeed, when Harvey

requested a letter from Dr. Ricci detailing his condition and any work limitations, Dr. Ricci failed

to identify any such limitations, and characterized his condition as “mild” and his pain as

“intermittent” (AR 152-153). See e.g., Lane v. Commissioner of Soc. Sec., 100 Fed.Appx. 90, 95

(3rd Cir. 2004) (unpublished opinion) (lack of medical evidence is “very strong” evidence that

claimant not disabled). Harvey’s argument also overlooks the fact that the final responsibility for

determining an individual’s RFC is reserved to the Commissioner. Schwartz v. Halter, 134 F.

Supp. 2d 640, 650 (E.D.Pa. 2001); 20 C.F.R. § 404.1527(e). We therefore find that the ALJ’s

RFC determination is supported by substantial evidence.

Harvey further argues that the ALJ’s decision demonstrates that he should have sought

clarification of Dr. Ricci’s treatment notes. The ALJ however, apparently felt that the record was

sufficiently developed for purposes of ruling on Harvey’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. Ricci for further clarification under the

circumstances here.2 

Finally, Harvey challenges the ALJ’s credibility determination. An ALJ must consider

subjective complaints by the claimant and evaluate the extent to which those complaints are

supported or contradicted by the objective medical evidence and other evidence in the record. 20

C.F.R. § 404.1529(a). Subjective complaints must be seriously considered, whether or not they

are fully confirmed by the objective medical evidence. See Smith v. Califano, 637 F.2d 968 (3rd

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Cir. 1981). The ALJ as the finder of fact can reject, partially or fully, subjective complaints if he

finds them not credible based on other evidence in the record. Baerga v. Richardson, 500 F.2d

309, 312 (3rd Cir. 1974). The ALJ is empowered to evaluate the credibility of witnesses and his

determination is entitled to deference by this Court. See Van Horn v. Schweiker, 717 F2d 871,

873 (3rd Cir. 1983). In his assessment of Harvey’s credibility, the ALJ found that his claims of

pain and functional limitations were not totally credible (AR 25). 

We find no error in the ALJ’s credibility assessment. The ALJ acknowledged that in his

determination of Harvey’s RFC, he must consider all symptoms, including pain, and the extent to

which these symptoms could reasonably be accepted as consistent with the objective medical

evidence and other evidence, based on the requirements of 20 C.F.R. § 416.929 and SSR 96-7p

(AR 23). In making his determination, the ALJ considered the medical evidence of record, as

well as Harvey’s testimony as to his functional restrictions (AR 23-25). We agree with the ALJ

that the objective findings, as discussed earlier, do not support Harvey’s allegations of disabling

pain and functional limitations. For example, as noted by the ALJ, Harvey’s examinations had

produced straight forward results, and he exhibited good strength and mobility (AR 25). He was

able to care for his young daughter, a task which required exertion beyond that described by

Harvey and which contradicted his testimony that he must lie down virtually all day (AR 25). 

All of the ALJ’s findings are supported by the record in this regard. Moreover, we

observe that the ALJ did not completely reject Harvey’s testimony; indeed, he concluded that his

conditions could reasonably be expected to produce some pain and functional limitations and

fashioned his RFC accordingly (AR 25). We therefore find that there was substantial evidence in

the record, taken as a whole, to support the ALJ’s credibility determination.

IV. CONCLUSION

An appropriate Order follows.

 

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTHONY HARVEY, )

)

Plaintiff, )

) Civil Action No. 05-37 Erie

)

v. )

)

JO ANNE BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, this 11th day of August, 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, Anthony Harvey. The clerk is directed to mark the case

closed. 

s/ Sean J. McLaughlin

United States District Judge

cm: All parties of record. 

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