                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-21-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-3342




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Recommended Citation
"Markenstein v. Comm Social Security" (2003). 2003 Decisions. Paper 729.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/729


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                                                                            NOT PRECEDENTIAL

                          THE UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                      ___________

                                           No. 02-3342
                                           ___________

                                   JOSEPH D. MARKENSTEIN

                                                         Appellant,

                                                 v.

                           COMMISSIONER OF SOCIAL SECURITY

                                           ___________

                ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF NEW JERSEY
                                (D.C. Civil No. 01-cv-01366)
                       District Judge: The Honorable John W. Bissell
                                       ___________

                             Submitted Under Third Circuit LAR 34.1(a)
                                         March 11, 2003

               BEFORE: SLOVITER, NYGAARD, and ALARCON,* Circuit Judges.

                                       (Filed March 21, 2003)

                                           ___________

                                   OPINION OF THE COURT
                                        ___________


NYGAARD, Circuit Judge.



*        Honorable Arthur L. Alarcon, Senior Circuit Judge for the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
                 Joseph D. Markenstein appeals from the District Court’s order entered June

27, 2002, upholding the Social Security Administration’s determination of his onset date of

disability benefits. We will affirm.

                 Joseph D. Markenstein (Markenstein) suffers from a number of ailments,

including affective mood disorder, mixed anxiety disorder and intermittent explosive

disorder. In January of 1997, Markenstein filed an application for supplemental social

security income and for disability insurance benefits pursuant to 42 U.S.C. § 1381 et seq.,

and 42 U.S.C. § 423 et seq., respectively. A hearing was conducted before Administrative

Law Judge Dennis O’Leary on November 20, 1998. ALJ O’Leary reported, in a decision

dated December 9, 1998, that the medical evidence established that Markenstein’s

impairments were so severe that he was unable to respond to supervision, co-workers and

usual work situations. The ALJ subsequently concluded that Markenstein could not perform

any substantial gainful activity and found him to be disabled under the Social Security Act

and that Markenstein had been under this disability since June 21, 1996. The ALJ further

held that while Markenstein was entitled to supplemental social security income as of the

date of his application for benefits, he was not entitled to disability insurance income

because he was not disabled prior to the expiration of his insured status.

                 Markenstein sought review in the District Court of the ALJ’s determination

of his disability onset date. On June 27, 2002, the District Court affirmed the

Commissioner. This timely appeal has followed.




                                                     2
                We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). Our

review is limited to ensuring that the ALJ’s decision was supported by substantial evidence,

which is defined as evidence which is “more than a mere scintilla.” 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); see also Burnes v. Barnhart, 312 F.3d

113, 118 (3d Cir. 2002).

                The ALJ’s determination of the onset date is supported by substantial

evidence. The ALJ discusses his rationale for selecting the onset date in detail in his

opinion, specifically citing the report of Dr. Carmelo Pingol. Moreover, Social Security

Ruling 83-20 instructs that a claimant’s alleged onset date should be used if it is consistent

with all the evidence available. While Markenstein alleges an onset date at some time

between January 6, 1995 and June 21, 1996, he failed to provide any medical evidence to

support this contention. Also, as pointed out by the District Court, the ALJ kept the record

open for sixty days so that Markenstein could file any additional supporting evidence on

this point. Markenstein failed to do so.

                Therefore, we will affirm the District Court’s finding that the ALJ’s

determination of the onset date was supported by substantial evidence.




_________________________




                                                     3
TO THE CLERK:

          Please file the foregoing opinion.




                                   /s/ Richard L. Nygaard
                                              Circuit Judge
