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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RHONDA BAILEY, )

)

Plaintiff, )

)

v. ) Civil Action No. 06-18 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., J.

Plaintiff, Rhonda Bailey, 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. Bailey filed applications for DIB and SSI on January 27, 2002, alleging disability

since May 21, 2002 due fibromyalgia, osteoarthritis, moderate scoliosis and cervical stenosis

(Administrative Record, hereinafter “AR”, 59-61; 74; 196-198). Her applications were denied,

and she requested a hearing before an administrative law judge (“ALJ”) (AR 44-48; 200-203). A

hearing was held before an administrative law judge (“ALJ”) on December 9, 2003 (AR 307-

327). Following this hearing, the ALJ found that she was not entitled to a period of disability,

DIB or SSI under the Act (AR 207-213). The Appeals Council granted Bailey’s request for

review and remanded the case to the ALJ for further administrative proceedings (AR 216-218). 

The ALJ conducted a subsequent hearing on May 3, 2005 (AR 328-350). On August 19,

2005, the ALJ again found that Bailey was not entitled to a period of disability, DIB or SSI under

the Act (AR 19-29). Her request for review by the Appeals Council was denied (AR 11-14),

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 both motions. 

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I. BACKGROUND

Bailey was born on December 7, 1962, and was forty-three years old on the date of the

ALJ’s decision (AR 59). She has an eleventh grade education and completed her GED in June

1981. Her past work experience was as a machine operator in a factory (AR 75; 80). 

Bailey was treated by Lynn Cornell, M.D. in the Spring of 2002 for back, shoulder and

trapezius pain (AR 155). On May 7, 2002, Bailey was seen by a physician’s assistant at Dr.

Cornell’s office and complained of back pain and left-sided shoulder pain radiating down the

back of her left arm (AR 157). On physical examination, spasms of the left-sided thoracic

paravertebrals and mild spasm in the cervical spine were noted (AR 157). Her upper extremity

reflexes were intact and strength testing was 5/5 (AR 157). Diagnostic studies were ordered and

Naprosyn and Flexeril were prescribed (AR 157).

Bailey returned to Dr. Cornell’s office on May 15, 2002 complaining of constant,

sometimes sharp pain, but denied numbness or tingling (AR 156). She claimed the Naprosyn and

Flexeril had not helped with her pain (AR 156). A physician’s assistant reported positive

tenderness to palpation of the left shoulder and left trapezius muscle, with increased pain noted

with her arms placed above her head and behind her back (AR 156). Decreased grip strength was

noted of the left arm, and she had decreased neck range of motion secondary to pain (AR 156). 

She was assessed with left shoulder strain/left trapezius muscle strain, and referred to physical

therapy (AR 156). 

Bailey underwent physical therapy from May 22, 2002 through July 5, 2002 (AR 120-

127). During the initial evaluation, Bailey reported constant pain, on a scale of 8 to 10 (AR 126). 

She claimed that any activity increased her pain, but lying down decreased the pain (AR 126). 

Phyllis Mitchell, LPT, found tenderness and tightness over the left trapezius and middle deltoid

musculature (AR 126). Ms. Mitchell formed an impression of evident postural changes,

increased muscle tightness and spasm along the left trapezius scapular area with increased pain

complaints, and mild cervical mobility deficits with some left shoulder and scapular strength

deficits (AR 127). Bailey reported a decrease in muscle tightness following therapy (AR 127). 

In May 2002, she was able to perform all activities in therapy with no increase in discomfort (AR

125). 

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Bailey returned to Dr. Cornell’s office on May 23, 2002 and complained of persistent left

shoulder, back and hip pain (AR 156). Physical examination revealed positive tenderness to

palpation of the left shoulder, left trapezius muscle, paraspinal muscles of the lumbosacral spine

and hips bilaterally (AR 156). She was assessed with arthralgias, myalgias, left shoulder strain

and left trapezius muscle strain (AR 156). Bailey was instructed to continue with physical

therapy and was prescribed Elavil (AR 156).

On May 30, 2002, Bailey reported back, shoulder and trapezius pain (AR 155). She

claimed she had difficulty with activities of daily living, her day-to-day routine and at work (AR

155). She reported she was unable to stay in a car very long and had difficulty getting out of a

car (AR 156). Dr. Cornell rendered a tentative diagnosis of fibromyalgia, recommended she

continue physical therapy, and referred her to a rheumatologist for further evaluation (AR 155). 

At physical therapy on June 3, 2002, Bailey reported extreme pain over her spine, pain

radiating down into her shoulders, headaches and lightheadedness (AR 124). She continued to

exhibit some weakness (AR 124). On June 10, 2002, Bailey reported spine tenderness and

radiating pain into her right scapular area and down her left arm (AR 124). She was able to

perform all therapy activities with no significant increase in discomfort noted (AR 124). On June

13, 2002, Bailey reported that she continued to experience tightness on the right hand side (AR

123). She tolerated therapy well with mild tenderness noted afterwards (AR 123).

Upon referral by Dr. Cornell, Bailey was seen by Kathe Bryson, M.D., a rheumatologist

on June 14, 2002 for evaluation of possible fibromyalgia (AR 118). Dr. Bryson reviewed

Bailey’s diagnostic studies, which revealed minimal degenerative disc space narrowing at C5-C6,

and thoracic studies showing moderate rightward mid-thoracic scoliosis, associated with

narrowing of the intervertebral disc space (AR 118). On physical examination, Bailey exhibited

good joint motion throughout the peripheral joints, with no evidence of warmth, erythema,

effusion, tenderness or synovitis (AR 117). Her reflexes were intact, as was her strength in the

upper and lower extremities (AR 117). Dr. Bryson found she had marked tenderness to palpation

of the spinous processes, trapezius muscles, supraspinatus and the SI joints, and had reduction in

lateral rotation, flexion and extension of the cervical spine (AR 117). She was diagnosed

fibromyalgia, more specifically myofascial pain syndrome, given the limited nature of her pain,

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and Dr. Bryson was of the opinion that symptoms of arthritis contributed to her pain as a result of

the scoliosis (AR 117). Dr. Bryson agreed with Bailey’s physical therapy regime, and

recommended that MRI’s of the cervical and thoracic spine be obtained (AR 117). She further

recommended the addition of Flexeril and Ultram to her medication regime (AR 117). 

Physical therapy notes dated June 18, 2002 reflect that Bailey reported she had seen a

specialist, who informed her that the osteoarthritis in her back was causing increased pain and

discomfort (AR 123). Bailey claimed she no longer had difficulty with her shoulder, but

continued to experience increased discomfort over her spine area (AR 123). She tolerated

therapy well and performed all activities with no increase in pain or discomfort (AR 123). The

therapist noted that Bailey was “not having difficulties performing any daily activities” (AR 123).

On June 20, 2002, Bailey reported to Dr. Cornell that physical therapy helped with the

tightness in her shoulders and upper back area, but she still complained of lower back pain (AR

154). She claimed she had difficulty completing minor household chores due to fatigue and had

difficulty getting out of bed (AR 154). She reported she was able to sit for about 30 minutes but

then needed to move around since she became quite stiff, and she could stand for about 30 to 45

minutes (AR 154). She was able to walk about a half a block down a hill to visit her mother but

returning home was difficult (AR 154). On physical examination, Dr. Cornell noted paraspinal

spasm in the right mid-spine, flexion and extension of her head and side-to-side movement of her

head was quite slow, and she had pain with knee extension (AR 154). Dr. Cornell continued her

medication regime (AR 154). 

 When discharged from therapy on July 5, 2002, Bailey reported she felt better overall but

still had achiness along the spine, neck and low back (AR 120). She reported that her shoulders

and upper trapezius area were “much better” (AR 120). She rated her back pain as a 1.6 out of

10 in the morning, but claimed after increased activity it rose to 9.2 out of 10 (AR 120). Physical

examination revealed a more upright posture with equal shoulder heights, cervical range of

motion within normal limits and improved upper extremity strength (AR 120). Ms. Mitchell

noted that Bailey had returned to most activity including work on a more steady basis with some

pain complaints (AR 120). Ms. Mitchell opined that Bailey had demonstrated definite

improvement in cervical mobility, posture and strength (AR 120). She noted that Bailey still

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complained of increased pain after a long work day, but considered this normal given the arthritic

changes in her spine (AR 120). Bailey was discharged from formalized physical therapy since

she was independent with the home exercise program and had reached goals (AR 120).

Bailey reported to Dr. Cornell on July 11, 2002 that her upper back and shoulders felt

significantly better and she had an increased range of motion following the completion of

physical therapy (AR 152). She still claimed to have low back pain with an aching sensation that

kept her up at night and limited her ability to sit or stand for any length of time (AR 152). Dr.

Cornell noted she had tenderness mostly in the low back area on physical examination (AR 152). 

Dr. Cornell increased her dosage of Elavil, and discussed with Bailey the possibility of seeing a

pain management specialist for her low back pain (AR 152). Dr. Cornell noted that she was

unable to perform her job since it required a lot of bending, lifting, pushing and pulling which

Bailey was unable to do (AR 152). She referred her back to Dr. Bryson for further evaluation

(AR 152). 

Bailey returned to Dr. Bryson on July 30, 2002, who noted that x-rays of her lumbosacral

spine showed no significant osteoarthritis (AR 117). Bailey reported that she had finished

physical therapy and noted improvement in her shoulder area (AR 117). Dr. Bryson reported that

she had sensitivity to touch in her paraspinal muscles and spinous processes, but no tender points

elsewhere (AR 117). She had no synovitis, her straight leg raising test was negative bilaterally,

and her reflexes and strength were symmetric (AR 117). Dr. Bryson discontinued the

amitriptyline and placed her on Flexeril at night (AR 116). 

Bailey reported chronic pain in different areas of her back when seen by Dr. Cornell on

August 8, 2002 (AR 151). She reported she was able to sit less than one hour and experienced

pain in her hip area upon standing (AR 151). She claimed she needed to lie down one or two

hours during the day in order to alleviate her back pain (AR 151). Dr. Cornell reported that she

was tender in the mid-thoracic area, forward flexion caused some pain, and range of motion of

the neck was normal (AR 151). She continued Bailey’s medication while awaiting the MRI

results (AR 151). 

When seen by Dr. Bryson on August 27, 2002, Bailey reported that she had more bad

days than good, and her sleep was not as good with the Flexeril (AR 116). On physical

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examination, Dr. Bryson found good joint motion with no evidence of warmth, erythema,

effusion, tenderness or synovitis (AR 116). She discontinued the Flexeril and Naproxyn, and

placed her back on the amitriptyline and added Bextra to her medication regime (AR 116). 

On September 19, 2002, Bailey reported to Dr. Cornell that she had significant pain on a

regular basis, especially in her lower back and hip areas (AR 150). She was able to sit 20 to 25

minutes and stand 10 to 15 minutes before she experienced lower back and groin pain (AR 150). 

Bailey claimed that she had recently experienced several “bad days” which were quite

uncomfortable (AR 150). On physical examination, Dr. Cornell found she had tenderness in the

right lumbosacral area, with forward flexion to 80 degrees and backward extension to 15 degrees

(AR 150). She was assessed with chronic back pain, possible fibromyalgia, and was continued

off work (AR 150). 

Bailey returned to Dr. Bryson on November 19, 2002 and reported increased pain in her

low back and right hip area (AR 115). She claimed the pain was exacerbated with the slightest

motion such as bending, stooping or reaching (AR 115). She reported that the amitriptyline and

Bextra, while initially helpful, were not as effective (AR 115). On physical examination, Dr.

Bryson found multiple tender points over the trapezius muscles, as well as the SI joints (AR

115). No active synovitis was revealed in examination of her shoulders, elbows, wrists, hands,

hips, knees, ankles or feet (AR 115). Dr. Bryson informed Bailey that it could take some time to

adjust to the medication before optimal symptom relief was obtained (AR 115). Dr. Bryson

increased her amitriptyline dosage, discontinued the Bextra, and started her on Ultram (AR 115).

On January 3, 2003, Dr. Bryson completed an Employability Assessment Form and

opined that Bailey was permanently disabled due to fibromyalgia and cervical stenosis, based

upon physical examination, a review of medical records, her clinical history, and appropriate

tests and diagnostic procedures (AR 114). 

Bailey returned to Dr. Cornell on February 4, 2003 and reported pain and difficulty with

activities of daily living (AR 147). She claimed she had difficulty getting out of bed in the

morning, had difficulty with stairs, problems doing the dishes and cleaning up around the house

(AR 147). She reportedly tried walking, but was unable to walk up to two blocks (AR 147). 

On February 10, 2003, Bailey complained of increased pain since the weather had cooled

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with more bad days than good, but the amitriptyline had helped with her sleep (AR 112). On

physical examination, Dr. Bryson noted tender points on Bailey’s anterior chest wall, trapezius

muscle, and sacroiliac joint (AR 112). No active synovitis was noted in examination of the

shoulders, elbows, wrists, hands, hips, knees, ankles and feet (AR 112). Dr. Bryson observed

that her medications were being used at low doses, and increased her Darvocet dosage and added

Flexeril (AR 112).

Bailey returned to Dr. Bryson on March 18, 2003 and reported that while her pain had not

gone away, it was more manageable due to higher doses of medication (AR 187). She claimed it

was hard to arise from a squatting position unless she held on to something (AR 187). Physical

examination revealed significant tenderness with palpation of the trapezius muscles, anterior

chest wall, sacroiliac joints and supraspinatus muscles (AR 187). Dr. Bryson indicated that

Bailey should have shown improvement in her symptoms (AR 187). 

Bailey underwent a consultative evaluation on April 16, 2003 performed by John M.

Ferretti, D.O., an internal medicine specialist (AR 167-169). Bailey reported a history of

fibromyalgia, spinal cord stenosis and scoliosis (AR 167). On physical examination, Dr. Ferretti

reported that Bailey’s motor strength was 5/5 bilaterally, grip strength was 100 percent

bilaterally, she was able to heel/toe walk for ten feet without difficulty or assistance, rise from a

squatting position with the assistance of a chair for stabilization, and was able to do straight leg

lifts without difficulty or pain (AR 168). Dr. Ferretti formed an impression of fibromyalgia, mild

cervical spine stenosis without radicular component, and mild to moderate cervical and thoracic

scoliosis (AR 169). Dr. Ferretti opined that Bailey could only occasionally crouch and climb,

needed assistance to rise from a squatting position and was restricted around heights, but

otherwise had no limitations (AR 170-171).

On May 1, 2003, a state agency adjudicator opined that Bailey could perform sedentary

work that did not involve more than occasional climbing, balancing, stooping, kneeling,

crouching or crawling (AR 175-176). 

Bailey returned to Dr. Bryson on May 20, 2003 for follow up for her fibromyalgia (AR

184). Her medication regime consisted of Elavil, Flexeril and Darvocet (AR 184). She reported

neck spasms but felt her medication was helpful (AR 184). On physical examination, Dr. Bryson

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reported Bailey had good joint motion throughout with no synovitis, good reflexes and intact

muscle strength (AR 184). Dr. Bryson found tenderness to palpation of the trapezius muscles

and supraspinatus muscles (AR 184). Dr. Bryson noted that Bailey’s fibromyalgia was stable,

but she was “having a little bit more symptoms now” (AR 184). She increased her Elavil dosage

(AR 184). 

On July 22, 2003, Bailey reported palpitations from the amitriptyline (AR 190). Dr.

Cornell decreased the dosage and advised her to avoid caffeine (AR 190). 

Bailey returned to Dr. Bryson for follow up on August 22, 2003 and reported an increase

in her pain (AR 184). She claimed she was doing less, was very fatigued, and had trouble

sleeping (AR 184). She reported that she noticed an increase in her weight after her Elavil

dosage was increased (AR 184). Physical examination revealed good joint motion throughout

with no evidence of synovitis (AR 183). Dr. Bryson opined that Bailey’s weight gain due to the

side effects of the Elavil could cause her to spiral downward with her symptoms (AR 183). She

weaned her off the Elavil and added Effexor to her medication regime (AR 183). 

On October 24, 2003, Bailey reported that her fibromyalgia symptoms were worse due to

a recent fall and the weather, although the Effexor had helped with the pain (AR 183). She

claimed to still suffer from sleep disturbances (AR 183). Dr. Bryson added Sonata to her

medication regime (AR 183). 

Bailey returned to Dr. Bryson on February 5, 2004 for follow up and complained of pain

in her thoracic area (AR 265). Dr. Bryson reviewed her August 2002 MRI’s which showed an

anulus bulge at T7-T8 and multi-level disc bulging in the cervical spine (AR 265). Physical

examination revealed good joint motion with no active synovitis and tenderness to palpation of

the paraspinal muscles around her entire spine (AR 265). Dr. Bryson assessed her with a

fibromyalgia flare, but ordered repeat MRI’s to rule out the possibility of herniated discs (AR

265). 

An MRI of the cervical spine conducted on February 15, 2004 showed bulges at the C5-6

and C6-7 areas with mild herniation suspected at the C5-6 area, mild to moderate foraminal

narrowing at C5-6 and mild foraminal narrowing at C6-7, mild bulging annuli from C3 through

C5 with small central disc protrusion at C4-5 and reversal of the normal cervical lordosis

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consistent with muscle spasm (AR 266). An MRI of the thoracic spine revealed a mild rightsided herniation at T7-8 causing mild impress on the spinal cord and a small central protrusion at

T8-9 (AR 267). 

Bailey was seen by Dr. Cornell on March 3, 2004 with a chief complaint of a left knee

injury (AR 273). Dr. Cornell observed swelling and bruising, and assessed her with left knee

strain (AR 273). Dr. Cornell referred her to an orthopedist for evaluation (AR 273). 

Bailey was evaluated by George Hochreiter, D.O., for evaluation of left knee pain on

April, 5, 2004 (AR 268-269). She relayed a history of chronic back pain and was on Flexeril,

Effexor, Darvocet and Sonata (AR 268). Bailey reported that in March 2004 she tripped, fell and

twisted her left knee, which resulted in pain and swelling (AR 268). X-rays of the left knee

conducted March 5, 2004 were normal (AR 269; 277). Dr. Hochreiter assessed her with left knee

sprain, rule out meniscal tear, and recommended continuation of symptomatic treatment (AR

269). 

On April 21, 2004, Bailey returned to Dr. Cornell for a routine physical, who noted her

past medical history was significant for fibromyalgia for which she was being treated by Dr.

Bryson (AR 270). She was on Flexeril, Effexor, Darvocet and Sonata (AR 270). Dr. Cornell

noted that Bailey was “quite limited” in her physical activities and was seeking disability (AR

270). 

On May 19, 2004, Nancy Carpenter, M.D., a state agency reviewing physician, opined

that Bailey could perform light work but only occasionally climb, balance, stoop, kneel, crouch

and crawl (AR 280-281). In support of her assessment, Dr. Carpenter listed a “PCP” treatment

note dated March 3, 2003, Dr. Bryson’s treatment note dated February 5, 2004 and Bailey’s

February 2004 diagnostic studies (AR 280).

Dr. Bryson reported on June 25, 2004 that Bailey’s recent MRI’s were not significantly

different from her 2002 MRI (AR 300). Bailey reported she experienced headaches and needed

to lie down at least three to fours hours during the day (AR 300). On physical examination, Dr.

Bryson found adequate joint motion with no obvious synovitis, nodules or deformities noted (AR

300). Dr. Bryson recommended that Bailey reconsider pain management since her medications

had not been as effective as she had hoped (AR 300). 

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On October 22, 2004, Bailey reported to Dr. Bryson that she had to cancel a scheduled

pain management appointment for epidural injections due to transportation issues (AR 299). She

reportedly continued to have a lot of pain in the neck and shoulder area, and claimed that at times

she was in so much pain she felt as though she could not walk straight (AR 299). Dr. Bryson

found good joint motion on physical examination with no active synovitis, but she had painful

range of motion of most joints (AR 299). Dr. Bryson informed Bailey that she was as stable as

she was going to be with her medication regime, and unfortunately, she had only a limited

response to them (AR 299). 

On January 28, 2005, Bailey complained of severe pain along her spine spreading to her

back (AR 299). Dr. Bryson prescribed a Medrol Dosepak (AR 299). On February 3, 2005, Dr.

Bryson prescribed Tylenol 3 with codeine (AR 299). 

Bailey returned to Dr. Bryson on March 1, 2005 who reported that Bailey’s symptoms

remained the same, except that Bailey was reportedly very fatigued and needed to lie down a lot

(AR 298). Her medications consisted of Tylenol with codeine, Flexeril, Effexor and Sonata (AR

298). A Medrol Dosepak given to Bailey in January had not provided any relief (AR 298). On

physical examination, Dr. Bryson found Bailey had good joint motion with no active synovitis,

but had painful range of motion of the joints throughout (AR 298). Dr. Bryson found Bailey had

obtained some relief with the Tylenol and increased the dosage (AR 298). 

Bailey underwent a consultative evaluation on March 2, 2005 performed by Silvia

Ferretti, D.O. (AR 288-290). Bailey presented with a chief complaint of neck, thoracic and

lumbar back pain, and relayed a history of fibromyalgia, osteoarthritis, scoliosis, cervical stenosis

and bursitis of her hips (AR 288-289). She reportedly stopped working in May 2002 due to pain

(AR 288). She claimed she could sit for 15 to 20 minutes and stand and walk for just a few steps

(AR 288). Bailey reported she was able to dress, feed herself and drive (AR 288). On physical

examination, Dr. Ferretti reported normal cervical range of motion, strength was 5/5 bilaterally,

sensory was intact, and hip, knee, and ankle range of motion was intact (AR 289). Bailey was

able to take short steps on her heels and in toe walking, her straight leg raising testing was

negative in the sitting and standing position, and she did all transfers independently (AR 289). 

Dr. Ferretti found Bailey had trigger points around the scapular area, supraspinatus, infraspinatus

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and rhomboids areas, and there was some pain at the trochanteric area of her hips and at the

epicondyles of her elbows (AR 289). 

Dr. Ferretti formed an impression of probable fibromyalgia, osteoarthritis, mild stenosis

of the neck, herniated disc in the thoracic area by MRI (AR 289). Dr. Ferretti’s evaluation

reflects that she reviewed multiple notes from Dr. Cornell, x-rays, MRI reports, Dr. Hochreiter’s

report, Dr. John Ferretti’s report, and Dr. Bryson’s note that Bailey was adjusting to her

medication (AR 290). Dr. Ferretti opined that Bailey could occasionally lift 15 pounds,

frequently lift 10 pounds, stand/walk eight hours in an eight-hour workday and sit eight hours in

an eight-hour workday (AR 291-292). Dr. Ferretti further opined that she needed to

sit/stand/walk as needed, and could stand/walk for no more than 20 minutes without interruption,

and could sit for no more than 30 minutes without interruption (AR 292). Dr. Ferretti concluded

that Bailey could never climb, stoop, kneel, balance, crouch and crawl (AR 292). 

Finally, on May 13, 2005, Dr. Bryson prepared a narrative report stating that Bailey

suffered from fibromyalgia, a chronic noncurable disease, and described the characteristics of the

disease in patients generally (AR 303). Dr. Bryson indicated that patients with fibromyalgia had

widespread pain in the muscles and joints which waxed and waned and was easily exacerbated

(AR 303). She explained that patients also characteristically had labile bowel symptoms, very

poor sleep patterns, nonrestorative sleep, mitral valve prolapse and other symptoms such as

generalized paresthesias (AR 303). Patients experienced overwhelming fatigue, had widespread

areas of tenderness involving most joint and muscle groups and had painful range of motion of

joints (AR 303). Dr. Bryson stated that adequate periods of rest were extremely important for

patients with fibromyalgia since they had very poor sleep patterns (AR 303).

Regarding Bailey specifically, Dr. Bryson stated that she had been on a number of listed

medications with very limited response (AR 303). She opined that “[a]t this point in time, I do

not see how Rhonda could remain gainfully employed. She is so fatigued that she would need to

lie down several times throughout the day and has so much pain with motion of her joints that

this makes gainful employment impossible” (AR 303). 

Bailey testified at both hearings held by the ALJ on December 9, 2003 and May 3, 2005

(AR 307-350). At the first hearing, Bailey testified she resigned from her job because she could

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not “handle the pain” and was “shaking all the time” (AR 314). She testified that she suffered

from pain in her back, arms and legs, and also had daily headaches (AR 314-315). She claimed

that activities aggravated her pain, but medication was somewhat effective in alleviating her

discomfort (AR 315). She testified that she was only able to stand for 10 minutes, sit for 15 to 20

minutes, lift 2 to 3 pounds and walk half a block (AR 315). She further testified that she was

able to bath and dress herself, but needed help preparing meals and shopping for groceries (AR

318; 320). She was able to begin performing household chores but could not complete them due

to pain (AR 319). Bailey testified that she would lie down to alleviate her pain (AR 318). She

suffered from “bad days” approximately 50 percent of the time and would lay down for 3 or more

hours (AR 321). She spent her days lying down or doing a “little bit” of needlepoint (AR 320). 

She claimed physical therapy aggravated her symptoms (AR 318). Baily also testified that she

suffered from sleep disturbances (AR 322). 

At the second hearing, Bailey testified that the severity of her symptoms had remained the

same, but she suffered from pain for longer periods of time (AR 337). She testified that the

Tylenol 3 had helped alleviate the pain, but she had to lay down for 4 to 5 hours per day due to

pain and fatigue (AR 338; 343). She claimed she could only stand for 5 minutes, sit for 10

minutes, lift about 5 pounds and avoid bending (AR 339). She testified that she did not engage

in needlepoint as much since the last hearing (AR 341).

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

vocational background, who was limited to sedentary work with a sit/stand option, and who

would not be able to engage in climbing, crawling, kneeling, repeated bending at the waist to 90

degrees, or engage in constant manipulation with her hands (AR 344). The expert testified that

such an individual could work as a surveillance system monitor, toll taker, credentials checker,

inspector and general clerk (AR 345). The expert further testified that such an individual would

be unable to perform any of the cited jobs if she were off task 10 to 15 percent of the workday,

excluding scheduled breaks and lunch period, or had to lie down for 2 hours in an eight-hour

workday (AR 346-347). 

The ALJ subsequently issued a written decision which found that Bailey was not entitled

to a period of disability, DIB or SSI within the meaning of the Social Security Act (AR 19-29). 

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

final decision of the Commissioner (AR 11-14). 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 Bailey met the

disability insured status requirements of the Act (AR 20). SSI does not have an insured status

requirement. 

A person is "disabled" within the meaning of the Social Security Act if he or she is unable

to "engage in any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or can be

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

The Commissioner uses a five-step evaluation process to determine when an individual meets

this definition:

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

degenerative disc disease of the cervical spine and fibromyalgia were severe impairments, but

determined at step three that she did not meet a listing (AR 21; 25). At step four, the ALJ

determined that she could not return to her past work, but retained the residual functional

capacity to perform work at the sedentary level with a sit/stand option, and could perform no

climbing, crawling, kneeling, repeated bending to 90 degrees and constant manipulation with her

hands (AR 25). At the final step, the ALJ determined that Bailey could perform the jobs cited by

the vocational expert at the administrative hearing (AR 27-28). The ALJ additionally determined

that her statements concerning the intensity, duration and limiting effects of her symptoms were

only partially credible (AR 26). Again, we must affirm this determination unless it is not

supported by substantial evidence. See 42 U.S.C. § 405(g). Although Bailey sets forth a number

of errors allegedly committed by the ALJ, fundamentally she argues that the ALJ erred in his

evaluation of the medical evidence and erred in his credibility determination. We shall address

each of these arguments in turn.

A. Evaluation of the medical evidence

1. Non-severity finding

Bailey first argues that the ALJ erred in failing to find that her thoracic spine condition

was a severe impairment. Step two of the sequential evaluation process focuses on whether the

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15

claimant is suffering from a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). An

impairment is severe if it is “of magnitude sufficient to limit significantly the individual’s ability

to do basic work activities.” Santise v. Schweiker, 676 F.2d 925, 927 (3rd Cir. 1982); see also 20

C.F.R. §§ 404.1521(a), 416.921(a). 

Here, an MRI of Bailey’s thoracic spine conducted on February 15, 2004 revealed a mild

right-sided herniation at T7-8 causing mild impress on the spinal cord and a small central

protrusion at T8-9 (AR 267). The mere existence of a diagnosis however, does not demonstrate a

disability. Plummer v. Apfel, 186 F.3d 422, 434 (3rd Cir. 1999). The claimant must demonstrate

the she suffers from functional limitations as a result of that impairment. Adorno v. Shalala, 40

F.3d 43, 46 (3rd Cir. 1994). Although the medical records reflect a thoracic spine condition, there

is no evidence in the record that this condition limited Bailey’s ability to do basic work activities. 

Dr. Bryson’s disability assessment in January 2003 was based upon Bailey’s fibromyalgia and

cervical stenosis (AR 114). Likewise, Dr. Bryson’s opinion in May 2005 that Bailey could not

remain gainfully employed was due to her fibromyalgia condition, and not the result of any

thoracic condition (AR 303). Based upon the medical record, we are of the opinion that the

ALJ’s determination that Bailey’s thoracic condition was not severe is supported by substantial

evidence. 

2. Treating physician rule

 Bailey argues that the ALJ further erred in his evaluation of the medical evidence with

respect to the opinion of her treating physician. Her argument in substance is that the ALJ erred

in failing to give controlling weight to the opinion of Dr. Bryson, and/or rejected her opinion on

inadequate grounds in violation of the treating physician rule. In connection with this argument,

we review the fundamental principles which govern the ALJ’s consideration of the medical

evidence. 

We first note that in evaluating a claim for benefits, the ALJ must consider all of the

evidence in the case. See Plummer, 186 F.3d at 429. He is explicitly required to weigh all

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relevant, probative, and available evidence. Adorno, 40 F.3d at 48. The ALJ may not summarily

reject medical evidence; he must articulate in writing his reasons for discounting it. See

Plummer, 186 F.3d at 429; Wier on Behalf of Wier v. Heckler, 734 F.2d 955, 961 (3d Cir. 1984);

Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). Moreover, a treating physician’s opinion is

given controlling weight only when it is well-supported and consistent with the other evidence of

record, see 20 C.F.R. § 404.1527(d)(2), and may only be rejected on the basis of contradictory

medical testimony. Frankenfield v. Bowen, 861 F.2d 405, 408 (3rd Cir. 1988). When medical

testimony conflicts or is inconsistent, the ALJ is required to choose between them. Cotter, 642

F.2d at 705. In making that choice, a treating physician’s conclusions are to be examined

carefully and accorded more weight than a non-treating physician’s opinion. Podedworny v.

Harris, 745 F.2d 210, 217 (3rd Cir 1984). Where an ALJ chooses to reject the opinion of a

treating physician, he must adequately explain in the record his reasons for doing so. Sykes v.

Apfel, 228 F.3d 259, 266 (3rd Cir. 2000) (“Where the Secretary is faced with conflicting evidence,

he must adequately explain in the record his reasons for rejecting or discrediting competent

evidence.”).

Here, Dr. Bryson, Bailey’s treating physician, and a specialist in the field of

rheumatology, opined in January 2003 that she was permanently disabled due to fibromyalgia

and cervical stenosis (AR 114). Dr. Bryson further opined in May 2005 that Bailey needed to lie

down several times throughout the day due to fatigue, and had so much pain with motion of her

joints that gainful employment was impossible (AR 303). In his decision, the ALJ declined to

accord Dr. Bryson’s opinions controlling weight, stating that whether a claimant is “disabled” is

an administrative finding reserved to the Commissioner (AR 26). The ALJ “discounted” Dr.

Bryson’s May 2005 opinion since it was not consistent with the other “substantial medical

evidence” of record (AR 26). Specifically, the ALJ concluded:

While Dr. Bryson reports a lot of tender points upon examination

of the claimant, there is no indication that fibromyalgia protocol of

comparing tender points to control points was performed (Exhibits

1F, 7F and 10F). In addition, Dr. Bryson gave an explanation of

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17

fibromyalgia in her report of May 13, 2005, but little information

clinically specific to the claimant (Exhibit 16F). Dr. Bryson also

mentioned gastrointestinal complaints characteristic of patients

with fibromyalgia, but none were raised by the claimant at the

hearing (Testimony and Exhibit 16F). In addition, Dr. Ferretti’s

assessment at Exhibit 4F is greatly at odds with Dr. Bryson. 

Specifically, Dr. Ferretti reported that the claimant’s motor

strength was 5/5 bilaterally and the claimant’s grip strength was

100 percent bilaterally. Range of motion was essentially normal in

the cervical and lumbar spines. The claimant performed heel/toe

walk without difficulty. Dr. Ferretti assessed the claimant as

capable of occasionally lifting and carrying up to 15 pounds,

standing and walking a total of eight hours at 20 minutes (sic)

intervals and sitting a total of eight hours at 30 minute intervals

(Exhibit 14F). In addition, the claimant was seen by Dr.

Hochrieter for complaints of left knee pain. The undersigned finds

it significant that there is not a single mention of fibromyalgia, just

“a history of chronic back problems” (Exhibit 11F). MRI studies

have shown only mild degenerative changes in the cervical and

thoracic spine (Exhibit 10F). The undersigned also notes that an xray of the claimant’s lumbosacral spine was normal (Exhibit 2F)

(AR 26-27).

Although the ALJ did not explicitly specify the weight he attributed to Dr. Bryson’s

opinions, it appears he rejected them altogether. In any event, we conclude that the ALJ’s

decision to discount or reject Dr. Bryson’s opinions are not supported by substantial evidence. 

We are first troubled by the vagueness of the ALJ’s first cited reason for discounting Dr.

Bryson’s opinion, i.e., that she failed to follow “fibromyalgia protocol” of comparing tender

points to control points, since the ALJ failed to cite to a source for explanation. Fibromyalgia is

“a rheumatic disease that causes inflammation of the fibrous connective tissue components of

muscles, tendons, ligaments and other tissue.” Bennecke v. Barnhart, 379 F.3d 587, 589 (9th Cir.

2004). Clinical signs and symptoms supporting a diagnosis of fibromyalgia under the American

College of Rheumatology Guidelines include “primarily widespread pain in all four quadrants of

the body and at least 11 of 18 specified tender points on the body.” Green-Younger v. Barnhart,

335 F.3d 99, 107 (2nd Cir. 2003); see also Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996);

Kurilla v. Barnhart, 2005 WL 2704887 at *6 (E.D.Pa. 2005). 

Here, a review of Dr. Bryson’s treatment notes reveal that she consistently reported that

Bailey had tender points on examination (AR 112, 115, 117, 187). Moreover, Dr. Bryson’s

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findings of tender points are corroborated by Dr. Ferretti’s findings, the Commissioner’s own

consultative examiner, who reported that Bailey had multiple trigger points around the scapular

area, supraspinatus, infraspinatus and rhomboids areas (AR 289). 

The ALJ further rejected Dr. Bryson’s opinion that Bailey was unable to work on the

basis that Dr. Bryson had “provided little information clinically specific to the claimant” (AR

26). To the contrary, in addition to stating that Bailey was unable to work, Dr. Bryson

specifically offered an opinion on the “nature and severity” of Bailey’s impairment. She opined

that Bailey was so fatigued she had to lie down several times throughout the day and suffered

pain with motion of her joints (AR 303). 

More fundamentally, however, there is medical evidence of record either overlooked or

ignored by the ALJ that is potentially material to a proper examination of Dr. Bryson’s opinions. 

For example, treatment notes from Dr. Cornell, Bailey’s family physician, consistently reflect

that Bailey complained of pain and fatigue. In May 2002, she complained of persistent left

shoulder, back and hip pain, and reported difficulty with activities of daily living (AR 155-156). 

In June 2002, she reported difficulty completing household chores due to fatigue, and that she

became “quite stiff” after sitting for about 30 minutes (AR 154). In August 2002 she claimed 

that she needed to lie down one or two hours per day in order to alleviate her back pain (AR

151). Bailey reported significant pain on a regular basis in September 2002, and in February

2003 described difficulty with pain and activities of daily living (AR 147; 150). Finally, in April

2004, Dr. Cornell noted that Bailey was “quite limited” in her physical activities (AR 270). 

We recognize that Dr. Bryson’s opinion that Bailey is unable to work is not binding on

the Commissioner. 20 C.F.R. § 404.1527(e)(1). Nonetheless, it is the duty of the ALJ to “review

all of the medical findings and other evidence that support a medical source’s statement that [a

claimant] is disabled.” Id. (emphasis added). We are of the opinion that the ALJ’s selective

review of the medical findings was inconsistent with the above standard. Given the potential

materiality of the above discussed evidence, we are of the view that a remand is appropriate so

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1

 We also comment briefly on the ALJ’s reliance on Dr. Ferretti in discounting Dr.

Bryson’s opinion. Dr. Bryson is a specialist in rheumatology and a long-term treating source, in

contrast with Dr. Ferretti, who was not a specialist or a long-term treating source. 20 C.F.R. §

404.1527(d)(2) and (5) (noting that generally more weight is given to opinions from treating

sources, as well as specialists about medical issues related to his or her area of specialty than to

the opinion of a source who is not a specialist). Moreover, we observe that the ALJ cited to Dr.

Ferretti’s negative physical examination findings in discounting Dr. Bryson’s opinions. The

ALJ’s reliance on the lack of objective findings was misplaced. As observed in Green-Younger

v. Barnhart, 335 F.3d 99, 108-09 (2nd Cir. 2003), “[i]n stark contrast to the unremitting pain of

which [fibromyalgia] patients complain, physical examinations will usually yield normal results -

a full range of motion, no joint swelling, as well as normal muscle strength and neurological

reactions.” Id. at 108-09 (quoting Preston v. Secretary of Health and Human Services, 854 F.2d

815, 817-18 (6th Cir. 1988); see also Hirschfeld v. Apfel, 159 F. Supp. 2d 802, 812 (E.D.Pa.

2001) (noting that symptoms of fibromyalgia are entirely subjective). 

19

that the ALJ can address them consistent with the requirements of Cotter.1 

B. Credibility determination

Bailey further challenges the ALJ’s credibility determination. An ALJ must consider

subjective complaints by the claimant and evaluate the extent to which those complaints are

supported or contradicted by the objective medical evidence and other evidence in the record. 20

C.F.R. § 404.1529(a). Subjective complaints must be seriously considered, whether or not they

are fully confirmed by the objective medical evidence. See Smith v. Califano, 637 F.2d 968 (3rd

Cir. 1981). 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. 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 F2d 871,

873 (3rd Cir. 1983). 

Here, the ALJ found that while Bailey had “some pain”, he determined that it was not so

severe or limiting as to be disabling (AR 26). In making this determination, the ALJ purportedly

examined the medical evidence of record, and cited to several treatment notes in support of his

determination (AR 26). However, as we discussed in connection with his review of Dr. Bryson’s

opinions, he failed to explain his basis for rejecting other medical evidence arguably supportive

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20

of her claim of disability. Cotter, 642 F.2d at 705 (ALJ must mention relevant evidence which

clearly supports the claim and give his or her reasons for rejecting such evidence). 

The ALJ also relied on the fact that Bailey was able to care for her personal needs, begin

to prepare a meal, vacuum, grocery shop for a few items, needlepoint and walk (AR 26). The

fact that Bailey may sporadically engage in certain household chores does not, in and of itself,

support the ALJ’s conclusion that she is capable of substantial gainful activity. See Smith v.

Califano, 637 F.2d 968, 971-72 (3rd Cir. 1981) (“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.”). 

IV. CONCLUSION

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

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

be remanded to the Commissioner for further proceedings consistent with this Memorandum

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

is necessary. An appropriate Order follows. 

 

 

 

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21

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RHONDA BAILEY, )

)

Plaintiff, )

)

v. ) Civil Action No. 06-18 Erie

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, this 3rd day of November, 2006, and for the reasons stated in the

accompanying Memorandum Opinion, 

IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. No. 11]

is DENIED and Defendant’s Motion for Summary Judgment [Doc. No. 13] 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 hereby directed to mark the case closed. 

s/ Sean J. McLaughlin

United States District Judge

cm: All parties of record. 

 

 

 

 

 

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