1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LUIS A. MONTALVO, )

)

Plaintiff, )

) Civil Action No. 05-22 Erie

)

v. )

)

JO ANNE BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, J.

Plaintiff, Luis A. Montalvo, commenced the instant action pursuant to 42 U.S.C. 

§§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of

Social Security, who found that he was not entitled to supplemental security income (“SSI”)

under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Montalvo filed an

application for SSI on March 21, 2003, alleging that he was disabled since November 1, 2002

due to a herniated disc (Administrative Record, hereinafter “AR”, at 55-57, 75). His application

was denied initially, and Montalvo requested a hearing before an administrative law judge

(“ALJ”) (AR 40, 46). A hearing was held on July 28, 2004, and following this hearing, the ALJ

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

was not eligible for SSI benefits (AR 14-20). Montalvo’s request for review by the Appeals

Council was denied (AR 4-6), 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 the

Plaintiff’s motion, and grant the Defendant’s motion.

I. BACKGROUND

Montalvo was born on February 12, 1966, and was 38 years old at the time of the ALJ’s

decision (AR 14, 55). He has a seventh grade education and past relevant work experience as a

laborer (AR 81, 84). He is unable to read or write English, and speaks very little English (AR

14). 

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Montalvo underwent physical therapy in September and October 2002 for

cervical/thoracic strain as a result of a work injury (AR 113-120). When evaluated on September

30, 2002, Montalvo had seventy-five percent cervical flexion, normal motor strength, and hypersensation of the left lateral forearm (AR 119). On his last visit on October 9, 2002, his cervical

range of motion was within normal limits for flexion bilateral rotation and side bending, and his

cervical extension had improved to seventy-five percent within normal limits (AR 115). His

strength was 5/5 bilaterally in his upper extremities, and testing demonstrated a negative cervical

compression test and a negative posterior quadrant sign bilaterally (AR 113). Montalvo was

discharged from physical therapy and returned to his regular work (AR 113). 

On October 22, 2002, Montalvo presented to the emergency room with a mild headache

(AR 121). He reported a history of back surgery, but denied any neck or back pain (AR 121-

122). On physical examination, his motor strength was 5/5 symmetrically in the upper and lower

extremities, and his reflexes were grossly intact (AR 122). A CT scan of his head was normal

(AR 122). Montalvo was treated with Naprosyn and Lortab, and discharged in stable condition

with instructions to follow-up with his primary care physician (AR 12-123). 

Montalvo returned to the emergency room on October 25, 2002 with a chief complaint of

left upper quadrant and epigastric pain radiating to his back, with associated nausea and vomiting 

(AR 125). On physical examination, mild tenderness was noted in the left upper quadrant on

deep palpation (AR 126). He had a normal range of motion in his back, normal motor strength,

and normal sensation (AR 126). He was diagnosed with acute exacerbation of abdominal pain,

likely secondary to peptic ulcer disease, gastric or duodenal ulcer or gastritis (AR 126). He was

prescribed Prevacid and Compazine, and was to remain off work for three days (AR 126). 

Montalvo was seen by Matthew Wiza, D.O., on March 6, 2003 with a chief complaint of

a cough with a headache and sinus pressure (AR 133). He reported a history of back surgery in

1991, and that a recent CT scan and MRI reports were negative (AR 133). Dr. Wiza noted that

Montalvo had a “history of chronic back pain and failed back syndrome” (AR 133). On physical

examination, Dr. Wiza observed an incision consistent with a discectomy of the back, and found

that Montalvo had a decreased range of motion of the lumbosacral spine (AR 133). However, he

had normal muscle strength and sensation, with no radicular symptoms (AR 133). Dr. Wiza

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diagnosed Montalvo with lumbago with radiculopathy/failed back syndrom, and acute

rhinosinusitis (AR 133). He prescribed antibiotics and opined that Montalvo was disabled for

three months (AR 133).

On April 1, 2003, Montalvo returned to Dr. Wiza complaining of increased lower back

pain (AR 132). Dr. Wiza found that he had muscle spasms and decreased range of motion in his

lumbar spine (AR 132). Straight-leg raising test was normal in the seated position, and he had

normal sensation and reflexes (AR 132). Dr. Wiza assessed Montalvo with chronic back pain,

and prescribed Tylenol #3 with no refills, instructed him to use Ibuprofen, moist heat, and low

back exercises (AR 132). 

Montalvo returned to Dr. Wiza on May 1, 2003 for follow-up (AR 131). Dr. Wiza noted

that Montalvo had not followed up with physical therapy (AR 131). He had a positive straightleg raising test, and his remaining musculoskeletal examination was essentially unchanged (AR

131). Dr. Wiza diagnosed acute lumbosacral strain and sprain, and chronic lumbago (AR 131). 

He indicated that Montalvo was disabled for two more months, and prescribed Flexiril and

Tylenol #3 (AR 131). 

Montalvo underwent a consultative examination performed by Valerie Gilreath, D.O., on

June 25, 2003 (AR 135-145). Montalvo reported a medical history of a lumbar laminectomy in

1990 and a repeat lumbar laminectomy in 1991 (AR 136). On physical examination, Dr. Gilreath

found tenderness and muscle spasm at the lumbar spine area (AR 138). Sensory examination

revealed diminished vibratory perception in the lower limbs as compared to the upper limbs, and

there was decreased pinprick along the SI dermatome on the right (AR 139). Motor examination

failed to reveal any overt weakness, and overall strength was 5/5 (AR 139). Montalvo used a

cane to walk, and, according to Dr. Gilreath, walked “like a stiff man,” but was able to walk on

toes and heels, and tandem walk holding on to the table (AR 137, 139). Dr. Gilreath reported

that Montalvo did not exhibit any pain behavior during the examination, and neither embellished

his symptoms nor made any attempt to underestimate his history or overstate his pain (AR 138). 

Dr. Gilreath indicated that Montalvo was “definitely without any neurological deficit”

(AR 139). He had reduced muscle mass on the right, but did not show actual atrophy or

fasciculation, indicating signs of nerve deadness (AR 139). Dr. Gilreath considered his condition

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stabilized, and noted there was no objective evidence of muscle weakness (AR 140). He opined

that Montalvo’s pain was real in nature, with an unknown etiology, but was probably related to

nerve root swelling and recrudescence of disc material (AR 140). Dr. Gilreath concluded that

Montalvo was able to take care of his activities of daily living, and was of the opinion that he

could return to light or sedentary work, but not in the field of manual labor (AR 140). Dr.

Gilreath’s clinical impressions were chronic cough, etiology not determined, status post-lumbar

laminectomy, and chronic lumbar pain with right lower limb radicular pain (AR 139). He opined

that Montalvo could lift twenty pounds frequently, stand/walk one hour or less per day, sit less

than six hours per day, never balance or climb, and occasionally perform other postural activities

(AR 142-143). 

On July 21, 2003, Frank Bryan, M.D., a state agency reviewing physician, completed a

residual functional capacity (“RFC”) assessment relative to Montalvo’s physical capabilities (AR

146-155). Dr. Bryan concluded that Montalvo could lift and/or carry fifty pounds occasionally

and twenty-five pounds frequently; stand and/or walk for six hours in an eight-hour workday; sit

for six hours in an eight-hour workday; push/pull without limitation; and had no postural

limitations (AR 147-148). Dr. Bryan found that the restrictions imposed by Dr. Gilreath were

based on Montalvo’s representation of what his capabilities were, and were not supported by Dr.

Gilreath’s exam or any documentation in the medical record (AR 155).

Montalvo was hospitalized on August 6, 2003 following complaints of blurred vision and

an increase in urination (AR 161). Dr. Wiza noted a history of mild cirrhosis, with elevated liver

functions tests, and that a liver spleen scan showed some mild cirrhotic change (AR 161). Due to

his elevated liver enzymes and recent onset of hyperglycemia, Dr. Wiza recommended

hospitalization (AR 161). Upon admission, his musculoskeletal examination showed decreased

range of motion with leg extension in his lumbar spine, with negative seated straight-leg raise

test (AR 163). His deep tendon reflexes were full and equal, sensation was intact, muscle

strength was full and equal in all extremities (AR 163). Montalvo was started on insulin therapy

and responded well (AR 159). A gastrointestinal consult was obtained due to a history of chronic

abdominal pain (AR 159). James Pilla, M.D., indicated that Montalvo most likely had nonalcoholic fatty liver disease, and he recommended diet, exercise and aggressive treatment (AR

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170). On discharge, Montalvo was diagnosed with diabetes and chronic non-alcoholic liver

disease (AR 158). He was discharged with instructions to begin using insulin, and resume his

pre-hospitalization medications (AR 160, 163). 

On August 12, 2003, Dr. Wiza completed an Employability Assessment Form and opined

that Montalvo was permanently disabled due to chronic back pain, diabetes, and cirrhosis (AR

129). Dr. Wiza checked blocks on the form indicating that his assessment was based on a

physical examination, review of medical history, clinical history, and appropriate tests and

diagnostic procedures (AR 129). 

Montalvo returned to Dr. Wiza on September 16, 2003 complaining of a cough,

congestion, sore throat, headache and dizziness (AR 190). Dr. Wiza noted a history of diabetes

and chronic liver disease (AR 190). He prescribed an antibiotic for his infection, and switched

his pain medication to Lortab due to his elevated liver enzymes (AR 190). Dr. Wiza diagnosed

sinobronchial syndrome, diabetes requiring insulin, and chronic back pain (AR 190). 

On November 21, 2003, Montalvo presented to the emergency room complaining of an

onset of sharp lower abdominal pain with associated vomiting while working on a car (AR 181). 

He also complained of chills and dizziness (AR 181). On physical examination, tenderness was

noted in the suprapubic region (AR 182). Some tenderness was noted in his back, but he

exhibited a full range of motion, and had a normal motor and sensory examination (AR 182). 

Liver function scores were just above high normal on testing (AR 182). A CT scan of his

abdomen showed no abnormalities (AR 182). Montalvo was discharged with a diagnosis of

abdominal pain of unknown etiology (AR 183). 

Montalvo returned to Dr. Wiza on December 15, 2003 with multiple complaints and for

follow-up on his diabetes (AR 188). He claimed he was in constant pain all the time, and

specifically complained of pain in the back of his neck, numbness from his neck down his body,

pain in his right foot, hip pain, and had a cough and congestion (AR 188). Montalvo also

reported he “was paralyzed in Ohio,” but Dr. Wiza did not find “any etiology of any muscle

problem at the present time” (AR 188). On physical examination, Montalvo had tenderness to

palpation over his right trapezius insertion, with decreased range of motion of the cervical spine,

with normal reflexes, sensation, and motor strength (AR 188). Dr. Wiza diagnosed an upper

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respiratory infection, acute cervical strain and sprain, and diabetes (AR 188). He prescribed

Flexeril and Robitussin DM, and recommended moist heat and an x-ray of the cervical spine (AR

188).

Montalvo was hospitalized on March 31, 2004 following complaints of weakness in his

legs (AR 191). Neurosurgical consultation showed no cause for his problem, and neurology was

of the impression that his pain probably caused pseudoparalysis (AR 191). An x-ray of his

lumbar spine showed narrowing of the spinal canal at L-5 (AR 192). An MRI of his lumbar

spine dated March 30th showed right posterolateral and right paramedian herniation at L-5 and S1, however, another report of the same test showed no acute findings (AR 192). MRI’s of his

thoracic spine, cervical spine and brain showed no abnormalities (AR 192). An EMG showed

diabetic neuropathy (AR 191). Initially Montalvo was discharged home, but he required help

because he lived in a basement and had difficulty climbing stairs (AR 191). He was transferred

to Health South for continued physical therapy (AR 191). 

Montalvo received inpatient rehabilitation at Health South from April 5, 2004 through

April 19, 2004 (AR 193-202). On discharge, he was able to walk independently and could use

stairs as long as he used two handrails (AR 197). He did not require any assistance in performing

personal care, but needed a rolling walker to perform laundry and housekeeping chores (AR

198). 

Montalvo and Noel Plummer, a vocational expert, testified at the hearing held by the ALJ

on July 28, 2004 (AR 203-220). Montalvo testified that he suffered from pain in his lower back

radiating to his left leg, and occasionally had neck pain radiating down his spine (AR 209). He

also suffered from constant headaches (AR 212). To alleviate the pain, he took pain medication,

used a hot water bottle, and would frequently lie down (AR 209-210). He claimed he had more

bad days than good days, and had trouble sleeping at night (AR 212, 214). Montalvo testified

that he could lift five pounds, stand for fifteen to twenty minutes, sit for thirty minutes, and walk

once around the block without sitting down (AR 211). He used a cane or walker to ambulate

(AR 214). 

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

education, and work history, who was able to perform work that did not require exertion above

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the sedentary level, that allowed the individual to alternate sitting and standing, and did not

require reading or writing English (AR 217-218). The vocational expert testified that such an

individual could perform work as a packager and small machine operator (AR 218). The

vocational expert testified that these jobs could still be performed by a person who needed an

assistive device to walk (AR 218). He further testified that an individual who was unable to

leave the house approximately once a week due to pain would not be able to maintain

employment (AR 218-219). 

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

not eligible for SSI benefits within the meaning of the Social Security Act (AR 20). Montalvo’s

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

decision of the Commissioner (AR 4-6). 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

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

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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 Montalvo’s case at the fifth step. At step two, the

ALJ determined that his degenerative disc disease and recent onset of diabetes were severe

impairments, but determined at step three that he did not meet a listing (AR 15). At step four,

the ALJ determined that Montalvo had the residual functional capacity to perform work that did

not require exertion above the sedentary level which allowed for a sit/stand option, and did not

require reading or writing English (AR 16). At the final step, the ALJ determined that Montalvo

could perform the jobs cited by the vocational expert at the administrative hearing (AR 18). The

ALJ additionally determined that Montalvo’s allegations regarding his limitations were not

totally credible (AR 19). Again, we must affirm this determination unless it is not supported by

substantial evidence. See 42 U.S.C. § 405(g). 

Montalvo first claims that the ALJ failed to discuss or issue findings regarding his liver

condition. At step two of the five-step process, an ALJ is to determine “whether the claimant has

a medically severe impairment or combination of impairments.” Bowen v. Yuckert, 482 U.S.

137, 140-41 (1987). An impairment is not severe if it does not significantly limit a claimant’s

physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a). Examples of

basic work activities include: (1) physical functions such as walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking;

(3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5)

responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing

with changes in a routine work setting. 20 C.F.R. § 404.1521(b). Therefore, the mere existence

of a diagnosis does not demonstrate a disability. Plummer v. Apfel, 186 F.3d 422, 434 (3rd Cir.

1999). The claimant must demonstrate that he suffers from functional limitations as a result of

that impairment. Adorno v. Shalala, 40 F.3d 43, 46 (3rd Cir. 1994). 

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1Montalvo cites his visits to the emergency room in November 2002 and November 2003 

as further evidence of a severe liver impairment. See Plaintiff’s Brief p. 8. However, neither of

these records lend support to his argument. In November of 2002, he was diagnosed with acute

exacerbation of abdominal pain, likely secondary to peptic ulcer disease, gastric or duodenal

ulcer or gastritis, and was only to remain off work for three days (AR 126). His November 2003

hospitalization for abdominal pain resulted in a diagnosis of abdominal pain of unknown etiology

(AR 183). 

9

Our review of the ALJ’s decision confirms the fact that, although the ALJ discussed

Montalvo’s medical records and testimony, he failed to discuss or make any findings relative to

his liver condition. We are of the opinion, however, that a remand is not required under the facts

of this case. We first note that Montalvo did not claim cirrhosis as a disabling condition in his

disability application, and offered no testimony of this condition at the administrative hearing. 

More importantly, the record is devoid of any evidence that Montalvo suffered from any

functional limitations as a result of this condition. Montalvo’s medical records reflect that his

liver disease was first diagnosed on August 6, 2003, when he was hospitalized with an onset of

diabetes (AR 161). At that time, he had elevated liver function tests, and a liver spleen scan

showed some mild cirrhotic change (AR 161). The only other references in the medical records

to Montalvo’s liver condition is Dr. Wiza’s opinion on August 12, 2003, wherein he opined that

Montalvo was permanently disabled due to chronic back pain, diabetes and cirrhosis, and a

secondary diagnosis of chronic liver disease and cirrhosis in March 2004 during his

hospitalization for back pain (AR 129, 191).1 

Moreover, we observe that Montalvo does not argue in his Brief that his liver condition

affects his ability to work; rather, he simply argues that because the ALJ failed to make findings,

the matter should be remanded. See Plaintiff’s Brief p. 8. Absent evidence that Montalvo’s liver

condition significantly affects his ability to work however, we fail to see how a remand would

affect the outcome of his case. See e.g., Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3rd Cir.

2005) (remand not required where ALJ failed to explicitly consider claimant’s obesity because it

would not affect outcome of the case); Winters v. Barnhart, 80 Fed.Appx. 249, 252 (3rd Cir.

2004) (affirming decision of the district court which concluded that the ALJ’s failure to discuss

claimant’s carotid artery disease had no effect on the sequential analysis); Adams v. Barnhart,

2005 WL 1313456 at *3 (E.D.Pa. 2005) (declining to remand due to ALJ’s failure to address

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claimant’s weight since it would not affect outcome of the case). We therefore find no error in

this regard. 

Montalvo further claims that the ALJ failed to accord proper weight to the opinion of Dr.

Wiza, his treating physician. It is well settled in this Circuit that the opinion of a treating

physician is entitled to great weight and can only be rejected on the basis of contrary medical

evidence. Frankenfield v. Bowen, 861 F.2d 405, 408 (3rd Cir. 1988). An ALJ must articulate in

writing his or her reasons for rejecting such evidence. Cotter v. Harris, 642 F.2d 700, 705 (3rd

Cir. 1981). In the absence of such an indication, “the reviewing court cannot tell if significant

probative evidence was not credited or simply ignored.” Id. Further, “a court considering a

claim for disability benefits must give greater weight to the findings of a treating physician than

to the findings of a physician who has examined the claimant only once or not at all.” Mason v.

Shalala, 994 F.2d 1058, 1067 (3rd Cir. 1993). 

Dr. Wiza opined on a form for the Department of Public Welfare that Montalvo was

disabled due to chronic back pain, diabetes and cirrhosis (AR 129). The ALJ found that his

opinion was not consistent with his own treatment notes and examination findings (AR 16). The

ALJ further found that Dr. Wiza failed to cite clinical evidence in support of his conclusions (AR

16). He concluded that Dr. Wiza’s records failed to show a condition so severe that Montalvo

was precluded from performing sedentary work (AR 16). Consequently, the ALJ declined to

accord Dr. Wiza’s opinion controlling weight.

Upon review of the ALJ’s decision and consideration of all the record evidence here, we

do not agree that the ALJ committed reversible error in this regard. A treating source’s medical

opinion concerning the nature and severity of the claimant’s alleged impairments will be given

controlling weight if the Commissioner finds that the treating source’s opinion is “well-supported

by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence” in the record. 20 C.F.R. § 416.927(d)(2). Here, we conclude that

the ALJ properly declined to give Dr. Wiza’s opinion controlling weight under these standards.

As noted by the ALJ, Dr. Wiza did not provide any narrative explanation or specific

findings to support his assessment. See Mason, 994 F.2d at 1065 (“Form reports in which a

physician’s obligation is only to check a box or fill in the blank are weak evidence at best.”). As

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2We reject Montalvo’s contention that the ALJ should have sought clarification of Dr.

Wiza’s opinion. The ALJ apparently felt that the record was sufficiently developed for purposes

of ruling on his claim. Section 416.912(e)(1) provides that the Administration will take action to

re-contact medical sources and obtain additional medical information where the existing

evidence is insufficient to determine whether a claimant is disabled. 20 C.F.R. § 416.912(e)(1). 

We believe the ALJ could permissibly render a decision based upon the evidence in the present

record without further development and, therefore, find no error in the ALJ’s failure to re-contact

Dr. Wiza for further clarification under the circumstances here. 

11

further noted by the ALJ, Dr. Wiza’s opinion was unsupported by his own clinical findings as set

forth in his progress notes. In March 2003, Montalvo had a decreased range of motion in his

lumbar spine, but had normal muscle strength and sensation, with no radicular symptoms (AR

133). In April 2003, while Dr. Wiza noted muscle spasm and decreased range of motion, a

straight-leg raise test was normal in the seated position, and he had normal sensation and reflexes

(AR 132). Although Montalvo had a positive straight-leg raise test in May 2003, his remaining

examination was unchanged (AR 131). When hospitalized in August 2003, Montalvo had a

negative straight-leg raise test in the seated position, and his muscle strength was full and equal

in all extremities (AR 163). Upon hospitalization in November 2003, he exhibited some

tenderness, but he exhibited a full range of motion and had a normal motor and sensory exam

(AR 182). Dr. Wiza found decreased range of motion of the cervical spine in December 2003,

but Montalvo had normal reflexes, sensation and motor strength (AR 188). In March 2004, a

neurological consultation showed no cause for his problem of weakness in his legs, and tests

conducted were essentially unremarkable (AR 191-192). The ALJ’s determination not to give

Dr. Wiza’s opinion controlling weight was not erroneous. We therefore find no error in this

regard.2 

Montalvo next challenges the ALJ’s evaluation of Dr. Gilreath’s opinion, a consultative

examiner who examined Montalvo pursuant to the request of the Commissioner. Dr. Gilreath 

opined that Montalvo could lift twenty pounds frequently, stand/walk one hour or less per day, sit

less than six hours per day, never balance or climb, and occasionally perform other postural

activities (AR 142-143). Montalvo claims in essence that Dr. Gilreath’s opinion negates his 

ability to work and that the ALJ’s reliance on the non-examining state agency physician’s

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opinion was in error.

We note that the treating physician rule does not apply to a consulting physician’s

opinion. Mason, 994 F.2d at 1067 (doctrine had no application to physician who examined

claimant once). Nonetheless, the Commissioner’s regulations do acknowledge that, as a general

principal, opinions from examining sources are given more weight than opinions from nonexamining sources. See 20 C.F.R. 416.927(d)(1). The regulations do not require however, that

in every case, an examining physician’s medical opinion must be favored over that of a nonexamining physician. Instead, the Commissioner must consider a number of competing factors,

such as the extent to which there is a treating relationship, the extent to which the opinion is

supported by a logical explanation, the degree of the medical source’s specialization in a relevant

field, and the extent to which the source’s opinion is consistent with the entirety of the evidence. 

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

Here, the ALJ considered Dr. Gilreath’s reported findings based upon his physical

examination of Montalvo, and found that Dr. Gilreath’s conclusion relative to Montalvo’s

residual functional capacity was not supported by the record (AR 17). The ALJ observed that Dr.

Gilreath’s examination findings were essentially unremarkable, other than some differentiation in

the measurement of his legs and rigid lumbar area (AR 16). The ALJ noted that Dr. Gilreath

found Montalvo’s strength was normal, and there was no gross evidence of atrophy of

fasciculation in the right leg, or any evidence of muscle weakness (AR 16). The ALJ placed

significant weight on Dr. Bryan’s opinion, the non-examining state agency physician, who

concluded that Montalvo was capable of medium exertion, since it was supported by a detailed

rationale (AR 17). However, the ALJ reduced Montalvo’s residual functional capacity from the

medium level to the sedentary level due to Montalvo’s complaints of pain and his recent diabetes

(AR 17). 

Dr. Gilreath’s physical examination of Montalvo was essentially unremarkable. We

observe that Dr. Gilreath found no neurological deficits, and there was no objective evidence of

muscle weakness (AR 140). While Dr. Gilreath’s residual functional capacity assessment

essentially precluded Montalvo from working an eight hour day, he was also of the opinion that

he could return to light or sedentary work, but not in the field of manual labor (AR 140). 

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It is long-settled that the findings of a non-examining physician may be substantial

evidence defeating contrary opinions. Jones v. Sullivan, 954 F.2d 125, 129 (3rd Cir. 1991) (ALJ

did not err in rejecting opinion of treating physician in favor of opinions from state agency

physicians, where treating physicians’ opinions were conclusory and unsupported by the medical

evidence). The Commissioner’s regulations do acknowledge that, as a general principle,

opinions from examining sources are given more weight than opinions from non-examining

sources. See 20 C.F.R. § 416.927(d)(1). However, this is merely a general guideline; it does not

require that, in every case, an examining physician’s medical opinion must, as a matter of law, be

favored over that of a non-examining physician. The ALJ concluded that Dr. Gilreath’s opinion

lacked objective clinical evidence to support the functional restrictions imposed, and considered

Dr. Bryan’s assessment reasonable in light of the evidence in the record (AR 17). Since the ALJ

analyzed the medical evidence consistent with the required standards, we find that his

determination is supported by substantial evidence.

In a related argument, Montalvo contends that the ALJ’s reliance on Dr. Bryan’s

assessment was in error because he did not review the evidence after July 24, 2003. This later

medical evidence consisted of Montalvo’s hospitalization records, Dr. Wiza’s treatment records

dated September 2003 through December 2003, and his Health South inpatient records. 

Although these records were not reviewed by Dr. Bryan, they were reviewed by the ALJ, who

specifically discussed these records in fashioning Montalvo’s residual functional capacity (AR

17). In fact, the ALJ specifically reduced Montalvo’s residual functional capacity from medium

to the sedentary level due to his pain and recent diabetes as reflected in these later records. (AR

17). Even if the state agency reviewing physician’s had had the benefit of these later records,

they do not support Montalvo’s contentions that his limitations prevented him from performing

substantial gainful activity. We therefore find no error in this regard. 

Montalvo also challenges the ALJ’s credibility determination. According to the

regulations, there is a two-step process an ALJ must follow in evaluating a claimant’s subjective

complaints. First, the ALJ must determine whether there is an underlying medically

determinable physical or mental impairment that could reasonably be expected to produce the

individual’s pain or other symptoms. See SSR 96-7p, 1996 WL 374186, at *2. If such an

Case 1:05-cv-00022-SJM Document 11 Filed 07/29/05 Page 13 of 16
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impairment exists, then the ALJ must determine the extent to which the claimant’s allegations

are credible by evaluating “the intensity and persistence of the pain or symptom, and the extent to

which it affects the [claimant’s] ability to work.” Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir.

1999). 

In making this determination, the ALJ should consider the objective medical evidence as

well as other factors such as the claimant’s own statements, the claimant’s daily activities, the

treatment and medication the claimant has received, any statements by treating and examining

physicians or psychologists, and any other relevant evidence in the case record. See 20 C.F.R. §

416.929(c); SSR 96-7p, 1996 WL 374186 at *2. In this regard, there must be objective evidence

of some condition that could reasonably produce the alleged pain or symptoms but there need not

be objective evidence of the actual pain or symptoms. See Mason v. Shalala, 994 F.2d 1058,

1067 (3d Cir. 1993); Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir. 1984). “An ALJ must

give serious consideration to a claimant’s subjective complaints of pain, even where those

complaints are not supported by objective medical evidence.” Mason, 994 F.2d at 1067 (citing

Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)). 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 309, 312 (3rd Cir. 1974). The ALJ is empowered

to evaluate the credibility of witnesses and his determination is entitled to deference by this

Court. See Van Horn v. Schweiker, 717 F.2d 871, 873 (3rd Cir. 1983). 

Montalvo argues that the factors enumerated in SSR 96-7p were not appropriately

considered by the ALJ, and that a proper application would have resulted in his subjective

complaints and symptoms being credited rather than discredited. We find no error in the ALJ’s

credibility assessment. The ALJ acknowledged that in his determination of Montalvo’s RFC, he

must consider all symptoms, including pain, and the extent to which these symptoms could

reasonably be accepted as consistent with the objective medical evidence and other evidence,

based on the requirements of 20 C.F.R. § 416.929 and SSR 96-7p (AR 16). The ALJ found that

Montalvo’s allegations regarding his limitations were not totally credible (AR 17). In making his

determination, the ALJ considered the medical evidence of record, as well as Montalvo’s

testimony as to his functional restrictions (AR 16-17). He noted that Montalvo testified that

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15

chronic pain required him to lie down three to four hours every day, and that he was not capable

of working eight hours a day at any exertional level (AR 17). The ALJ then examined the

medical evidence of record and determined that while Montalvo’s spinal condition could

reasonably be expected to cause pain in his back and legs, the objective medical evidence did not

show a condition so severe that he would be unable to engage in sedentary work (AR 17). All of

these findings are supported by the record. 

Montalvo claims that the ALJ improperly rejected his need to lie down because it was not

supported by the opinion of a physician. However, a review of the ALJ’s decision shows that he

rejected this testimony on the basis of the objective medical evidence; not because such measure

was not prescribed by a physician (AR 17). We also reject his argument that the ALJ ignored the

fact that he took medication to control his pain. The fact that Montalvo takes pain medication is

not inconsistent with the ability to do sedentary work. The ALJ specifically found that Montalvo

suffered from pain and did not completely reject his testimony; indeed, he accommodated his

complaints in fashioning his residual functional capacity limiting him to sedentary duties which 

afforded him the opportunity to alternate between sitting and standing (AR 17). We therefore

find that there was substantial evidence in the record, taken as a whole, to support the ALJ’s

credibility determination.

IV. CONCLUSION

An appropriate Order follows.

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16

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LUIS A. MONTALVO, )

)

Plaintiff, )

) Civil Action No. 05-22 Erie

)

v. )

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, this 29th day of July, 2005, and for the reasons set forth in the accompanying

Memorandum Opinion, 

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

7] is DENIED, and the Defendant’s Motion for Summary Judgment [Doc. No. 9] is GRANTED. 

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

Commissioner of Social Security, and against Plaintiff, Luis A. Montalvo. 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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