United States District Court, District of New Jersey
December 18, 1991
LUCIA MANZO, PLAINTIFF,
LOUIS W. SULLIVAN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
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.
STATEMENT OF FACTS
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).
The medical evidence demonstrates that the plaintiff has
suffered from lumbar disc disease with sciatic neuralgia since
1983. She was first treated by Dr. Robert Mazza in April 1983,
whose findings at that time
included limited range of motion in the spine with muscle spasm
and sensory deficits. Dr. Mazza reported that plaintiff was
disabled, and therefore prevented from working since 1983. (Tr.
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. Standard of Review
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
B. Burdens of Proof
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 shifting burdens of
There is a two-pronged test for social security act
disability: (1) determination of the extent of
disability and (2) determination whether that
impairment results in inability to engage in
substantial gainful activity. A claimant satisfies
her initial burden of proof by showing that she is
unable to return to her customary occupation. E.g.,
Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974);
Baker v. Gardner, 362 F.2d 864 (3d Cir. 1966).
Once she has made such a demonstration, the burden of
proof shifts to the Secretary to show that the
claimant, given her age, education and work
experience, has the capacity to perform specific jobs
that exist in the national economy. E.g., Lewis v.
Weinberger, 541 F.2d 417 (4th Cir. 1976); Hernandez
v. Weinberger, 493 F.2d 1120 (1st Cir. 1974).
(Id. at 57). Section 423(d)(1)(A) states in relevant part:
[that the claimant must establish an] inability to
engage in any substantial gainful activity by reason
of any medically determinable physical or mental
impairment which can be expected to result in death
or which has lasted or can be expected to last for a
continuous period of not less than 12 months . . .
The statute further provides that:
An individual shall be determined to be under a
disability 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.
Since the statute does not define "substantial gainful
activity," the Secretary has promulgated a definition:
Substantial gainful activity is work activity that is
both substantial and gainful:
(a) Substantial work activity. Substantial work
activity is work activity that involves doing
significant physical or mental activities. Your work
may be substantial even if it is done on a part-time
basis or if you do less, get paid less, or have less
responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is
work activity that you do for pay or profit. Work
activity is gainful if it is the kind of work usually
done for pay or profit, whether or not a profit is
(c) Some other activities. Generally, we do not
consider activities like taking care of yourself,
household tasks, hobbies, therapy, school attendance,
club activities, or social programs to be substantial
20 C.F.R. § 404.1572.
The governing statute defines a physical or mental impairment
as a condition
that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by
medically accepted clinical and laboratory diagnostic
42 U.S.C. § 423(d)(3).
[a]n individual shall not be considered to be under
disability unless he furnishes such medical and other
evidence of the existence thereof as the Secretary
42 U.S.C. § 423(d)(5)(A).
Therefore, in determining what would appear sufficient, for
purposes of the substantial evidence test, "the Secretary [needs]
to demonstrate, to the satisfaction of a reviewing court, that
there exist many jobs capable of being filled by an individual
with the claimant's characteristics." Santise v. Schweiker,
676 F.2d 925, 938 (3d Cir. 1982). The Secretary must determine
whether claimant's impairment hinders her returning to her former
employment, or "whether the claimant retains the capacity to
pursue less demanding work." Heckler, Secretary of Health and
Human Services v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952,
1954, 76 L.Ed.2d 66 (1983). Thus, relying on the substantial
evidence rule, where no such evidence exists on the merits a
consideration of reversal or remand from the Secretary's findings
is warranted. See Garrett v. Richardson, 471 F.2d 598, 604 (8th
C. The ALJ's Findings
Following a hearing held before Administrative Law Judge John
M. Farley on August 7, 1989, the following findings were issued
in the present matter and incorporated into the final decision of
the Secretary on July 12, 1990:
a. The claimant met the disability insured status
requirements of the Act on March 30, 1985, the date
claimant stated she became unable to work, and
continued to meet them through March 31, 1985.*fn1
b. The claimant has not engaged in substantial
gainful activity since March 30, 1985.
c. The medical evidence establishes that the claimant
has rheumatoid arthritis, not established as
present through March 31, 1985 and osteoarthritis,
but that she does not have an impairment or
combination of impairments listed in, or medically
equal to one listed in Appendix 1, Subpart P,
Regulations No. 4.
d. The claimant's allegations of disability are not
substantiated by the evidence of record.
e. The claimant had the residual functional capacity
to perform the physical exertion requirements of
work except for more than light work through March
31, 1985. There are no nonexertional limitations
(20 C.F.R. § 404.1545).
f. The claimant had the residual functional capacity
to perform the full range of at least light work
through March 31, 1985 (20 C.F.R. § 404.1567).
g. The claimant is 56 years old, which is defined as
advanced age. At the alleged onset date of March
30, 1985 she was 52, considered closely approaching
advanced age (20 C.F.R. § 404.1563).
h. The claimant has a limited education
(20 C.F.R. § 404.1564).
i. In view of the claimant's age and residual
functional capacity, the issue of transferability
of work skills is not material.
j. Section 404.1569 of Regulations No. 4 and Rules
202.10 and 202.11, Table No. 2 of Appendix 2,
Subpart P, Regulations No. 4, directs a conclusion
that, considering the claimant's residual
functional capacity, age, education, and work
experience, she was not disabled through March 31,
1985 when insured status lapsed.
k. The claimant was not under a "disability" as
defined in the Social Security Act, for purposes of
Title II through March 31, 1985
(20 C.F.R. § 404.1520(f)).
D. This Court's Review of the ALJ's Findings
A reviewing court "retain[s] a responsibility to scrutinize the
entire record and to reverse or remand if the Secretary's
decision is not supported by substantial evidence." Smith v.
Califano, 637 F.2d 968 (3d Cir. 1981); Baerga v. Richardson,
500 F.2d 309, 313 (3d Cir. 1974), cert. denied, 420 U.S. 931,
95 S.Ct. 1133, 43 L.Ed.2d 403 (1975). "Further, even if the
Secretary's factual findings are supported by substantial
evidence, this Court may review whether the administrative
determination was made upon correct legal standards." Strickland
v. Harris, 615 F.2d 1103, 1108 (5th Cir. 1980); McCarty v.
Richardson, 459 F.2d 3, 4 (5th Cir. 1972).
First, plaintiff contends that this Court should reverse the
decision of the Secretary because the record, taken as a whole,
does not contain substantial evidence to support the Secretary's
findings. Plaintiff must establish that she became disabled prior
to the expiration of her insured status. Kane v. Heckler,
776 F.2d 1130, 1131 n. 1 (3d Cir. 1985). Evidence of an impairment
which reached disabling severity after the date last insured, or
which was exacerbated after this date, cannot be the basis for
the determination of entitlement to a period of disability and
disability insurance benefits, even though the impairment itself
may have existed before plaintiff's insured status expired.
Arnone v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989); DeNafo v.
Finch, 436 F.2d 737, 739 (3d Cir. 1971); Jackson v. Heckler,
580 F. Supp. 1077, 1078-79 (E.D.Pa. 1984). Further, the existence
of a disability prior to the expiration
of insured status must be established by adequate medical
evidence. Plaintiff cannot sustain her burden of proof merely by
means of conclusory, self-serving testimony that she was disabled
at the crucial time. Gonzalez v. Schweiker, 540 F. Supp. 1256,
1258 (E.D.N.Y. 1982).
Plaintiff relies on the medical report of Dr. Mazza, a
chiropractor, who was of the uncontroverted opinion that
plaintiff was disabled since 1983. (Tr. 135). From 1983, Dr.
Mazza's examination revealed pain in the lower back and neck,
limited range of motion, spasm in the para-spinal areas with
radiating reflex deficits into the upper and lower extremities.
He further found, "patient is unable to sit, stand, bend or walk
in a normal fashion." (Tr. 133). Dr. Mazza also concluded that
plaintiff was last fit for regular work in 1983 based on his
diagnosis of osteoarthritis. (Tr. 135).
Dr. Mazza treated plaintiff "on and off" since April 26, 1983
for acute episodes of pain. (Tr. 133).*fn2 Dr. Mazza noted that
the episodes "number several per year and last sometimes days,
but occasionally for weeks." (Tr. 135). Such episodes do not
satisfy the definition of disability under the Act. Disability is
an inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment
which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less
than twelve months. 42 U.S.C. § 423(d)(1)(A). Disability also
requires more than the mere inability to work without pain. To be
disabling, pain must be so severe, by itself or in combination
with other impairments, to preclude any substantial gainful
activity. Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir.
Plaintiff was also treated by Dr. H.C. Irving, III. Dr. Irving
first examined plaintiff in June 1985, six months after her date
last insured. He initially found evidence of polyarticular
osteoarthritis. He indicated that more recently plaintiff had
also been found to have rheumatoid arthritis, in addition to her
osteoarthritis. (Tr. 138). In a report dated October 7, 1989, Dr.
Irving concluded that plaintiff was totally disabled "at this
time," but did not refer this total disability back to the period
prior to the onset of the rheumatoid arthritis or the date last
Plaintiff also received treatment from Dr. Frank Rotella in
1988. Dr. Rotella concluded that plaintiff was disabled due to
rheumatoid arthritis but described the condition as being of
"recent onset." (Tr. 130). In addition, plaintiff was examined by
Dr. Restivo who confirmed Dr. Rotella's diagnosis and opinion of
disability in 1988. (Tr. 131-132).
Based on all the evidence, the ALJ correctly concluded that
even if plaintiff was disabled as of February 1988, when she
first developed rheumatoid arthritis, it did not establish
disability for purposes of disability insurance benefits.
It is well established that pain unaccompanied by objective
findings may nevertheless support a claim for benefits. Smith v.
Califano, 637 F.2d 968, 973-74 (3d Cir. 1981). Thus, the
subjective complaints of pain suffered by the plaintiff must be
given careful consideration. Furthermore,
[a]lthough evidence of pain suffered by a claimant
may be of necessity subjective in nature, and
therefore difficult to evaluate, the administrative
factfinder must give serious consideration to such
evidence even though it is not fully corroborated by
objective examinations and tests performed on the
claimant. See Thorne v. Weinberger, 530 F.2d 580,
583 (4th Cir. 1976); Baerga v. Richardson,
500 F.2d 309, 312 (3d Cir. 1974), cert, denied, 420 U.S. 931
[95 S.Ct. 1133, 43 L.Ed.2d 403] (1975). While the
claimant has the burden of proving that the
disability asserted results from a medically
determinable physical or mental impairment, direct
medical evidence of the cause and effect relationship
between a physical impairment and the claimant's
pain need not be produced. See Klug v. Weinberger,
514 F.2d 423, 427 (8th Cir. 1975). There is no
question that pain can cause disability within the
meaning of the Social Security Act. See Yawitz v.
Weinberger, 498 F.2d 956, 960-961 (8th Cir. 1974).
The Secretary carefully considered plaintiff's subjective
complaints of pain, but found that they were not credible to the
extent that they would preclude light exertion. (Tr. 17). The ALJ
noted that during the period in question, plaintiff received only
intermittent treatment and did not require the use of potent
analgesics or other modalities of pain management. He also
observed that plaintiff did not exhibit clinical signs such as
atrophy or neurological deficits. He concluded that, while
plaintiff experienced some discomfort as a result of her
osteoarthritis, it was not so severe as to be disabling. It is
not necessarily inconsistent to find that a plaintiff suffers
pain in fact, and yet is not so severely impaired as to meet the
stringent test for disability imposed by the Act. Hames v.
Heckler, 707 F.2d 162, 166 (5th Cir. 1983); Thorne v.
Schweiker, 694 F.2d 170 (8th Cir. 1982); Torres-Rosas v.
Bowen, 678 F. Supp. 420 (S.D.N.Y. 1987); Artrip v. Bowen,
651 F. Supp. 376 (S.D.N.Y. 1987).
The Secretary determined that, due to her osteoarthritis,
plaintiff could not perform her former work prior to her date
last insured. However, based on his review of the evidence
discussed above, the Secretary found that plaintiff had the
residual functional capacity to perform light work through her
date last insured. After then considering plaintiff's age,
education and work experience, the Secretary concluded that
plaintiff was not disabled as defined by the Act on the date last
insured. This Court finds that the decision of the Secretary is
supported by substantial evidence and must be affirmed.
Plaintiff also claims that the ALJ committed reversible error
by failing to advise plaintiff of her right to counsel and a
translator at the hearing. However, at the time she requested a
hearing, a notation was made by the Social Security
Administration that plaintiff was unrepresented and she had been
provided with a list of "legal referral and service
organizations." (Tr. 85). No indication was given at that time
that she had any need of a translator at the hearing. At the
hearing, plaintiff was accompanied by her two sons, one of whom
stated that he would represent her and assist her in
communicating with the ALJ. (Tr. 25). Both sons actively
participated throughout the hearing process. Thus, plaintiff was
not prejudiced by lack of counsel or lack of a translator and the
ALJ did not commit reversible error.
Plaintiff also alleges that the ALJ failed to question her
about her condition prior to the date last insured. A review of
the record indicates that the ALJ thoroughly explained the
importance of the insured status date. (Tr. 26-29). The ALJ
informed plaintiff that she must establish disability prior to
the date last insured in order to be eligible for disability
benefits. (Tr. 26).
After thoroughly evaluating the evidence, the Secretary
determined that the plaintiff failed to show she was under a
disability within the meaning of the Act on the date last
insured. The decision of the Secretary is supported by
substantial evidence and is affirmed by this Court.
For the foregoing reasons, this Court concludes that the ALJ's
decision denying plaintiff disability benefits is supported by
substantial evidence. Accordingly, the Secretary's decision is