The opinion of the court was delivered by: Bissell, District Judge.
Plaintiff Lucia Manzo seeks review of the final decision of the
Secretary of Health and Human Services (the "Secretary") which
denied plaintiff disability insurance benefits under the Social
Security Act (the "Act"). This Court's jurisdiction is
established by 42 U.S.C. § 405(g).
Plaintiff alleges that the record lacked substantial evidence
to support the Secretary's findings. Plaintiff also claims the
Administrative Law Judge ("ALJ") committed reversible error by
failing to advise plaintiff of her right to counsel and her right
to have a translator present at the hearing. In addition, Mrs.
Manzo claims the ALJ failed to question her regarding her
condition prior to the date last insured. Plaintiff requests that
the decision be reversed, or, in the alternative, the case be
remanded for reconsideration.
Plaintiff filed an application for disability benefits under
the Social Security Act on June 7, 1988, alleging disability
since March 30, 1985 due to rheumatoid arthritis. (Tr. 67-69).
The application was denied both initially and upon
reconsideration. (Tr. 70-74, 83-84). Plaintiff requested a
hearing with an ALJ who considered the case and denied
plaintiff's application on November 20, 1989. This became the
final decision of the Secretary when, on July 12, 1990, the
Appeals Council denied plaintiff's request for review. (Tr. 5).
Plaintiff now seeks review of the decision in this Court.
Plaintiff, at the time of the hearing, was 56 years old and was
born in Italy where she completed a fifth-grade education.
Plaintiff testified that she can read and write Italian but can
only write and speak English "a little bit." (Tr. 38). She came
to America in 1953 and since that time her only relevant work
experience was as a seamstress. (Tr. 39-41). Plaintiff appeared
at the hearing without counsel or a translator, but was
accompanied by her two sons.
Plaintiff testified that her normal workday consisted of
putting lining in heavy fur coats and joining the coat. She
indicated she was ordinarily seated at a machine and that there
was no lifting or carrying. (Tr. 41-42). Plaintiff has not worked
since March 30, 1985, claiming rheumatoid arthritis affects her
back and hands. (Tr. 51).
At the hearing, plaintiff testified to pain in her lower back.
(Tr. 50-51). She also complained of pain, loss of strength,
dexterity and sensation in her fingers. (Tr. 51). Because of her
pain, plaintiff claims she cannot do housework and sometimes has
difficulties holding objects including a glass or a spoon to eat
with. (Tr. 56).
Plaintiff also suffers from mixed forms of arthritis affecting
the cervical and lumbar spine, both shoulders, knees and hand
joints as reported by her treating physician, Dr. Rotella. (Tr.
129-30). In 1988, Dr. Rotella referred plaintiff to a
rheumatologist, Dr. Restivo, who found swelling and tenderness of
the hands and knees and performed blood tests confirming a
diagnosis of rheumatoid arthritis. (Tr. 131-32).
Since 1985, plaintiff was also treated for polyarticular
arthritis by Dr. Irving, an orthopedic surgeon. Dr. Irving's
history noted mixed forms of osteo and rheumatoid arthritis
involving the cervical and lumbar spine, adhesive capsulitis in
both shoulders, pain in the lower back, shoulders and hands with
pain radiating into the lower extremities. (Tr. 138-39).
In his decision denying plaintiff's application, the ALJ found
that although plaintiff was presently disabled under the Act,
disability was not established prior to March 31, 1985, when
disability status was determined to have lapsed. A request to
review the decision was denied by the Appeals Council which
modified the ALJ's decision, determining that insured status was
last met on December 31, 1984. (Tr. 5). Plaintiff now seeks
review of this decision which constitutes a final decision of the
A reviewing court must accept findings of fact by the Secretary
if those findings are supported by "substantial evidence."
42 U.S.C. § 405(g). The Supreme Court defines "substantial evidence"
to mean "such relevant evidence as a reasonable mind might accept
to support a conclusion" which is "more than a mere scintilla."
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427,
28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126
(1938)). See also Morales on behalf of Morales v. Bowen,
833 F.2d 481, 488 (3d Cir. 1987). The Third Circuit has further
qualified "substantial evidence:"
This oft-cited language [describing the standards of
substantial evidence] is not, however, a talismanic
or self-executing formula for adjudication; rather,
our decisions make clear that determination of the
existence vel non of substantial evidence is not
merely a quantitative exercise. Wallace v. Secretary
of Health and Human Services, 722 F.2d 1150 [3rd
Cir.] (1983). A single piece of evidence will not
satisfy the substantiality test if the Secretary
ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial
if it is overwhelmed by other evidence — particularly
certain types of evidence (e.g. that offered by
treating physicians) — or if it really constitutes not
evidence but mere conclusion. . . . The search for
substantial evidence is thus a qualitative exercise
without which our review of social security
disability cases ceases to be merely deferential and
becomes instead a sham.
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (citations
In order for this Court to perform its function, it is useful
to review the procedures that occur before the ALJ. Particularly
important is the question of the burden of proof before the ALJ.
In Rossi v. Califano, 602 F.2d 55 (3d Cir. 1979), the court
described the procedural aspects involved in ...