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December 18, 1991


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).

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. 133-35).

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 Secretary.


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 omitted).

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 ...

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