1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARK ROBISON, )

)

Plaintiff, )

)

v. ) Civil Action No. 06-141 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., J.

Plaintiff, Mark Robison, commenced the instant action pursuant to 42 U.S.C. §§ 405(g)

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

Security denying his claims for disability insurance benefits (“DIB”) and supplemental security

income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq, and §

1381 et seq. Robison filed applications for DIB and SSI on March 29, 2005, alleging disability

since September 5, 2004, due to acute back pain, panic attacks, severe depression and alcoholism

(Administrative Record, hereinafter “AR”, 53-55; 64; 153-154). His applications were denied,

and he requested a hearing before an administrative law judge (“ALJ”) (AR 36-41; 156-160). A

hearing was held before an administrative law judge (“ALJ”) on April 12, 2006, and following

this hearing, the ALJ found that Robison was not entitled to a period of disability, DIB or SSI

under the Act (AR 17-26; 165-186). His request for review by the Appeals Council was denied

(AR 8-12), rendering the Commissioner’s decision final under 42 U.S.C. § 405(g). The instant

action challenges the ALJ’s decision. Presently pending before the Court are cross-motions for

summary judgment. For the reasons set forth below, we will deny Plaintiff’s motion and grant 

Defendant’s motion. 

I. BACKGROUND

Robison was born on December 4, 1959, and was forty-six years old on the date of the

ALJ’s decision (AR 24; 53). He is a high school graduate and has completed one year of college

(AR 69). He previously worked as a furniture assembler and welder (AR 65). 

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 1 of 17
2

Robison was treated by John J. Kalata, D.O., for his complaints of low back pain and

depression. On March 24, 2005, Robison reported a history of being in a car accident years ago

(AR 147). He complained of low back pain and “horrible” mood swings (AR 147). He claimed

he had been sober for seven months but since he quit drinking he felt more pain (AR 147). Dr.

Kalata noted that his gait, speech and mentation were normal, but that he seemed down and

depressed (AR 147). He diagnosed Robison with chronic and acute low back pain and clinical

depression (AR 147). Dr. Kalata prescribed Wellbutrin XL and Dolobid, and completed an

Employability Assessment form stating that Robison was temporarily disabled from September

4, 2004 through November 1, 2005 due primarily to acute and chronic lumbar pain and severe

depression, and secondarily due to anxiety and alcoholism (AR 93; 147).

Robison telephoned Dr. Kalata’s office on April 4, 2005 complaining of significant panic

attacks claiming that the Wellbutrin was not helping (AR 146). Dr. Kalata started him on

Effexor and Ativan (AR 146). 

On April 8, 2005, Robison had an x-ray taken of his lumbar and thoracic spine (AR 195). 

His lumbar spine x-ray showed an old healed severe compression fracture of the L2 and mild

degenerative changes at L1 and L3, and there was no evidence of acute bone injury or other

abnormalities (AR 95). His thoracic spine x-ray was normal (AR 95). 

On May 3, 2005, Robison was psychologically evaluated by Samuel Trychin, Ph.D., at

Stairways Behavioral Health (AR 101-110). Dr. Trychin reported that Robison was friendly and

cooperative throughout the evaluation (AR 101). He appeared to be relaxed and in good humor,

and demonstrated appropriate social perceptiveness (AR 101). Robison reported sleep and

appetite problems, difficulty concentrating, suicidal ideation and daily crying spells (AR 102). 

He reported that he had applied for medication management and outpatient treatment at

Stairways (AR 102). Dr. Trychin noted that during the assessment, Robison showed an overall

average ability to concentrate and persevere and showed an excellent ability to attend to details

on several subtests (AR 102). 

Dr. Trychin administered Robison several psychological tests. On the Wonderlic

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 2 of 17
1According to Robison’s psychological evaluation, the WPT is a widely recognized test of

general ability that is used extensively as a screening tool in the selection and placement of

employees and for vocational guidance (AR 110). The test measures an individual’s ability to

learn, adapt, solve problems and understand instructions (AR 110). 

2The WAIS-III is an individually administered IQ test that yields Verbal, Performance and

Full Scale Intelligence Quotients, as well as Index Scores based upon a number of subtests (AR

110). In effect, the WAIS-III is a sampling of the individual’s ability to successfully perform a

variety of different types of cognitive tasks (AR 110). 

3The WRAT-R is a basic academic screening tool (AR 110). 

4The SCL-90 test is a psychological self-report symptom checklist yielding measures of

overall and symptom domain-specific levels of distress (AR 110). 

3

Personnel Test (WPT)1 Robison obtained a raw score of 23, which showed he had above average

problem solving skills and the potential for success in general clerical work or as a first line

supervisor (AR 102; 104). Dr. Trychin also administered the Wechsler Adult Intelligence Scale

Third Edition (WAIS-III) (AR 104-105).2 Robison achieved a Verbal IQ of 84, a Performance

IQ of 102, and a Full Scale IQ of 94, which Dr. Trychin found was within the average range, but

with indications of a learning disability (AR 104-105). Dr. Trychin reported that Robison

performed at the 6th grade level in reading and spelling, and at the 8th grade level in arithmetic

based upon his Wide Range Achievement Test-Revised (WRAT-R) scores (AR 110).3 Robison’s

SCL-904 checklist score was very high in terms of his perception of his psychological distress,

and Dr. Trychin indicated that his pattern of high scores indicated that either he was attempting

to appear to be extremely distressed or he actually perceived himself as being extremely

distressed (AR 107). Dr. Trychin found that Robison had the necessary intellectual ability to

work, and that it would be beneficial for him to have some place to go and something to do on a

“more or less” regular basis in terms of alleviating his reported depression (AR 108). 

Robison underwent a psychiatric evaluation on May 5, 2005 performed by Helen K. John,

M.D. at Stairways Behavioral Health Outpatient Clinic (AR 96-99). He reported that he had

been chronically depressed since his wife and child left him (AR 96). He claimed he suffered

from panic attacks, decreased appetite, poor sleep, suicidal ideations with no plan, low energy

and poor concentration (AR 96). He reportedly quit drinking approximately eight months before

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 3 of 17
5The GAF score considers psychological, social, and occupational functioning on a

hypothetical continuum of mental health-illness. Scores between 41 and 50 indicate “[s]erious

symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious

impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” 

See Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR 34 (4th ed. 2000). 

4

the evaluation (AR 97). On mental status examination, Dr. John noted that Robison was

cooperative, alert, had good eye contact and some psychomotor retardation, but no unusual

mannerisms (AR 98). His speech was spontaneous with normal rate and volume, but at times

was slightly unproductive (AR 98). She found Robison’s thought processes were organized but

slow, his affect was blunted and his mood was depressed (AR 98). Robison had no delusions,

hallucinations or self-destructive impulses, and he had no short or long term memory impairment

(AR 98). Dr. John found he had the ability to develop some insight (AR 98). She diagnosed

Robison with major depressive disorder and assigned him a Global Assessment of Functioning

(“GAF”) score of 45 (AR 98).5 She increased his Effexor dosage, added Inderal for anxiety,

Remoron for sleep and depression and referred him to therapy for his depression (AR 98-99).

In a report of contact dated May 17, 2005, Dr. Kalata reported that he had seen Robison

on May 16, 2005 but had not tested his range of motion (AR 118). He described Robison’s gait

as stiff but not antalgic, and he did not have any problems moving around the office but was stiff

getting off and on the examination table (AR 118). Dr. Kalata indicated that he did not

specifically test Robison’s motor power or sensation, but his motor power was grossly normal

and he did not complain of any loss of sensation (AR 118). According to Dr. Kalata, Robison’s

main problem was psychological not musculoskeletal (AR 118).

Frank Bryan, M.D., a state agency reviewing physician, reviewed the medical evidence of

record on May 24, 2005 and concluded that Robison could occasionally lift 50 pounds and

frequently lift 25 pounds; stand and/or walk for about 6 hours in an 8 hour day; sit for about 6

hours in an 8 hour day; was unlimited in his push and/or pull ability; and had no postural,

manipulative, visual, communicative or environmental limitations (AR 121-122). In support of

his conclusion, Dr. Bryan noted that there was no evidence in the record that Robison was

receiving intensive treatment for his back condition and he had not alleged that his back

condition precluded work related activities (AR 124). Dr. Bryan also reviewed Robison’s

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 4 of 17
5

diagnostic studies, and noted that his thoracic spine x-ray was completely normal and his lumbar

spine x-ray showed an old, healed compression at L2 with mild degenerative changes in adjacent

end plates at L1 and L3 (AR 124). He found that there was no evidence of acute bone injury, no

other abnormalities were seen and there was no mention in the report that Robison’s spinal canal

was compromised secondary to the compression fracture (AR 124). He observed that Dr. Kalata

stated that Robison’s gait was stiff but not antalgic, he had no difficulty moving around the

office, his motor power was grossly normal and he did not complain of any loss of sensation (AR

124). Consequently, Dr. Bryan concluded that Robison was capable of working at the medium

exertional level (AR 121-122). 

On June 1, 2005, Dalton Raymond, Ph.D., a state agency reviewing psychologist,

completed a Psychiatric Review Technique Form and concluded that Robison had mild

restrictions in his activities of daily living; moderate difficulties in maintaining social

functioning, concentration, persistence and pace; and no repeated episodes of decompensation

(AR 139). On that same date, Dr. Raymond also completed a Mental Residual Functional

Capacity Assessment form and opined that Robison was not significantly limited in a number of

work related activities, and was only moderately limited in his ability to understand, remember

and carry out detailed instructions; complete a normal workday and workweek without

interruptions from psychologically based symptoms; accept instructions and respond

appropriately to criticism from supervisors; maintain socially appropriate behavior; respond

appropriately to changes in the work setting; travel in unfamiliar places; and set realistic goals or

make plans independently of others (AR 126-127). Dr. Dalton concluded that Robison was able

to meet the basic mental demands of competitive work on a sustained basis despite the

limitations resulting from his impairment (AR 128). 

Robison returned to Dr. Kalata on October 27, 2005 for follow up and reported that he

was doing “okay” except that his depression had worsened (AR 146). His back pain reportedly

remained the same, but he claimed that if he stood for a period of time or bent over he suffered

increased pain and spasms (AR 146). On physical examination, Dr. Kalata found lumbar

paraspinal pain and spasm with diminished range of motion and tenderness to palpation (AR

146). He added Flexeril to his medication regime and increased his Effexor dosage (AR 146). 

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 5 of 17
6

In his Brief, Robison refers to a narrative report authored by Dr. Kalata dated May 24,

2006 which was not before the ALJ but submitted to the Appeals Council. See Plaintiff’s Brief

6

Dr. Kalata encouraged him to seek psychiatric follow up (AR 146). 

Dr. Kalata completed a second Employability Assessment form on October 27, 2005 and

opined that Robison was temporarily disabled until June 2006 due to severe depression and

chronic lumbar pain (AR 151).

An MRI of Robison’s lumbar spine conducted on November 1, 2005 showed a moderate

old compression deformity of L2; retropulsion of a portion of the superior endplate of L2

resulting in moderate impingement of the left anterior aspect of the thecal sac at the L1-2 level; a

prominent right posterolateral osteophyte from the inferior endplate of L2 resulting in moderate

narrowing of the right L2-3 foramen; no evidence of a bulging disc or focal disc protrusion; and

mild posterior facet arthritis at the L3-4, L4-5 and L5-S1 levels (AR 148-149).

On December 8, 2005, Dr. Kalata reviewed Robison’s MRI and noted that it showed

some impingement on the thecal sac from one of the endplates in L2, a significant amount of

osteophyte formation and spondyloarthropathy in various levels of the spine, but there were no

disc problems (AR 145). He observed that there was a question of some nerve root impingement

on the right, but Robison did not complain of right-sided leg problems and denied any bladder or

bowel incontinence (AR 145). On physical examination, Dr. Kalata found a diminished range of

motion in the upper lumbar spine on flexion and extension and some spasm, but no radicular

symptoms (AR 145). He changed his medication to Mobic and Ultram (AR 145). Dr. Kalata

reported that his depression was more or less stable on the Effexor with Remeron at night (AR

145). He assessed him with chronic lumbar pain and lumbar osteoarthritis (AR 145). 

Finally, Robison returned to Dr. Kalata on December 30, 2005 complaining of significant

low back pain after falling off a washing machine while putting plastic over windows (AR 145). 

He reportedly lost his balance and fell striking his right side (AR 145). He denied any bladder or

bowel dysfunction (AR 145). On physical examination, Dr. Kalata reported that Robison had

significant spasm and tenderness of the lumbar spine, diminished range of motion, difficulty with

ambulation and required a cane (AR 145). Robison declined a referral to neurosurgery since he

was afraid surgery might leave him paralyzed (AR 145).6

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 6 of 17
pp. 4-5. We have not considered Robison’s recitation of this evidence since it was not included

in the Administrative Record filed with this Court. 

7

Robison and Alina Kurlanich, a vocational expert, testified at the hearing held by the ALJ

(AR 165-186). Robison testified that he was terminated from his last position on September 5,

2004 due to excessive absenteeism and had collected unemployment for approximately six

months thereafter (AR 170-171). He further testified that on the same date he was terminated he

stopped drinking and went to a rehabilitation program at the Erie City Mission (AR 170-171). 

Robison stated that he used a metal cane to walk most of the time which had been prescribed by

Dr. Kalata, but had not brought it to the hearing due to the metal detectors (AR 172). He saw Dr.

Kalata approximately every four to six weeks and had his first appointment with a therapist later

in the month (AR 173). He claimed he suffered from depression and panic attacks, which

occurred every day and lasted from a few minutes to 30 minutes (AR 174). He testified that his

panic attacks were triggered by babies and children, stemming from an “ugly” divorce (AR 174). 

He had never been hospitalized for a mental condition (AR 174). 

Robison testified that his sleep was interrupted due to back pain, and he only slept about

four hours per night and napped during the day (AR 174-175). He indicated that medication

made his pain tolerable, but “everything” aggravated his pain, including shaving (AR 175). He

also suffered from shooting pain down his legs (AR 175). Robison testified that he was able to

walk about one block, stand in line approximately 10 to 15 minutes before needing to sit down,

sit for about 15 to 20 minutes, and lift 10 to 15 pounds from waist level but not from the floor

(175-176). He was able to care for his personal needs and perform some routine household

chores, but required breaks before completing the task (AR 176-177). He depended on others for

help in cooking and cleaning, could not perform yard work or snow removal and no longer

engaged in any hobbies (AR 176-178). He attended Alcoholics Anonymous meetings three times

per week but did not socialize with other members outside the meetings (AR 179-180). Robison

claimed he cried for no reason, was irritable most of the time and had difficulty leaving the house

due to depression (AR 178-180). 

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

education and past work experience, who was limited to light work that did not require operation

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 7 of 17
8

of foot controls, climbing, balancing, kneeling, crawling, repeated bending at the waist of 90

degrees or exposure to a loud noise environment (AR 181). The ALJ further indicated that such

individual would not be able to engage in more than simple repetitive tasks, in routine work

settings with routine work processes, would not be able to engage in work that required more

than incidental interaction with the public, that involved high-stress activities, or that required

work involving high quotas or close attention to quality production standards (AR 181). The

vocational expert testified that such an individual could perform light, semi-skilled work as a

stock part inspector, hardware assembler or welding machine operator (AR 182). The vocational

expert further testified that such an individual could perform light, unskilled jobs as an

inspector/hand packer, garment sorter, or an electronic worker (AR 182). Finally, the expert

opined that he could perform the sedentary jobs of an assembler of electronics, a surveillance

system monitor, or as a document preparer, and that these jobs would allow for a sit/stand option

(AR 183). 

Following the hearing, the ALJ issued a written decision finding that Robison was not

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

17-26). His request for review by the Appeals Council was denied making the ALJ’s decision

the final decision of the Commissioner. He subsequently filed this civil action.

II. STANDARD OF REVIEW

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

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

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

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

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

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

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

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

III. DISCUSSION

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

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

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 8 of 17
9

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

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

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

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

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

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

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

disability insured status requirements of the Act (AR 17). SSI does not have an insured status

requirement. 

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

to "engage in any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). 

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

this definition:

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

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

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

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

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

impairment is equivalent to an impairment listed by the

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

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

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

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

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

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

in the national economy that the claimant can perform. Ferguson

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

Jesurum, 48 F.3d at 117.

The ALJ resolved Robison’s case at the fifth step. At step two, the ALJ determined that

his osteoarthritis of the lumbar spine, depression and anxiety were severe impairments, but

determined at step three that he did not meet a listing (AR 19-22). At step four, the ALJ

determined that he could not return to his past work, but retained the residual functional capacity

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 9 of 17
7Parenthetically, we observe that Robison has not identified any particular

musculoskeletal listing he claims he meets. 

10

to perform work at the sedentary exertional level with the following limitations: he was

precluded from work involving the operation of foot controls; could not perform climbing,

balancing, kneeling or crawling and no repeated bending to 90 degrees; he was limited to simple,

repetitive, routine work with no more than incidental interaction with the public or high stress;

and no exposure to loud noise environments (AR 22). At the final step, the ALJ determined that

Robison could perform the jobs cited by the vocational expert at the administrative hearing (AR

19). Again, we must affirm this determination unless it is not supported by substantial evidence. 

See 42 U.S.C. § 405(g). 

Robison first argues that the ALJ erred in his evaluation of the medical evidence at the

third stage of the sequential evaluation process by determining that his physical and mental

impairments did not meet or medically equal the listed impairments as set forth in 20 C.F.R. Pt.

404, Subpt. P, App. 1. See Plaintiff’s Brief p. 8. This provision contains a list of various

impairments that the Commissioner has determined prevent a person from performing any work. 

20 C.F.R. §§ 404.1525, 416.925. A claimant who meets or medically equals all of the criteria of

an impairment listed in Appendix 1 is per se disabled and no further analysis is necessary. 

Burnett v. Commissioner, 220 F.3d 112, 119 (3rd Cir. 2000). A claimant bears the burden of

proving that her impairments meet or equal a listed impairment. See Adorno v. Shalala, 40 F.3d

43, 46 (3rd Cir. 1994).

Here, the ALJ first focused on the listings pertinent to the musculoskeletal system, and

while he did not specifically cite to Listing 1.04, the ALJ implicitly found that the evidence failed

to satisfy the criteria of that Listing.7 Listing 1.04 requires:

Disorders of the spine (e.g., herniated nucleus pulposis, spinal

arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc

disease, facet arthritis, vertebral fracture), resulting in compromise

of a nerve root ... or the spinal cord.

With:

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 10 of 17
11

A. Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,

motor loss (atrophy with associated muscle weakness or muscle

weakness) accompanied by sensory or reflex loss and, if there is

involvement of the lower back, positive straight-leg raising test

(sitting or supine);

or

B. Spinal arachnoiditis ... 

or

C. Lumbar spinal stenosis ... .

20 C.F.R. Pt. 404, Subpt. P. App. 1 § 1.04. 

The ALJ found that while Robison’s osteoarthritis of the lumbar spine was a severe

impairment, it had not resulted in any muscle atrophy or neurological deficits and he retained the

basic ability to ambulate effectively and use his upper extremities (AR 21). The ALJ observed

that Robison acknowledged that he was able to walk one block, perform household chores, care

for his personal needs and grocery shop (AR 21-22). Finally, the ALJ noted that his treating

physician reported that his MRI showed no significant disc problems (AR 22). 

Robison argues that the ALJ failed to recognize that his November 5, 2004 MRI report 

demonstrated “objective evidence of nerve impingement.” Plaintiff’s Brief 8. We disagree. The

ALJ’s decision reflects that he specifically discussed the results of this MRI in connection with

his review of Dr. Kalata’s treatment notes (AR 21). Moreover, to the extent that Robison

contends that evidence of nerve root impingement satisfies the criteria for Listing 1.04, such

contention is without merit. “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)

(emphasis in original); see also Williams v. Sullivan, 970 F.2d 1178, 1186 (3rd Cir. 1992). 

Therefore, even though Robison may have nerve impingement, the record is devoid of

any evidence demonstrating that the remaining criteria of Listing 1.04 were met. For example,

there is no evidence that Robison suffered any motor loss accompanied by sensory or reflex loss,

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 11 of 17
8The ALJ further found that Robison’s mental impairments did not meet the C criteria of

Listing 12.04 or Listing 12.06 (AR 22). We agree. Listing 12.04 requires:

C. Medically documented history of a chronic affective disorder of

at least 2 years’ duration that has caused more than a minimal

limitation of ability to do basic work activities, with symptoms of

signs currently attenuated by medication or psychosocial support,

and one of the following:

12

or evidence of a positive straight-leg raising test. Indeed, the record reflects the opposite. In

May 2005 Dr. Kalata reported that Robison’s motor power was grossly normal and he did not

complain of any loss of sensation (AR 118). Moreover, although Dr. Kalata recognized that

there was a “question” of some nerve root impingement based upon the November 2005 MRI

results, he reported that Robison did not complain of right-sided leg problems, denied any

bladder or bowel incontinence and had no radicular symptoms (AR 145). It follows that the

ALJ’s findings that Robison did not meet the requirements of the Listing is supported by

substantial evidence. 

Robison’s contention with respect to his alleged mental impairments fares no better. 

Because Robison fails to direct us to any Listing in support of his argument, we shall look to the

two Listings considered by the ALJ: Listing 12.04, Affective Disorders, and Listing 12.06,

Anxiety Related Disorders. Both of these Listings consist of paragraph A criteria (a set of

medical findings), paragraph B criteria (a set of impairment-related functional limitations) and

paragraph C criteria (a set of additional functional limitations). 20 C.F.R. Pt. 404, Subpt. P, App.

1 § 12.00(A). The required level of severity for 12.04 affective disorders is met when “the

requirements in both A and B are satisfied, or when the requirements in C are satisfied.” 20

C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04. The required level of severity for 12.06 anxiety-related

disorders is met when “the requirements in both A and B are satisfied, or when the requirements

in A and C are satisfied.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.06. 

Here, the ALJ found that while Robison’s diagnoses of depression and anxiety “may”

satisfy the A criteria for each Listing, he failed to meet the B criteria (AR 22).8 The paragraph B

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 12 of 17
1. Repeated episodes of decompensation, each of extended

duration; or

2. A residual disease process that has resulted in such marginal

adjustment that even a minimal increase in mental demands or

change in the environment would be predicted to cause the

individual to decompensate; or

3. Current history of 1 or more years’ inability to function outside

a highly supportive living arrangement, with an indication of

continued need for such an arrangement.

20 C.F.R. Pt. 404, Subpt. P, App. 1§ 12.04(C).

Listing 12.06 requires a “complete inability to function independently outside the area of

one’s home.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.06(C). Robison has not pointed to any

evidence which demonstrates that he meets these criteria, nor does our independent review of the 

record reveal any such evidence. 

13

requirements of Listing 12.04 and 12.06 require at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence or

pace; or

4. Repeated episodes of decompensation, each of extended

duration[.]

20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.04(B), 12.06(B). The term “marked” means “more

than moderate but less than extreme,” and a “marked limitation” is one that seriously interferes

with a claimant’s ability to “function independently, appropriately, effectively, and on a sustained

basis.” 20 C.F.R. Pt. 404, Subpt. P, Appx. 1 § 12.00C. The ALJ found that Robison’s affective

disorder and anxiety-related disorder did not meet part B because the evidence reflected only

mild restrictions of activities of daily living, moderate difficulties in maintaining social

functioning and maintaining concentration, persistence or pace, and there was no evidence of

episodes of decompensation of an extended duration (AR 22). 

In support of his argument that the ALJ erred in finding that he failed to meet a Listing,

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 13 of 17
14

Robison does not direct our attention to the medical evidence of record which would support his

claim that he suffers marked limitations in the criteria listed in part B. Rather, he vaguely argues

that the ALJ improperly evaluated the medical evidence relative to “his symptoms of mental

impairment” Plaintiff’s Brief p. 8. In any event, we find there is substantial evidence in the

record that he does not meet all of the requirements of Listing 12.04 and 12.06. 

As noted by the ALJ, Robison acknowledged he was able to care for his personal needs

and perform some household chores although he required breaks before completing some tasks

(AR 22; 176-177). With respect to his ability to maintain social functioning, the ALJ recognized

that he had difficulty going out in public and did not socialize, but was able to visit with friends

and attended AA meetings (AR 22; 83; 179-180). In addition, we note that Dr. Trychin reported

that Robison was friendly and cooperative throughout his evaluation and demonstrated

appropriate social perceptiveness (AR 101). Regarding Robison’s concentration, persistence or

pace abilities, Dr. Trychin opined that he had above average problem solving skills and the

potential for success in general clerical work or as a first line supervisor (AR 102; 104). Indeed,

Dr. Trychin concluded that it would be beneficial for Robison to work in order to alleviate his

depression (AR 108). Moreover, as observed by the ALJ, there is no evidence of any episodes of

decompensation of an extended duration, and no treating or examining physician found that his

mental impairments met or equaled the Listings’ criteria (AR 22). 

Finally, we observe that Dr. Dalton, the state agency reviewing psychologist, opined that

Robison was able to meet the basic mental demands of competitive work on a sustained basis

despite the limitations resulting from his mental impairments (AR 128). Dr. Dalton reviewed the

medical evidence of record and concluded that Robison’s impairments did not meet or equal the

severity requirements of Listings 12.04 or 12.06 because he exhibited mild to moderate (rather

than marked or extreme) limitations in three of the functional areas required under Listing

12.04(B) and 12.06(B) (AR 139). State agency physicians are experts in the field of social

security disability evaluations, see Social Security Ruling (SSR) 96-6p, whose opinions are

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 14 of 17
15

treated as expert opinion evidence. See 20 C.F.R. §§ 404.1527(f)(2)(I); 416.927(f)(2)(I). We

therefore find no error in the ALJ’s conclusion that Robison failed to meet Listings 12.04 and

12.06 due to his mental impairments. 

Robison’s final argument is that his testimony “clearly” establishes that he is unable to

perform sedentary and/or light work since he is unable to sit, stand or walk for any length of

time. See Plaintiff’s Brief p. 9. In essence, Robison challenges the ALJ’s credibility

determination. In this regard, it is well settled that 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. See Baerga v. Richardson, 500 F.2d 

Here, the ALJ recognized that while Robison claimed he was totally precluded from

work-related activities, his objective MRI studies revealed no significant disc problems (AR 23). 

The ALJ further noted that while Robison claimed he needed a cane to ambulate, he did not

require the use of a cane at the hearing (AR 23). Robison acknowledged that his medications

helped relieve his back pain, he admitted he was able to lift 10 to 15 pounds, and the ALJ

observed that despite his complaints of back pain, he was able to care for his personal needs and

perform some household chores (AR 23). 

We find that substantial evidence supports the ALJ’s determination that Robison’s

claimed functional limitations were not supported by the medical evidence or the record as a

whole. The objective findings (without repeating such findings here) do not support Robison’s

claimed functional restrictions. As to his course of treatment, we note that he admitted that

medication made his pain tolerable (AR 175). He admittedly was able to walk one block, stand

for approximately 10 to 15 minutes, sit for approximately 15 to 20 minutes before needing to

change positions, and could lift from waist level but not from the floor (AR 175-176). Further,

as found by the ALJ, Robison’s claims of debilitating symptoms are inconsistent with his daily

activities, and we observe that during his most recent office visit with Dr. Kalata, he complained

of increased pain after he fell while putting plastic over windows (AR 145). In any event, the

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 15 of 17
16

ALJ accommodated Robison’s claimed limitations relative to his ability to sit, stand and/or walk

by limiting him to sedentary work with a sit/stand option. 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. 

 

 

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 16 of 17
17

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARK ROBISON, )

)

Plaintiff, )

)

v. ) Civil Action No. 06-141 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, this 11th day of December, 2006, and for the reasons stated in the

accompanying Memorandum Opinion, 

IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. No. 5]

is DENIED and Defendant’s Motion for Summary Judgment [Doc. No. 6] is GRANTED. 

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

Social Security, and against Plaintiff, Mark Robison. 

The clerk is directed to mark the case closed. 

s/ Sean J. McLaughlin

United States District Judge

cm: All parties of record. 

Case 1:06-cv-00141-SJM Document 8 Filed 12/11/06 Page 17 of 17