2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
7-14-2004 

# M e ndes v . C omm S o c i al S ec ur it y P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-3649

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du . Re c omme nde d C it at ion

" M e nde s v . C omm S oc i al S e c ur it y " (2004). 2004 D e cisio n s . P ape r 502. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2004/502* The H onorab le John R . Gibson, S enior Circu it Judge for the United S tates Court

of Appeals for t

he Eighth Circuit, sitting by designation. NOT PRECEDE NTIAL IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT No. 03-3649 MAR IA MEND ES,

Appellant

v. JO ANNE B. BARNHART, COMMISS IONE R OF SOCI AL SEC URI TY ADMINI STRAT ION

_________________________________ On A ppeal from the Un ited States District Co urt fo r th e D ist ric t o f N ew Je rse y District J udge: The H onorable William H. Walls (D.C. No. 01-cv- 04479)

_________________________________ Su bm itted und er T hird Cir cuit L AR 34.1

on March 26, 2004 Before: FUENTES , SMITH, and JOHN R . G IBS ON, * Circuit Judges (Fil ed: Jul y 14, 2004)

______________________ OPINI ON OF THE COURT

### 2 _______________________ JO HN R. G IBS ON , Circuit Judge
. Maria Mendes appeals fr om the dist rict court' s entry of j udgment agains t her on her claim for Socia l Securi ty disabi lit y benefi ts. The only questi on is whether Mendes proved that she had a severe impairment before Decem ber 31, 1990, which w as her last insure d date. Mendes offered labor atoryevidence i n the form of a 1992 MRI report that she h ad tw o rup tured d isks an d she offe red o ther ev idenc e that sh e suf fered low back pain before the insur ance cut- off date. We conclude that Mendes adduced evidence t hat her impairment

began before December 31, 1990 and that the admini strative l aw judge (hereafter referred to as the ALJ) erred in finding she had not done so. We w ill reverse with directions t o remand to the Com missioner of Social Securityfor further proceedings. Mendes applied for

Titl e II Disabili ty Insuranc e benefit s on November 20, 1997, alle ging that

she became dis abled on May 10, 1985. She quit work in 1985 when the factory where s he worked closed. She testifie d that at the t ime she quit

working, "Iwas not feeling v ery well already. . . . I had the pro blem w ith my back an d my legs w ere getti ng [inaudi ble] Icouldn' t move my l egs and my arms." Mendes's treat ing phy sici an, Dr. R odo lfo C olaco , had re cord s of v isits with com plaints o f ske letal pain begin ning in 1987. Dr. Cola co's firs t note about Mendes's back is dated September 13, 1989 and state s: "L ow bac k pa in w ith ra diati ng l eft f oot ." D r. Co laco reco rde d no clini cal f ind ing s, signs, or diagnos is at

that t ime. The fi rst obj ecti ve evidence of Mendes' s ruptured disks1 Dr. Mylod submi tted an inter rogatory stating t

hat Mendes's conditi on equaled a lis ted impai rment at

the pres ent ti me, but "not before 1990. " Mylod' s comments about Mendes's re sidualfuncti onal capaci ty before 1990 arenot deci pherable in the administ rati ve record fi led with t his court. Becaus e of Dr. Mylod' s unavail abili ty for cross examinati on, the ALJ did not rel y upon hi s opini on, so we concludethat i t is not nec essa ry for u s to d iscu ss it h ere. 

### 3 cam e fro m a n M RI i n Ju ne 1 992 , wh ich s how ed tw o he rnia ted d isks in h er lo we r ba ck. After an i niti al hearing, t he ALJ concluded that

there was i nsuffici ent evi dence of any r estricti ons to Mendes' s resi dual functional c apacity before 1990, so s he schedule d a supplementa l heari ng to adduce evi dence on that issue. Dr. Albert

G. Mylod submitted an in te rr oga to ryon that

sub je ct , b utbef

or e the d at e of

th e he ar in g, Dr. Myl od b eca me unavailable for medical reasons. 1 Therefore, the ALJ appoint ed a different medical exp ert, D r. H arlan M ellk. After heari ng Dr. Mellk' s test imony, the ALJ concluded t hat the re was no medical evidence of an o bjective nature to e stablish that M endes h ad a seve re impairm ent before her las t ins ured date . The ALJ therefore denied benefi ts, and the Appeals Council deni ed
rev iew , ma kin g th e de nial t he C om mis sion er's fi nal d ecis ion
. M en de s f ile d t hi s s ui t in th e d ist ric t co ur t se ek in g r ev iew of th e C om m iss io ne r's decision, and the district court entered jud gmen t for the Co mm issioner. The d istrict court ha d j ur isd ict io n u nd er 42 U .S .C . § 4 05 (g ) (2 00 0) to re vi ew th e C om m iss io ne r's determination to deny benef its, and our jurisdiction arises un der 28 U .S.C. § 129 1 (2000 ). W e rev iew the d istrict cou rt's jud gm ent d e no vo. Newell v. Com'r of Soc. Sec. , 347 F.3d

### 4

541, 545 (3d Cir . 2003). Section 405( g) provi des that the Commissione r' s findi ngs of fact are concl usive i f support ed by s ubstantial e vidence. Substantial e vidence i s such evid enc e as a rea son able min d w oul d ac cep t as a deq uate to su ppo rt a co nclu sion
. Ne we ll , 347 F.3 d at 5 45. W e ex ercis e ple nar y revie w o ver que stion s of law
. Id. Und er 20 C .F.R. § 404 .1520 (20 03) (as revised by 68 F.R. 51 153 (A ug. 26, 200 3)), evaluation of dis abili ty proceeds i n a five- step se quence. At t he firs t st ep, the Commissioner as ks whether the clai mant is s til l working, § 404.1520(a) (4)(i ); i f so, t he clai mant is not

disabl ed. Second, the Commissione r determines whether t he clai mant has a severe i mpairment- -in ot her words, an impairment which signi ficantly limi ts hi s or her physi cal or ment al abi lit y t o do basic work act

ivities. § 404.1520(a) (4)(i i). If not, the clai mant is not

disabl ed. If s o, the Commissioner pr oceeds to t he third step, determi ning wh ether th e claim ant's con dition is th e sam e or eq ual to th e listing o f imp airme nts in Ap pend ix 1 to S ubp art P to P art 404 . § 404 .1520 (a)(4)(iii). If s o, the c laima nt is disabl ed. If t

he clai mant's conditi on does not meet or equal t

he lis tings , the Commissioner as ks whether the clai mant's resi dual functional c apacity al lows the claim ant to do t he k ind of w ork the c laim ant h as d one in th e pa st. § 4 04.1 520 (a)(4 )(iv)
. If so, the cl aimant i s not di sabled. If not, the Commissione r willthen consi der whether the cl aimant' s resi dual functional c apacity and ot her chara cteri sti cs would all ow the claim ant to d o oth er w ork. § 404 .1520 (a)(4)(v ). If so, the claim ant is no t disable d; if no t, the cl aimant i s disabl ed. The burden of proof is on the clai mant through t he firs t four

### 5

step s, bu t shif ts to th e C om mis sion er ifthe p roc ess r eac hes the f ifth s tep. Ne we ll , 347 F.3d at 546. The ALJ found that Mendes would meet the lis tings based on her cur rent condition, bu t that she failed to prov e the existence of a seve re impairm ent before December 31, 1990. A "se vere impai rment" i s a thr eshold test and i t is not a demanding
one . See g enera lly Ne we ll , 347 F .3d at 5 45-4 6. "[B ]ecau se step two is to be r arely util ized as ba sis for

the deni al of benefi ts, its invocation is certain to r aise a j udicia l eyebrow." McCrea v. Com'r of Soc. Sec. , 370 F.3d 357, 361 (3d Cir. 2004) (ci tati on omitt ed). " An impairment or combinati on of impairments is not severe if i t does not sign ifica ntly lim it your p hysica l or m enta l abil ity to do bas ic w ork activ ities." 20 C .F.R . § 404.1521(a) . Examples of bas ic work activities i nclude "[p] hysi cal functions such a s walking, standing, si tting, lifti ng, pushing, pulling, reaching, carry ing, or handling." § 404.152 1(b)(1). Generall y, an impairment must be demonst rable by medicall y acc eptabl e cli nical and laboratorydiagnostic te chniques. 42 U.S.C. § 423(d) (5)(A) ( 2000); 20 C.F. R. §§ 404.1527(a) , 404.1529( b). I n this case, t here is no disput e that

Mendes has a current impairme nt which was es tablished by med ically acceptable clinical and labo ratory evid enc e, inc lud ing the M RI t hat s how ed th e tw o ru ptu red disk s. Once an impairment

has been est ablis hed by s uitabl e medical e vidence, the onset date of the im pairmen t may be established by evidence o ther than clinical and laboratory2 Soc ial Sec urity Rulin gs are bind ing o n all co mp onen ts of th e So cial Se curity

Ad minis tration. 2 0 C .F. R. § 402 .35(b )(1); Walton v. Halter , 243 F.3d 703, 708 (3d Cir. 2001). 

### 6 evid enc e. See Ne we ll , 347 F .3d at 5 48 (In determ ining o nset o f estab lished im pairm ent, "[l] ay evi dence need not be corrobor ated bycontemporaneous medical evi dence to be credib le."); Grebenick v. Chater , 121 F.3d 1193, 1199 (8th Cir . 1997) ( "Once the diagnosi s is es tabli shed, but the severity

of the degener ative conditi on during t he rele vant period i s unanswered, the cl aimant mayfillthe evi dentiary gap with lay t esti mony. The ALJ must consider

this evidence, even if i t is uncorrobor ated byobjective medical evidence. " (internal c itat ions omitted)) . The st andards governing proof of t he onset of impairment s are se t out i n Social Sec urity Ruli ng 83-20, "Ti tles II and XVI: Onset of Dis abili ty." 2 This poli cy s tate ment provide s that in dis abili ties of nontraumatic ori gin, "the determ ination of on set involves co nsideration of the applicant's allegations, w ork hist ory , if any, and the medica l and othe r evidenc e concerni ng impairment severi ty ." The startin g po int in dete rmin ing the o nse t date is the claim ant's s tatem ent. With slow ly progre ssive im pairm ents, it is so metim es imp ossible to ob tain medi calevi den ce e st abl is hi ng the p re ci se date an imp ai rme ntbec ame disabl ing. Det ermining t he proper ons et dat e is particul arlydiffi cult, when, for example, the alleged onset and the date las t worked are far in the past and adequate medi cal re cords ar e not avai lable . In s uch cases, it wil l be necessary t o infer t

he onset date from the medic al and other evide nce that des crib e the histo ry and symp tom atolo gy of the d isea se p roc ess.

. . . In determining the date of ons et of di sabil ity , the date al leged bythe individ ual sh ould be us ed if it is c onsiste nt w ith all the e viden ce av ailable

. . . .

### 7 In som e case s, it may be poss ible, bas ed on the m edica l evide nce to re as onabl y in fer

th atth e on se t o f a d is abl in g i mpairme nt (s ) o ccu rr ed s ome time pri or to t

he date of t

he firs t recorded medical e xaminati on, e. g., t he date the clai mant stopped worki ng. How long the di sease maybe determi ned to have exi sted at a disabl ing leve l of severity depends on an inform ed jud gm ent of the fa cts in the particu lar case . This ju dgm ent, how eve r, mu st ha ve a legit ima te m edic al ba sis. . . . If reas onable i nferences about the progressi on of the i mpairment cannot be made on the basis of the evi dence in the fil e and additional relevant me dical evidenc e is not available, it may be ne cessary to explore other s ourc es of docu men tation. In form ation m ay be ob tained from fam ily members, friends, and former employ ers t o ascert ain why medi cal evi dence is not avail able for

the pert inent pe riod and to furnis h additi onal evi dence regardi ng the cours e of the i ndividual 's c onditi on. . . . The impact of lay evidence on t

he decisi on of onset wil l be li mited t o the degre e it i s not contrary t o the medicalevidence of record. S.S.R. 83- 20. Here, of cour se, Mendes' s own testi mony is that he r impairment began in 1985

w he n s he qu it w or ki ng an d w he n s he be ga n t o h av e tr ou bl e u sin g h er leg s. M en de s's treat ing phy sici an, Dr. Col aco, submi tted a letter st ating: "Mrs. Maria Mendes has been having excruciating back pai n since t he lat e eighties. She was seen by me for the same on 3/16/87 and was pl aced on Feldene a nd advised to be foll owed by Orthopedi c Surgeon [or] a Chiroprator [sic]. On 4/13/89 she w as seen with radiculopathy to the left foot. " Mendes's attorneyintr oduced corre spondence from a chi ropract or in 1999 t hat st ated: [A]s we have informed y our officewe do not have the r ecords on the patien t, since sh e has been inactiv e for m ore tha n ten yea rs. W e w ere ab le to find a new patient logbook where it showed that Mrs. Mendes w as first examined on June 13, 1987 for a low back condi tion. She was under treatment for approximatelythree months. The crucialevidence on which t he ALJ based her findi ng was from the medical

### 8

ex pe rt, D r. M ell k. F irs t th e A LJ as ke d h im if h e h ad an op in io n a s to w he th er M en de s's impa irmen ts met o r equ alled th e listings a s of th e end of 1 990 . He re spon ded: I cann ot tell, your H ono r. The re's no o bjectiv e data even close to that da te in the f ile. And the earl iest

data that I can find, Ibelie ve, i s the MRI of June 22nd, 1992, which shows centr al and ri ght herni ated nucl eus propul ses L3, L4 and centr al and ri ght herni ated nucl eus propul ses L5, S1. The ALJ then asked: " Based on SSI 83, 20, [sic] I' m required to ask whether, to a reasonabl e degree of medi cal certaint y, you can relat e that

back to the date of al leged
onse t." Dr. M ellk rep lied: Well, I, I think t he answer to t

hat is yes . Just

based upon the client' s–claimant's testi mony, although, that would be the, the most compelli ng reason. I have no rea son to di sbeli eve the hi story as reported by the p atien t. Bu t I w oul d no t kn ow –it's co mp atibl e w ith th e, the testim ony. I wo uld not kno w w hen this o ccu rred , tho ugh
. (emphasis added). Aft er revi ewing Dr. Colaco' s notes, Dr. Mellk ret urned to t

he onset ques tion: "[I ]n an swe r to the– to the v ery first qu estion you pose d, I think it's reason able to saythat t

he herniated dis k [sic] were, were pre sent t here, but one can' t sayfor cert ain, but she certainly had b ack pain a nd som e radiation at that time [a pparently referring to D r. Colaco' s notes of

September 13, 1989]." The ALJ then a sked Dr. Mellk to render an opinion on Mendes' s li mitations "at that t ime." He sai d: Based upon what I rea d there and giving y ou the worst case scenario type of, of focus , she would be abl e to si t si x to eight hours, now she may have to shif t aroun d; stand and o r wa lk tw o to thre e hou rs in total, th at's in a six to eig ht ho ur da y; lif t an d o r c ar ry 1 0 p ou nd s fre qu en tly o r o cc as io na lly; would have proble ms with repetiti ve bending, stoopi ng, cl imbing, use of foot pedals. At that time, she'd have no problem with fine or gross ma nip ulati on.

### 9

The ALJ's dis cussion of Dr. Mellk' s test

imony s tate d in rel evant part: " He opined that i t was reas onable t o conclude that the clai mant had some back pai n. He furthe r noted that w hile the M RI in 199 2 dem onstra ted he rniated discs a t L3-L 4 and L5-S 1, he c ould not st ate when thi s occurr ed." She said that Colaco' s recor ds show that " Complaints of low back pain began i n 1989," but that Col aco did not

record any

evidence of an obj ecti ve nature, such as range of motion testi ng, st rength testi ng, et c. She di smissed t he chiropr actor' s evidence because i t did not qualif y as medical evi dence. On thi s recor d, the ALJ found there was "no evi dence to suppor t a fi nding of a seve re impai rment pri or to t he date the clai mant was last insure d." She st ated, "I am constrained to find that the c laimant
was 

### < not disa bled ' prior to th e ex pira tion of h er las t insu red statu s, D ece mb er 3 1, 19 90. This is most unfortunate as, t he record clearlydemonstrates that at t he present time Ms. Men des's conditi on meets the requirements for disabili ty. " To the extent

the ALJ's decisi on was based on a lega l dete rminati on that t he onset date of an es tabli shed impairment had to be pr oved by medi cal evi dence of "an obj ecti ve nature, " it

is er roneous. S.S.R. 83- 20 allows t he use of lay t esti mony and medical evidence des cribi ng hist ory and sy mptomatologyto li nk an impairment to a date earl ier than the f irst d iagn osis doc um ente d by la bor ator y find ing s. See Ne we ll , 347 F.3d at 547 ("Retr ospecti ve diagnosi s of an impai rment, even if uncor roborat ed by contemporaneous medical records, but corr oborated by layevidence r elating back t o the cl aimed peri od of disabi lit y, can support

a findi ng of past i mpairment. "). I n a comparable c ase, we reve rsed

### 10

the Commis si oner 's deni al of be nefi ts , s ta ti ng ( as o ne of sev era l gr ounds ) that

the ALJ could not reject

the opini on of a tre ating phy sici an "sole ly on the basi s that his opi nion was based on inform ation supplied by [the claimant]. " Walton v. Halter , 243 F.3d 703, 710 (3d Cir . 200 1). Our review of the record shows that there is evi dence of the s ort contemplated by S.S .R. 8 3-2 0 th at the imp airm ent d ocu me nted in 1 992 beg an b efo re th e en d of 199 0. There was not onl y Mendes' s test imony, but the records of her treat ing phy sici an and her chirop ractor th at M ende s sou ght trea tmen t for low er bac k pain befo re 19 90. T he A LJ d id not rejec t M end es's o r he r do ctor s' testim ony o n cr edib ility gro und s. Mendes did not suppl y an expl icit diagnosi s li nking her pai n in the e ighti es to t he ruptur ed disks. Dr. Colaco onl y st ated that Mendes had excruci ating ba ck pain si nce the late eighti es; he di d not expli citl y di agnose the pain as r esulting from the ruptur ed disks or say that i t created anyparti cular l imit ations . We have no need to deci de whether this l ack of a f orm al diag nosis re lating th e pain to the su bseq uent la bora tory findin gs w ould result in a fai lure of pr oof, becaus e the miss ing li nks were suppli ed by Dr. Mellk, the medical exp ert ca lled b y the A LJ. Dr. M ellk said he ha d no reaso n to d oub t M s. M ende s's acco unt an d he r eferre d to Dr . Co laco 's not es a s sh ow ing that t her e w as b ack pain and rad iatio n, ap par ently in 198 9. When the ALJ asked him if he coul d relate the rupt ured dis ks back to t

he all eged date of
onse t (wh ich w as 19 85), h e said: " We ll, I, I think the answ er to tha t is yes." He later said

### 11

it was "reaso nable " to say the disks w ere he rniated at the re levan t time. S ocial S ecurity R ul in g 8 3- 20 pe rm its re as on ab le i nf er en ce s. F in all y, w he n a sk ed ab ou t M en de s's limitation s "at tha t time," w hich a ppea rs to ref er to the allege d date of o nset, D r. M ellk descri bed a resi dual capaci ty which presumed certain l imit ations and expli citl y st ated others . For in stance , he de scribe d her as ha ving the ab ility to lift ten pou nds, im plicitly negati ng an abil ity

to li ft more, and he stated that she would have trouble with repeti tive bending, stoopi ng, cl imbing and use of foot pedal s. An impairment that resul ted in s uch restrictions would si gnific antly limi t Mendes's work activi ties , thus sati sfy ing st ep two of the s equ entia l ana lysis. See 20 C .F.R § 404 .1521 . By wa y of com pariso n, w e rece ntly
revers ed a decis ion deny ing benefi ts at step two where the record s howed that the clai mant's conditi on prevente d her from si tti ng more than t wo hours a day , carr yi ng object s weighing more t han twentypounds at anytime, and carrying objec ts weighi ng
mo re th an te n po und s fo r mo re th an tw o ho urs a day. See McCrea , 370 F.3d at 361. The A LJ's finding that there was n o eviden ce of sev ere impairm ent before December 31, 1990 was not suppor ted bysubstant

ial e vidence. The Comm issi oner respo nds, "[ E]ve n if M ende s had establish ed tha t she h ad he rniated lumb ar disc s prior to the ex piration of h er insu red sta tus, that f act alo ne w ould not en title her to d isability insurance benefit s. Rathe r, Mendes must s how that her i mpairment r esulted in functional limitations that precluded allsubstantialgainful activit y." This statement is correct as a matter of the ul timat e award of benefit s, but it i gnores the fact t

hat the ALJ found that

### 12

Mendes failed t o prove sever e impairment, and t herefore t

he analy sis ce ased at s tep two, without eve r reachi ng the question of whether Mendes's condi tion precluded performance of her past

work or allsubstant

ial gainful a ctivi ty . We will r everse and remand to the district co urt w ith instruc tions to rema nd to the C om missio ner fo r furth er pro ceed ings to ascert ain whether

the cl aimant was di sabled at steps t hree, f our or fi ve.