1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EMANUEL L. GILMORE, )

)

Plaintiff, )

)

v. ) Civil Action No. 05-145 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, J.

Plaintiff, Emanuel L. Gilmore, (hereinafter “Plaintiff” or “Gilmore”), 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. Gilmore filed applications for DIB and

SSI on March 26, 2003, alleging that he was disabled due to lower back pain and hypertension as

of June 8, 2002 (Administrative Record, hereinafter “AR”, 60-62; 74; 170-173). His applications

were denied, and he requested a hearing before an administrative law judge (“ALJ”) (AR 43-48;

177-180). Following a hearing held July 1, 2004, the ALJ found that Gilmore was not entitled to

a period of disability or disability insurance, and was not eligible for SSI benefits (AR 21). 

Gilmore’s request for review by the Appeals Council was denied (AR 5-8), rendering the

Commissioner’s decision final under 42 U.S.C. § 405(g). The instant action challenges the

ALJ’s decision. Presently pending before the Court are cross-motions for summary judgment. 

For the reasons that follow, we will deny both motions. 

I. BACKGROUND

Gilmore was born on March 2, 1951, and was fifty-three years old on the date of the

ALJ’s decision (AR 16; 60). He has a high school equivalency diploma, and past work

experience as a plater/heat treater (AR 75; 80). 

On August 13, 2002, Gilmore was seen by Joseph Thomas, M.D., for complaints of left

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shoulder pain radiating down his left leg (AR 169). Dr. Thomas noted that he had undergone an

interbody fusion at the L4-5 level with Ray cages (AR 169). Gilmore was diagnosed with left

shoulder pain secondary to a rotator cuff tear (AR 169). An epidural injection was administered 

which provided him with complete relief and a good range of motion (AR 169). Dr. Thomas

prescribed pain medication and a muscle relaxant, and recommended a CT scan of the lumbar

spine (AR 169). A CT scan of Gilmore’s lumbosacral spine conducted on August 23, 2002,

showed degenerative disc disease of the L5-S1 interspace, and post operative changes of the

anterior spinal fusion (AR 139). 

Gilmore was seen by John Baniewicz, M.D., on March 21, 2003, who noted a past history

of hypertension, chronic low back pain, degenerative disc disease, and herniated disc surgery

(AR 152). Dr. Baniewicz found no back tenderness on palpation, and Gilmore was able to

straight leg raise to 90 degrees bilaterally (AR 152). He was diagnosed with hypertension, a

history of hyperlipidemia, chronic low back pain, and history of colon cancer (AR 152). Dr.

Baniewicz restarted his blood pressure medication, refilled his Soma for his back pain, and

ordered lumbar spine x-rays (AR 152). An x-ray conducted on March 24, 2003 showed some

reduction in the L5-S1 disc space and some post operative changes at the L4-L5 level (AR 147). 

Gilmore was treated at Community Health Net beginning on June 9, 2003 for complaints

of back pain (AR 168). On June 23, 2003, he complained of low back pain radiating to his lower

extremities (AR 167). Physical examination revealed tightness in the lumbar spine area, with

limited range of motion on forward flexion at the waist (AR 167). He was assessed with lower

back pain and hypertension, prescribed Ultram and referred to pain management (AR 167). 

On June 24, 2003, Gilmore underwent a consultative evaluation performed by John C.

Kalata, D.O., pursuant to the request of the Commissioner (AR 128-132). Gilmore reported a

history of disc surgery, which included a laminectomy and spinal fusion (AR 128). He claimed

he suffered from low back pain which radiated to his buttocks and legs and muscle relaxants

provided no relief (AR 128). Dr. Kalata reported that Gilmore had a normal station and gait, but

had mild difficulty getting on and off the exam table (AR 131). On physical examination,

Gilmore exhibited full range of motion in his upper and lower extremities, although he had lower

lumbar discomfort upon approaching 90 degrees leg raising (AR 131). Examination of his back

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produced discomfort at the lower lumbar area (AR 131). He had full motor and sensory strength

(AR 131). He was assessed with, inter alia, discogenic disease, lumbar spine, with radiation to

the lower extremities (AR 131). 

Dr. Kalata completed a medical source statement of Gilmore’s ability to perform workrelated physical activities, and opined that he could frequently lift and carry two to three pounds;

occasionally lift and carry ten pounds; stand for one hour or less in an eight hour day; had

unlimited sitting capacity; had push/pull limitations in the lower extremities; and could

occasionally bend, kneel and climb, but could never stoop, crouch, or balance (AR 135-136). Dr.

Kalata listed “low back pains” as his supportive medical findings (AR 135-136). 

Gilmore returned to Community Health Net on July 24, 2003 and reported continuing

back pain (AR 166). He exhibited tenderness of the lumbosacral spine at the old surgery site on

physical examination (AR 166). He returned on July 30, 2003 complaining of back pain and was

seen by Namiral Jamshed, M.D. (AR 166). Dr. Jamshed found mild lower back tenderness and

decreased range of motion (AR 165). He was prescribed Vicodin and switched to a different

muscle relaxant (AR 165). Dr. Jamshed found his blood pressure was under control (AR 165). 

On August 29, 2003, Gilmore reported he had fallen down the stairs but sustained no

injuries, and had no other complaints (AR 164). Dr. Jamshed reported that he was doing well on

the Vicodin, and had no tenderness on physical examination (AR 164). He was assessed with

chronic low back pain and his medications were refilled (AR 164). On September 4, 2003,

Gilmore presented with disability forms to be completed, and Dr. Jamshed’s treatment entry

noted that he was “doing well” (AR 163). 

Treatment notes dated November 5, 2003 showed that Gilmore reported his back pain

persisted and he was taking Vicodin (AR 162). Dr. Levy opined that he was able to work but

could not perform heavy lifting or bending (AR 162). 

Gilmore returned to Dr. Jamshed on January 29, 2004 for follow up (AR 160). Dr.

Jamshed reported that he continued to have chronic back pain, but it was “very well controlled”

with medication (AR 160). Dr. Jamshed noted that Gilmore had applied for disability, and

observed that Dr. Levy had previously opined that he was employable with accommodations (AR

160). Gilmore had no complaints, and was assessed with chronic low back pain, controlled

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hypertension and hyperlipidemia (AR 160). 

On February 25, 2004, Dr. Jamshed reported that Gilmore was in no acute distress (AR

159). His medical assessment forms were discussed, and Dr. Jamshed noted that he gave

Gilmore a “physical limitation” of less than 30 hours a week with health sustaining medications

needed, but did not feel that he was completely unemployable (AR 159). 

On a telephone message dated March 17, 2004, Gilmore claimed that his back and

shoulder were not getting any better, and he requested a referral to a neurologist (AR 158). On

March 30, 2004, Dr. Jamshed reported that Gilmore’s chronic low back pain was well controlled

with Lortab, and he had no other complaints (AR 157). 

Gilmore returned to Dr. Jamshed on April 28, 2004, complaining of muscle spasms (AR

155). Dr. Jamshed reported tenderness over the top of the sacrum area and a decrease in his knee

reflex on the left side (AR 155). He was assessed with L4-5 possible pathology, with well

controlled pain on Lortab, and well controlled high blood pressure (AR 155). Dr. Jamshed

opined that Gilmore’s work hours were to be 30 hours per week or less (AR 155). Finally, on

June 1, 2004, Gilmore complained of lumbar pain and Lortab was prescribed (AR 154). 

Gilmore and Joseph Kuhar, a vocational expert, testified at the hearing held by the ALJ

on July 1, 2004 (AR 24-40). Gilmore testified that he suffered from pain in his lower back and

suffered from back spasms approximately three to four times per week, but pain medication

helped (AR 31, 35). To further alleviate the pain, he used a heating pad at times and would lie

down three to four hours per day (AR 32; 35). He claimed his back pain kept him from sleeping

through the night and he had a fair energy level during the day (AR 32). Gilmore further testified

that his physician limited him to lifting twenty pounds (AR 32). He was unable to stand for

extended periods due to shooting pain down the back of his legs, but estimated he was able to

stand for fifteen minutes to one and a half hours before he needed to sit down (AR 32-33). He

was unable to sit for extended periods due to stiffness and pain, and was able to walk

approximately three and a half blocks before resting (AR 33). Gilmore testified that his blood

pressure was controlled with medication (AR 31). 

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

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

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climbing, balancing, stooping, kneeling, crouching or crawling (AR 38). The vocational expert

testified that such an individual could perform work as a counter clerk, gate guard, and

courier/runner (AR 38-39). The vocational expert further testified that if such individual was

able to lift ten to twenty pounds occasionally and was limited to standing and/or walking for only

an hour to an hour and a half per day, such individual would be restricted to sedentary work (AR

39).

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

not entitled to a period of disability, DIB or SSI within the meaning of the Social Security Act

(AR 15-21). His request for an appeal with the Appeals Council was denied making the ALJ’s

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

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

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 Gilmore met the

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disability insured status requirements of the Act (AR 20). 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 Gilmore’s case at the fifth step. At step two, the ALJ determined that

his back disorder and hypertension were severe impairments, but determined at step three that he

did not meet a listing (AR 16-17). At step four, the ALJ determined that he could not return to

his past work, but retained the residual functional capacity to perform light work with no more

than occasional climbing, balancing, stooping, kneeling, crouching or crawling (AR 17). At the

final step, the ALJ determined that Gilmore could perform the jobs cited by the vocational expert

at the administrative hearing (AR 19). The ALJ additionally determined that his allegations

regarding his limitations were not totally credible (AR 20). Again, we must affirm this

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

Gilmore challenges the ALJ’s decision on the grounds that his residual functional

capacity (“RFC”) assessment is not supported by substantial evidence since the ALJ erred in his

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evaluation of the medical evidence. 

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

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

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

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

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

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

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

The assessment is based upon consideration of all relevant

evidence in the case record, including medical evidence and

relevant nonmedical evidence, such as observations of lay

witnesses of an individual’s apparent symptomatology, an

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

do, and many other factors that could help the adjudicator

determine the most reasonable findings in light of the evidence.

 

SSR 96-5p (1996), 1996 WL 374183 *5. Gilmore claims that in assessing his RFC, the ALJ 

failed to address Dr. Jamshed’s opinion that he was limited to work of less than thirty hours per

week in violation of Cotter v. Harris, 642 F.2d 700 (3rd Cir. 1981). 

The Third Circuit explained in Cotter that the ALJ has a duty “to hear and evaluate all

relevant evidence in order to determine whether an applicant is entitled to disability benefits.” 

Id. at 704. The ALJ must articulate in writing his or her decision and findings of fact and give “a

statement in support thereof.” Id. Further, the ALJ must mention relevant evidence which

clearly supports the claim and give his or her reasons for rejecting such evidence. Id. at 705. In

the absence of such an indication, “the reviewing court cannot tell if significant probative

evidence was not credited or simply ignored.” Id. The Third Circuit has reiterated this

obligation, stating that “the ALJ must indicate in his decision which evidence he has rejected and

which he is relying on as the basis for his finding.” Schaudeck v. Comm’r of Social Security

Admin., 181 F.3d 429, 433 (3rd Cir. 1999) (citations omitted). This requirement is necessary (1)

so that the appellate court can perform its function without usurping administrative functions; (2)

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In order to show that a claimant is in fact capable of undertaking jobs that exist in the

national economy, the Commissioner must prove that the claimant retains the residual functional

capacity to work on a “regular and continuing basis.” Stunkard v. Secretary of Health and

Human Services, 841 F.2d 57, 60 (3rd Cir. 1988) (quoting Kangas v. Bowen, 823 F.2d 775, 777

(3rd Cir. 1987) (citing 20 C.F.R. § 404.1545(b))). Social Security Ruling (“SSR”) 96-8p, 1996

WL 374184, defines “regular and continuing basis” as “8 hours a day, for 5 days a week, or an

equivalent schedule.” SSR 96-8p, 1996 WL 374184 at *2. Additionally, SSR 98-8p states:

In assessing RFC, the adjudicator must discuss the individual’s

ability to perform sustained work activities in an ordinary work

setting on a regular and continuing basis (i.e., 8 hours a day, for 5

days a week, or equivalent work schedule), and describe the

maximum amount of each work-related activity the individual can

perform based on the evidence available in the case record. The

adjudicator must also explain how and material inconsistencies or

ambiguities in the evidence in the case record were considered and

resolved. 

 

SSR 98-8p, 1996 WL 374184 at *7 (footnote omitted). 

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to assure “more careful administrative consideration”; and (3) so that the parties can plan their

cases for judicial review. Cotter, 642 F.2d at 704-05.

Here, Dr. Jamshed opined on February 25, 2004 that Gilmore had a physical limitation of

less than 30 hours a week with health sustaining medications needed, but did not feel that he was

completely unemployable (AR 159). On April 28, 2004, Dr. Jamshed again opined that

Gilmore’s work hours were to be 30 hours per week or less (AR 155).1 In his opinion, the ALJ

states that: [t]he only limiting report in the record is that of John Kalata, D.O. ...” (AR 17). 

Given Dr. Jamshed’s reports of February 25, 2004 and April 28, 2004, this statement is clearly at

odds with the record. The ALJ’s failure to have addressed these reports and explain the basis for

their rejection runs afoul of the dictates of Cotter discussed above. See, e.g., Fargnoli v.

Massanari, 247 F.3d 34, 43-44 (3rd Cir. 2001) (ALJ’s failure to explain his implicit rejection of

evidence or even acknowledge its presence was error); Williams v. Apfel, 98 F. Supp. 2d 625, 631

(E.D.Pa. 2000) (ALJ is required to provide not only an expression of the evidence which

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2Gilmore also argues that the ALJ erred in improperly rejecting Dr. Kalata’s opinion and

erred in his credibility determination. We need not reach these arguments however, since we

have concluded that a remand is necessary. 

9

supports the result, but also some indication of the evidence rejected); Rutherford v. Barnhart,

2003 WL 22428536 at *3 (E.D.Pa. 2003) (ALJ should have explained why he discounted the

medical evidence he rejected). Accordingly, we are of the opinion that a remand is appropriate.

2

IV. CONCLUSION

For the foregoing reasons, both motions for summary judgment shall be denied. The

matter shall be remanded to the ALJ for further proceedings consistent with this Memorandum

Opinion. On remand, the ALJ is directed to address Dr. Jamshed’s opinions consistent with the

dictates of Cotter. The ALJ is free to seek additional evidence and/or call a vocational expert if

he feels it is necessary. An appropriate Order follows. 

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EMANUEL L. GILMORE, )

)

Plaintiff, )

)

v. ) Civil Action No. 05-145 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, THIS 3rd day of February, 2006, for the reasons set forth in the

accompanying Memorandum Opinion,

IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. No. 8]

is DENIED and Defendant’s Motion for Summary Judgment [Doc. No. 10] is DENIED. The

case is hereby REMANDED to the Commissioner of Social Security for further proceedings

consistent with the accompanying Memorandum Opinion. 

The clerk is directed to mark the case closed. 

s/ Sean J. McLaughlin

United States District Judge

cm: All parties of record. 

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