1Stover amended the onset of disability date to August 29, 2002 as his first administrative

hearing (AR 241). 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUSSELL L. STOVER, )

)

Plaintiff, )

) Civil Action No. 05-363 Erie

)

v. )

)

JO ANNE BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

McLAUGHLIN, SEAN, J.

Plaintiff, Russell L. Stover, 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. Stover filed an application

for SSI on June 28, 2002, alleging disability since June 2, 1993 due to diabetes (Administrative

Record, hereinafter “AR”, 50-53; 58).1 His application was denied, and a hearing was held

before an administrative law judge (“ALJ”) on May 5, 2003 (AR 224-251). Following this

hearing, the ALJ found that he was not eligible for SSI under the Act (AR 9-23). The Appeals

Council denied Stover’s request for review, and he instituted an action in this Court (AR 4-6). 

Pursuant to the Commissioner’s motion to remand, we remanded the matter to the

Commissioner. See Stover v. Barnhart, C.A. No. 04-120 (W.D.Pa. Oct. 6, 2004). 

The Commissioner subsequently remanded the case to the ALJ in order to obtain

evidence from a vocational expert, and a second hearing was held on April 1, 2005 (AR 280-281;

322-352). On June 23, 2005, the ALJ again found that Stover was not eligible for SSI under the

Act (AR 265-273). His request for review by the Appeals Council was denied (AR 252-254),

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

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2

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 and the case will

be remanded to the ALJ for further proceedings. 

I. BACKGROUND

Stover was born on March 17, 1969, and was thirty-six years old on the date of the ALJ’s

decision (AR 50; 266). He has a high school education and no past work experience (AR 266). 

A. Evidence submitted prior to the first administrative hearing

Stover has been treated by Peter J. Thompson, M.D., since December 1994 (AR 118). 

Prior to his alleged onset of disability date of August 29, 2002, Dr. Thompson’s treatment notes

reflect that at times Stover’s diabetes was well-controlled, and at other times he suffered from

hypoglycemic episodes requiring emergency room treatment (AR 98-118; 153-161). Dr.

Thompson’s treatment notes further reflect that Stover had a long history of depression with

some seasonal affective disorder (AR 98;153). In May of 2001, Stover apparently injured his

groin while playing baseball (AR 160). In July 2001 he reported seizure activity, although an

MRI was normal and he had normal sensory and motor function (AR 159). As of August 12,

2002, Dr. Thompson opined that Stover was capable of light work, but could only occasionally

bend and crouch, and had environmental limitations (AR 99-100). 

The medical evidence reflects that after Stover’s alleged onset date, he returned to Dr.

Thompson on August 30, 2002, for follow-up reportedly having “significant trouble” (AR 153). 

He complained of left-sided numbness with slurred speech, “terrific” anxiety due to his pending

divorce, and reported emergency room treatment the night before (AR 153). Dr. Thompson

reported that his diabetes was reasonably controlled, and a CT scan conducted in the hospital was

negative (AR 153). Dr. Thompson assessed questionable seizures, added Ativan to his

medication regime and scheduled an EEG (AR 153).

 On September 4, 2002, Dr. Thompson reported that Stover was doing better, had not had

any seizures, and his starring spells and slurred speech were better (AR 152). His blood sugar

was good, and Dr. Thompson was of the opinion that he was suffering from mental stress (AR

152). He released him to return to work (AR 152). Dr. Thompson’s office reported that Stover’s

affect had stabilized with Paxil, he continued to do well with medication and was able to return

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3

to work AR 97).

Stover’s blood sugar was under much tighter control and he was doing better on October

1, 2002 (AR 152). He reported a “little” twitching of his face but no seizures, and a CT scan was

negative (AR 151-152). On October 13, 2002 Stover reported the absence of seizures and that he

was “doing good” although his blood sugar was lower and he complained of headaches (AR

152).

Edward Zuckerman, Ph.D., a state agency reviewing psychologist, completed a

psychiatric review technique form on September 17, 2002, and concluded that Stover’s mental

impairment was not severe (AR 133). He found Stover had no restrictions in his activities of

daily living or difficulties in maintaining social functioning, had only mild difficulties in

maintaining concentration, persistence or pace, and no episodes of decompensation of an

extended duration (AR 143). 

An EEG conducted September 18, 2002 was reported as normal, and an MRI of Stover’s

brain conducted on September 25, 2002 was also normal (AR 149). 

On December 11, 2002, Stover reported that his blood sugar was still running low and he

had more hypoglycemia (AR 170). He claimed he was once found lying in his basement (AR

170). He reported that his nerves were “very bad again” (AR 170). Stover complained of

increased depression and was started on Effexor (AR 170). Dr. Thompson’s treatment notes

reflect that Stover’s attention span was poor, and “he absolutely [could] not do anything” (AR

170). Because of his attention difficulties and hypoglycemia, Dr. Thompson precluded driving

(AR 170). 

On January 27, 2003, Stover was treated at the emergency room for a hypoglycemic

episode after his family found him unconscious in the bathroom (AR 196-199).

In February 2003 Dr. Thompson noted that Stover’s blood sugar was low (AR 170). On

April 3, 2003, Stover reported he continued to feel depressed and anxious (AR 170). Dr.

Thompson reported that he was seizure free and his neurological examination was normal (AR

170). On February 19, 2003, Stover presented to the emergency room complaining of wrist pain

which he attributed to the January 2003 incident when he was found unresponsive (AR 191). 

On April 18, 2003, Dr. Thompson wrote to Stover’s counsel (AR 169). Among other

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4

things, he reported that Stover suffered from recurrent hypoglycemic episodes which were

triggered by physical activity, and had loss of consciousness (AR 169). He further reported that

when found unconscious he had been revived with the use of D50 or IV Glucose (AR 169). Dr.

Thompson opined that he was only capable of a “menial type” where the exposure to stressful

situations and dangerous situations, such as heights, machinery, etc., were eliminated (AR 169). 

Dr. Thompson was of the opinion that he required a sedentary job with rote type activity (AR

169). 

On April 28, 2003, Dr. Thompson rendered a residual functional capacity evaluation (AR

176-180). Dr. Thompson opined that Stover could sit for eight hours, stand for four hours, walk

for two hours, and sit/stand combined for two hours (AR 176). He concluded that he was able to

lift up to twenty pounds less than one-third of a workday, could carry up to ten pounds up to onethird of a workday, and carry up to twenty pounds less than one-third of a workday (AR 176-

177). He was able to us his hands for simple grasping and fine manipulating, but not for pushing

and pulling, and could use his feet for repetitive movements (AR 177). Dr. Thompson restricted

postural activities to less than one-third of a day, and imposed moderate restrictions with respect

to unprotected heights and moving machinery (AR 178). 

Dr. Thompson opined that Stover could work a full week at a time, but could work less

than four consecutive weeks at a time (AR 178). In support of his opinion, Dr. Thompson stated

that Stover had no physical problems, but had very unstable diabetes and needed injections four

times per day, and when abnormal, he had frequent hypo and hyper blood sugar (AR 179). He

also suffered from depression (AR 179). Dr. Thompson concluded that both problems made it

impossible for him to work on a regular basis (AR 179).

Stover testified at the first hearing held by the ALJ on May 15, 2003 (AR 224-251). He

testified that he has suffered from diabetes for 23 years but it had become worse the last several

years (AR 243). He suffered from low blood sugar as many as six times per day, which caused

him to become shaky and rude with people (AR 244-245). A couple of times per week his blood

sugar became high and he just wanted to lay around (AR 244; 248). He testified that he lost two

jobs due to hypoglycemic episodes, and recounted two instances wherein he had been found

unresponsive at home (AR 244-246). Stover claimed he was compliant with his medication

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5

regime and checked his blood sugar three times per day every other day, but was unable to

explain why his diabetes was not under control (AR 232; 236-237). He also took Dilantin for

seizure type activity, and Paxil which helped his depression (AR 234; 236).

Stover testified that he was able to drive, but occasionally had to pull over when his blood

sugar became low (AR 233). He further testified that he did not “do a lot” with respect to daily

activities, but was able to help with household chores, attend to his personal needs and cook for

himself (AR 239). He was able to watch television, play cards, walk approximately half a mile,

stand for approximately 15 to 20 minutes, lift 30 pounds, and had no problems sitting or bending

(AR 239-240). However, Stover claimed to suffer from groin/penis neuropathy approximately

three to four times per week which caused irritability and an inability to sit (AR 241-242). 

As previously indicated, the ALJ denied Stover’s claim following the first hearing, and

the Appeals Council denied his request for review. After instituting an action in this Court, the

matter was remanded to secure vocational expert testimony pursuant to the request of the

Commissioner.

B. Evidence submitted after remand and prior to the second administrative

hearing

Subsequent to the first administrative hearing, Stover submitted additional medical

documentation from Dr. Thompson, an emergency room record referencing treatment for a

hypoglycemic episode, and a statement from a home health aide.

With respect to Dr. Thompson’s treatment notes, the medical evidence reflects that on

June 30, 2004, Stover reported suffering from a seizure while at the shore due to low blood sugar

(AR 314). Dr. Thompson noted that his sugars were better, and recommended that he avoid

excessive work in the heat and sweating (AR 314). 

On November 2, 2004, Stover reported problems with hypoglycemia due to raking leaves

and getting ready for winter (AR 314). Dr. Thompson noted that Stover had not been eating an

extra snack which he needed, and encouraged him to take an extra snack in the afternoon when

he worked (AR 314). Stover had not had any seizure activity (AR 314). 

Stover returned to Dr. Thompson on December 21, 2004, and reported a hypoglycemic

episode while driving wherein he ended up on the other side of the road (AR 313). A friend

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6

recognized him and was able to revive him (AR 313). Dr. Thompson encouraged him to eat on

time (AR 313).

On March 5, 2005, Dr. Thompson opined that Stover was totally disabled (AR 312). 

When Stover returned to Dr. Thompson on March 8, 2005, he relayed one seizure episode due to

low blood sugar which was the result of not eating due to the flu (AR 313). Dr. Thompson

reported that on that date he felt “good” (AR 313).

On March 10, 2005, Stover sought emergency room treatment for a hypoglycemic

episode (AR 297-302; 318). 

Lynne M. Delaney, a home health aid who cared for Stover’s grandmother, submitted a

statement indicating that since November 2004, Stover suffered from low blood sugar episodes

(AR 286). Ms. Delaney indicated the “worst” episode occurred on March 31, 2005, when Stover

became combative, uncooperative and argumentative (AR 286). Following this episode, Stover

became “very exhausted and lethargic” (AR 286). 

Stover, his mother, and Joseph Kuhar, a vocational expert, testified at the second hearing

held by the ALJ on April 1, 2005 (AR 322-352). Stover testified that he was undergoing mental

health counseling approximately twice a month (AR 330-331). He claimed that his diabetes had

worsened since the last hearing, in that he was unable to walk or lift, and was only able to watch

television (AR 332). He took two insulin shots per day and tested his blood sugar three times per

day (AR 333). Stover claimed that in addition to the neuropathy in his groin, his right arm was

now affected (AR 335). On the day before the hearing, Stover suffered a violent outburst and

was given glucose by ambulance personnel (AR 339). He suffered from 10 to 15 low blood

sugar episodes per day, and spent most of his time at home (AR 340-341). 

Patricia Swarm, Stover’s mother, testified that he lived with her and that she made sure

he ate and tested himself (AR 342-343). She further testified that he tested his blood sugar level

three to four times per day, and took two shots per day (AR 343). She claimed that she called Dr.

Thompson repeatedly and he would adjust Stover’s medication over the telephone (AR 344). His

hypoglycemic episodes occurred daily, and at times she required assistance from emergency

personnel due to his violent outbursts (AR 345-346). 

The ALJ asked the expert to assume an individual of the same age and education as

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7

Stover, who was capable of light work that was simple and repetitive, with no more than

incidental interaction with the public (AR 347-348). The expert opined that such an individual

could perform the jobs of a mold cleaner, hand packer and office cleaner (AR 348). The expert

further opined that if such an individual were in a altered state of consciousness one or more

times per day, he would not be able to deal effectively with supervisors and/or co-workers,

negating the existence of jobs in significant numbers (AR 349). 

Following the testimony, the ALJ noted that in light of the statement from the home

health aid, it appeared that Stover suffered from significant episodes, but he did not consider the

record fully developed with respect to the frequency or severity of the episodes (AR 350-351). 

The ALJ suggested that Stover secure a statement from Dr. Thompson stating that his records

were incomplete as to the number and frequency of calls for assistance, or, alternatively, secure

statements from non-family members who had observed Stover’s hypoglycemic episodes (AR

350-351).

C. Evidence submitted after the second administrative hearing 

Pursuant to the ALJ’s suggestion, Stover subsequently submitted a letter from Dr.

Thompson dated April 12, 2005, which stated that although not recorded, there had been

numerous occasions wherein Stover’s mother had called several times per week, as well as daily,

seeking advice regarding his insulin coverage (AR 321). Stover further submitted statements

from nine individuals who reportedly observed his hypoglycemic episodes during different time

frames (AR 287-294). 

On June 23, 2005, the ALJ issued a written decision which found that Stover was not

eligible for SSI within the meaning of the Social Security Act (AR 265-273). His request for an

appeal with the Appeals Council was denied making the ALJ’s decision the final decision of the

Commissioner (AR 252-254). He subsequently filed this action. 

II. STANDARD OF REVIEW

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

by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence does not mean a large or

considerable amount of evidence, but only “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65 (1988)

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8

(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 Stover’s case at the fifth step. At step two, the ALJ

determined that Stover’s diabetes and depression were severe impairments, but determined at

step three that he did not meet a listing (AR 269). At step four, the ALJ determined that Stover

had no past relevant work experience, but retained the residual functional capacity to perform

light work with incidental interaction with the public (AR 270). At the final step, the ALJ

determined that he could perform the jobs cited by the vocational expert at the administrative

hearing (AR 271). The ALJ additionally determined that Stover’s allegations regarding his 

limitations were not totally credible (AR 272). Again, we must affirm this determination unless

it is not supported by substantial evidence. See 42 U.S.C. § 405(g). Although Stover sets forth a

number of errors allegedly committed by the ALJ, fundamentally he argues that the ALJ violated

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9

the treating physician rule and failed to resolve evidence which supported the duration and

frequency of his diabetic episodes. We shall address each of these arguments in turn. 

Stover’s first argument in substance is that ALJ failed to give controlling weight to the

opinion of his treating physician, Dr. Thompson, and/or rejected his opinion on inadequate

grounds in violation of the treating physician rule. It is well settled in this Circuit that the

opinion of a treating physician is entitled to great weight and can only be rejected on the basis of

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

must articulate in writing his or her reasons for rejecting such evidence. Cotter v. Harris, 642

F.2d 700, 705 (3rd Cir. 1981). In the absence of such an indication, “the reviewing court cannot

tell if significant probative evidence was not credited or simply ignored.” Id. “[T]he ALJ must

indicate in his decision which evidence he has rejected and which he is relying on as the basis for

his finding.” Schaudeck v. Comm’r of Social Security Admin., 181 F.3d 429, 433 (3rd Cir. 1999)

(citations omitted). Further, because of his or her long standing relationship with the claimant,

the opinion of a treating physician is entitled to more weight than that of a physician who

examined the claimant only once or not at all. Mason v. Shalala, 994 F.2d 1058, 1067 (3rd Cir.

1993). Moreover, “a finding of residual capacity for work which conflicts with such an opinion

and is made without analytical comment or record reference to contradictory evidence is not

supported by substantial evidence.” Gillard v. Heckler, 786 F.2d 178, 183 (3rd Cir. 1986). 

Here, Stover contends in essence that the ALJ rejected Dr. Thompson’s opinion without

pointing to contrary evidence of record. On April 28, 2003, Dr. Thompson rendered a residual

functional capacity evaluation (AR 176-180). In addition to rendering an opinion with respect to

Stover’s exertional capacity, of critical note for our purposes, Dr. Thompson stated that while

Stover had no physical problems, he had “very unstable” diabetes requiring four injections per

day and when abnormal, had frequent hypo and hyper blood sugar (AR 179). Dr. Thompson

opined that this condition, in conjunction with his depression, made it “impossible for him to

work on [a] regular basis” (AR 179). The ALJ rejected this opinion on the basis that it was not 

supported by the medical evidence and “highly speculative” (AR 268). 

We find that the ALJ violated the principles announced in Cotter v. Harris, 642 F.2d 700

(3rd Cir. 1981), in that he failed to adequately explain his rejection of Dr. Thompson’s opinion. 

Case 1:05-cv-00363-SJM Document 13 Filed 06/26/06 Page 9 of 12
10

The only “medical evidence” referred to by the ALJ was the “fact” that Dr. Thompson, in

previous statements, had indicated that Stover’s conditions were stable (AR 268). Although it is

difficult to discern which “statements” the ALJ is referring to since he failed to cite to any

particular record in this regard, we assume he is referring to the notations in Dr. Thompson’s

treatment notes which predated his April 2003 opinion. To be sure, these treatment notes do

contain entries stating that Stover was doing better, his blood sugar was under much tighter

control and he was seizure free (AR 152-153; 170). However, these same records also reflect

that at other times he suffered from hypoglycemic episodes wherein he was found passed out or

required emergency room treatment (AR 170; 196-199). The ALJ selectively relied upon those

treatment note entries which supported his determination while rejecting those which did not

without adequate explanation. 

Whatever the import of the early notations on which the ALJ relied, the ALJ’s decision is

completely devoid of any discussion of the medical evidence following Dr. Thompson’s April

2003 opinion. The medical evidence is replete with instances of Stover suffering from recurrent

hypoglycemic episodes, as well as seizures secondary to these episodes. For example, in June

2004 he suffered a seizure secondary to low blood sugar; he suffered hypoglycemic episodes in

November 2004 and December 2004; he suffered a seizure on March 8, 2005 due to low blood

sugar; and he sought emergency room treatment for a hypoglycemic episode on March 10, 2004

(AR 313-314; 297-302). While the ALJ is not required to discuss every piece of evidence, it is

clear that this evidence was sufficiently material to require the ALJ to adequately explain his

apparent rejection of this evidence. Cotter, 642 F.2d at 707 n.10; Shorts v. Harris, 516 F. Supp.

498, 500 (W.D.Pa. 1981) (more particularized discussion of reasons for rejecting probative

evidence required). 

Finally, the ALJ’s decision fails to adequately explain his apparent rejection of Dr.

Thompson’s most recent opinion rendered in March 2005, wherein he opined that Stover was

totally disabled (AR 312). While we recognize that the ultimate decision concerning the

disability of a claimant is reserved for the Commissioner, Knepp v. Apfel, 204 F.3d 78, 85 (3rd

Cir. 2000), this opinion is consistent with Dr. Thompson’s April 2003 opinion. 

Stover also contends that the ALJ’s conclusion as to the duration and frequency of his

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11

diabetic episodes is not supported by substantial evidence. In this regard, we find that the ALJ’s

approach suffers from the same deficiency discussed above (i.e., a failure to discuss the impact of

relevant and material evidence). See e.g., Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112,

122 (3rd Cir. 2000) (ALJ must also consider and weigh all of the non-medical evidence before

him). 

Specifically, we note that although inviting additional evidence supporting the disabling

nature of his hypoglycemic episodes, the ALJ failed to address the statements from nine

individuals who reportedly observed his hypoglycemic episodes over different periods of time

(AR 287-294). Moreover, he did not address Dr. Thompson’s letter of April 12, 2005, which

supported the testimony of Stover’s mother as to the frequency of her calls relative to her son’s

hypoglycemic episodes (AR 321). 

IV. CONCLUSION

For the foregoing reasons, both motions for summary judgment shall be denied. In light

of the deficiencies discussed above, the matter shall be remanded to the ALJ for further

proceedings consistent with this Memorandum Opinion. On remand, the ALJ is directed to

address the medical evidence consistent with the dictates of Cotter, and address the impact of the

non-medical evidence relative to Stover’s hypoglycemic episodes as required by Burnett. 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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12

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUSSELL L. STOVER, )

)

Plaintiff, )

) Civil Action No. 05-363 Erie

)

v. )

)

JO ANNE BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

ORDER

AND NOW, THIS 26th day of June, 2006, for the reasons set forth in the accompanying

Memorandum Opinion,

IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. No. 9]

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

case is hereby REMANDED to the Commissioner of Social Security for further proceedings

consistent with the accompanying Memorandum Opinion. 

The clerk is directed to mark the case closed. 

s/ Sean J. McLaughlin

United States District Judge

cm: All parties of record. 

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