1Dean originally alleged an onset date of November 18, 1999, but amended this date to

August 17, 2002 (AR 49, 176). 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ONETA A. DEAN, )

)

Plaintiff, )

)

v. ) Civil Action No. 05-44 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, J.

Plaintiff, Oneta A. Dean, 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 her 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. Dean filed applications for DIB and SSI on October 23, 2002, alleging that she was

disabled due to a disc bulge at L4-5 as of August 17, 2002 (Administrative Record, hereinafter

“AR”, 49-51, 66, 157-159).1 Her applications were denied, and she requested a hearing before an

administrative law judge (“ALJ”) (AR 35-40, 42, 160-164). Following a hearing held December

11, 2003, the ALJ found that Dean was not entitled to a period of disability or disability

insurance, and was not eligible for SSI benefits (AR 17-24). Dean’s request for review by the

Appeals Council was denied (AR 6-9), 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

Plaintiff’s motion and grant Defendant’s motion.

I. BACKGROUND

Dean was born on October 21, 1952, and was fifty-one years old at the time of the ALJ’s

decision (AR 23, 49). She has a high school education and two years of college (AR 18, 72). 

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She has past relevant work experience as an injection molder, a CNS operator/tester, a teacher’s

aide, a machinist, and a laborer (AR 18, 83). 

Dean began treatment with Steven Gilman, M.D., on February 29, 2000 for complaints of

back pain (AR 117-118). Dr. Gilman reported that Dean had a normal neurological examination,

her muscle strength was 5/5 in all muscle groups, her reflexes were symmetric, her gait and

station were normal, and straight leg raise signs were negative (AR 117). She did however,

exhibit some signs of mechanical back pain on flexion and extension (AR 117). Dr. Gilman

noted that an MRI scan of her lumbar spine was “basically pretty normal,” with no evidence of

disc herniation, stenosis or spondylolisthesis (AR 118). Dr. Gilman diagnosed mechanical back

pain, and recommended physical therapy and anti-inflammatory medication (AR 118). 

Dean was seen by Christie Ray, M.D., on September 25, 2001 with a chief complaint of a

persistent headache with sinus pressure and congestion (AR 129). Dean reported a history of

chronic back pain, for which she had been on narcotic medication and muscle relaxants (AR

129). She stated that her pain was under fair control, but she did not take her medication as often

as prescribed because she did not like how it made her feel (AR 129). On physical examination,

Dr. Ray noted that Dean’s cranial and sensory nerves were intact, and her reflexes were 2+ (AR

129). She prescribed an antibiotic for chronic sinusitis (AR 129). 

On October 26, 2001, Dean presented to the emergency room with complaints of chest

pain (AR 109). Myocardial imaging conducted on October 29, 2001 was negative with no

evidence of ischemia or scar, and Dean’s left ventricular wall motion and ejection fraction was

within normal limits (AR 104). Dean also underwent a stress test, which revealed she had no

symptoms and no ischemia, normal ejection fraction, and had a “[g]ood exercise tolerance” (AR

103).

Dean returned to Dr. Ray on June 25, 2002 complaining of back pain (AR 125). She

reported seeing Dr. Thomas, who tried injections and numerous pain medications (AR 125). She

claimed that hydrocodone made her groggy (AR 125). Dean rated her pain level as a three out of

a possible ten (AR 125). Dr. Ray assessed persistent back pain, and recommended a referral to a

neurosurgeon (AR 125).

On July 2, 2002, Dean was seen by John Euliano, M.D., for complaints of low back pain

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and right-sided leg pain (AR 114). She reported a history of conservative treatment consisting of

epidural injections which provided no relief (AR 114). On physical examination, Dr. Euliano

noted back tenderness, a limited range of motion, and a positive straight leg raise test (AR 114). 

He further noted that a lumbar spine MRI taken on April 2, 2002 showed a very slight right

neuroforaminal disc bulge at L4-5 which appeared to be touching the exiting nerve root (AR

114). Dr. Euliano opined that since she had failed conservative treatment, she more than likely

needed excision of the disc (AR 114). 

Dean returned to Dr. Gilman on September 18, 2002 for follow-up (AR 116). In a report

to Dr. Ray, Dr. Gilman indicated that Dean was suffering from back pain that was making her

“pretty miserable” (AR 116). Upon examination, he found “what look[ed] like a straight leg

raise sign on the right,” but it could “just be back pain and upper leg pain and not truly radicular” 

(AR 116). Dean’s reflexes were symmetric and she had no sensory loss or problems with hip

rotation (AR 116). Dr. Gilman reviewed Dean’s MRI noting that it was read as showing a far

lateral disc at L4-5, but stated he “[did]n’t really see anything” and was not sure “that’s what that

is” (AR 116). Because Dean was not improving, he recommended a bone scan, a myelogram and

a CT scan in order to rule out a pinched nerve (AR 116).

On September 18, 2002, Dean underwent a bone scan which showed minimal facet

arthropathy at L4-5 (AR 122). Otherwise, the study was negative (AR 122). 

Dean’s myelogram and CT scan conducted on October 11, 2002 showed mild and

moderate facet degenerative changes, with mild diffuse disc bulging and facet hypertrophy

resulting in mild L2-3 and minimal L3-4 spinal canal narrowing (AR 119).

Dean returned to Dr. Gilman on November 5, 2002, and complained of pain in the right

side of her back in the region of the facet joint, but no leg pain (AR 115). Dr. Gilman stated that

her myelogram “look[ed] pretty clean” with no evidence of pinched nerves or herniated discs

(AR 115). He indicated he was concerned about her symptoms, which “sounded like” facet

arthropathy (AR 115). Dr. Gilman stated he would check a bone scan and prescribe a course of

Vioxx to see if it alleviated her symptoms, and was of the opinion that surgery was not needed

(AR 115). 

On April 1, 2003, a state agency adjudicator completed a residual functional capacity

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(“RFC”) assessment relative to Dean’s physical capabilities (AR 142-149). The adjudicator 

concluded that Dean could lift and/or carry twenty pounds occasionally and ten pounds

frequently; stand and/or walk for six hours in an eight-hour workday; sit for six hours in an eighthour workday; push/pull without limitation; and had no postural limitations (AR 143-144). 

A lumbar MRI conducted on November 12, 2003 showed Dean had mild disc desiccation

with diffuse bulging primarily at L4-5 (AR 150). There was no evidence of focal posterolateral

disc herniation or significant spinal stenosis (AR 150).

Dean and William Reed, a vocational expert, testified at the hearing held by the ALJ on

December 11, 2003 (AR 166-198). Dean testified that she suffered from pain located in her back

radiating to her right leg, and had muscle spasms in her right leg (AR 176-177). She also

suffered from left knee pain due to an auto accident which was temporary in nature (AR 175-

177). Medications took the “edge” off the pain, but did not eliminate it completely (AR 177). 

Dean claimed that sitting and walking aggravated her pain (AR 177). She testified that she could

walk a “couple of blocks,” sit for half an hour, and lift approximately ten pounds (AR 178-179). 

She was able to drive, attend to her personal needs, cook, and grocery shop, and was able to clean

and do laundry with the help of her daughter (AR 179-180-181, 183). She attended church and

occasionally socialized (AR 180). Dean further testified however, that she had difficulty getting

in the car to drive, and had pain in her leg while sitting in church (AR 183). She spent

approximately half her day in a recliner and did not sleep well at night (AR 185). Dean claimed

that she was unable to work since her previous positions required constant standing and bending

for eight hours a day (AR 181) 

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

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

the light level, which did not involve repeated bending or constant trunk rotation (AR 187-188). 

The vocational expert testified that such an individual could perform work as a cashier, general

office clerk and an usher/ticket taker (AR 193).

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

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

17-24). Her request for an appeal with the Appeals Council was denied making the ALJ’s

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decision the final decision of the Commissioner (AR 6-9). She 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 Dean met the

disability insured status requirements of the Act (AR 23). 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

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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 Dean’s case at the fifth step. At step two, the ALJ determined that her

degenerative disc disease of the lumbar spine was a severe impairment, but determined at step

three that she did not meet a listing (AR 18-19). At step four, the ALJ determined that she could

not return to her past work, but retained the residual functional capacity to perform light work

that did not involve repeated bending or constant trunk rotation (AR 21). At the final step, the

ALJ determined that Dean could perform the jobs cited by the vocational expert at the

administrative hearing (AR 22). The ALJ additionally determined that Dean’s complaints

concerning her impairment and its impact on her ability to work were not entirely credible (AR

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

See 42 U.S.C. § 405(g). 

Dean fundamentally takes issue with the ALJ’s finding that she can perform work at a

light level involving no repeated bending or constant trunk rotation. She contends that this

finding is contrary to the medical evidence and her testimony. It is undisputed that Dean suffers

from degenerative disc disease of the lumbar spine, and the ALJ specifically found that the

medical evidence demonstrated this impairment was severe (AR 18). However, disability is

determined not by the mere presence of impairments, but rather by the functional restrictions

placed on an individual by those impairments. See Jones v. Sullivan, 954 F.2d 125, 129 (3rd Cir.

1991). Thus the critical issue is the extent of Dean’s residual functional capacity.

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

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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. Dean claims that the ALJ’s assessment of the medical

evidence was flawed and that the ALJ erred in his credibility determination. We address each of

these arguments in turn. 

A. Evaluation of the medical evidence

Dean first argues that the ALJ impermissibly relied on the state agency adjudicator’s

opinion, who found that she had an RFC consistent with light work. Dean correctly points out

that the adjudicator was not a physician, and the ALJ incorrectly referred to the adjudicator as a

physician in his decision. Taking Dean’s objection at face value, it is not clear how this point

demonstrates any basis for a finding of reversible error on the part of the ALJ. While it is clear

that the ALJ took the state agency adjudicator’s findings into consideration, it is equally apparent

that this opinion was only one factor among many that the ALJ considered in arriving at his own

independent determination as to Dean’s RFC. 

Consistent with the required standards for determining an individual’s RFC, the ALJ

considered not only the state agency adjudicator’s opinion, but also Dean’s testimony relative to

her limitations, her daily activities, and the objective medical evidence (AR 21). The ALJ noted

that Dean testified she was able to walk a couple of blocks, stand for thirty minutes, sit for thirty

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minutes, required no assistive device for ambulation, and was able to care for her personal needs,

cook, do dishes, perform household chores, grocery shop and sew (AR 21). The ALJ further

noted that the objective medical evidence revealed that Dean’s physical examinations and tests

have been relatively benign (AR 21). He observed that Dr. Gilman reported in September 2002

that her reflexes were symmetric and there was no sensory loss (AR 21). A spect bone scan

revealed only minimal facet arthropathy at L4-5 on the right and was otherwise negative (AR 21). 

A lumbar myelogram and CT scan in October 2002 showed only mild disc and moderate facet

degenerative changes with mild diffuse disc bulging and facet hypertrophy resulting in mild L2-3

and minimal L3-4 spinal canal narrowing (AR 21). The ALJ observed that Dean’s most recent

MRI showed no evidence of disc herniation or significant spinal stenosis (AR 21). 

Further, we note that the ALJ did not give the state agency adjudicator’s opinion

controlling weight, since the ALJ found that Dean’s RFC was less than that assigned by the

adjudicator, in that he restricted her to positions that did not involve repeated bending or constant

trunk rotation. Finally, we view Beckles v. Barnhart, 340 F. Supp. 2d 285, 290 (E.D.N.Y 2004),

a case relied on by Dean, as factually distinguishable. In contrast to this case, the ALJ in Beckles

gave the state agency report “considerable weight”, which was directly contrary to the conclusion

drawn by a treating physician. We therefore conclude that the ALJ’s mischaracterization as to

the state adjudicator’s professional status is harmless when viewed in the context of the

substantial evidence which otherwise supports the ALJ’s decision. See Haseler v. Massanari, 33

Fed.Appx. 631, 634 (3rd Cir. 2002) (misstatements not dispositive and reversal not warranted in

light of substantial evidence in support of the ALJ’s decision). 

Dean further challenges the ALJ’s characterization of the medical evidence, arguing that

he made speculative inferences from certain medical reports, and disregarded positive findings 

which would support her claim. It is undisputed that an ALJ may not set his own expertise

“against that of a physician who presents competent medical evidence[,]” and is not permitted to

“make speculative inferences from medical reports.” Plummer v. Apfel, 186 F.3d 422, 429 (3rd

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Cir. 1999). Here, the ALJ’s recitation of the findings contained in all of Dean’s medical reports

are factually accurate; Dean takes issue with the ALJ’s emphasis on certain findings and his

characterization of her physical examinations and the test results as “pretty benign.” 

Contrary to Dean’s argument, we find no error in this regard. The ALJ thoroughly reviewed and

discussed the medical evidence in fashioning Dean’s RFC, and the mere fact that Dean disagrees

with his conclusion that she can perform light work does not dictate remand. Moreover, the fact

that the ALJ considered the results to be “pretty benign” is not speculation on the ALJ’s part;

indeed, his characterization in this regard is supported by Dr. Gilman’s reports. Dr. Gilman

noted that the 2000 MRI scan of her lumbar spin was “pretty normal,” and while her MRI in

2002 was read as showing a disc bulge, he “[did]n’t really see anything” (AR 116, 188). He

reported in November 2002 that her myelogram “look[ed] pretty clean,” and while her bone scan

showed minimal facet arthropathy at L4-5, it was otherwise negative (115, 122). Fairly read,

these reports suggest that there is no objective medical evidence to support Dean’s claim of

disability. Consequently, the ALJ’s determination in this regard is supported by substantial

evidence.

B. Credibility determination

Dean also challenges the ALJ’s credibility determination. Her specific contention on this

point is that the ALJ failed to give her testimony of pain and inability to work the appropriate

weight. An ALJ must give serious consideration to a claimant’s subjective complaints of pain,

even when these complaints are not completely supported by objective evidence. Mason v.

Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993). A claimant’s statements about pain, however, will

not alone establish disability; there must be medical signs and laboratory findings that

demonstrate the existence of a medical impairment that could reasonably be expected to produce

the pain alleged and which, when considered with all of the other evidence, leads to a conclusion

that the claimant is disabled. Green v. Schweiker, 749 F.2d 1066, 1070-71 (3d Cir. 1984); 20

C.F.R. § 404.1529(a) (2001). In addition to the objective medical evidence, the ALJ should

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consider 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. Finally, 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). 

We find that the ALJ evaluated Dean’s credibility consistent with the above standards. 

Although the ALJ found that the medical evidence demonstrated that she had a severe

impairment which caused a significant limitation in her ability to perform work-related activities,

he nonetheless concluded that her allegations were not fully credible (AR 20). In making this

determination, the ALJ first observed that Dean acknowledged engaging in significant daily

activities (AR 20). In this regard, the ALJ noted Dean testified that she was able to care for her

personal needs, cook, do dishes, and perform chores with her daughter’s help (AR 20). In her

daily activities questionnaire, Dean reported she was able to dress and shower without resting,

required no assistive device for ambulation, and was able to grocery shop (AR 20). The ALJ also

noted that while Dean claimed significant limitations stemming from her impairment, he

concluded that the evidence of record did not document physical abnormalities or functional

deficits that would be considered indicative of an inability to perform jobs existing in significant

numbers in the national economy (AR 20-21). The ALJ noted the clinical findings, as previously

discussed, and concluded that her examinations and tests results were relatively benign (AR 21). 

All of the ALJ’s findings are supported by the record in this regard. Moreover, we observe that

the ALJ did not completely reject Dean’s testimony; indeed, he accommodated her complaints in

fashioning her RFC by limiting her to a restricted range of light duties, by precluding positions

which involved repeated bending or constant trunk rotation (AR 21). We therefore find that

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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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12

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ONETA A. DEAN, )

)

Plaintiff, )

)

v. ) Civil Action No. 05-44 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, this 4th day of August, 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. 10] is

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

Commissioner of Social Security, and against Plaintiff, Oneta A. Dean. 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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