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WARHOLA v. HARRIS

March 23, 1981

Patricia G. WARHOLA
v.
Patricia Roberts HARRIS,1 Secretary of Health and Human Services.



The opinion of the court was delivered by: TROUTMAN

This is an action brought under Section 205(g) of the Social Security Act (Act), 42 U.S.C. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare (Secretary) denying plaintiff's application for disability benefits.

 Plaintiff is 50 years old (Tr. 57). She has a tenth grade education (Tr. 68) and work experience as a sewing machine operator (Tr. 68). She alleges that she became unable to work in 1974 due to arthritis (Tr. 57).

 Plaintiff filed an application for a period of disability and disability insurance benefits on November 1, 1979 (Tr. 57-60). The application was denied initially and on reconsideration by the Division of Disability Operators of the Social Security Administration, after the Pennsylvania State Agency, upon evaluation of the claim by a physician and a disability examiner, had found that plaintiff was not under a disability within the meaning of the Act (Tr. 62, 86-88). The case was considered de novo by an Administrative Law Judge (ALJ) before whom plaintiff and her attorney appeared. In a decision dated June 23, 1980, the ALJ determined that plaintiff's impairments did not have their onset before June 30, 1978 (Tr. 20-21). Therefore, the ALJ concluded that plaintiff was not under a disability prior to the expiration of her special insured status on June 30, 1978 (Tr. 9-21). The Appeals Council affirmed that decision on August 27, 1980, thereby making it the final decision of the Secretary (Tr. 3).

 The Social Security Act limits judicial review of the Secretary's final decision. 42 U.S.C. § 405(g). If the Secretary's decision is supported by substantial evidence it must be affirmed by the Court. 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971). Substantial evidence is evidence which a reasoning mind would accept as sufficient to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir. 1979); Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).

 Under the Act, plaintiff has the burden of establishing disability as defined by the Act. 42 U.S.C. § 423(d)(5); Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837 (3d Cir. 1974). Moreover, the plaintiff must establish the existence of a disability within the period of insured eligibility. 42 U.S.C. § 423(a)(1)(A).

 In determining whether the plaintiff is able to engage in substantial gainful activity, there are four elements of proof to be considered: (1) medical data and findings; (2) expert medical opinions; (3) subjective complaints; and (4) the plaintiff's age, education, and work history. Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972); DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972).

 In addition to the burden of proving a disability medical impairment, the plaintiff has the burden of establishing the existence of a disability prior to the expiration of her insured status. 42 U.S.C. § 423(a)(1)(A); Domozik v. Cohen, 413 F.2d 5, 6 (3d Cir. 1969). The commencement of a disability after the expiration of the period of insured eligibility, even if the impairment had its genesis during some eligible time, does not entitle the plaintiff to disability benefits. Domozik v. Cohen, supra, at 6 n. 3; see also Kirkland v. Weinberger, 480 F.2d 46, 48 (5th Cir. 1973), cert. denied, 414 U.S. 913, 94 S. Ct. 255, 38 L. Ed. 2d 155 (1973); Jeralds v. Richardson, 445 F.2d 36, 39 (7th Cir. 1971); Gardner v. Richardson, 383 F. Supp. 1, 6 (E.D.Pa.1974). In this case the relevant period of time is from 1974, the date of alleged onset of disability, to June 30, 1978, the date when the plaintiff last met the special earnings requirement.

 Thus, June 30, 1978, becomes a crucial date and the precise question involved before this Court is whether the plaintiff's physical impairments, including arthritis, coronary insufficiency, peptic ulcer disease and disc syndrome, admittedly disabling, had their origin prior to June 30, 1978, the expiration date of plaintiff's special insured status and, more specifically, whether there is substantial evidence to support the findings and conclusions of the ALJ that such conditions were not disabling prior to the crucial date, June 30, 1978.

 Importantly, the uncontradicted medical evidence of record, particularly the reports of Dr. Tavaria, establish that he treated the plaintiff subsequent to her last day of work in 1974 and, more particularly, in November 1976, and prior to June 30, 1978, and based upon his findings at that time, combined with his findings on examination and treatment subsequent to June 30, 1978, was of the opinion that the plaintiff was unable to engage in any substantial gainful activity on and prior to June 30, 1978 (Tr. 122, 123, 125, 127). *fn2"

 The testimony of the plaintiff establishes that as early as 1974 and continuing through June 30, 1978 and thereafter, she was unemployed due to her physical symptoms and conditions. The ALJ suggests that because she may have been "bicycling on weekends" until approximately two years prior to the hearing, because she performed certain "household chores which required most of the day to complete", that this did not constitute the "behavior of an individual with the symptomology of which plaintiff testified" (Tr. 19). Conceding as he did that the plaintiff "is presently disabled due to her multiple problems" (Tr. 20), he concluded that the evidence did not support her allegation of disability on or before June 30, 1978, and, therefore, denied benefits. Here again we are forced to disagree. The ALJ has overlooked or otherwise ignored the multiple symptoms manifested and testified to by the plaintiff as they existed prior to June 30, 1978. In alluding to the performance of limited household chores which took her the entire day to perform, he ignores her testimony that this included simple tasks of making the beds and washing the dishes, whereas the cleaning and heavy work were done by her daughter and son-in-law. Additionally, in his consideration of the entire record reference is made to the plaintiff's visitation of her children from time to time who lived two to four blocks distant. These types of activity visitation of children within two to four blocks distant, bicycling occasionally on a week-end, making of beds, washing of dishes and ...


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