1 A person is eligible for supplemental security income benefits

if he is “disabled” (as that term is defined elsewhere in the

regulations) and his income and financial resources are below a

certain level. 42 U.S.C. § 1382(a). To be granted a period of

disability and receive disability insurance benefits, a claimant must

show that he contributed to the insurance program, is under retirement

age, and became disabled prior to the date on which he was last

insured. 42 U.S.C. § 423(a).

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DAVID K. MAHLE, )

)

Plaintiff, )

)

vs. ) Civil Action No. 05-292

) 

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

I. INTRODUCTION

Pending before the Court are cross-motions for summary

judgment filed by Plaintiff David K. Mahle and Defendant Jo Anne B.

Barnhart, Commissioner of Social Security. Plaintiff seeks review

of final decisions by the Commissioner denying his claims for

disability insurance benefits (“DIB”) under Title II of the Social

Security Act, 42 U.S.C. §§ 401 et seq., and supplemental security

income benefits (“SSI”) under Title XVI of the Social Security Act,

42 U.S.C. §§ 1381 et seq.1 Plaintiff’s motion is denied,

Defendant’s motion is denied, and the matter is remanded for

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 1 of 45
2 According to the National Institute of Neurological Disorders

and Stroke, a Tarlov cyst is a fluid-filled sac, most often affecting

nerve roots in the sacrum, which can compress nerve roots, causing

lower back pain, sciatica, urinary incontinence, sexual dysfunction,

and/or loss of feeling or control of movement in the leg and/or foot. 

See www.ninds.nih.gov/index.htm.

2

further proceedings in light of the Opinion which follows.

II. BACKGROUND

A. Factual Background

David Mahle worked as an over-the-road truck driver for

many years and then as a truss builder for mobile homes. In March

2001, he returned to driving until he was injured in a fall from

the back of a truck in October 2001. At the time he applied for

benefits, Mr. Mahle stated that he suffered from anxiety attacks,

bilateral carpal tunnel syndrome, lumbar back pain, bilateral

bowler’s elbow, and a Tarlov’s cyst2 in his back. (Certified Copy

of Transcript of Proceedings before the Social Security

Administration, Docket No. 6, “Tr.,” at 83.) He had also

experienced multiple admissions to the hospital for heart-related

problems and psychiatric episodes, and been treated for migraine

headaches, depression, and arthritis. Although he continued to

work for more than two years after the onset of some of these

conditions, he stopped working on October 15, 2002, because of pain

associated with his physical conditions, “a very bad problem

dealing with people,” and the effects of his numerous medications

on his ability to drive safely. (Tr. 83.) 

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 2 of 45
3

B. Procedural Background

On February 27, 2003, Mr. Mahle protectively filed for

disability and supplemental security income benefits (Tr. 73-75 and

705-706, respectively.) Both applications were initially denied on

September 22, 2003 (Tr. 42-46 and 708-712), after which Plaintiff

timely requested a hearing before an Administrative Law Judge

(“ALJ”) on November 7, 2003. (Tr. 47.) 

On February 3, 2005, a hearing was held before the Honorable

John J. Mulrooney at which Plaintiff was represented by counsel.

Judge Mulrooney issued his decision on March 21, 2005, again

denying DIB and SSI benefits. (Tr. 13-26.) The Social Security

Appeals Council declined to review the ALJ’s decision on August 3,

2005, finding no error of law or abuse of discretion and concluding

the decision was based on substantial evidence to support his

findings. (Tr. 6-8.) Therefore, the March 21, 2005 opinion became

the final decision of the Commissioner for purposes of review. 42

U.S.C. § 405(h); Rutherford v. Barnhart, 399 F.3d 546, 549-550 (3d

Cir. 2005), citing Sims v. Apfel, 530 U.S. 103, 107 (2000).

Plaintiff filed suit in this Court on October 5, 2005, seeking

judicial review of the ALJ’s decision.

C. Jurisdiction

This Court has jurisdiction by virtue of 42 U.S.C.

§ 1383(c)(3) (incorporating 42 U.S.C. § 405(g)) which provides that

an individual may obtain judicial review of any final decision of

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 3 of 45
4

the Commissioner by bringing a civil action in the district court

of the United States for the judicial district in which the

plaintiff resides. 

III. STANDARD OF REVIEW

The scope of review by this Court is limited to determining

whether the Commissioner applied the correct legal standards and

whether the record, as a whole, contains substantial evidence to

support the Commissioner's findings of fact. 42 U.S.C. § 405(g);

Richardson v. Perales, 402 U.S. 389 (1971); Schaudeck v. Comm'r of

Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). Findings of

fact by the Commissioner are considered conclusive if they are

supported by “substantial evidence,” a standard which has been

described as requiring more than a “mere scintilla” of evidence,

that is, equivalent to “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Richardson, id.

at 401. “A single piece of evidence will not satisfy the

substantiality test if the [ALJ] ignores, or fails to resolve a

conflict, created by countervailing evidence.” Kent v. Schweiker,

710 F.2d 110, 114 (3d Cir. 1983).

This Court does not undertake de novo review of the decision

and does not re-weigh the evidence presented to the Commissioner.

Schoengarth v. Barnhart, 416 F. Supp.2d 260, 265 (D. Del. 2006),

citing Monsour Medical Center v. Heckler, 806 F.2d 1185, 1190 (3d

Cir. 1986) (the substantial evidence standard is deferential,

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 4 of 45
3 According to 20 C.F.R. § 416.972, substantial employment is

defined as "work activity that involves doing significant physical or

mental activities. . . . Work may be substantial even if it is done on

a part-time basis." “Gainful work activity” is the kind of work

activity usually done for pay or profit. 

5

including deference to inferences drawn from the facts if they, in

turn, are supported by substantial evidence.) If the decision is

supported by substantial evidence, the Court must affirm the

decision, even if the record contains evidence which would support

a contrary conclusion. Panetis v. Barnhart, CA No. 03-3416, 2004

U.S. App. LEXIS 8159, *3 (3d Cir. Apr. 26, 2004), citing Simmonds

v. Heckler, 807 F.2d 54, 58 (3rd Cir. 1986), and Sykes v. Apfel,

228 F.3d 259, 262 (3rd Cir. 2000).

IV. LEGAL ANALYSIS

A. The ALJ’s Determination

In determining whether a claimant is eligible for

supplemental security income or disability insurance benefits, the

burden is on the claimant to show that he has a medically

determinable physical or mental impairment (or combination of such

impairments) which is so severe he is unable to pursue substantial

gainful employment3 currently existing in the national economy.

The impairment must be one which is expected to result in death or

to have lasted or be expected to last for not less than twelve

months. 42 U.S.C. § 1382c(a)(3)(C)(i); Morales v. Apfel, 225 F.3d

310, 315-316 (3d Cir. 2000).

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 5 of 45
4 The same test is used to determine disability for purposes of

receiving either type of Social Security benefits. Burns v. Barnhart,

312 F.3d 113, 119, n1 (3d Cir. 2002). Therefore, courts routinely

consider case law developed under both SSI and DIB applications.

5 Briefly stated, residual functional capacity, or RFC, is the

most a claimant can do despite his recognized limitations. Social

Security Ruling 96-9 defines RFC as "the individual's maximum

remaining ability to perform work on a regular and continuing basis,

i.e., 8 hours a day, for 5 days a week, or an equivalent work

schedule." See also 20 C.F.R. § 416.945. 

6

To determine a claimant’s rights to either SSI or DIB,4 the

ALJ conducts a formal five-step evaluation: 

(1) if the claimant is working or doing substantial gainful

activity, he cannot be considered disabled; 

(2) if the claimant does not suffer from a severe impairment

or combination of impairments that significantly limits

his ability to do basic work activity, he is not

disabled; 

(3) if the claimant does suffer from a severe impairment

which meets or equals criteria for an impairment listed

in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the

Listings”) and the condition has lasted or is expected to

last continually for at least twelve months, the claimant

is considered disabled; 

(4) if the claimant retains sufficient residual functional

capacity5 (“RFC”) to perform his past relevant work, he

is not disabled; and 

(5) if, taking into account the claimant's RFC, age,

education, and past work experience, the claimant can

perform other work that exists in the local, regional or

national economy, he is not disabled. 

20 C.F.R. § 416.920(a)(4); see also Morales, 225 F.3d at 316. 

In steps one, two, and four, the burden is on the claimant to

present evidence to support his position that he is entitled to

Social Security benefits, while in the fifth step the burden shifts

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 6 of 45
6 Step three involves a conclusive presumption based on the

listings, therefore, neither party bears the burden of proof at that

stage. Sykes, 228 F.3d at 263, n2, citing Bowen v. Yuckert, 482 U.S.

137, 146-147 n5 (1987).

7

to the Commissioner to show that the claimant is capable of

performing work which is available in the national economy.6 Sykes

v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000).

Following the prescribed analysis, Judge Mulrooney first

concluded that Mr. Mahle had not engaged in substantial gainful

activity since alleging disability on October 15, 2002. (Tr. 17.)

In resolving step two in Plaintiff’s favor, the ALJ found that he

suffered from numerous physical impairments: obesity, cervical and

lumbar disc disease, osteoarthritis, carpal tunnel syndrome,

bowler’s elbow, coronary artery disease, hypertension, hearing

loss, migraine headaches, chronic pain syndrome, and sleep apnea.

His mental impairments included an adjustment disorder, a

depressive disorder, a mood disorder, and an anxiety disorder.

(Id.) He further concluded that although Mr. Mahle reported

gastritis, gastroesophageal reflux disease (“GERD”), overactive

bladder, internal hemorrhoids, and previous bilateral hernias,

those impairments did not have more than a minimal impact on his

ability to perform work-related activities and were therefore nonsevere. As such, the ALJ did not consider those impairments in his

subsequent analysis. (Tr. 18.)

At step three, the ALJ concluded that Plaintiff’s impairments,

taken alone or in combination, did not satisfy any of the criteria

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 7 of 45
7 Plaintiff argues that the ALJ improperly rejected his musculoskeletal complaints because he failed to acknowledge “uncontradicted

expert medical evidence supporting an exertional musculoskeletal

problems, with elements of the musculoskeletal listing satisfied.”

(Plf.’s Brief at 23.) In related arguments, he contends that the ALJ

erroneously relied on his own observations to override medical

evidence and opinions of treating physicians Shaughnessy and Kunkel

who diagnosed Plaintiff with cervical radiculitis and lumbar

radiculopathy. (Plf.’s Brief at 20, citing Tr. 569 and 573-576.)

However, he fails to identify which of the seven musculoskeletal

impairments he satisfies. In reviewing each of those subcategories,

the Court concludes the ALJ did not err in finding that Plaintiff’s

impairments did not satisfy any of them. 

Dr. Patrick J. Shaughnessy, who examined Plaintiff three times

between March 26, and April 28, 2004, noted dysfunction in the lumbar

spine and sacral region, but no lower extremity joint alignment

problems, no crepitus with motion and no significant atrophy. His

overall impression was of a sacral cyst, mild left C6 radiculitis

(inflammation of the root of a spinal nerve), bilateral carpal tunnel

syndrome and cervical and lumbar spondylosis (immobility or

consolidation of a vertebral joint or degenerative spinal changes due

to osteoarthritis.) His final overall musculoskeletal impression was

cervical and lumbar degenerative disc disease. (Tr. 565-569.) Dr.

Frank Kunkel, a pain specialist, examined Plaintiff on July 7, 2004. 

(Tr. 573-576.) Dr. Kunkel ordered an MRI to investigate if the

Tarlov’s cyst was a possible “fixable” source of his lower back pain. 

(Tr. 576.) Following a second examination on October 11, 2004, Dr.

Kunkel diagnosed him with lumbar radiculopathy (disease of the nerve

roots.) (Tr. 571.) On November 11, 2004, Dr. Catherine Cunningham

ordered a series of x-rays of Plaintiff’s thoracic and lumbar spine

and knees. (Tr. 489-490.) All results were normal, with no evidence

of spondylosis or spondylolisthesis (forward displacement of one

vertebra over another.) 

Contrary to Plaintiff’s argument, there is no evidence that he

experiences the “gross anatomical deformity. . . joint space

narrowing, bony destruction, or ankylosis of the affected joint(s),”

together with “an inability to ambulate effectively,” which are

required to satisfy Listing 1.02, major dysfunction of a joint due to

any cause. Nor is there evidence of a spinal disorder accompanied by

nerve root compression, spinal arachnoiditis or lumbar spinal stenosis

sufficient to satisfy Listing 1.04, disorders of the spine. “For a

claimant to show that his impairment matches a listing, it must meet

all of the specified medical criteria. An impairment that manifests

only some of those criteria, no matter how severely, does not

qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see also

Peterson v. Barnhart, 215 F. Supp.2d 439, 448 (D. Del. 2002).

The Court concludes that the ALJ’s summary of the medical

8

in 20 C.F.R. Part 404, Subpart P, Appendix 1, specifically Listings

1.00 Musculoskeletal System,7 2.00 Special Senses and Speech, 3.00

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 8 of 45
evidence offered by Drs. Shaughnessy, Kunkel and Cunningham is

accurate and there is nothing in their records to support Plaintiff’s

argument that the ALJ relied on his own observations rather than

medical evidence. As to his argument that the ALJ further erred by

failing to consider his need for hospital care in light of “numerous”

in-patient or emergency treatments after October 15, 2002 (Plf.’s

Brief at 21), the Court finds that none of the hospitalizations after

his onset date were due to vertebrogenic disorders.

8 Plaintiff was 45 years old at his alleged disability onset

date and 47 at the time of the hearing, making him a “younger” person

according to Social Security regulations. 20 C.F.R. § 404.1563(c) and

§ 416.963(c). Plaintiff does not argue that any special circumstances

existed which would affect his ability to adjust to work as compared

to persons under 45. 

9

Respiratory System, 4.00 Cardiovascular Systems, 11.00

Neurological, 12.00 Mental Disorders, or any other listed

impairments. (Tr. 17-18.) At step four, the ALJ concluded that

Mr. Mahle could not perform his previous work as a truck driver or

truss builder, activities which the vocational expert (“VE”) at the

hearing, Mr. Mark L. Heckman, classified as semi-skilled, medium to

heavy work activity. (Tr. 23.) 

In response to the ALJ’s hypothetical question (discussed

below), Mr. Heckman stated that there were numerous sedentary jobs

such as product inspector, nut sorter, and hand assembler which an

individual of Mr. Mahle’s age, education, and physical/mental

limitations could perform in the local or national economy. (Tr.

24.) Therefore, based on Plaintiff’s status as a younger

individual8 with a general equivalency diploma, a work history of

semi-skilled occupations, and the medical evidence of record, the

ALJ determined at step five that Mr. Mahle was not disabled and,

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 9 of 45
10

consequently, not entitled to benefits. (Tr. 24.)

B. Plaintiff’s Arguments

Plaintiff offers some thirteen reasons why the decision

of the ALJ should be reversed and benefits granted without further

review. Many of these are redundant or non-specific and will not

be addressed herein. However, we agree that four aspects of the

ALJ’s decision lack adequate detail or analysis in order for this

Court to determine if his conclusions are based on substantial

evidence. See Burnett v. Commissioner of Social Sec. Admin., 220

F.3d 112, 119-120 (3d Cir. 2000), concluding that remand is the

proper course of action where the ALJ’s analysis was “beyond

meaningful judicial review.” We address in turn: 

1. the effect of Plaintiff’s migraine headaches on his

ability to do substantive gainful activity;

2. the characterization of Plaintiff’s activities of daily

living;

3. the analysis of Plaintiff’s mental health impairments;

and

4. the weight the ALJ gave to the medical opinions of

Plaintiff’s long-term treating physicians as compared to

the opinions of non-examining state agency physicians, in

particular, the conclusions by Drs. Forrest Henry and

Gregory Sachs that Plaintiff was “disabled,” and those of

Dr. Catherine Cunningham regarding his pain and RFC.

1. The ALJ’s failure to explain the effect of

Plaintiff’s migraine headaches on his ability to perform

substantial gainful activity: According to Plaintiff, the ALJ

improperly discounted the effect of his migraine headaches, stating

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 10 of 45
9 Social Security regulations identify three general categories

of medical sources – treating, non-treating, and non-examining. 20

C.F.R. § 416.902. Physicians, psychologists and other acceptable

medical sources who have provided the claimant with medical treatment

or evaluation and who have had an "ongoing treatment relationship"

with him are considered treating sources. A non-treating source is

one who has examined the claimant but does not have an ongoing

treatment relationship with him, for example, a consultative examiner

who is not also a treating source. Id. Finally, non-examining

sources, including state agency medical consultants, are those whose

assessments are premised solely on a review of medical records. Id.

11

that Plaintiff failed to provide any objective medical test to

support his claims. Mr. Mahle contends that “there is no medical

evidence in this record to allow the ALJ to conclude that positive

tests are required to support the migraine headache diagnosis.

Furthermore, . . . this record is replete with inpatient,

outpatient, and physician record of treatment illustrating longstanding, severe and lengthy debilitating headaches, triggered and

exacerbated by stress.” (Plaintiff’s Brief, Docket No. 16, “Plf.’s

Brief,” at 21.) Defendant contends that Plaintiff’s headaches were

well-controlled by medication prescribed by Dr. Henry, one of

Plaintiff’s long-term treating physicians9 (Tr. 264), and that a

chiropractor who treated him for neck pain and headaches, Timothy

Purcell, had opined in May 2003 that Plaintiff had only moderate

limitations in his physical functions despite his headaches.

(Defendant’s Brief in Support of Her Motion for Summary Judgment,

Docket No. 20, “Def.’s Brief,” at 6-7.) Consequently, the ALJ was

not required to find Plaintiff’s headaches “more limiting.” (Id.

at 22-23.) 

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 11 of 45
12

In his analysis, the ALJ found the medical evidence supported

Plaintiff’s claims of a history of migraine headaches. He noted

that “in September 2003, a CT scan of the head revealed no evidence

of an acute abnormality; and an MRI of the brain in October 2003,

was essentially normal with no evidence of extra-axial fluid

collection or mass lesions.” (Tr. at 19, citing Exhibit 25F, Tr.

465 and 468.) He noted that a July 2004 physical examination by

Dr. Frank Kunkel, a pain specialist who treated Plaintiff at Dr.

Henry’s request, “revealed intact cranial nerves.” The ALJ also

commented that Mr. Mahle “has not required frequent hospital

confinement/emergency room care due to recurrent headaches; and

there is no evidence that claimant’s headaches are accompanied by

significant complications such as nausea, blurred vision or

syncope.” (Tr. 19.)

It is unclear if the ALJ referred to these medical reports in

order to refute Plaintiff’s claims that his migraine headaches were

a severe impairment. As reported in the medical literature,

however, migraine headaches cannot be detected by imaging

techniques, laboratory tests, or physical examination, but are

linked to disturbances in cranial blood flow. According to the online edition of the Merck Manual home edition,

Migraines are diagnosed on the basis of symptoms. No

procedure can confirm the diagnosis. If headaches have

developed recently or if the pattern of symptoms has

changed, computed tomography (CT) or magnetic resonance

imaging (MRI) of the head is performed to exclude other

disorders.

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 12 of 45
13

See www.merck.com, “Migraines.”

At the hearing, Plaintiff testified that he experienced

“massive headaches” on the right side of his head, three or four

times every two weeks, lasting “pretty much all day.” (Tr. 742.)

He also referred to “throbbing,” “lights” and “sound.” The

headaches are associated with stress. (Tr. 743.) According to the

Merck Manual, these symptoms are consistent with migraine

headaches. (“A migraine headache is throbbing, moderate to severe

pain, usually on one side of the head, that is worsened by physical

activity, light, sounds, or smells and that is associated with

nausea and vomiting.”) "Because there is no test for migraine

headaches, 'when presented with documented allegations of symptoms

which are entirely consistent with the symptomatology for

evaluating the claimed disorder, the [Commissioner] cannot rely on

the ALJ's rejection of the claimant's testimony based on the mere

absence of objective evidence.'" Federman v. Chater, CA No. 95-

2892, 1996 U.S. Dist. LEXIS 2893, *6 (S.D.N.Y. Mar. 11, 1996),

quoting Fragale v. Chater, 916 F. Supp. 249, 254 (W.D.N.Y. 1996).

While the ALJ was correct in concluding that Plaintiff had not

required “frequent” hospital confinement or emergency room

treatment due to recurrent headaches, the medical record contains

numerous references to ongoing treatment. Mr. Mahle first reported

migraine headaches after he was involved in a traffic accident in

1995. (Tr. 275; 460; 595.) On December 14, 2000, he reported to

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 13 of 45
10 Defendant’s argument that Dr. Henry noted migraine headaches

only as a secondary diagnosis when opining that Plaintiff was

temporarily disabled in December 2002 (see Def.’s Brief at 23) is not

persuasive. In steps three and four of his analysis, the ALJ is

required to consider the effect of all impairments which he determines

at step two to be “severe.” Cadillac v. Barnhart, No. 03-2137, 2003

U.S. App. LEXIS 24888, *11-*12 (3d Cir. Dec. 10, 2003), citing 20

C.F.R. §§ 404.1526(a) and 2404.1523 (in assessing eligibility for

benefits, the Commissioner "will consider the combined effect of all

... impairments without regard to whether any such impairment, if

considered separately, would be of sufficient severity.") 

14

his primary care physician that his “migraines have been

persistent” despite medication. (Tr. 590.) He reported migraine

headaches secondary to stress in March 2001. (Tr. 152.) He

received chiropractic treatment from 2002 through 2003 for pain and

migraine headaches which he described as “crushing and squeezing.”

(Tr. 257-259.) On February 17, August 26, and October 6, 2003,

Plaintiff reported headaches to Dr. Henry. (Tr. 232, 433 and 431,

respectively.) He reported “pulsatile bi-temporal headaches with

photo- and phono-phobia” to a neurologist at the Veterans Affairs

Medical Center (“VAMC”) in Butler, Pennsylvania, on June 4, 2003,

and stated that the medication prescribed by Dr. Henry was

effective in aborting those headaches. (Tr. 264-265.) However, on

November 12, 2003, he reported to Dr. Henry that he had been

suffering from a headache for three days.10 (Tr. 238.) 

According to the record, Plaintiff was admitted to Clarion

Hospital for intractable headaches on February 13, 2003,

accompanied by numbness in his hand. His wife reported that his

headache was so severe, he “wanted to shoot himself.” (Tr. 167-

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 14 of 45
11 Plaintiff argues elsewhere that the ALJ erred by concluding

these impairments were non-severe, and, consequently, by failing to

include them in his analysis. (Plf.’s Brief at 20.) We have been

unable to identify any medical report which would support Mr. Mahle’s

testimony that he experiences uncontrollable incontinence and diarrhea

attacks three to five times a month. (Tr. 728-729, 737-738.) (See

occasional references to reports of irritable bowel syndrome, Tr. 282;

peptic ulcer disease, Tr. 471 and 691; diarrhea, Tr. 568, 633-634,

681; and overactive bladder, Tr. 691.) Similarly, although Mr.

Mahle’s medical records include occasional diagnoses of GERD (e.g.,

Tr. 341, 381, 384, 497, 650, 692), those references do not establish

that this impairment is “severe.” See 20 C.F.R. §§ 404.1520(c),

15

169.) Although a CT scan with and without contrast and an MRI were

unremarkable (Tr. 174-175), such tests might rule out other

etiologies for severe head pain but would not, as noted above, rule

out migraine headaches. 

As of March 2003, Plaintiff reported that he was taking three

separate drugs for migraine headaches (Tr. 90) – Maxalt, a drug

used to treat severe migraine headaches, propranolol, which may

prevent migraines, and Imitrex, also used to treat severe migraine

headaches and relieve associated symptoms such as nausea, vomiting,

sensitivity to light, and sensitivity to sound. See

www.nlm.nih.gov/medlineplus and www.merck.com. 

The chief problem with the ALJ’s treatment of Plaintiff’s

migraine headaches is that at step two of his analysis, the ALJ

listed them among the impairments which Plaintiff claimed limited

his ability to perform substantial gainful activity. (Tr. 17.) He

then concluded that Plaintiff’s gastritis, GERD, overactive

bladder, internal hemorrhoids, and status post-hernia repair were

non-severe impairments,11 implying (but not explicitly stating) that

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 15 of 45
404.1521(a), and 140.1521(b), stating that an impairment is severe

only if it significantly limits the claimant's “physical ability to do

basic work activities,” i.e., “abilities and aptitudes necessary to do

most jobs, including, for example, walking, standing, sitting,

lifting, pushing, pulling, reaching, carrying or handling,” as

compared to “a slight abnormality” which has such a minimal effect

that it would not be expected to interfere with the claimant’s ability

to work, regardless of his age, education, or work experience. 

Yuckert, 482 U.S. at 149-151. The claimant has the burden of showing

that the impairment is severe. Id. at 146, n5. The Court concludes

that Plaintiff has failed to do so. Moreover, although the ALJ found

the bladder and bowel problems non-severe, he gave Plaintiff the

benefit of the doubt on this issue by taking these complaints into

account when formulating his hypothetical question. (Tr. 749-750.)

12 “Social Security Rulings are agency rulings published ‘under

the authority of the Commissioner of Social Security’ and ‘are binding

on all components of the Social Security Administration.’” Sykes, 228

F.3d at 271, citing 20 C.F.R. § 402.35(b)(1). “Rulings do not have

the force and effect of the law or regulations but are to be relied

upon as precedents in determining other cases where the facts are

basically the same.” Sykes, id., quoting Heckler v. Edwards, 465 U.S.

870, 873 n3 (1984).

16

the migraines were a severe impairment. (Tr. 18.) Once the ALJ

has established that a claimant suffers from an impairment, that

restriction must be considered "severe" unless the evidence

demonstrates that it is merely a "slight abnormality," having "no

more than a minimal effect on an individual's ability to work."

Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 546-547 (3d Cir.

2003), quoting Social Security Ruling (”SSR”) 85-28.12 "Reasonable

doubts on severity are to be resolved in favor of the claimant."

Newell, id. at 547. Here, however, the ALJ made no explicit

finding as to the effect of Plaintiff’s migraine headaches. Nor

did he refer to them when assessing Plaintiff’s credibility

regarding his subjective complaints. (Tr. 21-22.) 

The ALJ posed the following hypothetical question to the

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 16 of 45
13 The term “sedentary” describes work which requires lifting no

more than 10 pounds at a time and occasionally lifting or carrying

articles like docket files, ledgers and small tools. Jobs are

sedentary even if walking and standing are required occasionally and

other sedentary criteria are met. 20 C.F.R. § 404.1567. A sedentary

job should require no more than approximately 2 hours of standing or

walking per eight-hour work day, and sitting should typically amount

to six hours per eight-hour work day. SSR 83-10. 

14 The ALJ later added an additional restriction, limiting the

hypothetical individual to occupations which could be performed while

wearing an incontinence protection pad. (Tr. 749-750.)

17

Vocational Expert: 

a hypothetical individual with claimant’s past education,

training, work experience and assume that my hypothetical

person is limited to a sedentary range of work as that

term is defined under the regulations.13 Assume the

person is limited to occasional postural maneuvers such

as balancing, stooping, kneeling, crouching, crawling and

climbing on ramps and stairs on no more than an

occasional basis. Assume the person must avoid all

crawling and climbing on ladders, ropes or scaffolds.

Assume this person must be afforded the option to sit and

stand during the workday. Assume the person is limited

to occasional pushing and pulling with the upper

extremities to include the operation of hand levers.

Assume the person is limited to occupations which do not

require exposure to dangerous machinery and unprotected

heights or the need to converse over excessive background

noise. . . . Assume the person is limited to occupations

which can be performed wearing hearing aids. Assume the

person is limited to simple, routine, repetitive tasks

not performed in a fast paced production environment

involving only simple work related decisions and in

general relatively few work place changes. Assume the

person is limited to occasional interaction with

supervisors and co-workers and by interaction, I don’t

mean just being in the same place at the same time with

people. I mean actually having to subtly [sic] interact

with those people. Assume the person must avoid all

interactions. . . with members of the general public.

Within those limitations, are there jobs in the national

or local economy that that hypothetical person could

perform at the sedentary level? 

(Tr. 748-749.)14

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 17 of 45
18

The Court is unable to discern in this description any

limitations stemming from Plaintiff’s migraine headaches. A proper

hypothetical question must reflect “all of a claimant's impairments

that are supported by the record” in order for the response by the

vocational expert to be considered “substantial evidence.”

Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). 

It should be noted we do not find that the ALJ erred by

finding that Plaintiff’s headaches were not a severe impairment or

by rejecting Plaintiff’s testimony about the frequency, duration,

and effect thereof. We conclude only that the text of the decision

is ambiguous as to whether the ALJ considered the migraine

headaches to be a severe or non-severe impairment and, if the

former (as seems to be the case), why limitations imposed thereby

were not incorporated in the hypothetical question. Accordingly,

remand is required for clarification of this issue. See Diaz v.

Barnhart, CA No. 01-0525, 2002 U.S. Dist. LEXIS 12147, *19-20 (E.D.

Pa. 2002), citing McCormick v. Sec'y of Health & Human Servs., 861

F.2d 998, 1000 (6th Cir. 1988). 

2. Characterization of Plaintiff’s activities of daily

living: Plaintiff argues that the ALJ omitted references to

significant limitations Mr. Mahle incorporated when describing his

activities of daily living. As a result, the ALJ’s conclusions

both about Plaintiff’s credibility and his ability to perform workrelated tasks may be unfounded. (Plf.’s Brief at 22.) We agree.

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 18 of 45
19

The ALJ noted the following with regard to Plaintiff’s daily

activities:

. . . the claimant reported on a Daily Activities

Questionnaire that he is able to drive and leave his home

to grocery shop and that his activities include cooking

and watching television. (Tr. 17, citing Exhibit 4E, Tr.

102-111.)

As to activities of daily living, there are mild

limitations. The claimant reported he is able to care for

his personal needs independently, drive, watch

television, read the newspaper, use the computer,

occasionally dine out at restaurants and perform various

household chores such as cooking, washing dishes, and

grocery shopping. (Tr. 20, citing Exhibit 4E and

testimony; repeated essentially verbatim at Tr. 21 in

discussing Plaintiff’s subjective complaints.)

On the Daily Activities Questionnaire to which the ALJ

referred, however, Plaintiff stated that:

he drove “not any more than I have to,” limiting trips to

Walmart (4 miles) and to his father’s home (5 miles);

he cooks “small meals” for himself when he is at home

alone;

he was dependent on his girlfriend (later his wife) for

assistance in his personal needs such as helping him sit

up, getting out of bed, a chair or the bathtub, washing

his hair and back, and putting on socks when he is unable

to bend his knees;

he was able to load and unload grocery bags “some days”

and was able to carry two bags at once, although he had

to sit down “for a while” when shopping.

(Tr. 102-105.)

The ALJ also relied on Plaintiff’s testimony regarding his

activities of daily living. He testified in relevant part that he

drove his wife to the grocery store, but if the store was crowded,

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 19 of 45
20

he stayed in the car in order to “stay out of trouble” with people.

(Tr. 731.) He was able to wash “a few” dishes but could not do

laundry because it involved too much stooping and reaching. When he

reads the newspaper, he finds it difficult to concentrate, and

although he is able to use a computer, it is difficult for him to

sit very long. (Tr. 732.) When he goes to a restaurant on

occasion, he sits “in a corner” in order to avoid interactions.

(Tr. 734.) On a “good day,” he can sustain an activity for an hour

or two, sometimes a little more, then has to lie down for an hour

or two, while on a “bad day,” he is able to sustain activity for 30

minutes then has to lie down for 3 or 4 hours; on some days, he is

unable to get out of bed at all. (Tr. 743-744.)

An ALJ's credibility determinations are entitled to great

deference and should not be discarded lightly, given his

opportunity to observe the claimant’s demeanor. Reefer v.

Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). Activities of daily

living are one of several subjective matters an ALJ must consider

in evaluating the intensity and persistence of a claimant’s

symptoms and determining the extent to which those symptoms limit

his/her capacity for work. 20 C.F.R. §§ 404.1529(c)(3)(i) and

416.929(c)(3)(i). However, by omitting the restrictions on those

activities noted by Plaintiff in both his testimony and his

questionnaire – e.g., he needs assistance with his personal care,

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 20 of 45
15 Although Defendant points out that Mr. Mahle drove himself to

the hearing before the ALJ, held in Latrobe, Pennsylvania, from his

home in Emlenton, Pennsylvania (Def.’s Brief at 19-20), he stated that

he did so because there was no one else to drive for him. (Tr. 730.) 

21

he limits his driving,15 his ability to grocery shop is limited by

both the amount he can carry and his need to rest while shopping –

the ALJ may have over-estimated the Plaintiff’s residual functional

capacity. See SSR 96-8p (RFC is an assessment of an individual's

maximum ability to do sustained work-related physical and mental

activities in a work setting for eight hours a day, 5 days a week,

or an equivalent work schedule.) Moreover, as to Defendant’s

argument that Plaintiff reported to medical personnel that he could

care for his personal needs (Def.’s Brief at 18, citing Tr. 166),

a single check mark on a hospital intake form indicating that he

does not need assistance with daily living hardly constitutes

“substantial evidence” which would convince a reasonable mind that

he can function independently on a sustained basis. Nor do we find

persuasive Defendant’s argument that as late as 2003, Plaintiff

reported he was still able to go fishing. (Def.’s Brief at 5.)

When discussing that activity in the questionnaire, he also noted

that by 2003, he was no longer able to do more vigorous activities

such as playing ball with his son, hunting, swimming, and going on

walks at a state park. (Tr. 104.) 

Sporadic or transitory activity such as shopping for the

necessities of life does not disprove the inability to maintain

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 21 of 45
16 We recognize that this a close issue, due to the deference

afforded to an ALJ's credibility determinations. However, in light of

the guidance set forth in Smith, supra, and the fact that there is

conflicting evidence regarding Plaintiff’s RFC as discussed in section

B.4 hereof, we conclude this issue is significant enough to require

consideration on remand. 

22

substantial gainful employment. See Smith v. Califano, 637 F.2d

968, 971-972 (3d Cir. 1981). The law does not require a complete

restriction from recreational and other activities as a

prerequisite to a finding of disability. Smith, id. at 971.

(“Disability does not mean that a claimant must vegetate in a dark

room excluded from all forms of human and social activity.”) On

remand, the ALJ should explain why he concluded that the totality

of the evidence of Mr. Mahle’s activities of daily living –

including Plaintiff’s stated limitations on his ability to pursue

those activities – supports a conclusion that he is able to

maintain gainful employment on a regular basis.16

3. The ALJ’s analysis of Plaintiff’s mental health

impairments: Plaintiff argues that despite documentation of

repeated emergency room visits and ongoing treatment for “severe

mental health signs and symptoms,” the ALJ improperly minimized his

mental impairments. The ALJ also failed to reject, analyze or

explain a mental functional assessment by the state agency

psychologist, Dr. Manella Link. (Plf.’s Brief at 20, citing Tr.

300-314.) Plaintiff further contends that the ALJ improperly

analyzed his mental health impairments in a number of ways, e.g.,

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 22 of 45
17 In this section, the ALJ refers to “B criteria” and “C

criteria.” (Tr. 19-20.) Listings 12.04 and 12.06 require a threepart analysis. In either listing, a claimant must meet one category A

criterion and either two of the four category B criteria or one of the

three category C criteria. The criteria in each category are the same

for both Listings. The “A criteria” relate to medical findings of

either affective disorder (Listing 12.04) or anxiety-related disorders

(Listing 12.06.) Here, the ALJ concluded, as stated above, that Mr.

Mahle had been diagnosed with adjustment, depressive, mood and anxiety

disorders, thus satisfying the “A criteria” for each Listing. 

Plaintiff’s argument that the ALJ erred by failing to analyze the “A

criteria” (Plf.’s Brief at 22) is therefore unavailing because if he

had not accepted the medical diagnoses at face value, he would have

had no reason to continue his analysis. The “B criteria” require the

claimant to show that his mental impairment results in marked

restrictions in two of four broad areas of function: activities of

daily living; social functioning; concentration, persistence or pace;

and episodes of decompensation of extended duration. The “C criteria”

are a medically documented history of a mental impairment lasting for

at least two years, resulting in more than a minimal limitation of

ability to do basic work activities, with symptoms or signs currently

23

relying on his personal observations to reject the medical

evidence, and requiring evidence of psychosis, suicidal or

homicidal behavior despite the fact that such behaviors do not

pertain to diagnoses of affective disorders or anxiety-related

disorders. (Plf.’s Brief at 21 and 24.)

In his decision, the ALJ noted that Mr. Mahle had been

diagnosed with adjustment, depressive, mood, and anxiety disorders.

(Tr. 19.) He therefore evaluated Plaintiff’s mental impairments

under Listings 12.04 Affective Disorders, and 12.06 Anxiety Related

Disorders. The ALJ considered the effect these impairments had on

Plaintiff’s ability to perform activities of daily living; function

in social settings; concentrate, persist or maintain pace at workrelated job tasks; and whether he had experienced episodes of

decompensation of an extended duration.17 He concluded, based on

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 23 of 45
attenuated by medication or psychosocial support, and one of the

following: (1) repeated episodes of decompensation, each of extended

duration; (2) a residual disease process resulting in such minimal

adjustment that even a minimal increase in mental demands or change in

the environment would be predicted to cause decompensatation; or (3) a

current history of one or more years' inability to function outside a

highly supportive living arrangement, with an indication of continued

need for such an arrangement. Plaintiff does not argue that the ALJ

erred by failing to find that he satisfied either Listing 12.04 or

12.06 at step three of his analysis.

24

Plaintiff’s testimony and his daily activities questionnaire, that

there were mild limitations as to activities of daily living and

moderate limitations as to his social functioning, e.g., there was

no evidence of legal difficulties due to maladaptive social

behavior, he could leave home to grocery shop and occasionally dine

out, and he had no difficulty interacting with counsel and engaged

in no inappropriate social behavior during the hearing. (Tr. 20.)

He found only moderate limitations with regard to Plaintiff’s

concentration, persistence, or pace, indicating that he retained

the ability to perform simple, repetitive, routine job tasks. In

arriving at this conclusion, the ALJ again relied on Plaintiff’s

self-reported activities of daily living, the fact that he was able

to respond to all questions at the hearing in an appropriate manner

with no overt lapses in concentration, and on medical reports from

Dr. Frank Kunkel, noting that in July 2004, Mr. Mahle was alert

with no signs of addiction, diversion behavior or medication excess

(Tr. 576) and from Dr. Barbara J. Wilson, a geropsychologist at the

VAMC, who noted in February 2005 that Mr. Mahle demonstrated

“coherent and logical thinking, intact insight and judgment and no

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 24 of 45
25

signs of psychoses or suicidal/homicidal ideation.” (Tr. 20,

citing Exhibit 37F, Tr. 686-687.) Finally, the ALJ found there was

no evidence to satisfy any of the “C criteria.” (Tr. 21; see also

note 17 herein, explaining in detail the B and C criteria.) 

Although not explicitly stating his findings as to the

severity of Plaintiff’s mental impairments, the ALJ clearly

considered them when posing the hypothetical question to the

Vocational Expert. As noted above, that question limited possible

jobs to those involving “simple, routine, repetitive tasks not

performed in a fast-paced production environment,” “simple work

related decisions,” “relatively few work place changes,”

“occasional interaction with supervisors and co-workers,” and no

interaction with the public. (Tr. 748-749.) 

We quickly address three of Plaintiff’s arguments on this

issue. Regarding the ALJ’s alleged reliance on his personal

observations, an ALJ does not err by incorporating his own

observations of the claimant when ascertaining a claimant’s

credibility, including statements about the effect of the

impairments on his ability to undertake substantive gainful

employment. Morales, 225 F.3d at 318. However, such observations

alone “do not carry the day and override the medical opinion of a

treating physician that is supported by the record.” Id. Here,

the ALJ observed Mr. Mahle’s behavior during the hearing, but he

also noted and relied on reports from both Drs. Kunkel and Wilson.

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 25 of 45
18 In his brief, Plaintiff refers to an admission on March 23,

2003 for shortness of breath and trouble keeping awake (Tr. 206-226)

and an admission for chest pains on October 9, 2003 (Tr. 375-396.) In

those instances, medical staff noted associated anxiety, but in

neither instance was his mental condition the admitting diagnosis. He

further refers to Tr. 388 and Tr. 565 as evidence of “hospital

treatment for anxiety attacks.” (Plf.’s Brief at 28.) The Court has

considered those citations and finds that neither of them refers to

hospital treatment for anxiety. In particular, Tr. 565 is Dr.

Shaughnessy’s office notes referring to a hospital admission in April

26

Secondly, the ALJ did not err by requiring evidence of

psychoses, suicidal or homicidal ideation. A fair reading of the

ALJ’s decision shows that he did not improperly add those factors

to his consideration of Listings 12.04 and 12.06 as Plaintiff

argues, but rather, such references appear only when the ALJ is

describing Dr. Wilson’s findings. (Tr. 20.) While these

references may be extraneous, the ALJ’s overall analysis of the

Listings in question is properly conducted.

Third, Plaintiff’s argument regarding recent in-patient

hospitalizations for “severe mental health signs and symptoms” is

not supported by the record. The Court has been able to identify

only a single hospitalization due to his mental impairments after

the episodes in 1998 when Mr. Mahle was hospitalized twice during

a series of marital conflicts. Mr. Mahle suffered an anxiety

attack on February 19, 2003, and was admitted to Clarion Hospital

with shortness of breath, nausea, dizziness, and anxiety. (Tr.

176-187.) Other hospitalizations noted by Plaintiff refer to

anxiety associated with physical problems, but there are no

hospitalizations because of depression or anxiety.18

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 26 of 45
2004 for an accidental drug overdose. The medical records for that

event do not refer to anxiety or depression. (See Tr. 533-559.) Tr.

388 is an abnormal ECG dated October 9, 2003, which does not refer to

anxiety or depression.

19 Although the Social Security Administration noted on June 10,

2003, that Mr. Mahle had been scheduled for a mental evaluation, the

interview was apparently cancelled after it was pointed out that there

were two recent “acceptable source” opinions from the VAMC in

Plaintiff’s file. (Tr. 81.) As noted above, it is unclear from Dr.

Link’s review if she considered the May 8, 2003, evaluation.

27

While none of these arguments is persuasive, we do agree with

Plaintiff that the ALJ may have failed to consider all the medical

evidence regarding Mr. Mahle’s ongoing treatment for depression and

anxiety. On June 10, 2003,19 Dr. Manella Link, a state agency

psychologist, completed a psychiatric review technique form, noting

that Plaintiff had been diagnosed with depressive disorder of nonspecific origin and chronic pain syndrome, both of which she

analyzed under Listing 12.04. In reviewing the “B criteria,” Dr.

Link found that there were mild limitations as to Plaintiff’s daily

activities and his social functioning, moderate limitations on his

ability to concentrate and maintain persistence or pace, and

insufficient evidence regarding repeated episodes of decompensation

of an extended duration. Similarly, she concluded there was no

evidence to support a finding that Mr. Mahle satisfied any of the

“C criteria” of the Listing. (Tr. 300-312.) 

Dr. Link also completed a mental residual functional capacity

review (Tr. 313-315) in which she concluded Plaintiff demonstrated

at most only moderate limitations in understanding and memory,

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 27 of 45
28

sustained concentration and persistence, and adaptation to workrelated situations. As to social interactions, Dr. Link found no

evidence of limitations with regard to any of the detailed points

in that category except the ability to ask simple questions or

request assistance. She noted that although Mr. Mahle had

“several” hospitalizations for his mental impairments, these had

occurred only in the “distant past,” including two hospitalizations

in 1998 when he had both suicidal and homicidal ideation. (Tr.

315; see also Tr. 131-139.) After April 1999 when he ceased

outpatient psychological consultations (Tr. 140-150) following his

hospitalizations, he received no ongoing mental health counseling

or treatment until he contacted the VAMC for medical treatment

(including psychological analysis and counseling) in early 2003.

Dr. Link noted that her perceptions of Mr. Mahle’s abilities to

make occupational, performance, personal/social and other work

related adjustments were “fairly consistent” with the VAMC report

of May 28, 2003, and other evidence. (Tr. 315.) In sum, she found

the limitations resulting from Mr. Mahle’s mental impairments “do

not preclude [him] from meeting the basic mental demands of

competitive work on a sustained basis.” (Tr., id.) 

We note first that based on the language used in his analysis

of the Listings, it appears the ALJ relied extensively on Dr.

Link’s report. This is an inference only, however, because as

Plaintiff points out, the ALJ does not refer to this evaluation

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 28 of 45
29

directly. Case law requires that the ALJ state the evidence

considered which supports the result reached and indicate any

evidence which was rejected. Landeta v. Comm'r of Soc. Sec., No.

05-3506, 2006 U.S. App. LEXIS 20905, *14 (3d Cir. Aug. 14, 2006),

citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).

Moreover, Dr. Link’s report refers only to Dr. Wilson’s medical

notes from a single interview on May 28, 2003; there is no

reference to a May 8, 2003, evaluation at the VAMC in which

Plaintiff reported insomnia, poor appetite, some memory loss,

anhedonia, low energy, and feelings of worthlessness at times (Tr.

270) or an evaluation by staff psychologist Mark Urich on April 9,

2003 (Tr. 280), diagnosing Mr. Mahle with mood disorder secondary

to chronic pain. Nor is there any evidence that Dr. Link

considered Dr. Henry’s diagnoses of anxiety and depression dating

back to at least May 2002, nor the medical records of his hospital

admission in February 2003 following an anxiety attack. Therefore,

the ALJ’s reliance on Dr. Link’s findings may have been misplaced

because she may not have had access to, or may not have considered,

all of the relevant medical evidence in Mr. Mahle’s file. 

Secondly, Dr. Link’s report was prepared in June 2003, some 18

months prior to the hearing. Of the voluminous medical record

compiled after that date, the ALJ refers only to a medical

examination by Dr. Kunkel and one evaluation by Dr. Wilson. Dr.

Kunkel, as noted above, was a pain specialist, not a mental health

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 29 of 45
20 The Global Assessment of Functioning or GAF scale assesses how

well an individual can function according to psychological, social,

and occupational parameters, with the lowest scores assigned to

individuals who are unable care for themselves. Drejka v. Barnhart,

CA No. 01-587, 2002 U.S. Dist. LEXIS 7802, *5, n2 (D. Del. Apr. 18,

2002). “A GAF score of 51-60 indicates moderate symptoms, such as a

flat affect, or moderate difficulty in social or occupational

functioning. “A GAF score of 41-50 indicates serious symptoms or

serious impairment in social, occupational, or school functioning,

such as inability to keep a job." Langley v. Barnhart, 373 F.3d 1116,

1122 n3 (10th Cir. 2004), quoting American Psychiatric Association,

Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000),

at 32.

21 In this section, Plaintiff refers to “Dr. Lewis,” apparently

erroneously, since the references to the transcript make clear that he

is referring to the medical records of Dr. Wilson. Plaintiff also

refers here to “the state agency psychological assessment, performed .

. . in April 2003.” (Tr. 22.) The Court has been unable to identify

this assessment, unless Mr. Mahle is referring to the April 9, 2003,

medical notes by Dr. Urich at the VAMC.

30

services provider, who saw Plaintiff only on two occasions in July

and October 2004. Similarly, the ALJ refers to Dr. Wilson’s

February 2005 evaluation, accepting that portion of her report

which refers to “coherent and logical thinking, intact insight and

judgment and no signs of psychoses or suicidal/homicidal ideation”

but failing to consider her report that Mr. Mahle suffered from

anxiety, insomnia, decreased energy, worthlessness, low selfesteem, guilt, powerlessness, and mood swings. (Tr. 686-687, 690.)

The ALJ also rejected Dr. Wilson’s assessment of Plaintiff’s GAF20

score of 50, describing such a finding as “a subjective scale used

to consider psychological, social and occupational functioning on

a hypothetical continuum and. . .only reflective of an individual’s

level of functioning at that particular time.” (Tr. 23.) As

Plaintiff points out,21 there is no medical evidence in the record

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 30 of 45
22 One district court in this Circuit has noted that “the use of

the GAF scale . . . is not endorsed by the Social Security

Administration because its scores do not have a direct correlation to

the disability requirements and standards of the Act.” Lyons v.

Barnhart, CA No. 05-104, 2006 U.S. Dist. LEXIS 26320, *16 (W.D. Pa.

March 27, 2006), citing 65 Fed.Reg. 50746, 50764-65 (2000). A more

accurate statement of the Administration’s conclusion is that GAF

“does not have a direct correlation to the severity requirements in

our mental disorders listings” (emphasis added), and that the ALJ is

to consider all clinical findings in reports by medical sources,

taking into account the factors which are used in evaluating any

medical opinion evidence, e.g., supportability, consistency and

specialization. 20 C.F.R. §§ 404.1527(d) and 416.927(d).

31

to contradict Dr. Wilson’s GAF score, e.g., a contradictory finding

by another examining psychologist. Moreover, the fact that GAF may

be a subjective conclusion has not precluded its consideration in

determining the severity of a claimant’s mental impairments. See,

e.g., Winter v. Barnhart, No. 05-1854, 2005 U.S. App. LEXIS 23791

(3d Cir. Nov. 3, 2005), and Torres v. Barnhart, No. 04-3542, 2005

U.S. App. LEXIS 15282 (3d Cir. July 15, 2004).22 

The ALJ failed to refer to several significant events in the

period between Dr. Link’s report and the hearing, for instance:

Plaintiff’s continuing treatment with Dr. Henry for anxiety

and depression (see, e.g., Tr. 413, 418, 421, 427, 441) and,

in particular consultations, on January 18, and April 3 (?),

2004, following anxiety attacks (Tr. 417, 645.) 

Dr. Patrick Shaughnessy’s diagnosis on March 26, 2004, of

chronic pain syndrome with depression. (Tr. 569.) 

Reports of anxiety and depression to his VAMC doctors. (See,

e.g., Tr. 278, 280, 282-284.)

An ALJ has a duty to consider and weigh all the relevant and

pertinent evidence in the record. Burnett, 220 F.3d at 121

(“although the ALJ may weigh the credibility of the evidence, he

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 31 of 45
32

must give some indication of the evidence which he rejects and his

reasons(s) for discounting such evidence.”) As the Third Circuit

Court of Appeals has directed, the ALJ must 

do more than simply state ultimate factual

conclusions. . . . [He] must include subsidiary findings

to support the ultimate findings [and provide] not only

an expression of the evidence s/he considered which

supports the result, but also some indication of the

evidence which was rejected. In the absence of such an

indication, the reviewing court cannot tell if

significant probative evidence was not credited or simply

ignored. 

Stewart v. Secretary of HEW, 714 F.2d 287, 290 (3d Cir. 1983)

(internal quotation omitted).

While the ALJ is not required to identify or refer to every

item in the record (Fargnoli v. Halter, 247 F.3d 34, 42 (3d Cir.

2001)), we conclude that there is significant evidence as to the

severity of Plaintiff’s mental impairments which was not addressed

by the ALJ. Since the ALJ failed to analyze “all evidence” and

sufficiently explain the weight given to the evidence identified

above, we conclude his decision cannot be described as supported by

substantial evidence. Burnett, id. Remand is necessary for a

complete analysis of the relevant evidence. 

4. Weight given by the ALJ to the opinions of treating

physicians as compared to those of non-examining medical sources:

Plaintiff raises multiple arguments regarding the opinions of his

treating physicians. First, he argues that in considering his

physical limitations, the ALJ improperly gave greater weight to the

opinion of a non-examining state agency physician than to those of

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 32 of 45
23 Plaintiff makes the same argument regarding Dr. Link’s

evaluation of his mental limitations; this was addressed in the

previous section. 

33

his treating physicians.23 Second, he argues that the ALJ rejected

medical evidence supported by the record and, contrary to

controlling law, substituted his own personal observations and

analysis. (Plf.’s Brief at 24, 26.) Third, he claims that the ALJ

improperly rejected opinions from his treating physicians for

fallacious reasons, e.g., because they failed to complete RFC

analyses and offered their opinions in connection with his

application for welfare benefits. (Id.) Finally, he asserts that

the ALJ failed to specifically address the medical source statement

completed by Dr. Cunningham in which she limited Plaintiff to less

than the full range of sedentary work and opined on the effect his

pain would have on his ability to perform work activity. (Id. at

25; see also Tr. 672.) 

The ALJ summarized in detail the medical evidence related to

Plaintiff’s physical impairments, together with relevant evidence

from his daily activities questionnaire and testimony. (Tr. 17-19;

21-22.) He then explicitly referred to three Employability

Assessment Forms completed by Dr. Henry in which he indicated Mr.

Mahle was temporarily or permanently disabled and to a similar

conclusion on the part of Dr. Sachs on August 23, 2004, indicating

that he was temporarily disabled from August 9, 2004 through August

7, 2005, due to cervical disc herniation, anxiety and asthma. (Tr.

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 33 of 45
34

353-354.) Finally, he referred to a residual functional capacity

form prepared by Dr. Cunningham in February 2005. (Tr. 22.)

The ALJ found that the opinions of Drs. Henry, Sachs and

Cunningham were “inconsistent with the clinical and objective

findings of record,” referring to a stress test and cardiac

catheterization in June 2003 which were unremarkable and x-rays of

Plaintiff’s knees and spine in November 2004 which showed no

evidence of severe musculosketal impairments. (Tr. 23.) He

concluded that 

the State Agency medical consultants who evaluated the

evidence of record concluded the claimant retained the

residual functional capacity to perform a wide range of

work at the light exertional level notwithstanding his

physical and emotional disorders. . . . Although these

opinions are entitled to less weight as they were given

by non-examining physicians, they are considered medical

opinions and entitled to some weight. . . . Accordingly,

the [ALJ] is unable to afford controlling weight to the

above reference[d] opinions. Based on the totality of

the evidence, the [ALJ] concludes the claimant retains

the residual functional capacity to perform a wide range

of work at the sedentary exertional level.

(Tr. 23.)

The state agency physician’s evaluation to which the ALJ

referred was completed by Dr. Frank Bryan on September 3, 2003.

(Tr. 344-353.) He concluded that Plaintiff could occasionally lift

and carry 20 pounds, could stand or sit for a total of six hours in

an eight-hour work day, and had no limitations on his ability to

push or pull with either his arms or legs. He had no postural,

manipulative, visual, communicative, or environmental limitations.

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 34 of 45
24 Dr. Bryan also noted that Plaintiff’s answers on the

questionnaire “are not consistent,” which he concluded “strongly

suggests symptomatic magnification.” (Tr. 353.) The Court has been

unable to identify any medical source who stated or implied that

Plaintiff was malingering or exaggerating the extent of his pain or

other subjective symptoms.

25 The Court notes, in fairness to Plaintiff, that many of the

questions invite the respondent to indicate how he has modified his

activities, e.g., “Please describe any changes or limitations” with

regard to “the way you do activities that you were able to do in the

past.” (Tr. 103.) Nor is it clear in which question a claimant is

asked to describe the “anatomic pathway” for his pain.

35

(Tr. 345-348.) In his judgment, Plaintiff’s reported severity or

duration of his physical symptoms was disproportionate to the

expected severity or duration of his impairments, but he did not

explain his reasoning on this issue. (Tr. 348.)24 Apparently

based on a review of Plaintiff’s daily activities questionnaire,

Dr. Bryan noted that Plaintiff “qualifies most answers stating that

he has to modify his activities because of his handicap. . . . When

asked to describe his pain he states on a scale from 1-10, it is an

11. The pain is worse all over, he is not able to describe an

anatomic pathway for the pain.” (Tr. 353.)25 He refers to an

evaluation completed on January 16, 2003, by Dr. Thomas Freenock,

a board certified physistrist. (See Tr. 199-200.) He notes that

Dr. Freenock found “mildly positive carpal tunnel compression test

bilaterally,” but fails to note that he also found “the patient has

not responded to a trial of splinting, so he appears to be a

candidate to consider median nerve decompression” (Tr. 200) or to

Dr. Freenock’s follow-up note describing Plaintiff’s condition as

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 35 of 45
26 Dr. Bryan did not identify the dates of examination by Dr.

Zeliger and the Court has been unable to pinpoint any document on

which Dr. Bryan based these remarks. Plaintiff’s counsel also

referred to Dr. Zeliger’s report in a letter to the ALJ on January 31,

2005. (Tr. 124.)Dr. Freenock wrote a letter regarding Plaintiff on

March 6, 2003, in which he mentions a consultation by Dr. Keith

Zeliger, but if Dr. Zeliger prepared a written report on that

consultation, it appears not to be in the record. Similarly, the

Court has been unable to identify the “recent” evaluation by a

physical therapist to which Dr. Bryan refers.

36

“clear cut carpal tunnel syndrome” (Tr. 198.) He also considered

a report by Dr. Keith Zeglier [sic], and stated that Dr. Zeliger

“felt that the physical examination did not follow the EMG

evaluation, did not match the physical examination sentence [sic].

Did not feel that the claimant was a candidate for carpal tunnel

release and did not feel that surgery was recommended to address

the claimant’s discomfort.” (Tr. 352.) Dr. Bryan further noted,

“There is no indication that the claimant is receiving any

consistent treatment for his back complaints. He has recently been

evaluated by a physical therapist.” (Tr. 352.)26 

Dr. Henry began treating Plaintiff on a regular basis not

later than May 2002. On February 27, 2003, he wrote a general

letter stating that Mr. Mahle was unable to work due to anxiety

attacks, bilateral carpal tunnel, lumbar back pain, bilateral

bowler’s elbow and a Tarlov’s cyst in his back. He concluded,

“There is no way he could ever keep gainful employment.” (Tr.

458.) On March 12, 2003, Dr. Henry noted on an employability

assessment form for the Pennsylvania Department of Public Welfare

(“DPW”) that although Plaintiff had followed all prescribed

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37

treatment, he was temporarily disabled for the period December 23,

2002, through October 23, 2003, due to bilateral carpal tunnel

syndrome, depression and anxiety. This conclusion was based on a

physical examination, review of medical records, Plaintiff’s

clinical history, and appropriate tests and diagnostic procedures.

(Tr. 651.) In a second letter dated April 3, 2003, Dr. Henry noted

all of the above diagnoses plus bilateral extensor tendonitis and

a past history of rectal bleeding. (Tr. 230.) On December 15,

2003, he wrote that Plaintiff was unable to work due to “a

multitude of health problems. . . . With everything going on and

the medications he has to take to function, there is no way David

could ever get or keep gainful employment.” (Tr. 650.) On

February 12, 2004, Dr. Henry completed a form indicating that he

believed Plaintiff was permanently disabled. (Tr. 649.)

Dr. Sachs treated Plaintiff for chest pain at Clarion Hospital

on September 2, 2004 (Tr. 495), and completed an employability

assessment form soon thereafter in which he indicated Mr. Mahle was

temporarily disabled from August 9, 2004, through August 7, 2005,

due to cervical disc herniation, anxiety, and asthma. (Tr. 354.)

This conclusion was based only on a review of Plaintiff’s medical

records. 

Dr. Cunningham also began treating Plaintiff when he was

hospitalized in September 2004. On February 2, 2005, she completed

a questionnaire in which she opined that Mr. Mahle’s pain would be

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38

“distracting to adequate performance of daily activities or work;”

physical activities “increase pain to the extent that medication

and/or bed rest is necessary;” and “medication impacts the

individual’s work activity to the extent that medication will

severely limit the patient’s effectiveness in the work place due to

distraction, inattention, drowsiness, etc.” She also completed an

RFC assessment found that he could lift and/or carry less than 10

pounds, stand less than 2 hours, must alternate between sitting and

standing, could not cannot push or pull because of shoulder

limitations, could not kneel, crouch or crawl (e.g., he got on his

knees but was unable to get back up) and limited his requirement to

reach due to a reduced range of shoulder motion and pain. (Tr.

672-676.) As Defendant points out, she stated that her conclusions

in the RFC assessment were based on Plaintiff’s subjective

complaints rather than any physical testing of his abilities. 

As treating physicians, the conclusions of Drs. Henry, Sachs

and Cunningham were entitled to great, if not controlling, weight.

This is especially with regard to Dr. Henry, whose opinions can be

considered to reflect “expert judgment based on a continuing

observation of the patient's condition over a prolonged time."

Morales, 225 F.3d at 317; see also 20 C.F.R. § 416.927(d)(2)(i)

("Generally, the longer a treating source has treated you and the

more times you have been seen by a treating source, the more weight

we will give to the source's medical opinion.") Where medical

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27 The ALJ did not indicate the weight he gave to the opinions of

pain specialists Shaughnessy and Kunkel or of the VAMC doctors who

treated Plaintiff for numerous physical complaints, all of which are

entitled to “some weight” as the opinions of examining physicians

and/or specialists. The Court has been unable to identify any reports

by those physicians which offer conflicting evidence to the reports of

Drs. Henry, Sachs and Cunningham.

28 Although Evosevich was not a Social Security case, as the

court noted in Caballero, the Court of Appeals recognized that “the

same procedural principles that govern social security cases are

applied in black lung proceedings.” 2003 U.S. Dist. LEXIS 19485, *34,

39

opinions are supported by objective evidence, a hierarchy exists in

weighing those opinions. Controlling weight is given to the

medical opinion of a treating physician where it is "well-supported

by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial

evidence in [the] case record." 20 C.F.R. § 416.927(d)(2). Here,

although the ALJ mentioned the findings of Drs. Henry, Sachs, and

Cunningham, he stated that he was “unable to afford controlling

weight” to those opinions because he concluded they were not

supported by objective evidence. At the same time, he failed to

indicate what weight he did give them vis-a-vis Dr. Bryan’s

conclusions.27 As the Court of Appeals has noted, “the opinions of

a claimant's treating physician and of all physicians who examine

the claimant are to be given greater deference than those of

non-examining physicians.” Caballero v. Barnhart, CA No. 02-7402,

2003 U.S. Dist. LEXIS 19485, *33-*34 (E.D. Pa. Sept. 30, 2003),

quoting Evosevich v. Consolidation Coal Co., 789 F.2d 1021, 1026

(3d Cir. 1986)28; see also, Adorno v. Shalala, 40 F.3d 43, 47-48 (3d

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 39 of 45
n12, citing Evosevich, 789 F.2d at 1027. 

40

Cir. 1994) (“greater weight should be given to the findings of a

treating physician than to a physician who has examined the

claimant as a consultant” and the least weight given to opinions of

non-examining physicians.) "The opinion of a non-examining expert

by itself probably cannot constitute substantial evidence to

contradict the opinions of examining physicians." Evosevich, id.

at 1027. Based on this guidance, the court in Caballero – faced

with a situation similar to that herein where the ALJ discounted

the opinion of treating physicians in favor of the opinion of a

non-examining medical source – remanded the matter in order for the

ALJ to provide further support for his decision. Caballero, id. at

*34. See also Franklin v. Apfel, CA No. 94-1068, 2000 U.S. Dist.

LEXIS 13807, *2 (E.D. Pa. Sept. 18, 2000), citing Evosevich, id.

for the proposition that “the opinion of the non-examining expert

may not form the sole basis for a decision to give less weight to

contrary opinions by examining physicians,” although "the opinion

of a non-examining medical expert may corroborate those of

examining physicians and form part of the substantial evidence

defeating contrary opinions.” 

Here, again, the ALJ has failed to give some indication of the

evidence which he rejected and his reasons for doing so, for

instance, Dr. Cunningham’s pain assessment and the effect of his

medications, factors which would appear to have a profound effect

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41

on Plaintiff’s ability to work on a sustained basis. 

As Plaintiff points out, Dr. Bryan noted that there was at

least one treating or examining source statement in the file about

Plaintiff’s limitations which was “significantly different” from

his findings, but he did not identify the source of that

conflicting statement nor explain why the conflicting conclusion

was not supported by the objective evidence in the file. (Plf.’s

Brief at 25-26; see also Tr. 350.) 

It appears from the text of the ALJ’s decision that he

believed Dr. Bryan was referring to Dr. Henry’s statement regarding

Mr. Mahle’s total disability, a conclusion with which the ALJ

agreed. (See Tr. 23, citing SSR 96-5p, “Medical Source Opinions on

Issues Reserved to the Commissioner.”) While the ALJ’s comment

that opinions (even by treating sources) that an individual is

disabled and unable to work are not entitled to controlling weight

or special significance is certainly a correct statement of the law

(20 C.F.R. § 404.1527(e)(1) and (3)), it does not mean that such

opinions are to be rejected in toto. See SSR 96-5p, stating “[O]ur

rules provide that adjudicators must always carefully consider

medical source opinions about any issue, including opinions about

issues that are reserved to the Commissioner. . . [O]pinions from

any medical source on issues reserved to the Commissioner must

never be ignored.” Here, there is nothing in the ALJ’s decision to

indicate that he “carefully considered” the opinions by Plaintiff’s

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42

treating physicians that he was disabled.

Plaintiff also argues that the ALJ erroneously rejected the

opinions of Drs. Henry and Sachs because they “expressed their

opinions in connection with the clamant’s application for public

assistance.” (Tr. 23.) He contends that such a conclusion has an

element of trustworthiness because the DPW, like the Social

Security administration, does not pay benefits to individuals who

are not precluded from work activity. Moreover, there is case law

that disability determinations by other agencies must be given

substantial weight. (Plf.’s Brief at 25, citing Kane v. Heckler,

776 F.2d 1130, 1135 (3d Cir. 1985.) 

Plaintiff testified at the hearing that his only source of

income was public assistance from the DPW, from which one may infer

that the agency had determined he was disabled. (Tr. 721.) A

decision as to disability made by another agency does not bind the

Social Security Administration. 20 C.F.R. §§ 404.1504, 416.904.

However, it is evidence that the ALJ must consider and explain why

if he does not find it persuasive. Sell v. Barnhart, CA No. 02-

8617, 2003 U.S. Dist. LEXIS 21066, *3 (E.D. Pa. Nov. 17, 2003).

The Third Circuit Court of Appeals has held that the underlying

medical opinion on which another government agency based its

disability determination is entitled to substantial weight. See

Lewis v. Califano, 616 F.2d 73, 76 (3d Cir. 1980) (conclusion that

plaintiff “cannot work” by doctor hired to assist plaintiff in

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43

obtaining county welfare benefits was entitled to “substantial

weight”); Sell, id.; Jones v. Barnhart, CA No. 03-6660, 2005 U.S.

Dist. LEXIS 17621, *24-*25 (E.D. Pa. Aug. 23, 2005); Somenski v.

Barnhart, CA No. 05-3545, 2006 U.S. Dist. LEXIS 7854, *23-*24 (E.

D. Pa. Mar. 1, 2006). 

The ALJ has an obligation “to provide an adequate basis so

that the reviewing court can determine whether the administrative

decision is based on substantial evidence." Cotter, 642 F.2d at

706 (“there is a particularly acute need for some explanation by

the ALJ when s/he has rejected relevant evidence or when there is

conflicting probative evidence in the record.”) As the Court of

Appeals has pointed out, absent such an explanation, the court is

“handicapped” because it is “impossible to determine whether the

ALJ's finding . . . is supported by substantial evidence.”

Fargnoli, 247 F.3d at 40. 

Again, the issue here is not that the ALJ made an improper

decision in rejecting the medical opinions as to the extent of

Plaintiff’s disability or the DPW’s decision that he was entitled

to state benefits. However, under Third Circuit controlling law,

the failure to explain what weight he gave to the opinions of

treating physicians that Plaintiff was unable to work was error.

In addition, the ALJ should clarify on remand the weight he gave to

the DPW’s conclusion that Mr. Mahle was disabled and explain the

Case 1:05-cv-00292-WLS Document 21 Filed 09/14/06 Page 43 of 45
29 Plaintiff’s final argument on this issue is that the ALJ

improperly rejected the opinions of Drs. Henry and Sachs because

neither doctor completed a residual functional capacity assessment of

his ability to perform work-related activities. (Plf.’s Brief at 24;

see also Tr. 23.) As Plaintiff points out, there is no evidence that

either was asked to complete such an assessment and refused, nor is

there evidence that DPW requires such a form in granting disability

benefits. See Mason v. Shalala, 994 F.2d 1058, 1068 n15 (3d Cir.

1993) (a physician’s silence on an issue is not evidence of a medical

conclusion.) Standing alone, this argument would not be sufficient to

require remand for further consideration but we mention it here for

the sake of completeness. 

44

basis on which he reached a contrary conclusion.29

V. FURTHER PROCEEDINGS

Under 42 U.S.C. § 405(g), a district court may, at its

discretion, affirm, modify or reverse the Secretary’s final

decision with or without remand for additional hearings. However,

the reviewing court may award benefits “only when the

administrative record of the case has been fully developed and when

substantial evidence on the record as a whole indicates that the

plaintiff is disabled and entitled to benefits.” Krizon v.

Barnhart, 197 F. Supp.2d 279, 291 (W.D. Pa. 2002), quoting

Podedworney v. Harris, 745 F.2d 210, 222 (3d Cir. 1984). 

Because it is unclear (1) how the ALJ incorporated the

limitations imposed by Plaintiff’s migraine headaches; (2) whether

he considered the limitations described by Plaintiff in performing

activities of daily living and/or found those descriptions not

credible; (3) the extent to which the ALJ considered Plaintiff’s

mental health impairments; and (4) why the ALJ seems to have

rejected the opinions of Plaintiff’s treating physicians in favor

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45

of the non-examining stage agency evaluations, we conclude that

remand is the most appropriate action in order for the ALJ to

clarify his findings. An appropriate order follows.

September ______, 2006 _________________________________

William L. Standish

United States District Judge

cc: James Bukac

Bukac & Toomey

Two East Second Street

Oil City, PA 16301

Email: bukac.toomey@adelphia.net 

Christian A. Trabold

United States Attorney's Office

17 South Park Row

Room A330

Erie, PA 16501

Email: christian.a.trabold@usdoj.gov 

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