Joan M. Wanko v. JO ANNE B. BARNHART COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION Appeal from the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 03-2514
JOAN M. WANKO,
Appellant
v.
JO ANNE B. BARNHART
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION
Appeal from the Order of the United States District
Court for the Eastern District of Pennsylvania
Civil Action No. 02-cv-00492
Hon. Edmund V. Ludwig
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 13, 2004
Before: SCIRICA, Chief Judge, ROTH, and McKEE, Circuit Judges.
OPINION FILED MARCH 8, 2004
McKEE, Circuit Judge.
Appellant, Joan M. Wanko (“Wanko”) sought judicial review, pursuant to 42
U.S.C. §405(g), of the final decision of the Commissioner of Social Security
Administration (“Commissioner”), who found that Wanko was not entitled to disability
insurance benefits under title II of the Social Security Act. 42 U.S.C. §§ 401-433. The
district court granted the Commissioner’s motion for summary judgment and concluded
that the factual findings of the Administrative Law Judge (“ALJ”) were supported by

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1Wanko amended her onset date from July 6, 1992, the date of her injury, to the date the
surgery was performed.
2The claim was remanded for a mental status evaluation.
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substantial evidence. For the reasons that follow, we will affirm the ruling of the district
court.
I.
Because we write only for the parties, it is not necessary to recite the facts of this
case in detail. It is sufficient to note that Wanko, who was 52 years old on the date of her
last insured, is a high school graduate and worked for Trans World Airlines as a baggage
handler, receptionist and ticket agent for approximately 11 years. In 1992, Wanko injured
her lower back while lifting a piece of luggage at work. Due to the back injury, Wanko
stopped working and was awarded worker’s compensation.
After consulting with her doctors, on May 4, 19951 Wanko elected to undergo
surgery on her lumbar spine. After surgery, Wanko continued to complain of pain in her
back and legs and began treatments and consultations with various types of doctors. The
medical records reveal that although Wanko complained of severe pain and continued
treatment, there was no clear diagnosis as to the cause of such pain.
Wanko filed an application for disability insurance benefits, which was denied
initially and upon reconsideration2. Wanko requested a hearing in front of an ALJ, who
heard testimony from Wanko, a Vocational Expert and Medical Advisor. The ALJ found
that Wanko was not totally disabled and denied her claim. The Appeals Council rejected

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Wanko’s appeal and accepted the ALJ’s decision as the final decision of the
Commissioner. Wanko then appealed to the United States District Court for the Eastern
District of Pennsylvania. Both parties filed for summary judgment, which was granted in
favor of the Commissioner in accordance with a report issued by the Magistrate Judge.
This appeal followed.
II.
We review the district court’s grant of summary judgment de novo, using the same
standard the district court used to examine the ALJ’s determination. Under 42 U.S.C.
§405(g), our review is limited to determining whether the Commission’s factual findings
and final decision are supported by “substantial evidence”. Welch v. Heckler 808 F.2d
264 (3d Cir. 1986). In order to constitute “substantial evidence”, there must be more than
a scintilla, but rather, such relevant evidence as a reasonable mind might accept as
adequate. Ventura v. Shalala 55 F.3d 900, 901 (3d Cir. 1995), (quoting Consolidated
Edison Co. v. N.L.R.B. 305 U.S. 197, 222.)
Title II of the Social Security Act provides disability benefits for individuals who
are “under a disability” and meet other eligibility requirements. 42 U.S.C. § 423(a).
Disability is defined by the act as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment”. 42
U.S.C. § 423(d) A claimant is considered to be unable to engage in any substantial
gainful activity “only if his physical or mental...impairments are of such a severity that he

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is not only unable to do his previous work but cannot, considering his age, education and
work experience, engage in any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. § 423(d)(2)(A) The burden of proving disability rests
upon the claimant. Burnett v. Commissioner of Social Security Administration 220 F.3d
112, 120 n.2 (3d Cir. 2000)
The Commissioner’s regulations provide a five (5) step sequential evaluation
process for determining whether or not a claimant is under a disability 20 C.F.R. §
404.1520. In this case, the ALJ used the sequential evaluation and found at Step Three
that Wanko’s muskoskeletal impairments were severe, but her mental impairment was
non-severe. He then found at Step Four that Wanko was able to return to her prior
sedentary job and therefore was not disabled. The ALJ primarily based this opinion on
the credibility determinations he made of Wanko’s treating physicians and the medical
advisor who testified at the hearing.
Dr. Dearolf, Wanko’s treating physician, expressed his opinion that Wanko was
limited to working four hours per day. The ALJ found that Dr. Dearolf’s opinion was not
well supported by the overall medical evidence and limited the weight assigned to his
opinions to the extent they were consistent with the medical evidence. In contrast, Dr.
Askin, the Medical Advisor, testified that there was no objectively established medical
condition that would cause the pain Wanko claimed to experience. Although Dr. Askin
was a non-treating physician, the ALJ credited his opinion because it was well supported

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by objective evidence in the record. The ALJ also refused to fully credit Wanko’s
testimony and found that her subjective complaints were inconsistent with the objective
medical evidence on record.
Wanko argues that the ALJ improperly disregarded the opinion of Dr. Dearolf in
contravention to established precedent that the treating physician’s opinion is to be given
great weight. While the opinion of the treating physician cannot be rejected where there
is no contrary medical evidence, Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir.
1988), in light of conflicting and internally contradictory evidence, the ALJ may
determine that the opinions of the treating physician are not controlling. Jones v.
Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) In this case, the ALJ found Dr. Dearolf’s
opinions inconsistent with the bulk of the objective medical evidence and supported this
ruling by citing the inconsistencies he found in the record. Dr. Dearolf’s opinion that
Wanko was limited to four hours of work per day was not supported by the opinions of
any other examining physician, nor was it confirmed by any objective medical test. We
therefore find that the ALJ’s decision to limit the weight given to Dr. Dearolf’s opinion is
supported by substantial evidence.
Wanko also argues that the ALJ improperly assigned the greatest weight to Dr.
Askin’s testimony, which should have been disregarded due to manifest bias and
improper content. This argument is based on Dr. Askin’s testimony regarding his opinion
of Wanko’s surgery and the physicians who recommended and carried it out. During this

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portion of his testimony, Dr. Askin became agitated and testified that there was no reason
for Wanko to have surgery and the fact that surgery was recommended by the doctors was
“...almost quackery. It’s almost quackery, very frankly....This whole chart is quackery.”
He then continued by saying to Wanko “...keep going for stupid treatments and you get
stupid results.” Wanko argues that Dr. Askin’s testimony improperly influenced the ALJ
and undermined his impartial analysis of the evidence.
Although informal, those claiming disability benefits have a right to a hearing.
Due process requires that any hearing afforded a claimant must be full and fair.
Richardson v. Perales 402 U.S. 389, 401 (1971). The impartiality of the decisionmaker is
essential to ensure a fair hearing. Hummel v. Heckler, 736 F.2d 91, 94 (3d Cir. 1984) .
We apply this requirement more strictly in social security and other administrative
proceedings because of the active role of the ALJ in developing the administrative record,
as well as the absence of the types of procedural safeguards normally available in judicial
proceedings. Id.
In Ventura v. Shalala, 55 F.3d 900 (3d Cir. 1995) we held that an ALJ’s offensive
and unprofessional conduct prevented the social security claimant from receiving the full
and fair hearing to which he was entitled. In contrast to Ventura, at Wanko’s hearing the
unprofessional comments were made by the medical advisor, not the ALJ. Although the
ALJ relied on Dr. Askin’s testimony, there is no evidence to show that the ALJ was
biased by the unprofessional comments made by Dr. Askin at the end of his testimony.

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Moreover, the testimony he provided prior to his improper testimony was consistent with
the medical evidence in the record and his outburst, therefore, does not compel the
dismissal of his testimony. The ALJ’s finding that Wanko retained the functional
capacity to return to her past work, as well as his reliance on Dr. Askin’s testimony, is
supported by substantial evidence in the record.
Finally, Wanko claims the ALJ discounted her credibility based on an improper
analysis. We afford the credibility determinations of the ALJ great weight because he had
the opportunity to observe the demeanor and hear the testimony given by Wanko. Shively
v. Heckler, 717 F.2d 871, 873 (3d. Cir. 1983) The ALJ gave legally sufficient reasons in
support of his finding that Wanko’s testimony was not entirely credible. The ALJ’s
decision to discount Wanko’s testimony, therefore, is supported by substantial evidence
in the record and will be upheld.
III.
For the above reasons, we will affirm the ruling of the district court.

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