                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-14-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3649




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                                                             NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 03-3649

                                 MARIA MENDES,

                                                Appellant

                                           v.

                             JO ANNE B. BARNHART,
                              COMMISSIONER OF
                      SOCIAL SECURITY ADMINISTRATION




                       _________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                    District Judge: The Honorable William H. Walls
                                 (D.C. No. 01-cv-04479)
                       _________________________________

                       Submitted under Third Circuit LAR 34.1
                                 on March 26, 2004

                           Before: FUENTES, SMITH, and
                          JOHN R. GIBSON,* Circuit Judges

                                 (Filed: July 14, 2004)

                              ______________________

                             OPINION OF THE COURT


      *
       The Honorable John R. Gibson, Senior Circuit Judge for the United States Court
of Appeals for the Eighth Circuit, sitting by designation.
                               _______________________

JOHN R. GIBSON, Circuit Judge.

       Maria Mendes appeals from the district court's entry of judgment against her on

her claim for Social Security disability benefits. The only question is whether Mendes

proved that she had a severe impairment before December 31, 1990, which was her last

insured date. Mendes offered laboratory evidence in the form of a 1992 MRI report that

she had two ruptured disks and she offered other evidence that she suffered low back pain

before the insurance cut-off date. We conclude that Mendes adduced evidence that her

impairment began before December 31, 1990 and that the administrative law judge

(hereafter referred to as the ALJ) erred in finding she had not done so. We will reverse

with directions to remand to the Commissioner of Social Security for further proceedings.

       Mendes applied for Title II Disability Insurance benefits on November 20, 1997,

alleging that she became disabled on May 10, 1985. She quit work in 1985 when the

factory where she worked closed. She testified that at the time she quit working, "I was

not feeling very well already. . . . I had the problem with my back and my legs were

getting [inaudible] I couldn't move my legs and my arms." Mendes's treating physician,

Dr. Rodolfo Colaco, had records of visits with complaints of skeletal pain beginning in

1987. Dr. Colaco's first note about Mendes's back is dated September 13, 1989 and

states: "Low back pain with radiating left foot." Dr. Colaco recorded no clinical findings,

signs, or diagnosis at that time. The first objective evidence of Mendes's ruptured disks



                                             2
came from an MRI in June 1992, which showed two herniated disks in her lower back.

      After an initial hearing, the ALJ concluded that there was insufficient evidence of

any restrictions to Mendes's residual functional capacity before 1990, so she scheduled a

supplemental hearing to adduce evidence on that issue. Dr. Albert G. Mylod submitted an

interrogatory on that subject, but before the date of the hearing, Dr. Mylod became

unavailable for medical reasons.1 Therefore, the ALJ appointed a different medical

expert, Dr. Harlan Mellk.

      After hearing Dr. Mellk's testimony, the ALJ concluded that there was no medical

evidence of an objective nature to establish that Mendes had a severe impairment before

her last insured date. The ALJ therefore denied benefits, and the Appeals Council denied

review, making the denial the Commissioner's final decision.

      Mendes filed this suit in the district court seeking review of the Commissioner's

decision, and the district court entered judgment for the Commissioner. The district court

had jurisdiction under 42 U.S.C. § 405(g) (2000) to review the Commissioner's

determination to deny benefits, and our jurisdiction arises under 28 U.S.C. § 1291 (2000).

We review the district court's judgment de novo. Newell v. Com'r of Soc. Sec., 347 F.3d




      1
        Dr. Mylod submitted an interrogatory stating that Mendes's condition equaled a
listed impairment at the present time, but "not before 1990." Mylod's comments about
Mendes's residual functional capacity before 1990 are not decipherable in the
administrative record filed with this court. Because of Dr. Mylod's unavailability for
cross examination, the ALJ did not rely upon his opinion, so we conclude that it is not
necessary for us to discuss it here.

                                            3
541, 545 (3d Cir. 2003). Section 405(g) provides that the Commissioner's findings of fact

are conclusive if supported by substantial evidence. Substantial evidence is such

evidence as a reasonable mind would accept as adequate to support a conclusion. Newell,

347 F.3d at 545. W e exercise plenary review over questions of law. Id.

       Under 20 C.F.R. § 404.1520 (2003) (as revised by 68 F.R. 51153 (Aug. 26, 2003)),

evaluation of disability proceeds in a five-step sequence. At the first step, the

Commissioner asks whether the claimant is still working, § 404.1520(a)(4)(i); if so, the

claimant is not disabled. Second, the Commissioner determines whether the claimant has

a severe impairment--in other words, an impairment which significantly limits his or her

physical or mental ability to do basic work activities. § 404.1520(a)(4)(ii). If not, the

claimant is not disabled. If so, the Commissioner proceeds to the third step, determining

whether the claimant's condition is the same or equal to the listing of impairments in

Appendix 1 to Subpart P to Part 404. § 404.1520(a)(4)(iii). If so, the claimant is

disabled. If the claimant's condition does not meet or equal the listings, the

Commissioner asks whether the claimant's residual functional capacity allows the

claimant to do the kind of work the claimant has done in the past. § 404.1520(a)(4)(iv).

If so, the claimant is not disabled. If not, the Commissioner will then consider whether

the claimant's residual functional capacity and other characteristics would allow the

claimant to do other work. § 404.1520(a)(4)(v). If so, the claimant is not disabled; if not,

the claimant is disabled. The burden of proof is on the claimant through the first four



                                              4
steps, but shifts to the Commissioner if the process reaches the fifth step. Newell, 347

F.3d at 546.

       The ALJ found that Mendes would meet the listings based on her current

condition, but that she failed to prove the existence of a severe impairment before

December 31, 1990. A "severe impairment" is a threshold test and it is not a demanding

one. See generally Newell, 347 F.3d at 545-46. "[B]ecause step two is to be rarely

utilized as basis for the denial of benefits, its invocation is certain to raise a judicial

eyebrow." McCrea v. Com'r of Soc. Sec., 370 F.3d 357, 361 (3d Cir. 2004) (citation

omitted). "An impairment or combination of impairments is not severe if it does not

significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. §

404.1521(a). Examples of basic work activities include "[p]hysical functions such as

walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling." §

404.1521(b)(1).

       Generally, an impairment must be demonstrable by medically acceptable clinical

and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(5)(A) (2000); 20 C.F.R. §§

404.1527(a), 404.1529(b). In this case, there is no dispute that Mendes has a current

impairment which was established by medically acceptable clinical and laboratory

evidence, including the M RI that showed the two ruptured disks.

       Once an impairment has been established by suitable medical evidence, the onset

date of the impairment may be established by evidence other than clinical and laboratory



                                                5
evidence. See Newell, 347 F.3d at 548 (In determining onset of established impairment,

"[l]ay evidence need not be corroborated by contemporaneous medical evidence to be

credible."); Grebenick v. Chater, 121 F.3d 1193, 1199 (8th Cir. 1997) ("Once the

diagnosis is established, but the severity of the degenerative condition during the relevant

period is unanswered, the claimant may fill the evidentiary gap with lay testimony. The

ALJ must consider this evidence, even if it is uncorroborated by objective medical

evidence." (internal citations omitted)). The standards governing proof of the onset of

impairments are set out in Social Security Ruling 83-20, "Titles II and XVI: Onset of

Disability."2 This policy statement provides that in disabilities of nontraumatic origin,

"the determination of onset involves consideration of the applicant's allegations, work

history, if any, and the medical and other evidence concerning impairment severity." The

starting point in determining the onset date is the claimant's statement.

       With slowly progressive impairments, it is sometimes impossible to obtain
       medical evidence establishing the precise date an impairment became
       disabling. Determining the proper onset date is particularly difficult, when,
       for example, the alleged onset and the date last worked are far in the past
       and adequate medical records are not available. In such cases, it will be
       necessary to infer the onset date from the medical and other evidence that
       describe the history and symptomatology of the disease process.
              ...
              In determining the date of onset of disability, the date alleged by the
       individual should be used if it is consistent with all the evidence available
       ....


       2
       Social Security Rulings are binding on all components of the Social Security
Administration. 20 C.F. R. § 402.35(b)(1); Walton v. Halter, 243 F.3d 703, 708 (3d Cir.
2001).

                                              6
               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. . . .
               If reasonable inferences about the progression of the impairment
       cannot be made on the basis of the evidence in the file and additional
       relevant medical evidence is not available, it may be necessary to explore
       other sources of documentation. Information may be obtained from family
       members, friends, and former employers to ascertain why medical evidence
       is not available for the pertinent period and to furnish additional evidence
       regarding the course of the individual's condition. . . . The impact of lay
       evidence on the decision of onset will be limited to the degree it is not
       contrary to the medical evidence of record.

S.S.R. 83-20.

       Here, of course, Mendes's own testimony is that her impairment began in 1985

when she quit working and when she began to have trouble using her legs. M endes's

treating physician, Dr. Colaco, submitted a letter stating: "Mrs. Maria Mendes has been

having excruciating back pain since the late eighties. She was seen by me for the same on

3/16/87 and was placed on Feldene and advised to be followed by Orthopedic Surgeon

[or] a Chiroprator [sic]. On 4/13/89 she was seen with radiculopathy to the left foot."

Mendes's attorney introduced correspondence from a chiropractor in 1999 that stated:

       [A]s we have informed your office we do not have the records on the
       patient, since she has been inactive for more than ten years. We were able
       to find a new patient logbook where it showed that Mrs. Mendes was first
       examined on June 13, 1987 for a low back condition. She was under
       treatment for approximately three months.

       The crucial evidence on which the ALJ based her finding was from the medical

                                             7
expert, Dr. Mellk. First the ALJ asked him if he had an opinion as to whether Mendes's

impairments met or equalled the listings as of the end of 1990. He responded:

       I cannot tell, your Honor. There's no objective data even close to that date
       in the file. And the earliest data that I can find, I believe, is the MRI of
       June 22nd, 1992, which shows central and right herniated nucleus propulses
       L3, L4 and central and right herniated nucleus propulses L5, S1.

The ALJ then asked: "Based on SSI 83, 20, [sic] I'm required to ask whether, to a

reasonable degree of medical certainty, you can relate that back to the date of alleged

onset." Dr. Mellk replied:

       Well, I, I think the answer to that is yes. Just based upon the
       client's–claimant's testimony, although, that would be the, the most
       compelling reason. I have no reason to disbelieve the history as reported by
       the patient. But I would not know–it's compatible with the, the testimony. I
       would not know when this occurred, though.

(emphasis added). After reviewing Dr. Colaco's notes, Dr. Mellk returned to the onset

question: "[I]n answer to the–to the very first question you posed, I think it's reasonable

to say that the herniated disk [sic] were, were present there, but one can't say for certain,

but she certainly had back pain and some radiation at that time [apparently referring to Dr.

Colaco's notes of September 13, 1989]." The ALJ then asked Dr. Mellk to render an

opinion on Mendes's limitations "at that time." He said:

       Based upon what I read there and giving you the worst case scenario type
       of, of focus, she would be able to sit six to eight hours, now she may have
       to shift around; stand and or walk two to three hours in total, that's in a six
       to eight hour day; lift and or carry 10 pounds frequently or occasionally;
       would have problems with repetitive bending, stooping, climbing, use of
       foot pedals. At that time, she'd have no problem with fine or gross
       manipulation.

                                              8
       The ALJ's discussion of Dr. Mellk's testimony stated in relevant part: "He opined

that it was reasonable to conclude that the claimant had some back pain. He further noted

that while the MRI in 1992 demonstrated herniated discs at L3-L4 and L5-S1, he could

not state when this occurred." She said that Colaco's records show that "Complaints of

low back pain began in 1989," but that Colaco did not record any evidence of an objective

nature, such as range of motion testing, strength testing, etc. She dismissed the

chiropractor's evidence because it did not qualify as medical evidence. On this record, the

ALJ found there was "no evidence to support a finding of a severe impairment prior to the

date the claimant was last insured." She stated, "I am constrained to find that the claimant

was <not disabled' prior to the expiration of her last insured status, December 31, 1990.

This is most unfortunate as, the record clearly demonstrates that at the present time Ms.

Mendes's condition meets the requirements for disability."

       To the extent the ALJ's decision was based on a legal determination that the onset

date of an established impairment had to be proved by medical evidence of "an objective

nature," it is erroneous. S.S.R. 83-20 allows the use of lay testimony and medical

evidence describing history and symptomatology to link an impairment to a date earlier

than the first diagnosis documented by laboratory findings. See Newell, 347 F.3d at 547

("Retrospective diagnosis of an impairment, even if uncorroborated by contemporaneous

medical records, but corroborated by lay evidence relating back to the claimed period of

disability, can support a finding of past impairment."). In a comparable case, we reversed



                                             9
the Commissioner's denial of benefits, stating (as one of several grounds) that the ALJ

could not reject the opinion of a treating physician "solely on the basis that his opinion

was based on information supplied by [the claimant]." Walton v. Halter, 243 F.3d 703,

710 (3d Cir. 2001).

       Our review of the record shows that there is evidence of the sort contemplated by

S.S.R. 83-20 that the impairment documented in 1992 began before the end of 1990.

There was not only Mendes's testimony, but the records of her treating physician and her

chiropractor that Mendes sought treatment for lower back pain before 1990. The ALJ did

not reject Mendes's or her doctors' testimony on credibility grounds.

       Mendes did not supply an explicit diagnosis linking her pain in the eighties to the

ruptured disks. Dr. Colaco only stated that Mendes had excruciating back pain since the

late eighties; he did not explicitly diagnose the pain as resulting from the ruptured disks or

say that it created any particular limitations. We have no need to decide whether this lack

of a formal diagnosis relating the pain to the subsequent laboratory findings would result

in a failure of proof, because the missing links were supplied by Dr. Mellk, the medical

expert called by the ALJ.

       Dr. M ellk said he had no reason to doubt Ms. Mendes's account and he referred to

Dr. Colaco's notes as showing that there was back pain and radiation, apparently in 1989.

When the ALJ asked him if he could relate the ruptured disks back to the alleged date of

onset (which was 1985), he said: "Well, I, I think the answer to that is yes." He later said



                                             10
it was "reasonable" to say the disks were herniated at the relevant time. Social Security

Ruling 83-20 permits reasonable inferences. Finally, when asked about Mendes's

limitations "at that time," which appears to refer to the alleged date of onset, Dr. Mellk

described a residual capacity which presumed certain limitations and explicitly stated

others. For instance, he described her as having the ability to lift ten pounds, implicitly

negating an ability to lift more, and he stated that she would have trouble with repetitive

bending, stooping, climbing and use of foot pedals. An impairment that resulted in such

restrictions would significantly limit Mendes's work activities, thus satisfying step two of

the sequential analysis. See 20 C.F.R § 404.1521. By way of comparison, we recently

reversed a decision denying benefits at step two where the record showed that the

claimant's condition prevented her from sitting more than two hours a day, carrying

objects weighing more than twenty pounds at any time, and carrying objects weighing

more than ten pounds for more than two hours a day. See McCrea, 370 F.3d at 361.

       The ALJ's finding that there was no evidence of severe impairment before

December 31, 1990 was not supported by substantial evidence. The Commissioner

responds, "[E]ven if Mendes had established that she had herniated lumbar discs prior to

the expiration of her insured status, that fact alone would not entitle her to disability

insurance benefits. Rather, Mendes must show that her impairment resulted in functional

limitations that precluded all substantial gainful activity." This statement is correct as a

matter of the ultimate award of benefits, but it ignores the fact that the ALJ found that



                                              11
Mendes failed to prove severe impairment, and therefore the analysis ceased at step two,

without ever reaching the question of whether Mendes's condition precluded performance

of her past work or all substantial gainful activity. We will reverse and remand to the

district court with instructions to remand to the Commissioner for further proceedings to

ascertain whether the claimant was disabled at steps three, four or five.




                                             12
