Newell v. Commissioner of Social Security

• Decision Date: 14 October 2003
• Docket Number: No. 03-1358.,03-1358.
• Parties: Janice NEWELL, Appellant, v. COMMISSIONER OF SOCIAL SECURITY.
• Court: U.S. Court of Appeals — Third Circuit

347 F.3d 541

Janice NEWELL, Appellant, v. COMMISSIONER OF SOCIAL SECURITY.

No. 03-1358.

United States Court of Appeals, Third Circuit.

Argued: September 9, 2003.

Filed October 14, 2003.

Abraham S. Alter (argued), Langton & Alter, Rahway, NJ, for Appellant.

Christopher J. Christie, United States Attorney, Peter G. O'Malley, Assistant United States Attorney, Newark, NJ, Barbara L. Spivak, Chief Counsel — Region II, Karen T. Callahan (argued), Assistant Regional Counsel, Office of the General Counsel, Region II, New York, NY, Social Security Administration, Attorneys for Appellee.

Before: BARRY, BECKER, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This matter comes on before this court on appeal from an order entered on December 3, 2002, affirming the final decision of the Commissioner of Social Security denying appellant Janice Newell's ("Newell") request for widow's disability benefits under Title II of the Social Security Act. The district court had jurisdiction pursuant to 42 U.S.C. § 405(g) and we have jurisdiction over Newell's appeal pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we will reverse the district court's order affirming the Commissioner's decision and instruct the district court to remand the case to the Commissioner for further proceedings consistent with this opinion.

I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

A. Procedural History

Newell applied for widow's disability benefits on November 16, 1998. To receive such benefits, Newell needed to demonstrate, inter alia, that she is (1) at least 50 but less than 60 years old; (2) the widow of a wage earner; and (3) under a disability as defined in 42 U.S.C. § 423(d)(2)(A). See 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.336. Newell, who was 56 years old at the time of her hearing before the ALJ, is the widow of wage earner Robert S. Newell. In her application for widow's disability benefits, she alleged that she had been disabled since July 1, 1997, due to arthritis in her lower back and neck, a deteriorated disc, internal derangement of her knee, sciatica, and diabetes. At oral argument before this court, however, her attorney indicated that her disability is based solely on her liver disease, diabetes, and neuropathy.¹

The Social Security Administration ("SSA") denied Newell's application for widow's disability benefits on April 20, 1999, and again upon reconsideration on June 17, 1999. Newell appealed and a hearing was held on February 9, 2000, before Administrative Law Judge ("ALJ") Gerald J. Ryan. On April 17, 2000, ALJ Ryan issued a decision denying her application for benefits. His decision became final on April 16, 2001, after the Appeals Council denied Newell's request for administrative review. On June 14, 2001, Newell filed a complaint in the district court challenging the Commissioner's final ruling. The district court affirmed the final decision of the Commissioner on December 3, 2002. Newell thereafter filed this appeal.

B. Factual Background

Newell was born on August 1, 1943, and married Robert S. Newell on August 31, 1968. Their marriage ended in divorce in June 1987, and she has not remarried. Her former husband, a wage earner, died fully insured for Social Security benefits on August 9, 1990, and Newell's eligibility for widow's benefits based on his earnings terminated at the close of the 84th month (seven years) after his death, on August 31, 1997, so that her disability had to have commenced by that date for her to be eligible for benefits. See 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.336(c)(1).²

From 1994 through December 1996, Newell was self-employed doing part-time consulting and craftwork. She estimates that she earned $5000 to $6000 per year during that time. From December 1996 through July 1997, she worked occasionally with a friend who was a carpenter, painting and making stained glass windows. She estimates that she earned $3000 per year during that time. In July 1997, Newell injured her back when she tripped over a lawn mower. After that incident, she stopped working completely. She also stopped doing yardwork, gardening, washing, and cleaning.

Newell contends that she became disabled on July 1, 1997, but could not afford medical care at that time because she was uninsured. Beginning on June 1, 1998, however, she did seek medical attention when her father gave her the money to pay for it. Accordingly, most of the evidence in her record is comprised of doctors' reports dated post August 31, 1997, the date upon which her eligibility for widow's benefits expired. Newell contends that regardless of the dates on her medical reports, she is entitled to widow's benefits because her medical conditions — liver disease, diabetes, and neuropathy — were present prior to August 31, 1997. She argues that these conditions are slowly progressive and that they disabled her within the period of her eligibility for benefits.

1. The Medical Evidence Before ALJ Ryan

The medical evidence consists of reports from Newell's family doctor and her orthopedist, reports from the SSA in the form of a Residual Physical Functional Capacity Assessment and from a consultative examiner, as well as Newell's testimony regarding her pain and functional limitations.

a. Medical Evidence Prior to August 31, 1997

Billing records and an emergency room report indicate that Newell received services for treatment of an unstable low back and contusion of the wrist in 1990. Tr. 191-95, 199, 203.³ Other billing statements and physical therapy reports from 1990 indicate that she was fitted for a custom molded lumbosacral corset, was instructed in home exercises and the use of a hot pack, and was treated for an unstable lower back. Tr. 195-98, 202. Prescriptions dated September 14, 1990, and November 21, 1990, indicate that she was prescribed over-the-counter nonsteroidal anti-inflammatories and Tylenol. Tr. 194, 196, 200. In December 1990, she was referred for electromyogram ("EMG") and nerve conduction studies. Tr. 200-01. Another billing statement reflects that she received emergency room services on December 10, 1993, for shoulder joint pain. Tr. 204.

b. Post-Coverage Medical Evidence (After August 31, 1997)

Most of the medical evidence is comprised of doctors' reports dated post August 31, 1997. Newell first went to Dr. Harold Chafkin, her family physician, on June 1, 1998. Dr. Chafkin treated her diabetes and the pain in her knees and back. On August 12, 1998, she began treatment with an orthopedist, Dr. Alfred Greisman. In his notes, Dr. Greisman mentioned Newell's liver condition, stating that he was "apprehensive about putting her on any nonsteroidals because of her liver condition." Tr. 152. His records indicate that Newell lost 50 pounds in 1998. Tr. 149. The 50 pounds apparently included 40 pounds of muscle. Tr. 155. On September 17, 1998, Dr. Greisman concluded that "due to her condition she is unable to drive or travel." Tr. 151. In November 1998, Newell underwent an EMG, which indicated results consistent with peripheral neuropathy. Tr. 145.

The medical evidence from the SSA includes a Residual Physical Functional Capacity Assessment by a non-treating physician dated December 15, 1998, and a report from consultative examiner Dr. Phillip B. Eatough dated March 11, 1999. Tr. 156-63; 164-67. The Residual Physical Functional Capacity Assessment indicates that Newell occasionally could lift and/or carry 20 pounds; frequently lift and/or carry ten pounds; stand and/or walk for about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; and push and pull without limitation.

Consultative examiner Dr. Eatough noted in his report that Newell had endured gradual and progressive back problems for approximately seven years; neuropathy for approximately two years, possibly related to her diabetes or alcohol excess; and diabetes for about two years. He also noted that when she stopped drinking alcohol, she lost about 45 pounds. Tr. 164-66.

Dr. Eatough's impressions included (1) peripheral neuropathy with bilateral carpal tunnel syndrome and neuropathy of both lower extremities with possible atrophy of the proximal muscle groups; (2) diabetes mellitus most probably secondary to chronic alcohol consumption; (3) peripheral vascular disease; (4) osteoarthritis with low back syndrome, possible sciatica and lumbar neuropathy; and (5) liver dysfunction. He found that she occasionally could lift 20 pounds; frequently lift ten pounds; stand and walk approximately two hours in an eight-hour workday without a required assistive device; and sit about six hours in an eight-hour workday with periodic standing. He found that her ability to push and pull was limited in the upper and lower extremities secondary to tenderness and neuropathy. He reported that she occasionally could climb, balance, stoop, kneel, crouch, and crawl. He found no manipulative, visual, communicative, or environmental limitations. Tr. 166-67.

Less than two months later, on May 1, 1999, Newell's family physician, Dr. Chafkin, reported that Newell "is crippled by severe peripheral neuropathy secondary to diabetes and alcohol consumption." He noted that her prognosis "is poor.... She has been seen by the neurologists, by the orthopedists and myself and, unfortunately, we have come up with no answer for this poor woman's pain which will negate her being gainfully employed in any manner whatsoever." Tr. 142.

2. Newell's Testimony Before the ALJ

Newell testified that at the time of her hearing, she was taking prescription pain relievers, sleep aids, and oral medication for diabetes. She was also taking nonprescription pain relievers and vitamins. She wore splints for her wrists and a brace for her back. She testified that her pain was severe and that it had prevented her from working or doing any housework since July 1997, when she fell over a lawnmower and hurt her back. Tr. 31, 43. She did not...