1Gnacinski previously filed an application for SSI benefits on June 28, 2001 (AR 16). On

October 26, 2001, the state agency denied his application, and no appeal was filed (AR 54-57). 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARK GNACINSKI, )

)

Plaintiff, )

) Civil Action No. 05-336 Erie

)

v. )

)

JO ANNE BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., J.

Plaintiff, Mark Gnacinski, 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. Gnacinski filed an application for SSI

on June 12, 2003, alleging disability due to back and neck impairments (Administrative Record,

hereinafter “AR”, 77-78; 115).1 His application was denied, and a hearing was held before an

administrative law judge (“ALJ”) on September 20, 2004 (AR 25-48; 58-61). Following this

hearing, the ALJ found that he was not eligible for SSI under the Act (AR 16-21). Gnacinski’s 

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

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

Presently pending before the Court are cross-motions for summary judgment. For the reasons set

forth below, we will grant Defendant’s motion and deny Plaintiff’s motion. 

I. BACKGROUND

Gnacinski was born on January 12, 1963, and was forty-one years old on the date of the

ALJ’s decision (AR 17; 77). He has an eleventh grade education, and past relevant work

experience as an industrial cleaner and audio technician (AR 17; 116).

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Gnacinski has a history of arthroscopic surgery on both knees in 1998 and 1999

performed by Vincent Rogers, M.D. (AR 151). Gnacinski also has a history of left shoulder and

chest pain (AR 148; 206-207; 263). Extensive testing ruled out cardiac disease (AR 148; 219-

237). In addition to shoulder and chest pain, Gnacinski was treated for neck and back pain (AR

295-306; 313-314). Thoracic spine x-rays conducted on February 27, 2002 showed no spinal

fracture, and only mild to moderate degenerative disease (AR 208).

On April 2, 2002, Gnacinski was evaluated by Adnan Abla, M.D., a neurosurgeon, for

complaints of left upper extremity pain, burning and twitching (AR 330-332). On physical

examination, Dr. Abla reported Gnacinski had normal reflexes, motor strength and sensation,

with no muscle atrophy (AR 331). Lateral bending was noted to be painful however, and

palpation of the cervical spine demonstrated tightness of the anterior sternocleidomastoid

muscles (AR 331). Dr. Abla recommended conservative treatment, including the use of Flexeril

and a soft cervical collar at bedtime, rather than surgical intervention (AR 332). He instructed

Gnacinski to undertake swimming activities, as well as physical therapy for upper body

strengthening and cervical isometric exercises (AR 332).

Gnacinski underwent physical therapy for complaints of neck and bilateral upper

extremity discomfort from June 26, 2002 through August 15, 2002 (AR 333-335). His cervical

range of motion was generally limited throughout, but he exhibited normal strength in his upper

extremities (AR 335). Treatment consisted of intermittent cervical traction and trigger point

therapy throughout the upper trapezius and shoulder regions (AR 334). 

On December 29, 2002, Gnacinski presented to the emergency room complaining of neck

and back pain resulting from a fall on Christmas night (AR 336). X-rays of the cervical spine

were normal, with no significant degenerative changes identified, and no central canal stenosis or

foraminal stenosis was seen (AR 341). Thoracic spine x-rays revealed some evidence of

degenerative spurring, which was reported as not unusual in a patient Gnacinski’s age (AR 342). 

Gnacinski was discharged with prescriptions for Vicodin ES and Motrin 600 (AR 337). 

On January 9, 2003, Gnacinski was seen by Bryant Bojewski, D.O., his treating

physician, and complained of neck and back pain following a drive to Florida (AR 190). On

physical examination, he exhibited muscle spasm and a decreased range of motion in his neck

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3

and back (AR 190). An MRI of the cervical spine and thoracic spine conducted on January 15,

2003 showed very minimal disc protrusion at C6-7, with no significant disc bulge or herniation,

and no disc herniation of the thoracic spine (AR 350-351).

On April 24, 2003, Gnacinski’s wife canceled his appointment with Dr. Bojewski

claiming he was in too much pain to appear (AR 187). When seen by Dr. Bojewski on May 12,

2003, Gnacinski complained of mid thoracic pain, neck pain, numbness, tingling, and loss of

sensation of his left leg and arms bilaterally (AR 186). He reported that he was self-employed

and unable to work (AR 186). He claimed that his pain had progressively worsened the last three

to six months, and rated his pain as a nine out of ten (AR 186). On physical examination, Dr.

Bojewski reported that his muscle strength was 5/5 throughout the upper and lower extremities,

he exhibited pain on rotation, several trigger points were found in the left trapezius and along the

left paraspinal muscles from C7-T5, and his arms noticeably shook throughout the examination

(AR 186). Dr. Bojewski administered a trigger point injection in the scapular thoracic area (AR

186). On May 19, 2003, Gnacinski reported some relief from the trigger point injection, but

complained of left knee pain (AR 187). His medications were refilled (AR 187).

On July 16, 2003, Gnacinski returned to Dr. Rogers and reported locking and catching of

his left knee with effusion (AR 147). On physical examination, Dr. Rogers reported he had a 120

degree range of motion, with effusion and quadriceps atrophy, but normal ligament testing (AR

147). He was given a prescription for Vicodin and Celebrex (AR 147). An MRI conducted July

28, 2003 revealed some osteoarthropathy of the medial joint space, small to moderate joint

effusion, and degenerative changes in the menisci (AR 349).

Gnacinski began treatment with Paul Heberle, D.O. on April 1, 2003 (AR 405). On July

23, 2003, Dr. Heberle reported that Gnacinski had a decreased range of motion in his cervical

spine and tenderness, for which he prescribed Duragesic, Lortabs and physical therapy (AR 406).

On August 13, 2003, Frank Bryan, M.D., a state agency reviewing physician, reviewed

the evidence of record and opined that Gnacinski was capable of performing medium work (AR

365-371). Dr. Bryan concluded that Gnacinski’s subjective complaints of disabling limitations

were inconsistent with the clinical and objective findings of record (AR 374).

When seen by Dr. Heberle on August 19, 2003, Gnacinski had a decreased range of

Case 1:05-cv-00336-SJM Document 13 Filed 08/07/06 Page 3 of 11
4

motion of the cervical spine, and he was assessed with cervical disc disease (AR 403). On

August 21, 2004, Gnacinski had continued restriction of motion with forward flexion and rotary

movements of the lumbosacral spine (AR 385). 

Gnacinski returned to Dr. Bojewski on October 2, 2003 and reported that his symptoms

had worsened (AR 185). He complained of neck pain radiating into his left shoulder and down

his arms to his fingertips, with his left hand becoming numb periodically (AR 185). He reported

similar symptoms on the right but milder (AR 185). Dr. Bojewski discontinued his Naprosyn

and he was started on Bextra (AR 185).

On October 5, 2003, thoracic spine x-rays showed degenerative changes, and a digital

motion study on November 20, 2003, showed deep cervical spasm and ligament dysfunction (AR

397; 399). 

When seen by Dr. Heberle on January 9, 2004, Dr. Heberle reported Gnacinski had tissue

texture changes and muscle spasms paraspinally in the lumbar, lower cervical and upper thoracic

regions (AR 393). He assessed chronic pain secondary to discogenic disease (AR 393). A

cervical spine MRI conducted on February 18, 2004 revealed a probable small focal point right

paracentral disc protrusion at the C4-5 level (AR 395). Gnacinski complained of increased pain

with parathesias in the thumb and forefinger on March 1, 2004 (AR 391). Dr. Heberle diagnosed

cervical discogenic disease and chronic pain, and prescribed physical therapy and Lortab (AR

391). On April 26, 2004, Gnacinski reported a burning sensation in his neck and arms and

bilateral parathesias in his hands (AR 390). Dr. Heberle renewed a Fentanyl patch and continued

the Lortab (AR 390). 

On July 29, 2004, Gnacinski reported increased back pain following his return from

vacation (AR 386). He complained of lumbar pain radiating down his right lower extremity (AR

386). Dr. Heberle reported that he was in obvious discomfort, and could not tolerate sitting for

any extended period of time (AR 386). On physical examination, Dr. Heberle noted muscle

spasm of his paraspinal lumbar region (AR 386). He administered a steroid injection, and

prescribed Duragesic, Percocet, Soma and a Medrol Dosepak (AR 387). An MRI of the lumbar

spine dated July 30, 2004 showed small focal central disc protrusions at the L4-5 and L5-S1

levels (AR 380).

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5

On September 10, 2004, Dr. Heberle reported Gnacinski had paraspinal spasm and tissue

texture changes (AR 383). On October 7, 2004, Dr. Heberle noted that Gnacinski’s chronic pain

issues were legitimate with no aberrant behavior in the record (AR 409). He administered a

steroid injection (AR 409). 

Finally, on November 8, 2004, Dr. Heberle found Gnacinski had cervical spasm and his

arms were slightly tremulous on physical examination (AR 408). He was assessed with cervical

disc syndrome, cervical radiculopathy and chronic pain, and a Durogesic patch and a Medrol

Dosepak were prescribed (AR 408).

Gnacinski and Karen Krull, a vocational expert, testified at the hearing held by the ALJ

on September 20, 2004 (AR 25-49). Gnacinski testified that he suffered from back pain which

originated at his neck and radiated down into his legs (AR 35). He stopped working in 2002 due

to back pain (AR 35). He testified that he was able to lift 10 to 15 pounds, sit for approximately

20 minutes, stand for approximately 20 to 30 minutes, had difficulty rising from a seated

position, and was unable to crouch (AR 35-36). Gnacinski claimed he only slept one to three

hours per night due to pain, and during the day he would lay down for two to three hours to take

the pressure off his back (AR 36-37). He claimed he had trouble holding things due to pain in

his left arm, and suffered from tremors in both arms (AR 37). Gnacinski further testified that he

had muscle spasms in his back and arms every “couple of hours” (AR 39).

The vocational expert was asked to consider an individual of Gnacinski’s age, education,

and vocational background, who could perform sedentary work with a sit/stand option (AR 45). 

The expert testified that such an individual could work as a cashier, information clerk and line

monitor (AR 46). The expert further testified that such an individual would be precluded from

employment if he needed to lie down for two hours in an eight-hour time frame (AR 46).

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

not eligible for SSI benefits within the meaning of the Social Security Act (AR 16-21). His

request for a review by the Appeals Council was denied making the ALJ’s decision the final

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

II. STANDARD OF REVIEW

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

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6

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

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

ALJ determined that his discogenic disease of the lumbar spine, disc protrusion at the C4-5 level,

degenerative change of the thoracic spine, and degenerative joint disease of the knees were

severe impairments, but determined at step three that he did not meet a listing (AR 17). At step

four, the ALJ determined that Gnacinski had the residual functional capacity to perform

sedentary work with a sit/stand option (AR 18). At the final step, the ALJ determined that he

could perform the jobs cited by the vocational expert at the administrative hearing (AR 20). The

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7

ALJ additionally found that Gnacinski’s allegations relative to his functional limitations were not

entirely credible (AR 20). Again, we must affirm this determination unless it is not supported by

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

Gnacinski fundamentally challenges the ALJ’s conclusion relative to his residual

functional capacity (“RFC”). “‘Residual functional capacity is defined as that which an

individual is still able to do despite the limitations caused by his or her impairment(s).’” Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3rd Cir. 2000) (quoting Hartranft v. Apfel, 181

F.3d 358, 359 n.1 (3rd Cir. 1999); see also 20 C.F.R. § 404.1545(a). An individual claimant’s

RFC is an administrative determination expressly reserved to the Commissioner. 20 C.F.R. §

416.927(e)(2). In making this determination, the ALJ must consider all evidence before him. 

Burnett, 220 F.3d at 121. Social Security Ruling (“SSR”) 96-5p provides:

The assessment is based upon consideration of all relevant

evidence in the case record, including medical evidence and

relevant nonmedical evidence, such as observations of lay

witnesses of an individual’s apparent symptomatology, an

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

do, and many other factors that could help the adjudicator

determine the most reasonable findings in light of the evidence. 

 

SSR 96-5p (1996), 1996 WL 374183 *5.

Gnacinski first argues that the ALJ failed to make a “function by function” assessment of

his physical limitations as required by Social Security Ruling (“SSR”) 96-8p. Under SSR 96-8p,

the ALJ must determine an individual’s functional limitations and assess his work related

activities on a function-by-function basis including certain physical demands of work activity

such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions. 

SSR 96-8p, 1996 WL 374184. Only after that assessment is done may an RFC determination be

expressed in terms of the exertional levels of work such as sedentary, light, medium, heavy or

very heavy. Id. Gnacinski claims that the ALJ’s alleged failure to comply with this directive is

reversible error. We disagree. While the ALJ did not explicitly analyze each work related

activity and the degree of Gnacinski’s physical limitations, it is apparent from the ALJ’s decision

that, given his citation to SSR 96-8p, he functionally engaged in the required analysis (AR 17-

18). 

Moreover, the ALJ actually credited Gnacinski’s own testimony relative to his physical

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8

limitations, with the exception of his need to lie down for two to three hours per day. Gnacinski

testified that he could lift up to 15 pounds, sit for approximately 20 minutes and stand for 20 to

30 minutes (AR 35-36). The ALJ concluded that he could perform the demands of sedentary

work, but needed a sit/stand option (AR 18). Sedentary work involves lifting no more that 10

pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools. See 20 C.F.R. § 416.967(a). It involves standing/walking no more than two hours per day

and sitting six hours per day, and does not require postural activities such as climbing, balancing,

kneeling, crouching or crawling. SSR 96-9p, 1996 WL 374185. Because Gnacinski’s credited

testimony was equivalent to the definition of sedentary work, any alleged failure to have

explicitly engaged in such an analysis does not dictate remand. 

Gnacinski also challenges the ALJ’s determination that his subjective complaints of

disabling pain lacked credibility. The Third Circuit has articulated the standard for considering a

plaintiff’s subjective complaints of pain which is:

(1) that subjective complaints of pain be seriously considered, even

where not fully confirmed by objective medical evidence; (2) that

subjective pain “may support a claim for disability benefits ... and

may be disabling;” (3) that when such complaints are supported by

medical evidence, they should be given great weight; and (4) that

where a claimant’s testimony as to pain is reasonably supported by

medical evidence, the ALJ may not discount claimant’s pain

without contrary medical evidence.

Ferguson v. Schweiker, 765 F.2d 31, 37 (3rd Cir. 1985) (citations omitted). In assessing

subjective complaints, Social Security Ruling 96-7p and the regulations provide that 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. As the finder of fact, the ALJ 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). 

Case 1:05-cv-00336-SJM Document 13 Filed 08/07/06 Page 8 of 11
9

We find that the ALJ evaluated Gnacinski’s subjective complaints of pain consistent with

the above standards. The ALJ discussed Gnacinski’s testimony, examined the medical evidence

in support of his testimony, and explained why he did not find him fully credible (AR 18-20). In

support of his conclusion, the ALJ noted that while Gnacinski reported tremors, muscle spasms,

and the need to lie down for two and one-half to three and one-half hours each day, there was no

corroboration in the record of these complaints (AR 18). He further pointed to the fact that

Gnacinski could engage in a range of daily activities, including driving, participating in

household activities with his family, and clean and dress himself (AR 18). Finally, he noted that

he exhibited no signs of discomfort during the hearing, was tolerating his treatment program

satisfactorily, and was maintained on medication (AR 19). 

The record supports the ALJ’s determination that the degree of subjective pain reported

by Gnacinski exceeded that reasonably supported by the evidence. We observe that with respect

to his alleged arm tremors, most of the medical evidence documenting such complaints are based

upon Gnacinski’s own subjective reports to his physicians (AR 183, 330, 406). While Dr.

Bojewski observed Gnacinski’s arm shaking in May 2003, it was noted that he was “anxious”

and “angry” during the examination, but nonetheless had full arm strength (AR 186). Moreover,

the ALJ recognized that he had spasms in the cervical and lumbar region (AR 19), but there is no

evidence of record documenting muscle spasms of the arms as claimed by Gnacinski. While

Gnacinski claimed he needed to lie down daily for two and one-half to three hours, he never

reported such limitation to his treating physicians, nor is there any evidence in the record

suggesting that any of his physicians ever instructed him to lie down to alleviate the pain. See

Frederickson v. Barnhart, 359 F.3d 972, 977 n.2 (8th Cir. 2004) (noting that “[t]here is no

evidence in the record that [claimant] complained of such severe pain to his physicians or that

they prescribed that he elevate his foot or lie down daily.”). 

Gnacinski claims that the ALJ failed to properly consider his treatment history and

medication regime, but the ALJ’s decision reflects that he specifically considered same. The

ALJ observed that he reported to Dr. Abla in April 2002 that he had not undergone treatment for

the previous year (AR 18; 330), and only conservative treatment had been recommended (AR

18). We further reject Gnacinski’s claim that the ALJ erred in relying, at least in part, on his

Case 1:05-cv-00336-SJM Document 13 Filed 08/07/06 Page 9 of 11
10

daily activities in assessing his credibility. While Gnacinski’s activities by themselves clearly

would not support a denial of benefits, the ALJ did not rely primarily on his activities alone in

determining his credibility. Gnacinski further claims that the ALJ ignored Dr. Heberle’s

statement in his treatment notes that his chronic pain issues were legitimate. The issue however,

is not whether Gnacinski suffered from pain, a fact the ALJ certainly recognized, but whether

such pain rendered him disabled. In this regard, none of Gnacinski’s treating physicians opined

that he had any disabling functional limitations, including pain. While Dr. Heberle noted that he

could not sit for extended periods of time, this limitation was specifically adopted by the ALJ. 

Finally, the ALJ did not completely reject Gnacinski’s testimony; indeed, he accepted his

testimony as to his exertional limitations, and incorporated his claimed limitations in his RFC

assessment. We therefore find that there was substantial evidence in the record, taken as a

whole, to support the ALJ’s credibility determination. 

Finally, Gnacinski claims that the ALJ’s RFC determination is flawed since the ALJ

failed to base his determination on an opinion from an examining or non-examining medical

source. In other words, Gnacinski appears to argue that there need be direct medical evidence in

the form of an opinion to support a finding that he can engage in sedentary work with a sit/stand

option. Gnacinski’s argument overlooks the fact that the final responsibility for determining an

individual’s RFC is reserved to the Commissioner. Schwartz v. Halter, 134 F. Supp. 2d 640, 650

(E.D.Pa. 2001); 20 C.F.R. § 416.946(c). Moreover, the record is devoid of any medical evidence

indicating Gnacinski’s impairments resulted in physical limitations apart from those credited by

the ALJ. The objective diagnostic studies consistently revealed only mild bulging discs or mild

to moderate degenerative changes of the spine, with no significant spinal stenosis observed (AR

341-342; 350-351; 395; 380). Dr. Bryan, the state agency reviewing physician, concluded that

Gnacinski’s complaints of disabling limitations were inconsistent with the clinical and objective

findings of record (AR 374). We therefore find that the ALJ’s RFC determination is supported

by substantial evidence.

IV. CONCLUSION

An appropriate Order follows.

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11

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARK GNACINSKI, )

)

Plaintiff, )

)

v. ) Civil Action No. 05-336 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, this 7th day of August, 2006, 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.

9] is DENIED, and the Defendant’s Motion for Summary Judgment [Doc. No. 11] is

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

Commissioner of Social Security, and against Plaintiff, Mark Gnacinski. 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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