                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3504




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                                                   NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                      __________

                          No. 04-3504
                          __________

                    GERALDINE KELLEY,
                                 Appellant

                               vs.

                  JO ANNE BARNHART,
                Commissioner of Social Security
                                     Appellee
                        __________

         On Appeal from the United States District Court
                  for the District of New Jersey
                    Civil Action No. 02-3572
           District Judge: Honorable John W. Bissell
                           __________

          Submitted Under Third Circuit L.A.R. 34.1(a)
                        May 27, 2005
                        ___________

Before: SCIRICA, Chief Judge, ALITO and GARTH, Circuit Judges

                 (Opinion Filed: July 13, 2005)

                          __________

                           OPINION
                          __________
Garth, Circuit Judge:

       Geraldine Kelley appeals from the final order of the United States District Court

for the District of New Jersey, affirming the decision of the Commissioner of Social

Security (the “Commissioner”) to deny her claim for social security disability benefits.

The Commissioner determined that Kelley had not established the existence of an

impairment of the requisite severity and duration prior to the expiration of her insured

status. Because we conclude that substantial evidence supports this determination, we

will affirm the judgment of the District Court.

                                             I.

       As we write only for the benefit of the parties, we state only those matters essential

to our limited discussion. A detailed account of the background of the case, including the

relevant medical evidence, may be found in the District Court’s opinion, Kelley v.

Comm’r of Soc. Sec., No. 02-3572 (D.N.J. June 30, 2004), from which we take the

following facts.

       Kelley applied for social security disability benefits in or around October 1994,

alleging disability since March 15, 1980 due to bipolar illness. The Social Security

Administration (“SSA”) denied her application, both initially and upon reconsideration,

finding insufficient evidence to document a disabling impairment for any period prior to

June 30, 1984, the date Kelley was last insured for disability benefits. Kelley thereafter

filed a timely request for de novo review before an Administrative Law Judge (“ALJ”),



                                             -2-
repeating her claim of total and continuous disability since March 15, 1980. The ALJ

found that Kelley suffered from a severe schizoaffective disorder and a severe obsessive

compulsive disorder, but that she nonetheless retained the residual mental functional

capacity to return to her past relevant work. As such, the ALJ concluded that Kelley was

not under a “disability” as defined in the Social Security Act (the “Act”) at any time

through the date of his decision, which was rendered in August 1996.

       On April 22, 1999, the Appeals Council vacated the ALJ’s decision and remanded

the matter to the ALJ to give further consideration to Kelley’s maximum residual

functional capacity and to obtain evidence from a vocational expert to clarify the effect of

the assessed limitations.1 Upon remand, however, the ALJ went beyond these directives

and reviewed Kelley’s application anew. In a decision dated February 8, 2000, the ALJ

concluded that Kelley did not have any documented impairment for a continuous period

of not less than twelve months prior to the expiration of her insured status (June 30,

       1
           The Appeals Council specifically instructed the ALJ to:

       •         Give further consideration to the claimant’s maximum residual functional
                 capacity and provide appropriate rationale with specific references to evidence of
                 record in support of the assessed limitations (20 C.F.R. 404.1545 and Social
                 Security Rulings 85-16 and 96-8p).

       •         Obtain evidence from a vocational expert to clarify the effect of the assessed
                 limitations on the claimant’s occupational base (Social Security Ruling 85-15).
                 The hypothetical questions should reflect the specific capacity/limitations
                 established by the record as a whole. The Administrative Law Judge will ask the
                 vocational expert to identify examples of appropriate jobs and to state the
                 incidence of such jobs in the national economy (20 CFR 404.1566).

Order of Appeals Council dated April 22, 1999.

                                                 -3-
1984). Inasmuch as Kelley failed to meet the threshold burden of establishing a “severe

impairment” prior to June 30, 1984, thereby defeating her claim for disability benefits, the

ALJ found it unnecessary to reconsider its ruling regarding Kelley’s residual functional

capacity.

       Kelley again sought Appeals Council review, but the Appeals Council concluded

that there were no grounds for such review, which thus exhausted all administrative

remedies and constituted the Commissioner’s final ruling. Kelley then instituted the

present action in federal court, challenging the Commissioner’s final ruling denying her

claim for benefits. The District Court affirmed the Commissioner’s decision to deny

benefits, finding that substantial evidence supported the ALJ’s decision that Kelley was

not continuously disabled prior to the expiration of her insured status.

       This timely appeal followed.

                                             II.

       The District Court had jurisdiction under 42 U.S.C. § 405(g) to review the

Commissioner’s determination to deny benefits, and we have jurisdiction over this appeal

pursuant to 28 U.S.C. § 1291. Our review of the ALJ’s decision is limited to determining

whether there is substantial evidence to support the decision. 42 U.S.C. § 405(g);

Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence is “‘such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). Substantial



                                             -4-
evidence is “less than a preponderance of the evidence but more than a mere scintilla.”

Jesurum v. Sec’y of the U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117 (3d Cir.

1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

       In order to establish a disability under the Social Security Act, a claimant must

demonstrate that there is some “‘medically determinable basis for an impairment that

prevents him from engaging in any “substantial gainful activity” for a statutory

twelve-month period.’” Stunkard v. Secretary of Health & Human Servs., 841 F.2d 57,

59 (3d Cir. 1988) (quoting Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987)); 42

U.S.C. § 423(d)(1)(A). A claimant is considered unable to engage in any substantial

gainful activity “only if his physical or mental impairment or impairments are 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).

       The SSA has promulgated regulations incorporating a five-step sequential

evaluation process for determining whether a claimant is under a disability. See 20

C.F.R. § 404.1520. Inasmuch as we have set forth each step in detail on prior occasions,

see, e.g., Burnett v. Comm'r Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir. 2000), we only

summarize these steps to contextualize the issues raised in this appeal. The

Commissioner inquires whether an applicant: (1) is engaged in substantial gainful

activity; (2) suffers from an impairment or combination of impairments that is “severe”;



                                             -5-
(3) suffers from an impairment or combination of impairments that meets or equals a

listed impairment; (4) is able to perform his or her past relevant work; and (5) is able to

perform work existing in significant numbers in the national economy. See 20 C.F.R. §§

404.1520(a)-(f), 416.920(a)- (f).

                                             III.

       A critical determination here, on which there is no dispute, is that Kelley’s insured

status expired on June 30, 1984. “To receive disability insurance benefits pursuant to

Title II of the Social Security Act, a claimant must show that he was insured under the

program at the time of onset of his disability.” Kane v. Heckler, 776 F.2d 1130, 1131 n.1

(3d Cir. 1985) (citation omitted). Kelley was therefore required to demonstrate the

existence of a mental impairment that precluded her from performing substantial gainful

activity for a continuous period of twelve months prior to the expiration of her insured

status. As we have indicated, the ALJ, upon remand from the Appeals Council, denied

Kelley’s claim for benefits at step two, finding that she did not have any documented

impairment which lasted for a continuous period of not less than twelve months during

the relevant time period. The sole question presented in this appeal, then, is whether the

ALJ’s step-two determination is supported by substantial evidence.

                                             A.

       Kelley challenges the ALJ’s decision on several grounds, both procedural and

substantive. Her substantive contentions may be reduced to two: (1) the ALJ’s decision



                                             -6-
ignored probative evidence (emphasizing the initial finding of the ALJ as to her illness,

see infra III.B) and thus did not permit meaningful judicial review, in contravention of

Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981) and its progeny; and (2) the ALJ was

required to obtain the testimony of a medical advisor in determining the disability onset

date, as established in Walton v. Halter, 243 F.3d 703 (3d Cir. 2001) and Newell v.

Comm’r of Soc. Sec., 347 F.3d 541 (3d Cir. 2003). We address each of these contentions

in turn.

       In Cotter, we required the ALJ to provide an explanation of findings, including the

reasons why probative evidence might have been discounted, so as to permit meaningful

judicial review. 642 F.2d at 705. The problem with Kelley’s argument here is that

virtually no record evidence – medical or lay – supports her claim of disability prior to

June 30, 1984. Kelley presented no objective medical evidence covering the period from

March 15, 1980 to October 20, 1983, the first day Dr. Oliver-Smith, a treating physician,

recorded a visit by Kelley. Notably, the last visit recorded by Dr. Oliver-Smith occurred

just seven months later on May 11, 1984. Thus, the only probative objective medical

evidence for the relevant time period consisted of certain office records from Dr. Oliver-

Smith, covering a period less than the requisite twelve months. The record contains no

further objective medical evidence until nearly eight years later. Moreover, as the District

Court rightly noted, the records from Dr. Oliver-Smith, the only relevant

contemporaneous medical evidence, are far from conclusive about the existence of a



                                             -7-
disabling mental impairment. What these records suggest, rather, is that Kelley, with the

assistance of anxiety medication, was able to engage in some gainful activity, evincing

relatively minor impairments in social or occupational functioning.

       While Dr. Oliver-Smith diagnosed Kelley with “severe obsessive compulsive

disorder,” nothing contained in his reports indicate that Kelley suffered from “severe

obsessive compulsive disorder” for a continuous period of not less than twelve months.

To the contrary, Dr. Oliver-Smith’s notes indicate that Kelley sought out and obtained

work during at least part of the time he was treating her. After reviewing these records

and considering Kelley’s testimony, the ALJ concluded that the objective findings for the

period in question precluded a finding of disability as that term is defined by the Social

Security Act.

       We acknowledge that the lack of contemporaneous medical evidence of an

objective nature is not necessarily determinative as to the onset date, and to the extent the

ALJ’s decision was based on a legal determination that the onset date of an impairment

had to be proved by such medical evidence, it is erroneous. 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.”). Any such error, however, is

harmless here, given the lack of non-medical or lay evidence supportive of Kelley’s




                                             -8-
claim.2 For instance, Charles and Joan Kelley, whose relationship to Kelley is not

identified in the record but whom we presume to be Kelley’s parents, stated in 1996 that

they had observed the progression of Kelley’s mental illness “over the past years.” It is at

least unclear whether “over the past years” refers to a period twelve years earlier, i.e., on

or before June 30, 1984. In addition, Kelley’s brother, Gene, provided a list of behavioral

problems he had observed from 1984 to 1992. He reported only that she began washing

her hands constantly in early 1985, at least six months after her insured status expired.

And finally, Kelley’s husband, William Eldridge, noted some behavior problems after he

married Kelley, but admitted that it was not until “about 1986 [that Kelley] began to have

a problem with dirt.” He also acknowledged that after the birth of their son in 1980 (the

year Kelley alleged she became disabled), they had “relative peace for a few years.”

       We are satisfied, based upon a careful review of the objective medical records and

the lay evidence relating to the claimed period of disability, that virtually nothing in the

record supports Kelley’s claim of a disabling impairment prior to June 30, 1984. This

case, therefore, does not present the situation, addressed in Cotter, where probative


       2
          We note that the non-contemporaneous medical evidence presented by Kelley is not
supportive of her claim. For instance, in a Psychiatric/Admission Note from Fair Oaks Hospital
dated May 4, 1992, it states that “Patient denies history of previous psychiatric treatment or
hospitalization except for periods of ‘stress’ for which she was treated with Valium.” The report
also states, “Patient denies any history of significant prior medical disorders.”
        Moreover, in Newell, we noted that the lack of contemporaneous medical evidence was
not dispositive where the claimant provides an adequate explanation for the failure to seek
regular medical treatment for the time in question. 347 F.3d at 547. Here, Kelley offers no
explanation as to why she refrained from seeking regular medical treatment for the period in
question.

                                               -9-
evidence is not credited or simply ignored. Cotter, 642 F.3d at 706-07.

       Kelley also argues that the ALJ was required to consult a medical advisor, relying

on two decisions – Walton and Newell – subsequently decided by this Court after the ALJ

issued his decision in February 2000. We disagree. In Walton, we held that the ALJ

must call upon the services of a medical advisor 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.” 243 F.3d at 709; see also

Newell, 347 F.3d at 549. Here, the fact is that both the objective medical records and lay

evidence tend to disprove Kelley’s claim of disability prior to June 30, 1984. Under these

circumstances, the ALJ was not required to obtain the assistance of a medical advisor to

help him infer the onset date. Kelley’s reliance on Walton and Newell is therefore

misplaced.

                                             B.

       Kelley also focuses on certain procedural peculiarities at the administrative level.

She argues that the ALJ’s subsequent decision in February 2000 abandoned, without

justification, his own prior factual findings, findings that were also confirmed by the

Appeals Council. In particular, Kelley contends that the ALJ’s decision of August 1996

and the Appeals Council’s order of April 22, 1999 both definitively established that she

suffered severe impairments prior to the expiration of her last insured date. A careful

look at these decisions, however, shows that Kelley is mistaken.



                                            -10-
       In the 1996 decision, the ALJ found that “[t]he medical evidence establishes that

the claimant has a severe schizoaffective disorder and an obsessive compulsive disorder .

. .” As the Commissioner points out, nothing in the ALJ’s finding, written as it was in the

present tense, specifically refers to Kelley’s impairments prior to the expiration of her

insured status. To the contrary, the ALJ concluded that Kelley had not been

“continuously and uninterruptedly disabled from March 15, 1980 to [August 26, 1996].”

We adopt the reasoning of the District Court here:

       Because the only medical evidence the ALJ reviewed dating back to the early
       1980s indicated that Plaintiff was merely “treated for anxiety and severe obsessive
       compulsive disorder[,]” [Kelley’s] current position that the ALJ concluded that
       [Kelley] suffered from “severe schizoaffective disorder and a severe obsessive
       compulsive disorder” in the 1980s in incorrect.

Kelley v. Comm’r of Soc. Sec., No. 02-3572 (D.N.J. June 30, 2004), at 19.

       Nor are we impressed by Kelley’s contention that the Appeals Council’s remand

order definitively decided that she suffered ‘severe mental impairments documented

throughout the record’ prior to the expiration of insured status. Contrary to Kelley’s

characterization, the Appeals Council’s remand order excludes any mention of the “prior

insured status” language. It is evident that the Appeals Council merely restated the ALJ’s

finding, which, as we have stated, makes no mention of Kelley’s disability prior to the

expiration of her insured status.

       Upon remand, the ALJ reformulated the issue to reflect the relevant time period, a

crucial determination that he seemingly ignored in his first decision. In doing so,



                                            -11-
however, the ALJ merely reaffirmed the prior decisions of the SSA, which held that

Kelley’s “condition was not disabling on any date through June 30, 1984, when [she was]

last insured for disability benefits.” For these reasons, we cannot agree with Kelley that

either the ALJ or the Appeals Council inappropriately retracted certain findings of fact.

       Finally, Kelley argues that the ALJ ignored the directives from the Appeals

Council to re-evaluate her residual functional capacity. In effect, the Appeals Council

directed the ALJ to reassess his step-four determination. Instead, the ALJ reformulated

the issue, properly recognizing that the “issue[] to be decided [is] whether the claimant

was under a “disability” from her alleged onset date of March 15, 1980 and on or prior to

June 30, 1984[.]” By making this distinction, the ALJ found Kelley not disabled at the

second step of the sequential evaluation process. We find it significant that, upon request

for review of the ALJ’s decision, the Appeals Council found no basis for granting the

request, notwithstanding the ALJ’s revised findings.

                                            IV.

       For the foregoing reasons, we hold that substantial evidence supports the ALJ’s

decision. Accordingly, we will affirm the judgment of the District Court.




                                            -12-
