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


1-10-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1377




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 06-1377


                            MARY LOU JAKUBOWSKI,
                                          Appellant

                                           v.

                      COMMISSIONER OF SOCIAL SECURITY


                      Appeal from the United States District Court
                               for the District of New Jersey
                              (D.C. Civil No. 04-cv-05390)
                      District Judge: Honorable Faith S. Hochberg


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 5, 2006

                   Before: RENDELL and AMBRO, Circuit Judges
                           and BAYLSON*, District Judge.

                               (Filed: January 10, 2007)


                              OPINION OF THE COURT


BAYLSON, District Judge



* Honorable Michael M. Baylson, District Court Judge for the Eastern District of
Pennsylvania, sitting by designation.
       Appellant, Mary Lou Jakubowski (“Jakubowski”), appeals a District Court order

affirming the final decision of the Appellee, the Commissioner of Social Security

(“Commissioner”), to deny her Disability Insurance Benefits (“DIB”) under Title II of the

Social Security Act (the “Act”). Because this Court concludes that substantial evidence

supports the ALJ’s determination, we will affirm the judgment of the District Court.

                                             I.

       This Court applies the same deferential standard of review to the decision of the

Administrative Law Judge (“ALJ”) as did the District Court and reviews the ALJ's

findings to determine whether they were supported by substantial evidence. Plummer v.

Apfel, 186 F.3d 422, 427 (3d Cir. 1999).

       Jakubowski’s disability insured status expired on December 31, 2001. She filed an

initial application for DIB on October 22, 2001, alleging that she had become disabled on

January 1, 2001 as a result of osteoarthritis and a total bilateral hip replacement. The

Commissioner denied her application, both initially and upon reconsideration.

Jakubowski then filed a request for a hearing before an Administrative Law Judge

(“ALJ”).

       In order to establish that she was entitled to disability benefits, Jakubowski had to

show that she was suffering from a severe medical impairment or impairments prior to the

expiration of her disability insured status. In his opinion, the ALJ assessed the severity of

Jakubowski’s impairments according to the five-step sequential evaluation process

described in the Social Security regulations. See 20 C.F.R. § 404.1520. The ALJ found

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that Jakubowski’s impairments resulting from her bilateral hip replacement and

osteoarthritis were severe in the period preceding the expiration date of her insured status,

but that her impairments of a left upper extremity condition, depression, and debilitating

diabetes were not. The ALJ further found that Jakubowski’s osteoarthritis and bilateral

hip replacement did not preclude her from performing her past relevant work as a

receptionist prior to the December 31, 2001 expiration date. As a result, the ALJ

concluded that Jakubowski was not disabled within the meaning of the Social Security

regulations and therefore ineligible for DIB.

                                                II.

       In her brief, Jakubowski argues that the ALJ committed a significant error when

he made what she claims was a medical determination that her diabetes, depression and

upper left extremity condition were not severe impairments that existed prior to the

expiration of Jakubowski’s insured status. Jakubowski also argues that the ALJ should

have sought out expert medical testimony to assist him in making a determination about

the severity of her impairments and their onset date. The Commissioner responds that the

ALJ’s decision was supported by substantial evidence and cites to evidence in the record

that supports the ALJ’s findings. The Commissioner further contends that Jakubowski’s

reliance on certain authorities is misplaced.

       Because existing precedential decisions in this Circuit on how an ALJ should

evaluate the evidence in an administrative record and conduct a severity determination

under step two of the sequential evaluation process are well-developed, this opinion will

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only be written for the parties.

       The opinion of the ALJ specifically discusses the evidence in the context of the

issues raised by Jakubowski. See Decision of ALJ Dennis O’Leary, App. 13 et seq.,

where he sets forth the usual five-step evaluation process and reviews in detail the

physical examination performed by Dr. Roque, the mental status evaluation performed by

Dr. Resnikoff, and Jakubowski’s testimony at the evidentiary hearing. After he cites the

applicable test, he concludes:

              The medical evidence indicates that prior to the expiration of
              the claimant’s insurance status, she had status post bilateral
              hip replacements and osteoarthritis, impairments that are
              “severe” within the meaning of the Regulations, but not
              “severe” enough to meet or medically equal, either singly or
              in combination to one of the impairments listed in Appendix
              1, Subpart P, Regulations No. 4 (Listing of Impairments). . . .

              The evidence fails to substantiate that the claimant had any
              severe impairments referable to depression, anxiety, diabetes,
              or a left upper extremity compromise prior to her date last
              insured. . . . Other than a few trigger point injections, there is
              no evidence of any further work-up or treatment for her left
              upper extremity discomfort. There is no basis to find that this
              condition met the 12-month duration requirement which
              relates to severe impairments under the regulations.

              ....

              Although the evidence shows that the claimant currently
              suffers with severe cardiac and digestive disorders (Exhibits
              10F-11F), there is no substantiation of these conditions until
              well after the claimant’s date last insured.

       The thorough opinion of District Judge Hochberg dated December 8, 2005, App. 1,

reviews Jakubowski’s contentions and finds that the decision of the ALJ was based on

                                              4
substantial evidence.

       Established precedent requires the ALJ to review all medical evidence in the

record and, if he chooses to discount some of that evidence, to explain fully his reasons

for doing so. See, e.g., Walton v. Halter, 243 F.3d 703 (3d Cir. 2001); Cotter v. Harris,

642 F.2d 700 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979).

With respect to Jakubowski’s arguments that the ALJ should have sought the assistance

of a medical expert to determine the severity of her impairments and their onset date, she

cites Social Security Ruling 83-20 (“SSR 83-20”), which sets out the Commissioner’s

general policy for determining onset dates; the Hearings, Appeals and Litigation Law

Manual (“HALLEX”) guidelines, a program manual for ALJs; and several decisions by

this Court. The Commissioner distinguishes SSR 83-20, the HALLEX guidelines, and

this Court’s decisions in Walton, supra, and Newell v. Comm’r Soc. Sec., 347 F.3d 541

(3d Cir. 2003).

       As Jakubowski points out, this Court has recognized that a step two severity

determination simply functions as a “screening device” to eliminate spurious claims of

disability, and therefore a plaintiff’s burden to establish the severity of an impairment

under step two is not demanding. See McCrea v. Comm’r Soc. Sec., 370 F.3d 357, 360

(3d Cir. 2004); Newell, 347 F.3d at 546-47. As this Court stated in Newell: “If the

evidence presented by the claimant presents more than a ‘slight abnormality,’ the step-

two requirement of ‘severe’ is met, and the sequential evaluation process should

continue.” Newell, 347 F.3d at 546.

                                              5
       Furthermore, SSR 83-20 dictates that an ALJ should call on the services of a

medical advisor when he or she must infer the onset date of an impairment that is not

clear from the applicant’s medical records. See SSR 83-20, 1983 WL 31249, at *3. This

requirement is particularly important where the impairment at issue becomes

progressively worse over an extended period of time. Id. at *2. This Court has not

hesitated to reverse a district court judgment and to remand a case when an ALJ fails to

follow this requirement. See, e.g., Newell, 347 F.3d at 548-49; Walton, 243 F.3d at 708-

10.

        In her brief, Jakubowski contends that the ALJ erred when he failed to secure a

medical expert to assist him in assessing the severity of her impairments. However, as the

District Court points out, an ALJ is not required under the Social Security regulations to

seek out medical expert testimony. Instead, the regulations set out a permissive standard:

An ALJ “may also ask for and consider opinions from medical experts on the nature and

severity” of a claimant’s impairments. See 20 C.F.R. § 404.1527(f)(2)(iii) (emphasis

added). Although the standard for demonstrating severity under step two is a forgiving

one, the burden still remains on Jakubowski to establish the severity of her impairments.

The District Court noted that the record was devoid of evidence establishing that

Jakuboski’s impairments were disabling. This Court finds that the ALJ cited to specific

medical evidence in his decision to support his finding that Jakubowski’s impairments

were not severe, see App. 15-17, which establishes that the ALJ’s opinion on the severity

of those impairments was supported by substantial evidence.

                                             6
       Jakubowski also argues that she is entitled to relief under SSR 83-20, asserting

that, in order to determine the proper onset date, the ALJ should have reached out to

obtain an expert medical opinion. The District Court correctly rejected this argument.

This Court’s precedential opinions in Newell and Walton are distinguishable from the

present case. In Newell, the ALJ cited the claimant’s lack of medical treatment records

prior to the expiration of her disability insured status when he rejected the claim that her

impairments were severe. Newell, 347 F.3d at 547. The applicant in Newell testified that

she had almost no medical records from the period preceding the expiration date because

she could not afford medical treatment. This testimony was supported by the record in

that case, which demonstrated that the claimant’s income was very low during the

applicable period and that she had no medical insurance. Id. Therefore, this Court

concluded that the ALJ erred in citing this lack of evidence as a reason to deny the

claimant benefits and not to enlist a medical expert to assist him in inferring the onset

date of her impairments. Id. at 548.

       In Walton, the claimant sought to establish that he was eligible for children’s

disability insurance benefits because the onset date of his mental impairment preceded his

twenty-second birthday. Walton, 243 F.3d at 705. As in Newell, the claimant lacked

medical records from the relevant time period to establish that claim. However, this

Court observed that, with one exception, all of the other medical evidence submitted to

the ALJ suggested an onset date prior to that birthday. Id. at 709. In fact, the ALJ in

Walton expressly ignored the opinions of two medical advisors that the claimant’s onset

                                              7
date was prior to his twenty-second birthday. As we observed in Walton, when “an

opinion based on personal, contemporaneous observation was not available[,] . . . SSR

83-20 calls for an ALJ to have the benefit of expert medical advice.” Id. at 710.

       By contrast with Newell and Walton, as noted by the District Court, 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. The ALJ cited these reports in support of his conclusion that Jakubowski’s

impairments were not severe prior to the expiration of her disability insured status. See

App. 15-17. We therefore affirm.

                                            III.

       For the reasons stated above, we will affirm the judgment of the District Court.




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