JANICE NEWELL, Appellant v. COMMISSIONER OF SOCIAL SECURITY
No. 03-1358
United States Court of Appeals, Third Circuit
October 14, 2003
NOT PRECEDENTIAL
2003 Decisions
10-14-2003
Newell v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1358
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Recommended Citation
“Newell v. Comm Social Security” (2003). 2003 Decisions. Paper 206. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/206
District Judge: Honorable Anne E. Thompson
Argued September 9, 2003
BEFORE: BARRY, BECKER, and GREENBERG, Circuit Judges
(Filed: October 14, 2003)
Abraham S. Alter (argued)
Langton & Alter
2096 St. Georges Avenue
Rahway, NJ 07065
Attorneys for Appellant
Christopher J. Christie
United States Attorney
Peter G. O‘Malley
Assistant United States Attorney
Newark, NJ 07102
Barbara L. Spivak
Chief Counsel - Region II
Karen T. Callahan (argued)
Assistant Regional Counsel
Office of the General Counsel
Region II
26 Federal Plaza
New York, NY 10278
Social Security Administration
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on appeal from an order entered on December 3, 2002, affirming the final decision of the Commissioner of Social Security denying appellant Janice Newell‘s (“Newell“) request for widow‘s disability benefits under Title II of the Social Security Act. The district court had jurisdiction pursuаnt to
A. Procedural History
Newell applied for widow‘s disability benefits on November 16, 1998. To receive such benefits, Newell needed to demonstrate, inter alia, that she is (1) at least 50 but less than 60 years old; (2) the widow of a wage earner; and (3) under a disability as defined in
Newell, who was 56 years old at the time of her hearing before the ALJ, is the widow of wage earner Robert S. Newell. In her application for widow‘s disability benefits, she alleged that she had been disabled since July 1, 1997, due to arthritis in her lower back and neck, a deteriorated disc, internal derangement of her knee, sciatica, and diabetes. At oral argument before this court, however, her attorney indicated that her disability is based solely on her liver disease, diabetes, and neuropathy.1
The Social Security Administration (“SSA“) denied Newell‘s application for widow‘s disability benefits on April 20, 1999, and again upon reconsideration on June 17, 1999. Newell appealed and a hearing was held on February 9, 2000, before Administrative Law Judge (“ALJ“) Gerald J. Ryan. On April 17, 2000, ALJ Ryan issued a decision denying her application for benefits. His decision became final on April 16, 2001, after the Appeals Council denied Newell‘s request for administrative review. On
B. Factual Background
Newell was born on August 1, 1943, and married Robert S. Newell on August 31, 1968. Their marriage ended in divorce in June 1987, and she has not remarried. Her former husband, a wage earner, died fully insured for Social Security benefits on August 9, 1990, and Newell‘s eligibility for widow‘s benefits based on his earnings terminated at the close of the 84th month (seven years) after his death, on August 31, 1997, so that her disability had to have commenced by that date for her to be eligible for benefits. See
From 1994 through December 1996, Newell was self-employed doing part-time consulting and craftwork. She estimates that she earned $5000 to $6000 per year during that time. From December 1996 through July 1997, she worked occasionally with a friend who was a carpenter, painting and making stained glass windows. She estimates that she earned $3000 per year during that time. In July 1997, Newell injured her back when she tripped over a lawn mower. After that incident, she stopped working
Newell contends that she became disabled on July 1, 1997, but could nоt afford medical care at that time because she was uninsured. Beginning on June 1, 1998, however, she did seek medical attention when her father gave her the money to pay for it. Accordingly, most of the evidence in her record is comprised of doctors’ reports dated post August 31, 1997, the date upon which her eligibility for widow‘s benefits expired. Newell contends that regardless of the dates on her medical reports, she is entitled to widow‘s benefits because her medical conditions -- liver disease, diabetes, and neuropathy -- were present prior to August 31, 1997. She argues that these conditions are slowly progressive and that they disabled her within the period of her eligibility for benefits.
1. The Medical Evidence Before ALJ Ryan
The medical evidence consists of reports from Newell‘s family doctor and her orthopedist, reports from the SSA in the form of a Residual Physical Functional Capacity Assessment and from a consultative examiner, as well as Newell‘s testimony regarding her pain and functional limitations.
a. Medical Evidence Prior to August 31, 1997
Billing records and an emergency room report indicate that Newell received services for treatment of an unstable low back and contusion of the wrist in 1990. Tr.
b. Post-Coverage Medical Evidence (After August 31, 1997)
Most of the medical evidence is comprised of doctors’ reports dated post August 31, 1997. Newell first went to Dr. Harold Chafkin, her family physician, on June 1, 1998. Dr. Chafkin treated her diabetes and the pain in her knees and back. On August 12, 1998, she began treatment with an orthopedist, Dr. Alfred Greisman. In his notes, Dr. Greisman mentioned Nеwell‘s liver condition, stating that he was “apprehensive about putting her on any nonsteroidals because of her liver condition.” Tr. 152. His records indicate that Newell lost 50 pounds in 1998. Tr. 149. The 50 pounds apparently included 40 pounds of muscle. Tr. 155. On September 17, 1998, Dr. Greisman concluded that “due to her condition she is unable to drive or travel.” Tr. 151. In November 1998, Newell
The medical evidence from the SSA includes a Residual Physical Functional Capacity Assеssment by a non-treating physician dated December 15, 1998, and a report from consultative examiner Dr. Phillip B. Eatough dated March 11, 1999. Tr. 156-63; 164-67. The Residual Physical Functional Capacity Assessment indicates that Newell occasionally could lift and/or carry 20 pounds; frequently lift and/or carry ten pounds; stand and/or walk for about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; and push and pull without limitation.
Consultative examiner Dr. Eatough noted in his report that Newell had endured gradual and progressive back problems for approximately seven years; neuropathy for approximately two years, possibly related to her diabetes or alcohol excess; and diabetes for about two years. He also noted that when she stopped drinking alcohol, she lost about 45 pounds. Tr. 164-66.
Dr. Eatough‘s impressions included (1) peripheral neuropathy with bilateral carpal tunnel syndrome and neuropathy of both lower extremities with possible atrophy of the proximal muscle groups; (2) diabetes mellitus most probably secondary to chronic alcohol consumption; (3) peripheral vascular disease; (4) osteoarthritis with low back syndrome, possible sciatica and lumbar neuropathy; and (5) liver dysfunction. He found that she occasionally could lift 20 pounds; frequently lift ten pounds; stand and walk
Less than two months later, on May 1, 1999, Newell‘s family physician, Dr. Chafkin, reported that Newell “is crippled by severe peripheral neuropathy secondary to diabetes and alcohol consumption.” He noted that her prognosis “is poor. . . . She has been seen by the neurologists, by the orthopedists and myself and, unfortunately, we have come up with no answer for this poor woman‘s pain which will negate her being gainfully employed in any manner whatsoever.” Tr. 142.
2. Newell‘s Testimony Before the ALJ
Newell testified that at the time of her hearing, she was taking prescription pain relievers, sleep aids, and oral medication for diabetes. She was also taking nonprescription pain relievers and vitamins. She wore splints for her wrists and a brace for her back. She testified that her pain was severe and that it had prеvented her from working or doing any housework since July 1997, when she fell over a lawnmower and hurt her back. Tr. 31, 43. She did not seek medical attention until June 1998 because she had no insurance. Tr. 32. When she went to the doctor, he diagnosed her with diabetes
3. The ALJ‘s Findings
ALJ Ryan found that Newell‘s allegations were not supported by objective medical evidence and were contradicted by her own statements and actions. He noted, for example, that there was no evidence that Newell sought or received regular medical treatment from 1990 to 1998. Nor did she receive treatment for her back injury in 1997. ALJ Ryan also found that it was not until August 1998, a year after she was last eligible for benefits, that she began to experience neuropathy in her lower extremities and that her medical problems worsened. Thus, he concluded that prior to August 31, 1997, she did not have a severe impairment that lasted or could be expected to last 12 months or more, which significantly limited her ability to engage in work-related activities. Accordingly, he determined that she was not entitled to widow‘s disability benefits.
II. DISCUSSION
A. Standard of Review
We exercise plenary review over the order of the district court, see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000), but review the decision of the Commissioner to determine whether it is supported by substantial evidence. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422 (1971). Substantial evidence has been defined as
B. Statutory and Regulatory Framework
In order to establish a disability under the Social Security Act, a claimant must demonstrate that there is some “‘medically determinable basis for an impairment that prevents him from engaging in any “substantial gainful activity” for a statutory twelve-month period.‘” Stunkard v. Secretary of Health & Human Servs., 841 F.2d 57, 59 (3d Cir. 1988) (quoting Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987));
The SSA has promulgated regulations incorporating a five-step sequential evaluation process for determining whether a claimant is under a disability. See
If the claimant is unable to resume his former occupation, the evaluation moves to the final step. Id. At this stage, the burden of production shifts to the Commissioner, who must demonstrate the claimant is capable of performing other available work in order to deny a claim of disability. Id. The Commissioner must show there are other jobs
C. The Step-Two Determination
As mentioned above, at step two of the five-step sequential inquiry the ALJ determines whether the claimant has a medically severe impairment or combination of impairments. See Bowen v. Yuckert, 482 U.S. 137, 140-41, 107 S.Ct. 2287, 2291 (1987); Social Security Ruling (“SSR“) 86-8, 1986 SSR LEXIS 15, at *6-7; SSR 85-28, 1985 SSR LEXIS 19, at *1. The Social Security Regulations and Rulings,4 as well as case law applying them, discuss the step-two severity determination in terms of what is “not severe.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). According to the Commissioner‘s regulations, “an impairment is not severe if it does not significantly limit [the claimant‘s] physical ability to do basic work activities.” Id. (quoting
The step-two inquiry is a de minimis screening device to dispose of groundless claims. See Smolen, 80 F.3d at 1290; McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986). An impairment or combination of impairments can be found “not severe” only if the evidence establishes a slight abnormality or a combination of slight abnormalities which have “no more than a minimal effect on аn individual‘s ability to work.” SSR 85-28, 1985 SSR LEXIS 19, at *6-7. Only those claimants with slight abnormalities that do not significantly limit any “basic work activity” can be denied benefits at step two. See Bowen v. Yuckert, 482 U.S. at 158, 107 S.Ct. at 2300 (O‘Connor, J., concurring). If the evidence presented by the claimant presents more than a “slight abnormality,” the step-two requirement of “severe” is met, and the sequential evaluation process should continue. See Smolen, 80 F.3d at 1290. Reasonable doubts on severity are to be resolved in favor of the claimant.5
1. The ALJ Denied Newell‘s Claim At Step Two on Erroneous Bases
Aсcording to ALJ Ryan, the objective medical evidence in Newell‘s record did not support her allegation of disability and thus he denied her claim at step two of the
In fact, SSR 96-7p, 1996 SSR LEXIS 4, at *22, states that “the adjudicator must not draw any inferences about an individual‘s symptоms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment.” Here, Newell‘s explanation for her failure to seek treatment prior to August 31, 1997, is adequate -- she claims she could not afford treatment until her father gave her money in June 1998. Moreover, the record demonstrates that her income during the germane period was very low and that she did not have medical insurance, circumstances that support her claim that she could not afford treatment. Accordingly, we disagree with the ALJ‘s
It is Newell‘s position that her liver disease, diabetes, and neuropathy are slowly progressing conditions that existed well before their documentation in 1998. She argues that her medical record must be studied retrospectively to determine when her medical conditions actually became disabling. Retrospective diagnosis of an impairment, even if uncorroborated by contemporaneous medical records, but corroborated by lay evidence relating back to the claimed period of disability, can support a finding of past impairment. See Loza v. Apfel, 219 F.3d 378, 396 (5th Cir. 2000); Likes v. Callahan, 112 F.3d 189, 191 (5th Cir. 1997). Thus, even non-contempоraneous records of Newell‘s liver disease, diabetes, and neuropathy are relevant to the determination of whether their onset occurred by the date Newell alleges. See Ivy v. Sullivan, 898 F.2d 1045, 1049 (5th Cir. 1990). Here, the ALJ failed properly to consider the non-contemporaneous evidence presented by Newell in order to perform a retrospective analysis.
The ALJ also erred in using Newell‘s lack of treatment prior to August 31, 1997, as a basis for discrediting her credibility regarding her pain and level of function. Lаy evidence need not be corroborated by contemporaneous medical evidence to be credible. See Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir. 1984) (lay evidence must be considered even if uncorroborated by medical evidence). Moreover, SSR 96-7p, 1996
2. The ALJ Failed To Apply SSR 83-20
SSR 83-20, 1983 SSR LEXIS 25, provides ALJs with an analytical framework for determining a disability onset date. SSR 83-20 defines thе “onset date of disability” as “the first day an individual is disabled as defined in the Act and the regulations.” Id. at *1. In cases in which the onset date is critical to a determination of entitlement to benefits, an ALJ must grapple with and adjudicate the question of onset, however difficult. See id. (“In addition to determining that an individual is disabled, the decisionmaker must also establish the onset date of disability. In many claims, the onset date is critical; it may . . . even be determinative of whether the individual is entitled to or
Here, the ALJ‘s task was to determine when, if ever, Newell‘s liver disease, diabetes, and neuropathy became disabling. According to SSR 83-20, id. at *6-7,
[w]ith slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when, for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer thе onset date from the medical and other evidence that describe the history and symptomatology of the disease process.
. . .
In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination . . . . How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.
. . .
If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional relevant medical evidence is not available, it may be necessary to explore other sources of documentation. Information may be obtainеd from family members, friends, and former employers to ascertain why medical evidence is not available for the pertinent period and to furnish additional evidence regarding the course of the individual‘s condition.
Newell is correct that the ALJ in this case failed to follow this formula. The ALJ
III. CONCLUSION
A district court, after reviewing the decision of the Commissioner may under
For the foregoing reasons we will reverse the order of December 3, 2002, and will remand the case to the district court to remand it in turn to the Commissioner for further proceedings in accordance with this opinion.
/s/ Morton I. Greenberg
Circuit Judge