GONZALEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Dennis M. Cavanaugh on 2/28/13. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

REINA I. GONZALEZ,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendants.

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Hon. Dennis M. Cavanaugh
OPINION
Civil Action No. 12-CV-00483 (DMC)

DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon the appeal of Reina Gonzalez (“Plaintiff” or
“Claimant”) from the final decision of the Commissioner of Social Security (“Commissioner”),
denying Claimant’s claims for a period of disability and disability insurance benefits under Title II
of the Social Security Act (“Act”), her application for supplemental security income under Title XVI
of the Act, and upon the decision of Administrative Law Judge (“ALJ”) Michal L. Lissek after a First
and Second Remand. This Court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3). No oral argument was heard pursuant to Rule 78 of the Federal Rules of Civil
Procedure.
After reviewing the submissions to this Court by both parties, the final decision entered by
the ALJ is reversed and remanded.

I. BACKGROUND

A. PROCEDURAL HISTORY
On February 8, 2008, Plaintiff Reina Gonzalez filed an application for Supplemental Social
Security (“SSI”) and Social Security Disability (“SSDI”) benefits. (Transcript (“Tr.”) 20). The
Claim was initially denied on June 20, 2008 and then denied again on reconsideration on March 13,
2009. (Tr. 20). Plaintiff then appealed by filing a request on March 26, 2009, for hearing before an
Administrative Law Judge. (Tr. 20). On June 16, 2010, hearing on Plaintiff’s claims was held in
Newark, New Jersey before Administrative Law Judge (“ALJ”) Michal L. Lissek. (Tr. 30). On July
7, 2010, ALJ Lissek issued a denial of Plaintiff’s claims for SSI and SSDI benefits. (Tr.17).
Plaintiff filed a timely appeal to the Appeals Council, which denied Plaintiff’s appeal in a decision
dated December 1, 2011. (Tr. 1). The subsequent and instant appeal was filed on January 25, 2012.
Plaintiff alleges onset date of March 3, 2000. (Tr. 23). For the purposes of the SSDI claim, Plaintiff
has a Date Last Insured of September 30, 2005. (Tr. 28).
B. FACTUAL HISTORY
1.

The Findings of the Administrative Law Judge

ALJ Lissek made the following fourteen findings regarding Plaintiff’s application for a period
of disability and disability insurance benefits: 1) Plaintiff meets the insured status requirements of
the Social Security Act through September 30, 2005; 2) Plaintiff has not engaged in substantial
gainful activity since March 3, 2000, the alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971
et seq.) 3) since the alleged onset date of disability, March 3, 2000, Plaintiff has the following severe
impairments: sinusitis, post-nasal drip, severe headaches, and pain when sitting, and on the
2

established onset date of disability, March 9, 2007, Plaintiff has had the following severe
impairments: osteoarthritis in the hips, back, and shoulders (20 C.F.R. 404.1520(c) and 416.920(c));
4) since the alleged onset date of disability, March 3, 2000, Plaintiff does not have an impairment
or combination of impairments that meets or medically equals one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 404 §§ 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926); 5) prior to March 9, 2007, Plaintiff has residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is
limited to work that can be learned in one month or less, can reach occasionally overhead and reach
in all other directions frequently, cannot work around unprotected heights or around extremes in
temperature, undue amounts of dust, odors or fumes or known pulmonary irritants; 6) As of March
9, 2007, Plaintiff is capable of performing sedentary work as defined in past relevant work as
defined in 20 CFR 404.1567(a) and 416.967(a) except Claimant can only lift and carry 6-7 pounds;
sit for 4 hours in an 8-hour workday at 20 minute intervals; stand for 20-25 minutes at a time; walk
for 20-25 minutes at a time; and bend occasionally; 7) Prior to March 9, 2007, Claimant was capable
of performing past relevant work as a sewing machine operator. This work did not require the
performance of work-related activities precluded by Claimant’s residual function capacity. (20 CFR
404.1565 and 416.965); 8) Beginning on March 9, 2007, Plaintiff’s residual functional capacity has
prevented Claimant from being able to perform past relevant work (20 CFR 404.1565 and 416.965);
9) Claimant was a younger individual age 45-49 on March 9, 2007, the established disability onset
date (20 CFR 404.1563 and 416.963); 10) Claimant has a limited education and is able to
communicate in English (20 CFR 404.1564 and 416.964); 11) Claimant does not have work skills
that are transferable to other occupations within the residual function capacity as defined above (20
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CFR 404.1568 and 416.968); 12) Since March 9, 2007, considering Claimant’s age, education, work
experience, and residual functional capacity, there are no jobs that exist in significant numbers in the
national economy that Claimant can perform (20 CFR 404.1560(c) and 404.1566, 416.960(c), and
416.966); 13) Claimant was not disabled prior to March 9, 2007, (20 CFR 404.1520.(f) and
416.920(f)) but became disabled on that date and has continued to be disabled through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)); 14) Claimant was not under a disability within
the remaining of the Social Security Act at any time through September 30, 2005, the date last
insured (20 CFR 404.315(a) and 404.320(b)).
2.

Plaintiff’s Medical History and Evidence

According to ALJ Lissek, Plaintiff’s disability claims since March 3, 2000, have been related
to sinusitis, post-nasal drip, severe headaches, and pain when sitting. (Tr. 23). Beginning on March
9, 2007, Plaintiff has had osteoarthritis in the hips, back, and shoulders. (Tr. 23).
a.

Medical Evidence Prior to the onset date of March 9, 2007

Plaintiff was prescribed medication from Dr. E.T. Marcelo in April of 1992 for sinusitis and
post nasal drip. Dr. Marcelo reported that he had last seen Plaintiff on February 25, 2008, and that
Plaintiff’s sinusitis and post-nasal drip were unrelated to her disability claim. (Tr. 227). Further,
in a general medical report, a question asked, “Can you provide, based on your medical findings,
your medical opinion regarding your patient’s ability to do work related activities?” Dr. Marcelo
wrote, “N/A” above the question. (Tr. 227). Lastly, when asked, “Are there any other conditions
that limit this indiviudal’s ability to do work related activities?” Dr. Marcelo wrote, “? Not for
ENT,” and, “She is claiming disability because of her arthritis. It is not connected with [sic] problem
I was treating her for.”

(Tr. 227).
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Dr. Jose Munin treated Plaintiff for hip, leg, and back pain from November 2003, through
June 2007. In November of 2003, Plaintiff underwent a bone density (Dexa) scan which revealed
T-scores for the AP Spine of 100% and T-score of 115% for the femur which was also normal. (Tr.
218). Plaintiff also received treatment for headaches due to sinus problems and high blood pressure,
Plaintiff was prescribed Proventil, Relafen, Zyrtec, Flexeril, and 25 mg of HCTZ. ( Tr. 215). There
are eleven pages of notes from Dr. Munin, seven are in his own hand writing, four are part of a
computerized bone density report. (Tr. 215–225). ALJ Lissek, commented that Dr. Munin’s notes
were, “. . . somewhat illegible, the balance of these progress notes indicated that the claimant’s
clinical examinations were unremrkable (Exhibit 1F).” (Tr. 23).
b.

Medical Evidence Beyond March 9, 2007

Since March 9, 2007, Plaintiff had seen Dr. Frederick Brandt and physical therapists at
Palisades Medical Center. (Tr. 251). Plaintiff sought treatment for osteoarthritis, rotator cuff
tendinitis, back and neck pain. (Tr. 25). An X-ray of Plaintiff’s lumbar spine obtained on July 30,
2008 revealed degenerative changes. (Tr. 25). X-rays of Plaintiff’s right shoulder and cervical spine
were negative. Treatment consisted of physical therapy and prescriptions for non-steroidal antiinflammatory medications. (Tr. 25). On March 5, 2008, Plaintiff’s initial physical therapy
evaluation stated Plaintiff’s social history, which indicates that she works as a
babysitter/housekeeper, and lives with her family in a first-floor apartment. (Tr. 251). In August
of 2008, Dr. Brandt referred Plaintiff to Hoboken University Metal Center Outpatient Physical
Therapy Department for treatment of lower back pain and bilateral hip pain. Plaintiff reported that
she had a history of lower back pain and hip pain for the past three years with a pain on a pain scale
from eight to ten. She also reported that she was currently receiving occupational therapy for hand
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and shoulder pain. Plaintiff stated that her symptoms of pain were increased with sitting, standing,
walking and moving. At her initial lumbar spine evaluation, it was reported that Plaintiff had
restricted ranges of motion in the lumbar spine and bilateral hips on the examination with pain. (Tr.
290).
From July 2007 through July 2008, Plaintiff saw Dr. Francisco Gonzalez for asthma,
sinusitis, hypertension, and osteoarthritis. While his notes were largely illegible, they indicate
Plaintiff was seen for general health maintenance and medication refills. (Tr. 25, 271). In November
of 2007, Plaintiff had a CT guided needle biopsy of the liver that revealed steatohepatitis. She was
referred for a GI evaluation with Dr. Caride, who stressed the need for weight loss and exercise. (Tr.
25, 286–288).
On May 29, 2008, consultative examiner, Dr. Elena Napolitano reported that Plaintiff
ambulated in the examination room with a mildly antalgic gait, but Plaintiff sat comfortably in the
chair, and transferred onto the examination room table with minimum discomfort. (Tr. 25, 352).
Plaintiff had negative straight leg raise testing in the supine and sitting positions, motor strength
testing was 5/5 throughout and mostly in tact, and Plaintiff’s upper extremity reflexes were in tact.
(Tr. 352). Plaintiff’s reflexes to the bilateral patella and Achilles reflex were symmetrically
decreased. (Tr. 25). The range of motion was full at the right shoulder, where there was a negative
impingement sign. (Tr. 25). Cervical spine range of motion was full, and there was a negative
Spurling test. The range of motion was remarkable for decreased right hip internal rotation to twenty
degrees, the left hip internal rotation was limited to thirty degrees. (Tr. 25). Plaintiff was unable to
squat due to hip pain, but was able to walk on her heels and walk on her toes. (Tr. 25, 353).

In

addition, Dr. Napolitano commented that claimant had a past medical history significant for
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osteoarthritis of bilateral shoulders, as well as bilateral hips, with daily chronic pain. (Tr. 353).
Plaintiff had limited ambulation greater than four blocks, and required an assistive device such as
a cane. (Tr. 354). There was no evidence of cervical or lumbosacral radiculopathy, Plaintiff’s motor
and sensory testing were intact, and there were decreased reflexes symmetrically to the lower
extremities. (Tr. 354). Lastly, Plaintiff is unable to carry anything in her right upper extremity, and
can only carry up to about ten pounds in the left upper extremity; Plaintiff also requires increased
time to get dressed and perform her daily living activities. (Tr. 354).
On February 9, 2009, Plaintiff saw consultative examiner Dr. Alexander Hoffman. (Tr. 323).
Dr. Hoffman reported that physical examination of Plaintiff revealed positive straight leg raising
on the left to about sixty degrees, and on the right to about forty-five degrees., at which time Plaintiff
expressed lower back pain. (Tr. 25, 324). Dr. Hoffman assessed her with some bursitis of the right
shoulder, with maybe arthritic changes in the knees and lower back. (Tr. 324). Further, there was
no major involvement of the hands, no acute swelling, no crepitus and no increased heart or joint
swelling. (Tr. 325–331). Dr. Hoffman reported that Plaintiff had received injections in the shoulder
and back. (Tr. 323).
An updated MRI of the lumbar spine obtained on October 2, 2009, revealed multilevel
degenerative spondylosis with type I and type 2 discogenic sclerosis at L2-l3 levels; a small
foraminal disc herniations at L3-L4 ; disc desiccation and a small broad based disc bulge and a small
inferior subligamentous disc herniation centrally and to the right at L4-L5; and at the L5-S1 level,
there was disc desiccation and minimal posterior disc space narrowing with a small bulge of the
posterior annulus was slightly more prominent on the right than the left. (Tr. 386). Plaintiff was
referred for another course of physical therapy with little if any improvement in her pain symptoms
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and required prescriptions for pain medications. (Tr. 386, 390).
3.

Disability Reports from Plaintiff, Field Office, and Appeals Council

The record contains several disability reports. The first disability report comes from the field
office. It is dated February 20, 2008, and the interview was face-to-face, conducted by I. Londono.
(Tr. 149 –51). Plaintiff had no difficulty in hearing, reading, breathing, understanding, coherency,
concentrating, talking, answering, sitting, standing, walking, seeing, or writing. (Tr. 150). However,
Plaintiff had difficulty using hands, in particular, her right hand was swollen. (Tr. 150).
Furthermore, Plaintiff came accompanied by her husband, who helped refresh Plaintiff’s memory
when she could not recollect specific answers. (Tr. 150).
The next disability report is undated and comes from Plaintiff. (Tr. 178). The report states
the date of the last disability report, which was February 20, 2008. This report states that since the
last disability report, “Osteoarthritis has affected her spine.” (Tr. 178). The report states that, “Basic
work related functions significantly restricted,” since the last disability report. (Tr. 178). The report
states that Plaintiff’s injuries “minimally” affect Plaintiff’s ability to care for her personal needs, yet
her daily activities have been significantly restricted since her last disability report. (Tr. 182).
The next disability report is undated. (Tr. 152). The report states that Plaintiff is not
working, and that she became unable to work on March 3, 2000. (Tr. 153). Plaintiff’s past work
experience states that she was a floor girl at a clothes/sample factory from 1989 through March of
2000. The report further shows states that in this job Plaintiff did not use machines, tools or
equipment, did not use technical knowledge or skills, and did not do any writing or complete reports.
(Tr. 154). The report further states that at this job, Plaintiff walked, reached, and handled big objects
for 8 hours a day, and Plaintiff leaves the question of how many ours per day Plaintiff sat,

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unanswered.
The next disability report in the record is a disability report to the Appeals Council from
Plaintiff. This form is undated, but states that the date of the last disability report was August 15,
2008. (Tr. 193). In this report, Plaintiff has no change in her illness, injuries, or conditions since
her last completed disability report. (Tr. 193). Further, Plaintiff states that she has not worked since
her last disability claim. (Tr. 195).
The final disability report in the record is dated May 5, 2009. (Tr. 198). It was completed
by James Langton, her attorney from Langton and Alter. (Tr. 198, 205). As a change in a injury or
condition since the last report, Plaintiff responded that her conditi0on remains disabling. (Tr. 198).
As a new physical or mental limitation from illness or injury since the last disability report, Plaintiff
responded that her, “ability to perform basic work related activities is significantly restricted.” (Tr.
198).
4.

Plaintiff Reina Gonzalez’s Testimony

Plaintiff testified at the ALJ hearing on June 16, 2010. (Tr. 30). Plaintiff’s attorney, James
Langton (phonetic), was present, as well as a Spanish interpreter, by telephone, Bernie Beltran. (Tr.
32). Plaintiff testified that she is fifty years old, that she was born in El Salvador, that she went to
middle school in El Salvador, but has a limited education. (Tr. 34). Plaintiff can read and write a
little bit of English. (Tr. 36). When questioned by her attorney, Plaintiff testified that she has
undergone tests and X-rays by her doctors, and that they determined that she has arthritis throughout
her body. (Tr. 39). She also testified that she has had pain injections to help her wiht pain, and that
she had pain all over her body for the past eight years. Plaintiff also testified that she can walk
slowly for only two blocks before the pain increases, that she can only lift six to seven pounds before

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pain increases, that she could not lift six or seven pounds repeatedly, and that she can only sit for
twenty minutes before feeling an increase in pain. (Tr. 41).
Plaintiff was questioned by ALJ Lissek as to the extent of her pain. When asked what
problems Plaintiff has with performing normal chores, Plaintiff responded that she does everything
in the house, breakfast, watering the flowers, and some clearing up; however, she can only do these
things very slowly. (Tr. 44). When asked if she could work at a job that allowed a mix of sitting and
standing, Plaintiff stated that she could work at such a position, but not at a job that required only
standing or only sitting. (Tr. 45). After the interpreter clarified the question, Plaintiff responded that
she could try to stand and sit while working for six to eight hours, but the pain would increase as the
hours went on, so she probably could not work such a position. (Tr. 46).
When asked about her work history, Plaintiff described that in the beginning of her career,
she worked in a clothing factory, and it was her duty to pick up bundles of work and classify them.
(Tr. 50). After doing that for about three and half years, she became the sewing machine operator.
(Tr. 51). After questioning about when her past work ceased, ALJ Lissek asked the Vocational
Expert, Patricia Shashono, what kind of work an individual such as Plaintiff was capable of. (Tr. 53).
To do so, Shashono had to consider an individual who could only stand and sit occasionally, could
not work in extreme temperatures, humidity, wetness, or other environments that serve as pulmonary
irritants, would be able to work in. (Tr. 53). Shashono decided that the only types of work are basic
assembly type of options, where there is a stand sit option on a bench level, and also in light
packaging and small products assembly. (Tr. 53). In addition, Shashono determined that Plaintiff
could not do her past relevant work. (Tr. 53).
Plaintiff’s attorney questioned Shashono about the ability of an arthritic individual, such as

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Plaintiff, being able to keep up with production requirements of an assembly worker. (Tr. 58–69).
Shashono conceded that if Plaintiff had to consistently alternate between standing and sitting, it
would affect Plaintiff’s ability to meet the production requirement. (Tr. 59). Accordingly, Shashono
determined that the ability to meet the production quota would vary based on the stipulations of a
specific employer. (Tr. 69).

II.

STANDARD OF REVIEW
A reviewing court will uphold the Commissioner’s factual decisions if they are supported by

“substantial evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.
2000).

Substantial evidence is “more than a mere scintilla . . . but may be less than a

preponderance.” Woody v. Sec’y of Health & Human Servs, 859 F.2d 1156, 1159 (3d Cir. 1988).
It “does not mean a large or considerable amount of evidence, but rather such relevant evidence
which, considering the record as a whole, a reasonable person might accept as adequate to support
a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation omitted). Not all evidence
is considered “substantial.” For instance,
[a] single piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence–particularly certain types of evidence
(e.g. that offered by treating physicians)–or if it really constitutes not
evidence but mere conclusion.
Wallace v. Sec’y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (quoting Kent v.
Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). The ALJ must make specific findings of fact to
support his ultimate conclusions. Stewart v. Sec’y of Health, Educ. & Welfare, 714 F.2d 287, 290
(3d Cir. 1983).
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The “substantial evidence standard is a deferential standard of review.” Jones v. Barnhart,
364 F.3d 501, 503 (3d Cir. 2004). As such, it does not matter if this Court “acting de novo might
have reached a different conclusion” than the Commissioner. Monsour Med. Ctr. v. Heckler, 806
F.2d 1185, 1190-91 (3d Cir. 1986) (quoting Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d
Cir. 1986)). “The district court . . . is [not] empowered to weigh the evidence or substitute its
conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)
(citing Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984)). A Court must nevertheless “review
the evidence in its totality.” Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citing
Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). In doing so, the Court “must ‘take into account
whatever in the record fairly detracts from its weight.’” Id. (quoting Willibanks v. Sec’y of Health
& Human Servs., 847 F.2d 301, 303 (6th Cir. 1988)).
To properly review the findings of the ALJ, the court needs access to the ALJ’s reasoning.
Accordingly,
Unless the [Commissioner] has analyzed all evidence and has
sufficiently explained the weight he has given to obviously probative
exhibits, to say that his decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the record
as a whole to determine whether the conclusions reached are rational.

Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (quoting Arnold v. Sec’y of Health, Educ. &
Welfare, 567 F.2d 258, 259 (4th Cir. 1977)). A court must further assess whether the ALJ, when
confronted with conflicting evidence, “adequately explain[ed] in the record his reasons for rejecting
or discrediting competent evidence.” Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987)
(citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). If the ALJ fails to properly indicate why
evidence was rejected, the court is not permitted to determine whether the evidence was discredited
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or simply ignored. See Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citing
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).
III.

APPLICABLE LAW
A.

THE FIVE-STEP PROCESS

A claimant’s eligibility for benefits is governed by 42 U.S.C. § 1382. A claimant is
considered disabled under the Social Security Act if he or she is unable to “engage in 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 [twelve] months.” 42 U.S.C. § 423(d)(1)(A). A claimant bears the burden of
establishing his or her disability. Id. § 423(d)(5).
To make a disability determination, the Commissioner follows a five-step process pursuant
to 20 C.F.R. § 416.920(a). Under the first step, the Commissioner must determine whether Plaintiff
is currently engaged in substantial gainful activity. 20 C.F.R. § 416.920(b). Substantial gainful
activity is work that involves doing significant and productive physical or mental duties, and is done
(or intended) for pay or profit. 20 C.F.R. § 416.972. If the claimant establishes that she is not
currently engaged in such activity, the Commissioner then determines whether, under step two, the
claimant suffers from a severe impairment or combination of impairments.

20 C.F.R. §

416.920(a)(4)(ii). The severe impairment or combination of impairments must “significantly limit[]
[a claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). The
impairment or combination of impairments “must have lasted or must be expected to last for a
continuous period of at least 12 months.” 20 C.F.R. § 416.909. If the Commissioner finds a severe
impairment or combination of impairments, he then proceeds to step three, where he must determine

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whether the claimant’s impairment(s) is equal to or exceeds one of those included in the Listing of
Impairments in Appendix 1 of the regulations (“Listings”). 20 C.F.R. § 416.920(d). Upon such a
finding, the claimant is presumed to be disabled and is automatically entitled to benefits. Id. If,
however, the claimant does not meet this burden, the Commissioner moves to the final two steps.
Step four requires the Commissioner to determine whether the claimant’s residual functional
capacity sufficiently allows her to resume her previous work. 20 C.F.R. § 416.920(e). If the
claimant can return to her previous work, then she is not disabled and therefore cannot obtain
benefits. Id. If, however, the Commissioner determines that the claimant is unable to return to her
prior work, the analysis proceeds to step five. At step five, the burden shifts to the Commissioner,
who must find that the claimant can perform other work consistent with her medical impairments,
age, education, past work experience and residual functional capacity. 20 C.F.R. § 416.920(g).
Should the Commissioner fail to meet this burden, the claimant is entitled to social security benefits.
20 C.F.R. § 416.920(a)(4)(v).
B. THE REQUIREMENT OF OBJECTIVE EVIDENCE
Under the Act, disability must be established by objective medical evidence. “An individual
shall not be considered to be under a disability unless he furnishes such medical and other evidence
of the existence thereof as the Secretary may require.” 42 U.S.C. § 423(d)(5)(A). Notably, “[a]n
individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of
disability as defined in this section.” Id. Specifically, a finding that one is disabled requires:
[M]edical signs and findings, established by medically acceptable clinical or
laboratory diagnostic techniques, which show the existence of a medical impairment
that results from anatomical, physiological, or psychological abnormalities which
could reasonably be expected to produce the pain or other symptoms alleged and
which, when considered with all evidence required to be furnished under this
paragraph . . . would lead to a conclusion that the individual is under a disability.
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Id. Credibility is a significant factor. When examining the record “the adjudicator must evaluate
the intensity, persistence and limiting effects of the [claimant’s] symptoms to determine the extent
to which the symptoms limit the individual’s ability to do basic work activities.” SSR 96-7p, 1996
SSR LEXIS 4, 1996 WL 374186 (July 2, 1996). Thus, the adjudicator must determine the credibility
of the individual’s statements based on consideration of the entire case record. Id. The requirement
for a finding of credibility is found in 20 C.F.R. § 416.929(c)(4). A claimant’s symptoms, then, may
be discredited “unless medical signs or laboratory findings show that a medically determinable
impairment(s) is present.” 20 C.F.R. § 416.929(b); see Hartranft v. Apfel, 181 F.3d 358, 362 (3d
Cir. 1999).
IV.

ANALYSIS
On appeal, Plaintiff argues that the Commissioner’s final administrative decision is not based

on the substantial evidence of the record and asks this Court to remand that decision, order a new
hearing, and a new decision. (Pl. Br. 8). Plaintiff argues that the ALJ’s determination of disability
onset was arbitrary and that a medical expert was needed. The ALJ determined that Plaintiff was
disabled on March 9, 2007. Plaintiff was disabled due to severe osteoarthritis in the hips, back and
shoulder. Plaintiff argues that as such a disease is progressive, the ALJ’s determination of onset date
was arbitrary. Further, Plaintiff asserts that testimony of a medical expert is necessary to determine
the onset date because of Social Security Ruling 83-20, and because Plaintiff’s condition was slowly
progressive. Plaintiff notes that had she been legally disabled fifteen months earlier, she would be
eligible for disability insurance. (Tr. 9–11).
A. THE REQUIREMENT OF A MEDICAL EXPERT
Social Security Rulings “are binding on all components of the Social Security
15

Administration.” 20 C.F.R. § 402.35(b)(1). Social Security Ruling 83–20 (“SSR 83–20") provides
the relevant evidence to be considered when establishing the onset date of a disability. SSR 83-20,
1983 WL 31249.
The onset date of disability is the first day an individual is disabled as defined in
the Act and the regulations. Factors relevant to the determination of disability
onset include the individual's allegation, the work history, and the medical
evidence. These factors are often evaluated together to arrive at the onset date.
However, the individual's allegation or the date of work stoppage is significant in
determining onset only if it is consistent with the severity of the condition(s)
shown by the medical evidence.
SSR 83–20.
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, e.g., the date the claimant stopped
working. 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 there is information in the file
indicating that additional medical evidence concerning onset is available, such
evidence should be secured before inferences are made.
SSR 83–20.
The HALLEX Manual provides guidance as to when an ALJ may or must obtain a
medical expert’s opinion. HALLEX I-2-5-34 (“HALLEX Manual”) (S.S.A Sept. 28, 2005).
Relevant to the issue at hand, an ALJ may call on an expert opinion from a medical adviser
when:
[T]he ALJ is determining the degree of severity of a claimant's physical or mental
impairment; the ALJ has a question about the etiology or course of a disease and
how it may affect the claimant's ability to engage in work activities at pertinent
points in time, e.g., the ALJ may ask the M[edical]E[xpert] to explain the nature
of an impairment and identify any medically contradicted activities; or the ALJ
desires expert medical opinion regarding the onset of an impairment.
HALLEX Manual I-2-5-34.
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The ALJ must call a medical expert in three instances: (1) when ordered by the Appeals
Councilor court; (2) “to evaluate and interpret background medical test data;” and (3) “when the
ALJ is considering a finding that the claimant's impairment(s) medically equals a medical
listing.” See HALLEX Manual.
Accordingly, SSR 83–20 requires a medical expert to determine the onset date when
slowly progressive impairments are at issue, the alleged onset and date last worked are far in the
past, and adequate medical records are not available. Walton v. Halter, 243 F.3d 703, 709-10 (3d
Cir. 2001); Jakubowski v. Comm'r of Soc. Sec., 215 F. App'x 104, 105 (3d Cir. 2007).
In Walton v. Halter, the plaintiff alleged disability on the basis of psychiatric impairment
that was slowly progressive, and the alleged onset date was far in the past. 243 F.3d 703, 709-10
(3d Cir. 2001). In addition, adequate medical records for the most relevant period were not
available. Id. The court held that the ALJ must call upon the services of a medical advisor in a
situation where the alleged impairment was a slowly progressing one, the alleged onset date was
far in the past, and adequate medical records for the most relevant period were not available. Id.
at 709. Therefore, it was “necessary to infer the onset date from the medical and other evidence
that describe the history and symptomatology of the disease process. An ‘informed judgment’
was required, a judgment with a ‘legitimate medical basis.’” The court reasoned that, an ALJ
could not, consistent with SSR 83-20 and the necessity of establishing an onset date based on
substantial evidence, draw an inference from the record having no substantial medical support.
Id. Lastly, the Court found irony in the sense that the ALJ appeared to recognize his need for
expert help–the ALJ noted during the hearing that he “might possibly feel the need to secure a
[‘medical expert’] subsequently.” Id. at 710.
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In Jakubowski v. Comm'r of Soc. Sec., the plaintiff sought Disability Insurance Benefits
Under Title II of the Social Security Act because of osteoarthritis and a total bilateral hip
replacement. 215 F. App'x 104, 105 (3d Cir. 2007). The Plaintiff argued that the ALJ erred
when he failed to secure a medical expert to assist him in assessing the severity of her
impairments and the onset date. Id. at 106. The Court rejected the plaintiff’s argument,
reasoning that while it is true that “SSR 83-20 dictates that an ALJ should call on the services of
a medical advisor when he or she must infer the onset date of the impairment that is not clear
form the applicant’s medical records,” the ALJ had access to adequate medical records in from
the time period proceeding the expiration of the plaintiff’s insured status. Id. at 108. The fact
that medical records were available, according to the Court, distinguished the case from Walton.
Id. Further, the Court reasoned, these records did not support her alleged onset date. Id.
Here, the facts of Plaintiff’s case fall between the borders of Walton and Jakubowski. On
one hand, as Defendant correctly argued, there are medical records that were available to the ALJ
in determining the onset date. The presence of medical records suggests that Jakubowski should
preside over this case. On the other hand, in Walton, adequate medical records were not
available, and the Court ruled that the ALJ had to call upon a Medical Expert. To make an
informed judgement with a legitimate medical basis, ALJ Lissek should have called upon a
Medical Expert.
In Plaintiff’s case, there were medical records during the period of the alleged onset,
which were provided by Dr. Munin and Dr. Marcelo. Dr. Marcelo treated Plaintiff only for
sinusitis, not arthritis. Dr. Munin treated Plaintiff for a variety of issues, including arthritis. ALJ
Lissek determined that “[although] these progress notes [from Dr. Munin] were somewhat
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illegible, the balance of the progress notes indicated that the claimant’s clinical examinations
were unremarkable.”
While the presence of medical records, a critical factor set forth in Jakubowski, appears
satisfied, this Court has serious doubts about their usefulness when “somewhat illegible.” There
are eleven pages of notes from Dr. Munin, four of which are computerized, medical test results
which are legible. The other seven pages are largely illegible and the subject of Plaintiff’s
contention. The inability to decipher Dr. Munin’s notes is similar to the facts of Walton. Here,
the complete medical records cannot be read, although some pages are legible, which can be
compared to Walton, where no medical records were available at all. In both cases, the ALJ
cannot be said to have the adequate records and thus a legitimate medical basis on which to make
an informed decision.
In addition, ALJ Lissek’s apprehensiveness in determining the meaning of Dr. Munin’s
notes is similar to the ALJ’s in Walton. While the cases involve different severe impairments,
both ALJs’ uncertainty points to the same end–an insufficient medical record on which an
informed decision with legitimate medical basis can be made. Plaintiff’s case involved a slowly
progressive disability, far in the past, with an inadequate medical record. Like Walton, the ALJ
should have called upon a Medical Expert to analyze Plaintiff’s conditions consistent with the
requirement of SSR 83-20 to determine the severity of Plaintiff’s arthritis.
V.

CONCLUSION

For the reasons stated above, the final decision entered by ALJ Lissek is reversed. An
appropriate order will accompany this opinion.
S/ Dennis M. Cavanaugh
Dennis M. Cavanaugh, U.S.D.J.
Date:

February 28 , 2013

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