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


6-23-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4124




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 02-4124


                              LILLIAN T. BALLARDO,

                                       Appellant

                                           v.

          JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY.


          ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
                       THE DISTRICT OF NEW JERSEY
                            (D.C. Civ. No. 01-cv-00622)
                     District Court Judge: Hon. Joel A. Pisano


                     Submitted Under Third Circuit LAR 34.1(a)
                                  June 17, 2003

                 Before: ALITO, ROTH, and HALL,* Circuit Judges.

                             (Opinion Filed: June 20, 2003)


                              OPINION OF THE COURT




      HALL, Circuit Judge:



      *
       The Hon. Cynthia Holcomb Hall, Circuit Judge for the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
       Lillian T. Ballardo appeals the district court’s order affirming the final decision of

the Commissioner of Social Security. Ballardo filed an application for disability benefits,

alleging an onset date of June 30, 1994. The Commissioner granted benefits to Ballardo as

of August 8, 1995 after an Administrative Law Judge (ALJ) found a “lack of significant

treatment or findings reflecting significant restrictions” prior to that date. For the reasons

set forth below, we AFFIRM .

       We review an ALJ’s decision for support by substantial evidence. Burnett v.

Comm’r of Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir. 2000) (citing 42 U.S.C. §

405(g)). Substantial evidence is defined as “such evidence as a reasonable mind might

accept as adequate.” Id. (internal citations omitted).

       Ballardo argues that the ALJ erred by failing to articulate the basis for his decision

that Ballardo’s impairment is not equal in severity to any statutorily listed impairment. In

Burnett, we reversed and remanded an ALJ’s decision that stated merely that the claimant’s

“impairment failed to equal the level of severity of any disabling condition contained in

Appendix 1, Subpart P of Social Security Regulations No. 4.” Id. Such a conclusory

statement does not satisfy the substantial evidence standard because it provides the

reviewing court with no indication of whether the ALJ adequately considered all probative

evidence. Id.

       In the instant case, the ALJ stated only that “the claimant is severely impaired by

disc degeneration of the lumbar spine, status post two surgeries, which impairment does



                                              -2-
not meet or equal the medical criteria of a listed impairment.” This conclusory statement

closely resembles the statement rejected as insufficient in Burnett. However, a claimant

bears the burden of producing evidence that her impairment is equivalent to a listed

impairment, id. at 120 n.2, and equivalence to a listed impairment must be determined on

the basis of medical findings “supported by medically acceptable clinical and laboratory

techniques.” 20 C.F.R. § 404.1526(a), (b). Ballardo presented essentially no medical

evidence of a severe impairment prior to August 8, 1995.1 The only medical evidence of

Ballardo’s condition prior to August 8, 1995 is Dr. Douglas Bradley’s report, which

references Ballardo’s surgery and notes that approximately six weeks after her first surgery

Ballardo was “much improved,” ready to begin an exercise program, and capable of

returning to school. Ballardo also testified to her degree of impairment during the relevant

time period. A claimant’s own testimony, however, is not evidence supported by

“medically acceptable clinical and laboratory diagnostic methods.” 20 C.F.R. § 404.1526.

Because Ballardo did not meet her burden of production, the ALJ was not required to

articulate specific reasons that Ballardo’s impairment was not equal in severity to any of

the statutorily listed impairments.

     Ballardo also argues that the ALJ’s determination that she could perform the full



       1
        Ballardo did present several medical reports regarding the existence of a severe
impairment beginning in mid-1995. While the ALJ arguably erred in failing to
specifically compare these reports to the listed impairments, Ballardo was ultimately
awarded benefits for this time period and presumably does not seek remand on this
ground.

                                            -3-
range of sedentary work prior to August 8, 1995 violated the Cotter doctrine. See Cotter v.

Harris, 642 F.2d 700, 705 (3d Cir. 1981) (holding that an ALJ must provide “not only an

expression of the evidence s/he considered which supports the result, but also some

indication of the evidence that was rejected.”). Ballardo argues that the ALJ improperly

ignored evidence that she underwent back surgery on July 21, 1994, and subsequently

continued to experience a variety of problems, including an inability to sit for more than

fifteen minutes at a time and a need for heavy pain medication and a walker.

       The ALJ acknowledged that Ballardo underwent surgery in 1994. The ALJ also

noted Ballardo’s testimony regarding her inability to sit and her need to use a walker, but

discredited these complaints because the only medical reports relevant to that time period

indicated “that the claimant had good improvement until an August 1995 exacerbation.” In

addition, the ALJ observed that Ballardo’s only medical records between her July 21, 1994

surgery and the August 1995 exacerbation were from routine post-surgery follow-up

sessions, and did not reflect “significant findings or limitations.” The ALJ’s decision does

not run afoul of the Cotter doctrine because it clearly indicates that evidence probative of a

pre-August 8, 1995 disability was not credited, as opposed to simply ignored.

       As a third ground for reversal, Ballardo argues that the ALJ gave insufficient weight

to her subjective complaints of pain. Testimony from a claimant regarding pain and other

symptoms is entitled to “great weight” when supported by competent medical evidence.

Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999). As noted



                                              -4-
above, the medical evidence did not corroborate Ballardo’s testimony. Thus, the ALJ did

not err by disregarding Ballardo’s subjective complaints of pain.

       Finally, Ballardo argues that the ALJ erred by determining the onset date of disability

without the aid of a medical expert. Ballardo contends that Walton v. Halter, 243 F.3d 703

(3d Cir. 2001), requires an ALJ to obtain medical testimony in cases of ambiguous onset

dates. In Walton, we held that Social Security Regulation 83-20 requires an ALJ to call a

medical advisor in cases involving a slowly progressive impairment with an ambiguous

onset date alleged to have occurred far in the past. Walton, 243 F.3d at 709; see also S.S.R.

83-20 (“[h]ow 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.”).

       Walton is distinguishable from the instant case in several key respects. First, Walton

specifically addressed manic depressive disorder, a condition which is both progressive and

difficult to diagnosis. Walton, 243 F.3d at 705-08. In addition, the ALJ’s task of

determining the onset date of the claimant’s condition was complicated in Walton by the fact

that the alleged onset date was more than twenty years prior to the hearing, and medical

records were sparse and conflicting. Id. In the instant case, the available medical reports

supported the ALJ’s conclusion that Ballardo’s condition after her first surgery was “much

improved,” and that Ballardo did not again experience disabling pain until August 8, 1995.

These reports provided a legitimate medical basis for the ALJ to make an informed



                                              -5-
judgment as to the onset date of Ballardo’s disability.

       For the reasons discussed above, the ALJ’s decision was supported by substantial

evidence. We AFFIRM the judgment of the district court.




                                              -6-
       TO THE CLERK OF THE COURT:

Kindly file the foregoing Not Precedential Opinion.




            /s/ Cynthia Holcomb Hall
                  Circuit Judge
