                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-28-2007

Cortes v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3562




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                                                         NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 06-3562
                                     ___________

                                 EVELYN CORTES,

                                                          Appellant,

                                           v.

                     COMMISSIONER OF SOCIAL SECURITY
                               ___________

              On Appeal from an Order of the United States District Court
                        for the Eastern District of Pennsylvania
                                (Civ. No. 04-cv-05119)
                  District Judge: The Honorable Lowell A. Reed, Jr.
                                     ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 11, 2007

      Before: SCIRICA, Chief Judge, RENDELL, and FUENTES, Circuit Judges.

                          (Opinion Filed: November 28, 2007)


                             OPINION OF THE COURT


FUENTES, Circuit Judge:

      Evelyn Cortes appeals the District Court’s order granting summary judgment in

favor of the Commissioner of Social Security Administration (“Commmissioner”), who

denied Cortes’s application for Supplemental Security Income (“SSI”). In denying her
claim, an Administrative Law Judge (“ALJ”) recognized that the claimant had severe

impairments, but nevertheless concluded that the claimant could perform “a significant

range of medium work.” (App. 17.) Medium work “requires standing or walking, off

and on, for a total of approximately 6 hours in an 8-hour workday” as well as lifting and

carrying fifty pounds occasionally and twenty-five pounds frequently. 20 C.F.R. §

416.967; Social Security Rule 83-10. To arrive at his conclusion, the ALJ discounted an

intelligence test suggesting that the claimant may be mentally retarded and the opinion of

two examining physicians, including Cortes’s treating doctor. Because we find that the

ALJ’s conclusion is not supported by substantial evidence, we will vacate the District

Court decision and remand for further proceedings.

                            I. Facts and Procedural History

       Evelyn Cortes is a 46-year-old illiterate woman with a sixth-grade education. She

filed an application for SSI on June 25, 1999, alleging disability due to back, knee, and

kidney pain; depression; and mental deficiency. During the course of the administrative

proceedings, Cortes testified twice and numerous physicians submitted evaluations of

Cortes’s capacity to perform work-related activities.

       Cortes testified on April 3, 2000, through a Spanish interpreter. At the outset of

her first hearing, she did not remember her social security number or her mother’s age,

and stated that she could not read or write. (App. 286, 294.) She indicated that she

attended elementary school in Philadelphia, but dropped out in the seventh grade after



                                            -2-
failing to learn how to read. Cortes testified that her children had mental impairments:

“One has a learning disability, and the other one has the same problem; and the 20 year-

old one, he doesn’t even know how to make a full sentence or remember where he is.”

(App. 295.)

       Responding to inquiries about her physical impairments, Cortes stated that she had

her kidney removed and has frequent back and knee pain. (App. 289.) As a result, Cortes

asserted that she cannot lift anything “too heavy,” walk more than two blocks without

getting tired, kneel without knee pain, or stand or sit for longer than five minutes without

numbness in her back. (App. 291-92.) She also testified that she was prescribed two pain

medications, Darvoset and Ralafen, as well as a cane, for her knee and back pain. (App.

289-90.) Cortes explained that her ailments impeded her ability to do ordinary chores,

such as cleaning, cooking, and shopping, without the assistance of her mother or husband.

(App. 292-93.) According to Cortes, she passes most of each day watching television.

       The administrative record contains the results from several medical and psychiatric

evaluations. The Commissioner sent Cortes for a one-time consultative examination with

Dr. Hass Shafia, who submitted a report on August 4, 1999. Dr. Shafia surmised that

Cortes should be limited to “occasional” lifting and carrying of no more than ten pounds

and “frequent” lifting and carrying of two to three pounds. (App. 205.) Dr. Shafia

suggested that Cortes had a limited ability to stand, walk, push, and pull, and had no

ability to kneel or crouch. (App. 205-06.) Dr. Shafia’s report indicated that Cortes



                                             -3-
complained of pain in her back and knees, which prevented her from walking more than a

few blocks or ascending more than a single flight of stairs. (App. 203.) Dr. Shafia

observed that Cortes “had some difficulty in sitting up while she was on the examining

table.” (App. 204.) However, he also noted that Cortes appeared to be in no distress

when walking into the examination and appeared intelligent, answering all of his

questions correctly. (App. 203.) Dr. Shafia’s opinion, if accepted by the ALJ, would

preclude a determination that Cortes could perform medium work, which requires a

greater ability to carry out physical labor.

       Soon after Dr. Shafia’s report, on September 25, 1999, a non-examining medical

expert completed a check-box assessment of Cortes’s physical residual functional

capacity (“RFC”). Citing to the notes from two visits to Cortes’s treating physician

(September 8, 1999 and July 16, 1999) and Dr. Shafia’s report, the non-examining

medical expert concluded that Cortes could perform “medium work,” i.e. lift or carry fifty

pounds occasionally and twenty-five pounds frequently as well as stand, walk, and sit for

six hours in an eight-hour workday. (App. 208-209.) Moreover, the non-examining

medical expert asserted that Dr. Shafia’s conclusion that Cortes could only lift two to

three pounds frequently and ten pounds occasionally was “not supported by objective

data,” in particular, a normal neurological examination. (App. 213, 209.)

       Following the non-examining medical expert’s assessment, the record was updated

with additional medical tests and assessments. Included were an MRI of the left knee



                                               -4-
from February 25, 2000, noting “high-signal abnormality involving the lateral femoral

condyle in the dependent portion extending anteriorly,” (App. 232), and a medical

assessment, also on a check-box form, by Cortes’s treating physician, Dr. Irwin Jacobson.

(App. 215-222.)

       Dr. Jacobson’s physical assessment was similar to Dr. Shafia’s: Cortes was limited

to lifting and carrying up to ten pounds occasionally and up to two pounds frequently,

could stand and/or walk up to one hour per day, could sit for one to two hours per day,

and could perform no postural activities.1 Dr. Jacobson also concluded that Cortes was

limited with respect to mental work-like activities. He indicated that she had a “seriously

limited” ability to follow work rules, deal with stress, function independently, maintain

attention or concentration, and carry out simple job instructions. (App. 220-21.)

       On June 27, 2000, the ALJ denied Cortes’s application after concluding that it was

unnecessary to send Cortes for intelligence testing. The ALJ found that Cortes’s only

severe impairment was a knee ailment, which did not prevent her from performing

medium work. After the Appeals Council denied review of the ALJ’s decision, Cortes

commenced a civil action in the United States District Court for the Eastern District of

Pennsylvania. Both parties filed for summary judgment and the case was referred to a

Magistrate Judge.




       1
       The form completed by Dr. Jacobson listed postural activities as climbing,
kneeling, crouching, bending, balancing, crawling, or stooping. (App. 218.)

                                            -5-
       The Magistrate Judge recommended that the District Court grant Cortes’s motion

for summary judgment and remand to the Commissioner for further development of the

record in light of evidence that supported decreased intellectual functioning. (App. 157.)

In particular, the results of new testing, an evaluation by the Temple University Hospital

Department of Outpatient Psychiatry (“Temple Report”), belied the conclusion that

testing was not necessary and “prove[d] that Plaintiff suffers from serious mental

impairments.” (App. 160, 159 n.3.) The District Court accepted the Magistrate Judge’s

recommendation and remanded the case. (App. 151.)

       The Temple Report stated that Cortes’s “current level of intellectual and cognitive

functioning fell within the Impaired range with a Full Scale IQ of 58. This places her at

less than the 1st percentile when compared to other people of her age.” (App. 253.)

According to the Temple Report, “[h]er performance [on the IQ test] suggests Mild

Mental Retardation.” (App. 255.) Her diagnosis, however, was made “provisional”

because “a formal diagnosis of mental retardation must occur prior to the age of 18.”

(App. 255.) Nevertheless, the Temple Report suggested that Cortes’s “history of

academic difficulties, inability to learn how to read, premature withdrawal from school,

and impaired personal, social and occupational functioning” support the possibility that

Cortes had been previously diagnosed with mental retardation, which would have allowed

a formal retardation diagnosis. (App. 255.) The Temple Report also analyzed Cortes’s

personality functioning, concluding that Cortes had “a limited ability . . . to handle stress,



                                              -6-
particularly within interpersonal situations” and “does not seem to understand people and

social norms,” which makes her “more vulnerable to problems in everyday living.” (App.

255.) The Temple Report issued the following diagnosis: “Major Depressive Disorder,

Recurrent, Severe with Psychotic features,” “Provisional Mild Mental Retardation,”

“Hypertension,” and “Family Distress.” (App. 255.)

       A supplemental administrative hearing was held on August 26, 2004, at which

Cortes testified that she began receiving treatment for depression since 2000. She stated

that she frequently “wanted to be alone,” “was angry at everyone,” didn’t sleep much, was

always tired, and cried “[s]ometimes every day.” (App. 113.) She also asserted that her

depression was worse in 2004, after treatment, than it had been in 2000.

       On September 24, 2004, the ALJ again denied Cortes’s application. Proceeding

through the five-step analysis employed by the Commissioner to evaluate SSI claims,2 the



       2
       The five-step analysis was explained in Schaudeck v. Comm'r of Soc. Sec.
Admin., 181 F.3d 429 (3d Cir. 1999):
     The sequence is essentially as follows: (1) if the claimant is currently engaged
     in substantial gainful employment, she will be found not disabled; (2) if the
     claimant does not suffer from a "severe impairment," she will be found not
     disabled; (3) if a severe impairment meets or equals a listed impairment in 20
     C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last
     continually for at least twelve months, then the claimant will be found
     disabled; (4) if the severe impairment does not meet prong (3), the
     Commissioner considers the claimant's residual functional capacity ("RFC")
     to determine whether she can perform work she has done in the past despite
     the severe impairment-if she can, she will be found not disabled; and (5) if the
     claimant cannot perform her past work, the Commissioner will consider the
     claimant's RFC, age, education, and past work experience to determine
     whether she can perform other work which exists in the national economy. See

                                            -7-
ALJ concluded that (1) Cortes has not been engaged in substantial gainful activity since

June 1, 1979; (2) Cortes’s left knee pain and depression are severe impairments; (3)

Cortes’s impairments or combination of impairments do not meet or equal the criteria of a

listed impairment in Appendix 1, Subpart P, Regulations No. 4; and (4) Cortes has no

history of past relevant work. At step (2) the ALJ determined that Cortes’s subaverage

intellectual functioning was not a “severe” impairment, let alone mental retardation. The

ALJ then found that Cortes retains the residual functional capacity (RFC) to perform a

full range of medium work and only simple, routine tasks. To reach this conclusion, the

ALJ rejected Drs. Shafia and Jacobson’s opinions, stating that they were not supported by

the record. Rather, the ALJ credited the non-examining medical consultant’s opinion.

(App. 144, 156 n.6.) The ALJ then concluded at step (5) that based on Cortes’s age,

limited education, and RFC, she could make a vocational adjustment to work that exists

in significant numbers in the regional and national economies. Hence, Cortes was not

disabled and was not entitled to receive SSI. (App. 144.) The Appeals Council denied

Cortes’s request for review of the ALJ’s second decision, which prompted Cortes to file

an action in the United States District Court for the Eastern District of Pennsylvania

seeking judicial review of the Commissioner’s final determination. Both parties moved

for summary judgment, and on June 1, 2006, the District Court adopted the Magistrate




        id. § 404.1520(b)-(f).
Id. at 431-32.

                                            -8-
Judge’s Report and Recommendation, granting the Commissioner’s request for summary

judgment while denying Cortes’s motion. This appeal followed.3

                                      II. Standard of Review

          “While we exercise plenary review with respect to the order for summary

judgment, our review of the ALJ’s decision is more deferential as we determine whether

there is substantial evidence to support the decision of the Commissioner.” Knepp v.

Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Substantial evidence means “more than a mere

scintilla. It 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) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

                                            III. Analysis

          The Commissioner argues that the ALJ’s determination that Cortes can perform

medium work is supported by substantial evidence in the record and must be affirmed.

However, our review convinces us that the ALJ erred in applying the relevant legal

standards to the facts of this case. In particular, at step (2) the ALJ did not adequately

substantiate his conclusion that Cortes is not afflicted by a severe mental deficiency.

Moreover, substantial evidence does not support the ALJ’s dismissal of the examining

physicians’ opinions in favor of the opinion provided by the non-examining medical

expert.



          3
              We have jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).

                                                 -9-
                                              A.

       Cortes argues that the ALJ did not adequately consider her evidence that she

suffered from a severe mental deficiency. In particular, Cortes argues that the ALJ did

not afford appropriate weight to her IQ score, which was uncontested evidence that her

current level of intellectual and cognitive functioning was severely impaired. According

to Cortes, her IQ score and testimony regarding her mental deficiencies prior to age 22

were sufficient for her to prove mental retardation.

       The Commissioner’s regulations set forth two requirements for a showing of

mental retardation. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. First, a claimant must

prove “subaverage general intellectual functioning with deficits in adaptive functioning”

manifesting before age 22. Id. Second, the claimant must show that any one of four

criteria satisfies the required severity. One criterion is “[a] valid verbal, performance, or

full scale IQ of 59 or less.” § 12.05B.

       The ALJ concluded that Cortes did not meet her burden for establishing mental

retardation:

       The representative argued that the claimant was mentally retarded and met
       listing 12.05. However, there is no diagnosis of retardation in the record,
       only a provisional one. IQ testing was performed with the Wechsler Adult
       Intelligence Scale and revealed a full scale IQ of 58. The claimant testified
       that she did not attend a special education program but did have special
       assistance with reading for a few hours on 3 occasions. Dr. Jacobson, who
       treated the claimant for more than 25 years, never noted that the claimant
       had any difficulty comprehending instructions. Moreover, she had a normal
       neurological examination and presented as intelligent, answering all
       questions correctly, during the consultative examination. Mental

                                             -10-
       retardation is, thus, not a medically determinable impairment.

(App. 13-14, internal citations omitted.)

       Cortes received an IQ score of 58. While, “[t]he Commissioner is not required to

accept a claimant’s IQ scores and may reject scores that are inconsistent with the record,”

Markle v. Barnhart, 324 F.3d 182, 186 (3d Cir. 2003), in this case the ALJ does not

purport to reject Cortes’s IQ score. Cortes’s score, according to the Temple Report,

places her present intellectual and cognitive functioning at less than the first percentile

when compared to other people her age. The ALJ notes that the final diagnosis of mental

retardation was provisional, but this observation had nothing to do with the validity of

Cortes’s IQ score or the related conclusion that her intellectual functioning was sub-

average.4 Rather, the Temple Report qualified the diagnosis of mental retardation as

“provisional” because there was no record that Cortes was diagnosed with mental

retardation prior to age 18, a consideration that we address below. The ALJ stated that

Dr. Jacobson “never noted that the claimant had any difficulty comprehending

instructions,” but this is insufficient to discount the implication of Cortes’s IQ score. As




       4
        The regulations recognize that the commentary accompanying an IQ score should
be consulted in evaluating the credibility of the test result. “[S]ince the results of
intelligence tests are only part of the overall assessment, the narrative report that
accompanies the test results should comment on whether the IQ scores are considered
valid and consistent with the developmental history and the degree of functional
limitation.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(D)(6)(a). In the present case the
ALJ does not purport to discredit the actual test result, but rather the final diagnosis of
Cortes’s mental retardation.

                                             -11-
Cortes indicates, Dr. Jacobson never treated her for mental retardation and had no

documents or tests from which to form a judgment. (Appellant’s Reply Br. 4-5.) In

addition, Dr. Jacobson’s assessment of her residual functional capacity observed that

Cortes would have difficulty following instructions in the workplace. Finally, the fact

that Dr. Shafia noted that Cortes “presented as intelligent” during his examination is not

sufficient medical evidence to call into doubt the extensive evidence of sub-average

general intellectual functioning.

       The Commissioner argues that Cortes did not provide evidence that her medical

impairment existed before age 22, as required by the Regulations. Many claimants have

difficulties corroborating the early onset of mental retardation. While some courts of

appeals have applied a rebuttable presumption that a current mental impairment existed

before age 22, see, e.g., Hodges v. Barnhart, 276 F.3d 1265 (11th Cir. 2001), we have

rejected such a presumption. Williams v. Sullivan, 970 F.2d 1178, 1185 (3d Cir. 1992).

Rather, we have held that the claimant has the burden of establishing the existence of

mental retardation during the developmental period. Id.

       The Commissioner has clarified that in order for a claimant to carry her burden

with respect to the onset of mental retardation, it is unnecessary to produce “intelligence

testing (or other contemporary evidence) prior to age [22].” Revised Medical Criteria for

Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746, 50772

(August 21, 2000). The claimant need only produce evidence that “demonstrates or



                                            -12-
supports onset of the impairment before age 22.” Id. In Markle, we concluded that

evidence showing that a claimant “took special education courses through ninth grade,

dropp[ed] out after two months in tenth grade[,] . . . ‘struggled’ to obtain a GED[, and] . .

. ha[d] not held a job for at least fifteen years” was “consistent with, and, depending on

one’s interpretation, could be said to support early onset” of mental retardation. 324 F.3d

at 189. Given such a showing, this Court remanded the case to the ALJ to address the

claimant’s mental deficiency prior to age 22. See id.5

       Unfortunately for Cortes, she was a poor historian. (App. 255.) She could not

produce documents from her youth that might demonstrate the early existence of mental

retardation. One source from which she tried to procure such evidence, the last school

she attended, had long since closed. However, she testified that she could not learn how

to read or write while in school. She also testified that while there were no special

education courses, her teacher recognized her difficulty and pulled her out of class for

special assistance. (App. 111.) In addition, Cortes has no recent work experience.

       Cortes’s testimony was similar to that produced in Markle, and likewise, we find

that it “demonstrates or supports onset of the impairment before age 22.” Based on the



       5
         In Williams v. Sullivan, we held that the claimant had not met his initial burden of
proof with regard to mental retardation. 970 F.2d 1178, 1185 (3d Cir. 1992). However,
in Williams, there was evidence supporting the recent onset of mental retardation, which
distinguishes it from both Markle and the present case. See Markle v. Barnhart, 324 F.3d
182, 180 & n.2 (3d Cir. 2003). In particular, Williams maintained a job for most of his
adult life. Williams, 970 F.2d at 1185.


                                             -13-
regulations and our case law, we hold that Cortes satisfied her initial burden with respect

to this issue.

       The ALJ’s analysis is insufficient to rebut Cortes’s evidence regarding the early

onset of her mental impairment. The ALJ referenced the absence of any mention of

mental deficiency in Dr. Jacobson’s treating notes and Dr. Shafia’s comments regarding

Cortes’s “intelligent” presentation and normal neurological examination. However, this

evidence, or lack of evidence, does not provide substantial medical support for a

conclusion regarding Cortes’s mental capacity before age 22. As mentioned above, Dr.

Jacobson never treated Cortes for her mental deficiency. Meanwhile, Dr. Shafia’s

comments regarding Cortes’s “intelligent” presentation and normal neurological

examination do not cast any light on her mental functioning prior to age 22. In sum, the

ALJ has not provided adequate support for his rejection of Cortes’s testimony.6

       Because we find that the ALJ did not adequately support his conclusion that Cortes

did not have a severe mental impairment warranting the provision of SSI, we will remand

to the agency. INS v. Ventura, 537 U.S. 12, 16 (2002). On remand, the record shall be




       6
        The Commissioner suggests that the ALJ’s decision was based on Cortes’s level
of adaptive functioning, which was inconsistent with a finding of mental retardation.
(Comm’r Br. 24.) As Cortes notes, the ALJ never ruled on the “adaptive functioning”
issue. (Appellant’s Reply Br. 4.) “The grounds upon which an administrative order must
be judged are those upon which the record discloses that its action was based.” SEC v.
Chenery Corp., 318 U.S. 80, 87 (1943). We decline to consider what significance, if any,
an adaptive functioning determination would have on the outcome of this case.

                                            -14-
reopened for additional evidence regarding Cortes’s mental impairment.7 Given the

understandably limited information Cortes was able to provide regarding her mental

status before age 22, “the ALJ may well believe . . . that he should develop the record

further—as is his duty—and . . . obtain an expert opinion as to the likely onset of the

retardation.” Markle, 324 F.3d at 189; see also Social Security Ruling (“SSR”) 83-20,

Titles II and XVI: Onset of Disability, 1983 WL 31249, *3 (“At the hearing, the

administrative law judge (ALJ) should call on the services of a medical advisor when

onset must be inferred.”); Walton v. Halter, 243 F.3d 703, 709 (2001) (“[T]he ALJ could

not, consistent with SSR 83-20 and the necessity of establishing an onset date based on

substantial evidence, simply ignore [evidence suggesting an onset date before age 22] and

draw an inference from the record evidence having no substantial medical support.”)

                                             B.

       Cortes next argues that the ALJ’s “physical” RFC determination—that Cortes can

perform medium work—is not supported by substantial evidence. The ALJ came to his

conclusion by discounting the opinions of Drs. Shafia and Jacobson that Cortes was

capable of lifting only ten pounds occasionally and two or three pounds frequently, and

had a limited ability to stand, walk, push, pull, and do postural activities. Rather, the ALJ



       7
        Cortes has brought to this Court’s attention the existence of a supplemental
assessment that was obtained following her appeal and allegedly bears on her intellectual
disability, entitled “Bilingual Medical Psychological Specialty and Individual Intellectual
Evaluation for Disability.” On remand, Cortes should be permitted to offer this
assessment into evidence.

                                            -15-
adopted the non-examining medical expert’s opinion that Cortes could lift fifty pounds

occasionally and twenty-five pounds frequently; stand or walk, off and on, for

approximately six hours in an eight-hour workday; and bend or stoop frequently. We

agree with Cortes that the ALJ’s determination was not supported by substantial evidence.

       The ALJ granted controlling weight to the non-examining medical expert’s

assessment. While the ALJ’s opinion states that this assessment was “based on a review

of prior medical records,” (App. 15), the record shows that it was in fact based on only a

small portion of the final record. Following the submission of the non-examining medical

expert’s report, the record was expanded to include Dr. Jacobson’s opinion, which

showed agreement with Dr. Shafia’s opinion that Cortes could not perform medium work.

The record was also supplemented by an MRI that documented abnormalities in Cortes’s

left knee. Given that Cortes’s “severe” knee impairment is an orthopedic disorder, a

radiological test like the MRI would be considered probative, perhaps more so than a

neurological test. The limited evidence in front of the non-examining expert may explain

why the only rationale provided for disagreeing with Dr. Shafia’s physical assessment

was a negative neurological examination. (App. 213, 209.) The problematic reliance

upon the non-examining expert’s opinion is compounded further by the fact that it was

the only medical assessment relied upon to trump an opinion by the treating physician, Dr.

Jacobson. See Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000) (“[A] single piece of

evidence is not substantial if . . . it is overwhelmed by other evidence—particularly that



                                            -16-
offered by a treating physician.”); 20 C.F.R. § 404.1527(d)(2) (stating that a treating

physician is “most able to provide a detailed, longitudinal picture of [a claimant’s]

medical impairment(s) and may bring a unique perspective to the medical evidence that

cannot be obtained from the objective medical findings alone or from reports of

individual examinations, such as consultative examinations or brief hospitalizations”).

       Because the case will be remanded for further proceedings it is unnecessary to

address Cortes’s contentions that the Commissioner improperly applied regulatory

standards for illiteracy and education, understated the significance of Cortes’s depression,

and failed to consider Cortes’s pain. Such deficiencies, if they exist, can be addressed in

a future proceeding.

                                      IV. Conclusion

       For the foregoing reasons, the decision of the District Court will be vacated and

the case remanded for further proceedings before the ALJ consistent with this opinion.




                                            -17-
