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Barry v. Astrue

February 2, 2010


The opinion of the court was delivered by: Juan R. Sánchez, J.


Linda L. Barry asks this Court to review the Social Security Administration's (SSA) denial of her application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI), pursuant to 42 U.S.C. § 405(g). Barry claims she has been disabled since August 2005 due to severe neck pain, back pain, and right arm pain. Barry asserts the Administrative Law Judge's (ALJ) decision denying her benefits was not supported by substantial evidence and included factual errors. This Court disagrees. Accordingly, this Court adopts the Report and Recommendation of U.S. Magistrate Judge Timothy R. Rice.


Barry is a 50-year-old woman with a high school education and some computer training. She currently lives with her two adult sons. From 1993 to 1999, Barry worked as an elementary school cafeteria worker. During the summers of 1997-2000, she worked as a program coordinator. Barry worked as a receptionist for the County Board of Assessments from 1999 to August 26, 2005.

Barry first experienced back pain in 2001. In 2002, she had cervical fusion surgery to remove two discs in her neck. Barry began post-surgical treatment on November 29, 2004, and, as part of this treatment, she took medication for pain and anxiety. On January 31, 2005, Barry returned to work part-time, despite a car accident ten days prior. By March 22, 2005, Barry noted a significant improvement in her pain symptoms and she was cleared to return to full-time work in April 2005. Barry's condition continued to improve for several months until November 11, 2005, when Dr. Roy Lerman, Barry's post-surgical treating physician, noted Barry's shoulder pain had increased. In February 2006, Dr. Anthony Niescer, Barry's family physician, referred her to Dr. David Glaser, who diagnosed her with suprascapular neuropathy. Dr. Glaser concluded that Barry's cervical fusion was likely not the source of her pain.

In May 2006, Barry returned to Dr. Glaser and reported her pain and function was improving. Dr. Glaser referred Barry to Dr. Gerald Williams, a shoulder surgeon, to discuss possible surgical options. Dr. Williams recommended Barry continue physical therapy and prescribed a home-based care program. Barry had no further consultations with Dr. Williams.

Barry claims she has constant pain which significantly limits her daily capabilities. She asserts she can walk for no more than 20 minutes and can stand for 30 minutes to one hour. She is able to perform household chores on a limited basis and sometimes requires the assistance of her sons or brother.

On February 23, 2006, Barry filed an application for DIB, alleging disability as of August 26, 2005, due to pain in her neck, back, and right arm. She applied for SSI on March 9, 2006. Both applications were denied on June 21, 2006. Barry requested a hearing before an ALJ, which was held on April 25, 2007.

On April 23, 2007, prior to the ALJ hearing, Dr. Niescer sent a letter to the ALJ, detailing Barry's condition and noting she had suffered a second car accident on February 17, 2007. Dr. Niescer's letter also stated Barry was under the care of a pain management specialist. Barry testified at the hearing she had visited Dr. Larry Chou for pain assistance. Dr. Chou wrote a three-sentence letter to the ALJ, stating Barry was under his care and advising she should be excused from work for a period of time. Dr. Chou's letter was unaccompanied by treatment notes or history. Barry produced no other evidence regarding treatment with Dr. Chou or any other pain management specialist.

The ALJ applied the five-step sequential evaluation process, established by the Department of Health and Human Services, to determine whether Barry was disabled and eligible for benefits. 20 C.F.R. § 404.1520. First, the ALJ found Barry engaged in substantial gainful activity since August 26, 2005, the alleged onset date. Second, the ALJ found Barry's cervical strain and sprain and suprascapular nerve palsy of the right shoulder were severe impairments. Third, the ALJ noted such impairments were not Listed Impairments in Appendix 1, Subpart P, Regulation No. 4, nor were they medically equal to the Listed Impairments.*fn1 At step four, the ALJ concluded Barry had Residual Functional Capacity (RFC) to perform light work which did not involve frequent use of her right arm.*fn2 Finally, the ALJ determined Barry was capable of performing past relevant work, particularly work as a receptionist. Therefore, the ALJ determined Barry was not disabled. On May 20, 2007, the ALJ denied Barry's application for DIB and SSI. The Appeals Council of the SSA denied Barry's request to review the ALJ's decision. Barry then timely appealed to this Court.


This Court reviews de novo Barry's objections to the Magistrate Judge's Report and Recommendation. 28 U.S.C. § 636(b)(1)( C). As long as the ALJ's factual findings are supported by substantial evidence in the record, however, this Court is bound by those findings. 42 U.S.C. § 405(g); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is "more than a mere scintilla but may be somewhat less than a preponderance of the evidence." Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (citation and internal quotation marks omitted). Substantial evidence consists of "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation and internal quotation marks omitted). This Court may not weigh the evidence or substitute its own conclusions for those of the ALJ when determining whether substantial evidence exists. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).

To qualify for DIB or SSI benefits, a claimant must demonstrate an "inability 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). A claimant may satisfy her initial burden by showing she is unable to return to her previous work because of her impairment. Rutherford, 399 F.3d at 551. Once she makes such a showing, the burden shifts to the Commissioner to show that, given her medical condition, age, education, and work experience, she has the ability to perform other existing jobs in the national economy. Id.

The ALJ must consider all of the evidence and provide reasons for discounting any rejected evidence. Stewart v. Sec'y of HEW, 714 F.2d 287, 290 (3d Cir. 1983). When there is conflicting testimony, the ALJ may choose whom to credit but "cannot reject evidence for no reason or for the wrong reason." Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993) (citation and internal quotation marks omitted); see also Williams ...

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