1Deiss previously filed an application for DIB on July 23, 1997 alleging disability since

September 1, 1996, which was denied by an ALJ on January 12, 1999 (AR 19). The Appeals

Council affirmed the decision, and Deiss did not appeal that determination (AR 19). Both parties

agree that for purposes of the instant appeal, Deiss’ onset date is January 13, 1999, the day after

the prior ALJ’s denial. Plaintiff’s Brief p. 1. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RAYMOND F. DEISS, )

 )

Plaintiff, )

 )

v. ) Civil Action No. 04-380 Erie

 )

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

 )

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, J.

Plaintiff, Raymond F. Deiss, (hereinafter “Plaintiff” or “Deiss”), commenced the

instant action pursuant to 42 U.S.C. §§ 405(g) seeking judicial review of the final decision of the

Commissioner of Social Security denying his application for disability insurance benefits

(“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Deiss filed an

application for DIB on August 24, 2000, alleging that he was disabled since September 1, 1996

due to rheumatoid arthritis, degenerative joint disease of the lumbar and cervical spine,

gastrointestinal disorders, and chronic ischemia (Administrative Record, hereinafter “AR”, at 92-

94, 108).1 His application was denied on February 5, 2001 (AR 67-72). Deiss requested a

hearing before an administrative law judge (“ALJ”), and a hearing was held on November 6,

2001 (AR 31-66). Following this hearing, the ALJ found that Deiss was not entitled to a period

of disability or disability insurance benefits under the Act (AR 19-26). Deiss’ request for review

by the Appeals Council was denied (AR 6-10), rendering the Commissioner’s decision final

under 42 U.S.C. § 405(g). The instant action challenges the ALJ’s decision. Presently pending

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2

before the Court are cross-motions for summary judgment. For the reasons set forth below, we

will deny both motions. 

I. BACKGROUND

Deiss was born on July 20, 1939 was sixty-two years old at the time of the ALJ’s decision

(AR 20, 92). He has a college education and past work experience as a high school guidance

counselor (AR 109). He reported that his job involved testing and counseling students, advising

teachers, and using a computer for four to five hours a day (AR 109).

The medical evidence shows that Deiss had a history of an acute inferior myocardial

infarction in December 1998, for which he underwent cardiac catheterization, angioplasty, and

coronary stenting (AR 153-236). On January 29, 1999, Sunder R. Rao, M.D. reported that Deiss

felt well and had no recurrent symptoms following surgery (AR 259-260).

Deiss was also treated by Kreig Spahn, D.O. since 1998 for degenerative joint disease of

his lumbar and cervical spine, rheumatoid arthritis affecting his fingers, coronary artery disease,

hypertension, hyperlipidemia, and diverticulosis coli (AR 523). An MRI of Deiss’ lumbosacral

spine performed on November 2, 1999 showed degenerative changes of the spine with

levoscoliosis and a decrease in the volume in the AP diameter of the spinal canal (AR 318-319). 

A radionuclide lumbar bone SPECT conducted on November 11, 1999 showed findings

compatible with facette arthropathy at the L3-4 level bilaterally (AR 317). 

 Deiss returned to Dr. Rao for follow-up on November 17, 1999, who reported that he was

doing exceedingly well with no recurrence of angina (AR 257). 

Also on November 17, 1999, Deiss was examined by Robert Concilus, M.D. for

complaints of back pain and bilateral leg pain (AR 442). On physical examination, Dr. Concilus

reported that Deiss had normal curvature of the lumbar spine (AR 443). A neurologic

examination showed that sensation and strength were intact and a straight leg raising test was

negative (AR 443). His lumbar range of motion and flexion was “quite limited,” and there was

some paravertebral tenderness noted (AR 443). Dr. Concilus observed changes in the fingers of

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3

both hands consistent with arthritis (AR 443). Dr. Concilus diagnosed Deiss with symptoms of

back and leg pain consistent with lumbar radiculopathy, and recommended a series of epidural

injections and an evaluation for physical therapy (AR 443). On November 22, 1999, Deiss

returned to Dr. Concilus and received an epidural and trigger point injection (AR 311). 

On December 28, 1999, Deiss reported that the first epidural injection was very

beneficial, but the second injection as ineffective (AR 307). He was undergoing physical

therapy, but still reported significant pain (AR 307). On physical examination, no tenderness

was noted to the lumbar spine, and Dr. Concilus administered another steroid injection (AR 307). 

When seen by Dr. Spahn on March 1, 2000 a physical examination showed Deiss’ grip

strength was equal, he was able to heel and toe walk, and could squat and stand without problems

(AR 356).

Deiss underwent an electrodiagnostic consultation by Edward D. Reidy, M.D., on March

29, 2000 (AR 238-239). Physical examination revealed symmetric reflexes and well-preserved

strength in the bilateral upper extremities, with some sensory loss to pinprick in a C6 distribution

in the right upper extremity (AR 238). Dr. Reidy diagnosed acute cervical radiculopathy, which

he characterized as clinically and electrophysically mild and improving, and recommended Deiss

continue taking Vioxx (AR 239). 

In June 2000, Dr. Rao reported that Deiss was doing exceedingly well, was exercising,

had lost weight and essentially felt healthy (AR 256). Dr. Rao concluded that he was doing well

on medical therapy and recommended no further non-invasive cardiac testing (AR 256).

On August 7, 2000, Deiss returned to Dr. Concilus complaining of low back and leg pain

(AR 304). He reportedly had responded well to three epidural injections and back exercises, but

had recently developed pain (AR 304). Dr. Concilus noted that it was unclear why Deiss had

discontinued his home exercise program, and strongly encouraged him to continue the exercises

on a regular basis (AR 304). On physical examination, tenderness was noted on palpation of the

spinous process in the lumbosacral spine (AR 304). Dr. Concilus administered another steroid

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4

injection (AR 304). 

When seen by Dr. Concilus on September 5, 2000, Deiss reported that epidural injections

had significantly helped with his leg pain, but he continued to have back pain (AR 302). Dr.

Concilus administered an epidural and trigger point injections, encouraged physical therapy, and

indicated that further evaluation would be considered depending upon how Deiss responded to

treatment (AR 302). 

On October 17, 2000, Deiss was seen by M. Bruce Dratler, M.D. for complaints of

abdominal pain after eating with bloating, and bleeding from his rectum (AR 330). Dr. Dratler

ordered a EGD and colonoscopy in order to evaluate Deiss’ condition (AR 330). Tests

performed on October 24, 2000 showed inflammatory changes involving the rectosigmoid and

sigmoid colon (AR 332-333). Biopsy specimens showed mild to moderate nonspecific chronic

inflammation of the right colon, and mild nonspecific chronic inflammation of the sigmoid colon

(AR 335). 

Deiss underwent a consultative examination performed by Alexandra Hope, M.D. on

November 1, 2000 (AR 339-343). He reported an onset of rheumatoid arthritis in 1990 for which

he was currently being treated with Vioxx (AR 339). He indicated that his symptoms had

stabilized and his deformities stopped developing after he stopped using a computer at work (AR

339). His hands had not bothered him for the past two years, but he reported intermittent

swelling following activities such as home repair and gardening (AR 340). He had difficulty

with buttons and opening jar lids (AR 340). Deiss also reported a history of a myocardial

infarction, a left torn rotator cuff, low back and cervical pain (AR 339-340). Monthly injections

helped his back pain, and his neck pain decreased spontaneously (AR 339). Deiss reported that

his neck had not bothered him for the past two to three months (AR 340). He claimed that his

upper extremities felt diffusely weak, with occasional tingling (AR 340). He suffered from

intermittent, sharp, severe pain across his low back radiating to his buttocks, as well as to his

posterior thighs to the knee level (AR 340). He was able to walk 15 to 20 minutes at a time, sit

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with position changes to alleviate leg numbness, and carry a bag of groceries (AR 340). He was

independent in his daily activities, but used a cane for walking long distances (AR 340). 

A physical examination revealed tightness of the cervical muscles and tenderness over the

thumbs (AR 341). Dr. Hope observed boutonniere deformities of the index and little fingers

bilaterally, with early changes in the ring fingers (AR 341). Heberden’s nodes were present

bilaterally (AR 341). Fine motor coordination in both hands was slightly diminished (AR 342). 

Light touch sensation was intact and symmetrical (AR 342). Dr. Hope reported the following

results of Deiss’ range of motion for his hands: out of a possible 100o, flexion/extension of the

proximal interphalangeal joint was 90o on the right and 45o on the left; out of a possible 90o,

flexion of the metacarpophalangeal joint was 60o on the right and 55o on the left; out of a

possible 45o, extension of the metacarpophalangeal joint was 30o bilaterally; out of a possible

90o, flexion of the distal interphalangeal joint was 35o on the right and 45o on the left, and

extension was 0o bilaterally (AR 348). With respect to Deiss’ thumbs, Dr. Hope reported that out

of a possible 90o, flexion of his interphalangeal joint was 55o on the right and 50o degrees on the

left; out of a possible 20o, extension was 10o bilaterally; out of a possible 50o, flexion/extension

of the metacarpophalangeal joint was 25-65o on the right and 40o on the left (AR 349). 

Dr. Hope noted that Deiss sat well, had a normal sit to stand transition and a normal gait

pattern (AR 342). He was able to heel walk, toe walk, and deep knee bend (AR 343). Dr. Hope

formed an impression of a history of rheumatoid arthritis with joint deformities of the hand,

degenerative arthritis of the hands, spine and feet, chronic left rotator cuff tear, a history of

cervical radiculopathy, and coronary artery disease with a history of myocardial infarction (AR

342).

Dr. Hope concluded that Deiss could lift two to three pounds occasionally and sit for four

hours, alternation sitting and standing at his option (AR 344-345). He had limitations in pushing

and pulling and in postural activities (AR 344-345). He could not perform repetitive reaching

with the left upper extremity, downward reaching with either hand, or handling or fingering (AR

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6

344-345). Dr. Hope opined that his prognosis for recovery and improvement was poor, and that

his prognosis for returning to this former line of work was poor (AR 342). She noted that Deiss

had limited use of his hands due to the superimposed deformities of the rheumatoid arthritis and

osteoarthritis (AR 342). 

In January 2001, Deiss underwent a treadmill exercise test which was negative at 85

percent predicted heart rate without any associated ischemic ST segment changes or chest pain

(AR 425-526). A stress cardiolite myocardial spect scan was abnormal for the probable inferior

infarct, but showed no ischemia and there was a normal ejection fraction (AR 424-424). 

When seen by Dr. Concilus in January 2001, Deiss complained of back pain with some

benefit from previous epidural injections (AR 464). Dr. Concilus noted that Deiss had

documented facet disease at the L3-4 level bilaterally with persistent back pain that was

“problematic” (AR 464). Dr. Concilus performed facet blocks at L3-4 and L4-5 bilaterally, and

considered Deiss a candidate for radiofrequency treatment depending upon his response (AR

464). 

On January 22, 2001, a CT scan of Deiss’ abdomen and pelvis showed diverticulosis of

the sigmoid colon (AR 469). 

On January 29, 2001, V. Rama Kumar, a non-examining state agency reviewing physician

reviewed the medical evidence of record and completed a Residual Functional Capacity

Assessment form (AR 428-435). Dr. Kumar concluded that Deiss could lift and/or carry twenty

pounds occasionally and ten pounds frequently; could stand, walk and/or sit about six hours in an

eight-hour workday; had some limitations in his handling and fingering abilities, could

occasionally climb, stoop and crouch, but never balance, kneel or crawl; and had no visual,

communicative or environmental limitations (AR 429-432). Dr. Kumar opined that Dr. Hope’s

findings in November 2000 did not support the restrictions imposed in her assessment (AR 434). 

An x-ray of Deiss’ cervical spine conducted on February 7, 2001 showed straightening of

the normal cervical lordosis with focal spondylosis at the C5-6 level (AR 462). 

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Deiss returned to Dr. Concilus on March 13, 2001 complaining of back pain (AR 463). 

He reported that epidural injections provided him complete relief for three days with improved

pain for at least a week (AR 463). Dr. Concilus performed a radiofrequency neurolysis at the

posterior division nerve at L3, L4 and L5 bilaterally (AR 463).

In April 2001, Deiss reported that the radiofrequency treatment did not help, and he had

back and leg pain (AR 539). He reported a new complaint of right arm pain with intermittent

numbness (AR 539). On physical examination, Dr. Concilus reported that he had good vascular

supply to the right upper extremity, and his arm appeared warm and pink (AR 539). He had

normal strength, and there was minimal tenderness to palpation of the spinous processes of the

cervical spine, with no lymphadenopathy noted (AR 539). Dr. Concilus performed a bilateral

steroid injection and prescribed Neurontin (AR 539). Deiss was to continue with narcotic

analgesics as needed, and Dr. Concilus noted that his prognosis was somewhat guarded (AR

539). 

In June 2001, Dr. Rao opined that Deiss was doing well from a cardiac standpoint and

had no symptoms of angina (AR 542-543). 

Deiss was admitted to the hospital on July 2, 2001 with a chief complaint of rectal

bleeding (AR 547). He reportedly had become dizzy when using the restroom and had passed

out for an undetermined period of time (AR 547). Because of his cardiac status and low

hemoglobin, Deiss underwent a blood transfusion (AR 547). He tolerated the transfusion

without problem and was discharged for outpatient therapy (AR 545). Tests performed while in

the hospital did not reveal any significant findings other than diverticulosis (AR 545). His

discharge diagnosis was acute diverticular hemorrhage with blood loss anemia requiring

transfusion, gastroesophageal reflux disease, coronary artery disease, hypertension, degenerative

joint disease of the spine, osteoarthritis of the spine, and rheumatoid arthritis (AR 545). 

Finally, on July 22, 2001, Dr. Spahn concluded that due to Deiss’ degenerative joint

disease, rheumatoid arthritis of the fingers, cardiac condition, hypertension and diverticulosis,

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Deiss could only sit for four hours and stand or walk for one hour in an eight-hour workday (AR

523-530). He could lift ten to twenty pounds occasionally and five to ten pounds frequently; had

moderate limitations in his ability to grasp, turn, and twist objects; and no ability to use his

fingers for fine manipulation (AR 527). Dr. Spahn further opined that writing and typing would

be difficult due to Deiss’ severe arthritis of his fingers (AR 526). 

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

November 6, 2001 (AR 31-66). Deiss testified that he suffered from arthritis which caused pain

at the base of his spine and radiated down to his legs (AR 37). He took a variety of medications

to control the pain, and had regularly scheduled injection therapy (AR 38-39). Deiss testified he

also suffered from rheumatoid arthritis in his fingers and had continuous pain (AR 38). He

claimed his knuckles froze and he was unable to grasp small objects (AR 38). He was able to sit

with position changes, and was only able to stand for about fifteen minutes (AR 39). 

Deiss testified that the primary reason he was unable to perform his job as a guidance

counselor was the result of limitations due to the arthritic conditions in his hands (AR 40). Out

of an eight-hour day, five hours were spent on the computer (AR 40). He claimed that his

rheumatologist informed him that constant slight movement of his fingers irritated his arthritis,

and would cause further deformity in his hands (AR 40). He claimed his grip was no longer firm

because he was unable to bend his knuckles appropriately, his hands were constantly swollen,

and bony knobs were present on the knuckles (AR 43-44). He did very little computer work, and

when he did work on the computer, he used “a finger thing” (AR 44). He wore shoes with velcro

straps since he was unable to tie his shoes (AR 48). Deiss also testified that he was unable to

stay on his feet for any length of time and was unstable on his feet (AR 40). He further claimed

that he suffered from gastrointestinal problems which hindered his ability to work since at times

he needed to use the bathroom up to twenty times a day (AR 51). 

The vocational expert described Deiss’ past work experience as skilled, with the

exertional level of medium (AR 59). The vocational expert testified that Deiss used a computer

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9

to test and counsel students approximately four to five hours per day, participated in parent

teacher conferences, sat for six hours, engaged in frequent reaching and occasional bending, and

lifted up to 50 pounds (AR 59). He further testified that according to the Dictionary of

Occupational Titles, this job was generally performed at the sedentary exertional level (AR 59). 

According to the vocational expert, the job could be performed with a sit/stand option and by

someone who could only occasionally grasp, twist, and turn objects (AR 60-61). The vocational

expert further testified however, that in order to perform the job of a guidance counselor, an

individual would use a computer “a good four hours out of a work day,” and if such an individual

could only rarely or occasionally type on a computer, he could not perform the job (AR 63-65). 

Following the hearing, the ALJ issued a written decision which found that Deiss was not

entitled to a period of disability or disability insurance under the Act (AR 26). Deiss’ request for

review by the Appeals Council was denied making the ALJ’s decision the final decision of the

Commissioner (AR 6-10). 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

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2

In order to be entitled to DIB under Title II, a claimant must additionally establish that

her disability existed before the expiration of her insured status. 42 U.S.C. § 423(a), (c). The

ALJ found that Deiss satisfied the insured status requirements of the Act through December 31,

2002 (AR 25). 

10

expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).2

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. Here, the ALJ resolved Deiss’ case at the fourth step. He determined

that Deiss’ degenerative disc disease of the lumbar and cervical spine, rheumatoid arthritis,

gastrointestinal disorders and chronic ischemia were severe impairments, but determined at step

three that he did not meet a listing (AR 20). The ALJ found that he had the residual functional

capacity to perform work that did not require exertion above the sedentary level and that allowed

a sit/stand option (AR 24). The ALJ concluded that Deiss’ impairments did not prevent him

from performing his past work as a guidance counselor (AR 25). The ALJ also determined that

Deiss’ allegations regarding his limitations were not totally credible (AR 26). Again, we must

affirm this determination unless it is not supported by substantial evidence. See 42 U.S.C. §

405(g).

At step four, the ALJ must determine whether a claimant’s residual functional capacity

enables him to perform his past relevant work. The ALJ must perform the following analysis: (1)

the ALJ must make specific findings of fact as to the claimant’s residual functional capacity; (2)

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the ALJ must make findings of the physical and mental demands of the claimant’s past relevant

work; and (3) the ALJ must compare the residual functional capacity to the past relevant work to

determine whether the claimant has the level of capacity needed to perform the past relevant

work. See 20 C.F.R. § 404.1561; Social Security Ruling (“SSR”) 82-62, 1982 WL 31386 (1982);

Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 120 (3rd Cir. 2000). 

Here, the ALJ found that Deiss had the residual functional capacity to perform sedentary

work with a sit/stand option (AR 24). The ALJ then found that his position as a guidance

counselor was considered sedentary, and would allow a sit/stand option with only minor

accommodations (AR 25). Finally, the ALJ concluded that Deiss could perform his past relevant

work as a guidance counselor (AR 25). Deiss claims that the ALJ erred in his assessments of the

medical evidence and his testimony in determining his residual functional capacity with respect

to the use of his hands, and therefore, his determination at step four is not supported by

substantial 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, 220 F.3d at 121 (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 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. 

 

Soc. Sec. Rul. 96-5p (1996), 1996 WL 374183 *5. 

There is no dispute that Deiss’ position as a guidance counselor requires him to use a

computer approximately four to five hours per day. Deiss testified to such usage, and the

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3Heberden’s nodes are small hard nodules, usually located at the distal interphalangeal

articulations of the fingers and are associated with interphalangeal osteoarthritis. See

DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1052 (25th ed. 1974). 

12

vocational expert confirmed that the position would require computer usage “a good four hours

out of a work day” (AR 64, 109). The critical issue therefore, is whether the ALJ’s conclusion

that Deiss was capable of utilizing his computer four to five hours per day was supported by

substantial evidence. In this regard, the evidence showed that in November 1999, Dr. Concilus

observed changes in the fingers of both hands consistent with arthritis (AR 443). When seen by

Dr. Hope, the consulting examiner, in November 2000, Deiss reported that his hand symptoms

had stabilized and his deformities stopped developing after he stopped using a computer (AR

339). He further reported that although his hands had not bothered him for the past two years, he

would suffer intermittent swelling following home repair activities and gardening, and that he

had difficulty with buttons and opening jar lids (AR 340). Dr. Hope observed boutonniere

deformities of the index and little fingers bilaterally, with early changes in the ring fingers (AR

341). Heberden’s nodes3 were present bilaterally, and fine motor coordination in both hands was

slightly diminished (AR 341-342). Although light touch sensation was intact and symmetrical,

Deiss exhibited a decreased range of motion of his fingers (AR 348-349). Dr. Hope diagnosed

Deiss with rheumatoid arthritis with joint deformities of the hand and degenerative arthritis of the

hand (AR 342). She opined that he could not perform handling or fingering maneuvers, and had

limited use of his hands due to the superimposed deformities of the rheumatoid arthritis and

osteoarthritis (AR 342, 344-345). 

In January 2001, Dr. Kumar, the non-examining consultant, opined that Deiss had some

limitations in his handling and fingering abilities (AR 431). Dr. Spahn, who was a treating

physician, opined in July 2001 that Deiss had no ability to use his hands for fine manipulation,

and that “severe arthritis of [the] fingers [made] writing and typing difficult” (AR 526-527). 

Deiss testified at the hearing that the primary reason he was unable to perform his job was due to

the limited use of his hands, in that he was unable to bend his knuckles appropriately, his hands

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13

swelled and bony knobs were present on the knuckles (AR 43-44). He further testified that he 

wore velcro shoes since he was unable to tie his shoelaces (AR 48).

In fashioning Deiss’ RFC with respect to his hand limitations, the ALJ noted that Dr.

Concilus had observed changes in his fingers consistent with arthritis, and that Dr. Hope noted

deformities of his hands with slightly diminished fine motor coordination (AR 22-23). The ALJ

rejected Dr. Hope and Dr. Spahn’s opinions that Deiss was limited to a total of less than eight

hours of standing, walking and sitting, on the basis that these “extreme limitations” were not

supported by Dr. Hope’s examination or Dr. Spahn’s treatment notes (AR 24). The ALJ gave

more weight to Dr. Kumar’s RFC assessment since he concluded that it was more consistent with

the medical evidence (AR 24). 

The ALJ rejected Deiss’ testimony regarding the limited use of his hands, and noted that

Deiss testified that his pain had lessened (AR 24). He also noted that Dr. Concilus found normal

strength in April 2001, and in March 2001, Deiss had sufficient strength to climb a ladder (AR

24). He further observed that Dr. Reidy noted a lessening of complaints and tingling in the right

hand and arm, and that Dr. Hope observed only slightly diminished fine motor coordination, with

light touch sensation intact and symmetrical (AR 24). Following his analysis of this evidence,

the ALJ stated:

...The expert testified that an individual with the residual functional

capacity adopted here could perform the work of guidance

counselor as generally performed in the national economy. The job

includes the need to use the computer up to four hours per day. I

find that the medical evidence supports a finding that the claimant

has the capacity to do this work. Exertionally, it is within his

range. The evidence concerning problems with his hands does not

rule out the use of a computer. I conclude that claimant can

perform his past work as a guidance counselor and therefore is not

disabled.

The expert testified that a person who had marked restrictions in

grasping or was able to use the computer only one-third of the day

could not do the work of a guidance counselor. However, I do not

find that the evidence supports this limitation. The claimant has

some arthritis of the hands, but he is able to drive, lift his

granddaughter, and perform some household chores, consistent

with the residual functional capacity adopted here (AR 25). 

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14

Upon review of the entire record, we agree with Deiss that the ALJ’s RFC determination

is not supported by substantial evidence. We first observe that the ALJ failed to discuss Dr.

Spahn’s conclusions in June 2001 that Deiss had no fine manipulation abilities or that writing

and typing would be difficult due to his severe arthritis. As a treating physician, his opinion 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. The Third Circuit recently 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). Here, the ALJ failed to explain his

rejection of this evidence. 

We further find that the ALJ selectively relied on those findings of Dr. Hope which

supported his determination, while apparently rejecting those which did not without explanation. 

Specifically, the ALJ relied upon Dr. Hope’s findings that Deiss had only slightly diminished

fine motor coordination, and his light touch sensation was intact and symmetrical (AR 24). He

did not address however, her findings as to Deiss’ limited range of motion, or more critically, her

opinion that he could not perform handling or fingering maneuvers, and had limited use of his

hands due to the superimposed deformities of the rheumatoid arthritis and osteoarthritis (AR 342,

344-345). We recognize that a consulting physician’s opinion is not entitled to the same amount

of deference accorded a treating physician’s opinion. Mason v. Shalala, 994 F.2d 1058, 1067 (3rd

Cir. 1993). Nonetheless, where competent evidence supports a claim, the ALJ must explicitly

weigh the evidence and explain a rejection of the evidence. Schaudeck, 181 F.3d at 435. Fairly

read, Dr. Hope’s entire report tends to support Deiss’ disability claim with respect to his hands.

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Moreover, we observe that Dr. Kumar, the state agency non-examining physician, opined

that Deiss had limitations in his ability to engage in handling/gross manipulations and

fingering/fine manipulations (AR 431). We recognize that Dr. Kumar did not render an opinion

on Deiss’ ability to use a computer; nonetheless, his assessment supports the conclusions of Drs.

Spahn and Hope.

Finally, the ALJ relies on Deiss’ limited activities to support the inference that he is

capable of using a computer four hours per day. The ALJ found that because Deiss was able to

drive, lift his granddaughter, and perform some household chores, he was able to use a computer

for four hours per day. We cannot agree with this assessment of the evidence. Quite simply,

these limited activities do not demonstrate an ability to engage in the demands of using a

computer four to five hours a day for five days per week. Furthermore, the fact that Deiss may

sporadically engage in certain household chores does not support the ALJ’s determination that he

is capable of performing his job as a guidance counselor. See Smith v. Califano, 637 F.2d at 971-

72 (“Disability does not mean that a claimant must vegetate in a dark room excluded from all

forms of human and social activity. ... It is well established that sporadic or transitory activity

does not disprove disability.”). Deiss’ limited activities do not support an inference that he has

the RFC to use a computer four hours per day. 

We must now determine whether to remand the case for further administrative

proceedings or reverse and direct an award of benefits. The decision to reverse the decision of

the Commissioner and direct an award of benefits should only be made “when the administrative

record of the case has been fully developed and when substantial evidence on the record as a

whole indicates that the claimant is disabled and entitled to benefits.” Podedworny v. Harris,

745 F.2d 210, 221 (3d Cir. 1984). In this instance, we find that a remand is appropriate. On

remand, the ALJ is directed to address the entire medical opinions of Drs. Spahn and Hope, and

reevaluate Deiss’ credibility in light of his reexamination of the medical evidence. The ALJ is

free to seek additional evidence and/or call a vocational expert if he feels it is necessary.

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IV. CONCLUSION 

Based upon the foregoing reasons, the Plaintiff’s motion for summary judgment shall be

denied, and the Defendant’s motion for summary judgment shall be denied. The matter shall be

remanded to the ALJ for further proceedings consistent with this Memorandum Opinion. 

 

 

 

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RAYMOND F. DEISS, )

 )

Plaintiff, )

 )

v. ) Civil Action No. 04-380 Erie

 )

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

 )

Defendant. )

ORDER

AND NOW, THIS 14th day of July, 2005, for the reasons set forth in the accompanying

Memorandum Opinion,

IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. No.7]

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