MONCUR v. COMMISSIONER OF SOCIAL SECURITY
Filing
15
OPINION. Signed by Judge Esther Salas on 11/2/2018. (sm)
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DOROTHY A. MONCUR
Plaintiff,
Civil Action No. 17-4811 (ES)
v.
OPINION
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
SALAS, DISTRICT JUDGE
Before the Court is Plaintiff Dorothy A. Moncur’s (“Plaintiff”) appeal of Administrative
Law Judge (“ALJ”) Leah Farrell’s (“ALJ Farrell”) decision denying Plaintiff’s application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42
U.S.C. § 423. The Court decides this matter without oral argument pursuant to Federal Rule of
Civil Procedure 78(b). The Court has subject-matter jurisdiction pursuant to 42 U.S.C. § 405(g).
For the reasons below, the Court AFFIRMS the Commissioner’s decision.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Because the Court writes primarily for the benefit of the parties, only the essential facts are
recounted here. On November 15, 2013, Plaintiff filed a claim for DIB alleging disability
beginning May 2, 2000, due to osteoarthritis, fibromyalgia, sciatica, ADHD, and dyslexia. (D.E.
No. 5, Administrative Record (“R.”) at 174-175 & 190). The claims were initially denied on
January 27, 2014, and then denied upon reconsideration on April 28, 2014. (Id. at 114-118 & 12224). Plaintiff requested a hearing before an ALJ, which was held on December 7, 2015. (Id. at
29-88). ALJ Farrell issued a decision on January 14, 2016, denying DIB on the grounds that, as
of the date last insured (“DLI”), December 31, 2000, Plaintiff could have resumed all of her past
relevant work at step four of the sequential evaluation. (Id. at 12-28). Plaintiff then sought review
from the Appeals Counsel (id. at 8-11 & 170-71) and on May 5, 2017, the Appeals Counsel
concluded that there were no grounds for review (id. at 1-5).
Plaintiff filed the instant appeal on June 29, 2017. (D.E. No. 1). Plaintiff filed a brief in
support of the instant appeal (D.E. No. 10, Plaintiff’s Moving Brief (“Pl. Mov. Br.”)), and
Defendant filed an opposition brief (D.E. No. 11, Defendant’s Brief Pursuant to Local Civil Rule
9.1 (“Def. Opp. Br.”)). The case is ripe for determination.
II.
LEGAL STANDARD
A.
Standard of Awarding Benefits
To receive DIB under Title II, a plaintiff must show that she is disabled within the
definition of the Act. See 42 U.S.C. § 423. In applying for DIB, claimants must also satisfy the
insured status requirements enumerated in 42 U.S.C. § 423(c). Relevant here, “a claimant must
show that [she] was insured under the program at the time of onset of his disability.” Kelley v.
Barnhart, 138 F. App’x 505, 507 (3d Cir. 2005).
Disability is defined as the 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 twelve
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The individual’s physical or mental
impairment must be “of such severity that he 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), 1382c(a)(3)(B).
The Secretary of Health and Human Services has established a five-step sequential
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evaluation process to determine whether a plaintiff is disabled. See 20 C.F.R. § 416.920. If the
determination at a particular step is dispositive of whether the plaintiff is or is not disabled, the
inquiry ends. 20 C.F.R. § 416.920(a)(4). The burden rests on the plaintiff to prove steps one
through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). 1 At step five, the burden shifts
to the government. Id.
Step One. At step one, the plaintiff must demonstrate that she has not engaged in any
substantial gainful activity since the onset date of her severe impairment.
20 C.F.R. §
416.920(a)(4)(i). Substantial gainful activity is defined as significant physical or mental activities
that are usually done for pay or profit. 20 C.F.R. §§ 416.972(a), (b). If an individual engages in
substantial gainful activity, she is not disabled under the regulation, regardless of the severity of
her impairment or other factors such as age, education, and work experience. 20 C.F.R. §
416.920(b). If the plaintiff demonstrates she has not engaged in substantial gainful activity, the
analysis proceeds to the second step.
Step Two. At step two, the plaintiff must demonstrate that her medically determinable
impairment or the combination of her impairments was “severe” as of the DLI. 20 C.F.R. §
416.920(a)(4)(ii). A “severe” impairment significantly limits a plaintiff’s physical or mental
ability to perform basic work activities. 20 C.F.R. § 416.920(c). Slight abnormalities or minimal
effects on an individual’s ability to work do not satisfy this threshold. See Leonardo v. Comm’r
of Soc. Sec., No. 10-1498, 2010 WL 4747173, at *4 (D.N.J. Nov. 16, 2010).
Step Three. At step three, the ALJ must assess the medical evidence and determine
whether as of the DLI, the plaintiff’s impairments met or equaled an impairment listed in the Social
Security Regulations’ “Listings of Impairments” in 20 C.F.R. § 404, Subpart P, Appendix 1. See
1
Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.
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20 C.F.R. § 416.920(a)(4)(iii). The ALJ must “fully develop the record and explain his findings
at step three.” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000).
Step Four. If a plaintiff is not found to be disabled at step three, the analysis continues to
step four in which the ALJ determines whether, as of the DLI, the plaintiff had the residual
functional capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). If
the plaintiff lacked the RFC to perform any work she had done in the past, the analysis proceeds.
Step Five. In the final step, the burden shifts to the Commissioner to show that there is a
significant amount of other work in the national economy that the plaintiff can perform based on
her age, education, work experience, and RFC. 20 C.F.R. § 416.920(a)(4)(v). If the Commissioner
finds that the claimant is capable of performing jobs that exist in significant numbers in the national
economy, disability benefits will be denied.
B.
Standard of Review
The Court applies plenary review of the ALJ’s application of the law and reviews factual
findings for “substantial evidence.” See 42 U.S.C. § 405(g); Chandler v. Comm’r of Soc. Sec., 667
F.3d 356, 359 (3d Cir. 2011). Substantial evidence is more than a “mere scintilla” of evidence and
“means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Although substantial evidence
requires “more than a mere scintilla, it need not rise to the level of a preponderance.” McCrea v.
Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). While failure to meet the substantial
evidence standard normally warrants remand, such error is harmless where it “would have had no
effect on the ALJ’s decision.” Perkins v. Barnhart, 79 F. App’x 512, 515 (3d Cir. 2003).
The Court is bound by the ALJ’s findings of fact that are supported by substantial evidence
“even if [it] would have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358,
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360 (3d Cir. 1999). “Where evidence in the record is susceptible to more than one rational
interpretation, [the Court] must accept the Commissioner’s conclusions.” Izzo v. Comm’r of Soc.
Sec., 186 F. App’x 280, 283 (3d Cir. 2006). Thus, this Court is limited in its review because it
cannot “weigh the evidence or substitute its conclusions for those of the fact-finder.” Williams v.
Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Regarding the ALJ’s assessment of the record, the Third Circuit has stated, “Although the
ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which
he rejects and his reason(s) for discounting such evidence.” Burnett, 220 F.3d at 121. The Third
Circuit has noted, however, that “Burnett does not require the ALJ to use particular language or
adhere to a particular format in conducting his analysis. Rather, the function of Burnett is to ensure
that there is sufficient development of the record and explanation of findings to permit meaningful
review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).
III.
ALJ FARRELL’S DECISION
At step one of the analysis, ALJ Farrell determined that Plaintiff had last met the insured
status requirement of the Social Security Act on December 31, 2000. (R. at 17). ALJ Farrell
determined that Plaintiff had not engaged in substantial gainful activity during the period from her
alleged onset date of May 2, 2000, through the DLI of December 31, 2000. (Id.).
At step two, ALJ Farrell concluded that through the DLI the Plaintiff had only the severe
impairment of lumbar myalgia, because this impairment “had more than a minimal effect on her
ability to perform basic work activities . . . .” (Id. at 17-18). ALJ Farrell concluded that Plaintiff’s
left knee and left shoulder osteoarthritis, fibromyalgia, ADHD, and dyslexia were not medically
determinable impairments through December 31, 2000. (Id. at 18). ALJ Farrell reached this
conclusion because “there are no objective medical findings in the record that actually diagnose
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the claimant with fibromyalgia or . . . osteoarthritis” and that other medical records and evidence
indicate that the conditions began after the DLI. (Id.). As to ADHD and dyslexia, ALJ Farrell
concluded that Plaintiff did not raise the conditions as factors in her disability at the hearing and
that the record contained no evidence of the conditions before the DLI. (Id.). ALJ Farrell also
noted that medical reports from 2012 and 2013 indicate that Plaintiff was “noncompliant with
referrals for psychiatric and phycological treatment.” (Id.).
At step three, ALJ Farrell determined that, as of the DLI, Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of one of
the impairments listed by the regulations. (Id.). ALJ Farrell stated that through the DLI, “the
record notes lumbar myalgia, and contains no lab findings or imaging to confirm any disc disease
in the lower back” and that the record “does not document a disorder of the spine” that meets or is
medically equal to Listing 1.04 of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (Id.).
Finally, at step four, ALJ Farrell provided a lengthy analysis giving careful consideration
of the entire record, concluding that as of the DLI Plaintiff had the residual functional capacity to
perform “light work” with the specific limitation that Plaintiff must avoid working around
unprotected heights or moving mechanical parts. (Id. at 19-23). ALJ Farrell concluded that after
careful considerations of the evidence, Plaintiff’s medically determinable impairment could
reasonably be expected to cause the alleged symptoms, but Plaintiff’s “statements concerning the
intensity, persistence, and limiting effects of these symptoms are not entirely credible.” (Id. at 19).
ALJ Farrell then determined that as of the DLI, based on the record and the testimony of
the vocational expert, Plaintiff was capable of performing past relevant work, such as a general
office clerk, a food sales clerk, and a production planner. (Id. at 23-24). Accordingly, ALJ Farrell
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found that Plaintiff had not been disabled as defined by the Act, “at any time from May 2, 2000,
the alleged onset date, through December 31, 2000, the date last insured.” (Id. at 24).
IV.
DISCUSSION
Plaintiff asserts only one argument in support of her appeal: Plaintiff argues that ALJ
Farrell erred when she failed to consult a medical expert to determine whether the onset date of
the allegedly disabling impairments caused by her conditions (osteoarthritis, fibromyalgia, and
“life-long conditions of ADHD and dyslexia”), occurred on or before December 31, 2000, the date
her DIB insured status expired. (See Pl. Mov. Br. at 10-12). She argues that, because these are
slowly progressing conditions, ALJ Farrell’s failure to consult an expert is contrary to Social
Security Ruling (“SSR”) 83–20, 1983 WL 31249 (S.S.A. 1983) and Social Security
Administration Hearings, Appeals and Litigation Law Manual (HALLEX) I-2-5-34(A)(2), 1994
WL 637370. (Id. at 13-14). Plaintiff avers that this error “literally affects every finding at every
step of the sequential evaluation” and therefore, ALJ Farrell decision is not supported by
substantial evidence. (Id. at 10 & 12). The Court disagrees.
SSR 83–20 “recognizes that with slowly progressive impairments, including mental
impairments, ‘it is sometimes impossible to obtain medical evidence establishing the precise date
an impairment became disabling.’” Spellman v. Shalala, 1 F.3d 357, 361 (5th Cir. 1993) (quoting
SSR 83–20) (cited by Walton v. Halter, 243 F.3d 703, 709 (3d Cir. 2001)). The SSR accordingly
provides:
In some cases, it may be possible, based on the medical evidence to reasonably
infer that the onset of a disabling impairment 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 . . . ALJ should call on the services of a medical advisor when onset
must be inferred.
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SSR 83–20.
Plaintiff argues that “the Third Circuit has held that when the onset of a claimant’s illness
is not clear, the Commissioner should follow SSR 83–20 in order to determine the onset of an
illness that may be slowly progressing.” (Pl. Mov. Br. at 14 (citing Newell v. Comm’r of Soc. Sec.,
347 F.3d 541, 548 (3d Cir. 2003); Walton, 243 F.3d at 709-710)).
Plaintiff, however, ignores that under Walton, Newell, and their progeny, SSR 83–20
generally only applies “where the record contain[s] no evidence to substantiate or contradict a
claimant’s subjective testimony as to pain and impairment.” Yots v. Comm’r of Soc. Sec., 704 F.
App’x 95, 97 (3d Cir. 2017) (emphasis in original); see also Newell, 347 F.3d at 549 n.7
(explaining that “[i]n Walton, we 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”);
Bailey v. Comm’r of Soc. Sec., 354 F. App’x. 613, 618 (3d Cir. 2009) (“As the District Court noted,
further decisions of our court have confirmed that Walton’s directive to seek out the services of a
medical advisor is limited to situations where the underlying disease is progressive and difficult to
diagnose, where the alleged onset date is far in the past, and where medical records are sparse or
conflicting.”); Klangwald v. Comm’r of Soc. Sec., 269 F. App’x 202, 205 (3d Cir. 2008) (“[W]e
have generally applied SSR 83–20 only where medical evidence from the relevant period is
unavailable.”); Jakubowski v. Comm’r of Soc. Sec., 215 F. App’x. 104, 108 (3d Cir. 2007)
(rejecting claim that medical advisor was necessary by distinguishing Newell and Walton on
grounds that “the ALJ in this case had access to adequate medical records from the time period
before the expiration of Jakubowski’s insured status and these records did not support her alleged
onset date”).
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Here, it was not necessary for ALJ Farrell to “infer” the onset date of Plaintiff’s
osteoarthritis and fibromyalgia, 2 because contemporaneous medical records are available, and
these records do not support Plaintiff’s claim that these conditions were disabling impairments
prior to December 31, 2000. In fact, the objective medical evidence and lay evidence in the record
largely contradict Plaintiff’s claim that arthritis and fibromyalgia were disabling impairments prior
to the DLI.
First, unlike Newell and Walton, medical records from the relevant period are available and
do not substantiate Plaintiff’s claim. ALJ Farrell noted that while records from the period discuss
Plaintiff’s lumbar myalgia and related treatments, these medical records make no mention of
Plaintiff’s knee and shoulder pain, and do not mention arthritis or fibromyalgia. (R. at 18). For
example, Dr. Rose’s records from the time indicate that on March 25, 2000, shortly before her
alleged disability onset, Plaintiff indicated to Dr. Rose that she had a back adjustment the previous
week and “fe[lt] good.” (Id. at 21 & 247). On February 26, 2001, Plaintiff visited Dr. Rose again
when she needed an adjustment for lower back pain (id. at 247), and on April 25, 2001, Plaintiff
informed Dr. Rose that her “low back [was] better” (id. at 248). Finally, on June 20, 2001, Plaintiff
informed the doctor that she had low back pain from lifting her 30 pound son and Dr. Rose assessed
she had lumbar myalgia. (Id. at 248). ALJ Farrell, therefore, reasonably found that Plaintiff only
2
With respect to Plaintiff’s alleged mental impairments, namely ADHD and dyslexia, ALJ Farrell found that
while Plaintiff alleged these conditions in her Disability Report, she did not raise them as factors of her disability at
the administrative hearing and that the record did not contain any evidence regarding the conditions on or before the
DLI. (R. at 18). In fact, at the hearing Plaintiff indicated through counsel that Plaintiff was alleging “two conditions
but mainly, it’s arthritis.” (See R. at 38). Plaintiff did not mention ADHD or dyslexia at all, nor does Plaintiff now
point to any objective diagnosis of ADHD or dyslexia in the record. Moreover, Plaintiff does not argue that these
conditions are slowly progressing conditions, and thus, SSR 83–20 does not apply. In any event, Plaintiff’s brief
labels these conditions as “life-long conditions.” (See Pl. Br. at 12). Plaintiff does not even indicate that the conditions
changed in the period after she left her last job in 1995, which suggests the conditions were not severe impairments
on or before the DLI. Thus, it was not erroneous for ALJ Farrell to find that these conditions were not medically
determinable impairments on or before the DLI, nor was it erroneous to conclude that Plaintiff could return to her past
relevant work, since she had previously performed such jobs under the same conditions.
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had the severe impairment of lumbar myalgia before the DLI. See Jakubowski, 215 F. App’x. at
108 (“By contrast with Newell and Walton, . . . the ALJ in this case had access to adequate medical
records from the time period before the expiration of Jakubowski’s insured status and these records
did not support her alleged onset date.”).
Plaintiff takes issue with these findings, arguing that ALJ Farrell did not dispute the fact
that Plaintiff had three knee surgeries between 1996 and 1997, and that Plaintiff testified that soon
after having her son she developed shoulder pain as a result of arthritis. (Pl. Opp. Br. at 18-19).
But ALJ Farrell explained that Plaintiff’s claim is rebutted by the record because
Dr. Rose’s records from 1993 to 2001 . . . do not mention fibromyalgia or arthritis
of the left knee or left shoulder [R. at 241-48]. Records from June 24, 2013 note
that [Plaintiff] reported fibromyalgia and osteoarthritis since 2002 (notably, after
the DLI of 12/31/00) and stated that her pain was severe “since 2002 and got
progressively worse.” [id. at 676]. On May 4, 2009, [Plaintiff] reported that her
lower back pain, bilateral knee pain, neck pain, and bilateral shoulder pain began
in 2001, after she stopped nursing her son [id. at 551]. [Plaintiff] did not have left
rotator cuff surgery until 2006 [id. at 275] and did not have left total knee
replacement until 2010 and right total knee replacement until 2015.
(R. at 18).
Additionally, other evidence tends to contradict Plaintiff’s assertions. For instance, on
February 20, 2004, Dr. Curiba noted that X-rays of Plaintiff’s right knee revealed moderate
degenerative changes, but Plaintiff did not have a right total knee replacement until July 2015. (R.
at 21 (citing id. at 258)). Then in April 14, 2004, Dr. Curiba stated that Plaintiff’s X-rays of the
hands revealed possible early rheumatoid arthritis, but noted there was no serological evidence of
any immune system problems. (Id. (citing id. at 263-264)). Moreover, ALJ Farrell noted that in
the Function Report (id. at 203-10), Plaintiff made statements indicating that she lived an active
life before the conditions became severe impairments, including that she “used to drive [her] kids
to school. . . volunteer at school . . . used to play outside with my kids – used to ride bikes as a
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family . . . .” (Id. at 20 n.1). ALJ Farrell concluded that since Plaintiff’s daughter was born in
1995 and her son in 1999, then logically Plaintiff’s children would be entering school after
December 31, 2000, and thus, these activities would have occurred after the DLI. (Id. (noting that
medical records indicate Plaintiff was riding a bicycle in 2010) (citing id. at 311)). ALJ Farrell
concluded that Plaintiff’s activate life during that period was “consistent with the medical records
in evidence which demonstrate that her physical conditions were aggravated over time but after
DLI.” 3 (Id.). Thus, SSR 83–20 does not apply here. See Yots, 704 F. App’x at 97 (“Newell and
Walton merely held that a medical adviser was required where the record contained no evidence
to substantiate or contradict a claimant’s subjective testimony as to pain and impairment.”)
(emphasis in original).
Plaintiff also relies on the HALLEX I-2-5-34(A)(2), 1994 WL 637370, to argue that ALJ
Farrell was required to obtain a medical expert’s opinion before reaching a decision. (Pl. Mov.
Br. at 14). Plaintiff asserts that the ALJ may need to obtain an expert opinion when the medical
evidence is conflicting or confusing, the ALJ questions the etiology of a disease or disease process,
and where the onset of impairment is in question. (Id.). But as Defendant points out, whether an
ALJ “[n]eeds an expert medical opinion regarding the onset of an impairment” is discretionary.
(Def. Opp. Br. at 12 (citing HALLEX I-2-5-34 (A)(2), 1994 WL 637370)). And in any event,
none of the outlined situations are present here because the medical evidence is not “conflicting or
confusing,” but rather, supports ALJ Farrell’s conclusion that Plaintiff did not have the alleged
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Plaintiff takes issue with ALJ Farrell’s interpretation of this evidence. Plaintiff argues that ALJ Farrell did
not seek any clarification from Plaintiff during the hearing. (Pl. Mov. Br. at 18 n.3). However, the hearing transcript
shows that ALJ Farrell asked Plaintiff about the Function Report and Plaintiff stated that while she “was not sure
when” she engaged in those activities, she did in fact engage in them, including driving her kids to school and being
a class mom. (R. at 63-64). Plaintiff suggests that ALJ Farrell’s interpretation is erroneous because the Function
Report does not provide any dates for those activities, but “[w]here evidence in the record is susceptible to more than
one rational interpretation, [the Court] must accept the Commissioner’s conclusions.” See Izzo, 186 F. App’x at 283;
see also Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (noting that the Court must be mindful that it should
“not weigh the evidence or substitute [its own] conclusions for those of the fact finder”).
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severe impairments before the DLI.
In short, ALJ Farrell’s determination is supported by substantial evidence and
consequently, this case is far from the “veritable poster-child situation for invoking SSR 83–20,”
as Plaintiff suggests. (See Pl. Mov. Br. at 16). While arthritis and fibromyalgia are slowly
progressing conditions, the evidence contradicts Plaintiff’s claims and establishes that these
conditions were not medically determinable impairments before the DLI.
“Under these
circumstances, the ALJ was not required to obtain the assistance of a medical advisor to help him
infer the onset date.” See Kelley v. Barnhart, 138 F. App’x 505, 509 (3d Cir. 2005); see also
Cordeiro v. Astrue, No. 09-0388, 2012 WL 2048279, at *10 (D. Del. June 6, 2012) (“[T]he Third
Circuit requires medical expert witnesses only where medical evidence from the disputed period
is entirely lacking. It has also refused to require medical expert witnesses where the medical
evidence available supported ALJ Farrell’s conclusion regarding the onset date.”).
IV.
CONCLUSION
For the foregoing reasons, the Court AFFIRMS the decision of the Commissioner of Social
Security. An appropriate Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.
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