United States District Court, W.D. Pennsylvania
N. Bloch United States District Judge.
NOW, this 19h day of March, 2018, upon
consideration of the parties' cross motions for summary
judgment, the Court, upon review of the Commissioner of
Social Security's final decision, denying Plaintiff's
claim for Disability Insurance Benefits (“DIB”)
under Subchapter II of the Social Security Act, 42 U.S.C.
§ 401 et seq., finds that the
Commissioner's findings are supported by substantial
evidence and, accordingly, affirms. See 42 U.S.C.
§ 405(g); Jesurum v. Sec'y of U.S. Dep't of
Health & Human Servs., 48 F.3d 114, 117 (3d Cir.
1995); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d
Cir. 1992), cert. denied sub nom., 507 U.S. 924
(1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.
1988); see also Berry v. Sullivan, 738 F.Supp. 942,
944 (W.D. Pa. 1990) (if supported by substantial evidence,
the Commissioner's decision must be affirmed, as a
federal court may neither reweigh the evidence, nor reverse,
merely because it would have decided the claim differently)
(citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.
IT IS HEREBY ORDERED that Plaintiff's Motion for Summary
Judgment (Doc. No. 10) is DENIED and that Defendant's
Motion for Summary Judgment (Doc. No. 12) is GRANTED.
 The crux of Plaintiff's argument
is that the Administrative Law Judge (“ALJ”)
erred in failing to consult a medical advisor to determine
whether the onset date for the allegedly disabling
impairments caused by her conditions, particularly her
fibromyalgia, occurred on or before December 31, 2011, the
date her DIB insured status expired. She argues that this
failure is contrary to the provisions of Social Security
Ruling (“SSR”) 83-20, 1983 WL 31249 (S.S.A.),
raising several issues which, she contends, demonstrate the
need for such an advisor. Nonetheless. the Court finds that
the ALJ was not required to seek the assistance of a medical
advisor and that substantial evidence supports the ALJ's
finding that Plaintiff is not disabled.
Plaintiff alleged a disability onset date of January
1, 2010, and there is no dispute that Plaintiff's insured
status ended on December 31, 2011. Therefore, to be eligible
for DIB, Plaintiff “‘must show that [she] was
insured under the program at the time of onset of [her]
disability.'” Kelley v. Barnhart, 138
Fed.Appx. 505, 507 (3d Cir. 2005) (quoting Kane v.
Heckler, 776 F.2d 1130, 1131 n.1 (3d Cir. 1985)).
Although the ALJ made no formal finding that Plaintiff was
disabled at any time, he did suggest that he would have found
Plaintiff to be disabled as of the date of his decision,
February 6, 2015, but not as of the end of her DIB coverage
period approximately four years earlier. Accordingly,
Plaintiff is correct that the issue of the onset date of her
conditions and limitations was a substantial one in this
While SSR 83-20 does require an ALJ to consult a
medical advisor to determine the onset date under certain
circumstances, such circumstances are quite limited. The
Third Circuit Court of Appeals, in Walton v. Halter,
243 F.3d 703 (3d Cir. 2001), held that the use of a medical
advisor was mandatory pursuant to SSR 83-20 in a case where
the alleged onset date was nearly 30 years earlier and where
the alleged impairment was a slowly progressive one and
adequate medical records for the most relevant period were
not available. The court further held that the medical
evidence overwhelmingly suggested the onset date argued by
the claimant and that there was no legitimate medical basis
to the ALJ's finding as to the onset date. Since
Walton, the Third Circuit has confirmed that the
need to seek out the services of a medical advisor is limited
to situations where the underlying disease is progressive and
difficult to diagnose, where the alleged onset date is far in
the past, and where contemporaneous medical records are
sparse or conflicting. See Bailey v. Comm'r of Soc.
Sec., 354 Fed.Appx. 613, 618 (3d Cir. 2009); Kelley
v. Barnhart, 138 Fed.Appx. at 509; Ballardo v.
Barnhart, 68 Fed.Appx. 337, 339 (3d Cir. 2003). Here,
unlike the case in Walton, the alleged onset date is
not remote, and there is considerable medical evidence
regarding Plaintiff's condition prior to December 31,
2011, the end of her insured period. As a general matter,
then, consultation with a medical advisor would not be
warranted in this case.
Plaintiff nonetheless contends that there is
sufficient evidence in the record to support an onset date
prior to December of 2011, and that the ALJ improperly
considered such evidence, demonstrating the need for an
advisor to determine her actual onset date. She argues, for
instance, that the opinions of the non-examining reviewers
(R. 72-79) were not sufficient to support the ALJ's onset
finding because these reviewers did not have access to the
entire record. Generally speaking there is always a time and
evidence lapse between the reviewing agents' report and
the ALJ hearing and decision. See Chandler v. Comm'r
of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).
Plaintiff contends, however, that these reviewing agents had
insufficient evidence to opine as to the progression of her
condition, and therefore that they do not support the
ALJ's finding that onset of any disabling conditions
occurred after December 31, 2011. The Court notes, however,
that the opinions were both rendered after the end of
Plaintiff's insured period, albeit without the benefit of
evidence later added to the record. More importantly, though,
the ALJ, while he gave “some weight” to these
opinions (R. 22-23), did not rely on them specifically in
determining whether the onset date occurred during the
Plaintiff further contends that the record contains
evidence from before the end of the insured period that she
met the requirements of Listing 1.04A, 20 C.F.R. Part 404,
Subpart P, Appendix 1, at Step Three of the sequential
analysis. She argues that evidence from July and August of
2010, primarily from her chiropractor, Michael C. Pangonis,
D.C., demonstrates that she facially met the Listing,
pertaining to disorders of the spine, prior to her date last
insured. She further contends that the ALJ's discussion
as to whether she met this listing during her insured period
was insufficient and that a medical advisor was therefore
needed. The Court, however, disagrees that the record
contained sufficient evidence to establish, or even suggest,
that Plaintiff met Listing 1.04 or that a medical advisor was
needed to render such an opinion.
Listing 1.04 provides that to meet the listing for
disorders of the spine, it must be established that Plaintiff
experiences such a disorder, such as a herniated nucleus
pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet arthritis,
or vertebral fracture, resulting in compromise of a nerve
root (including the cauda equina) or the spinal cord, and
that she meets the criteria of one of three additional
subsections. Plaintiff relies on subsection A, which
Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or reflex
loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).
Listing 1.04A, 20 C.F.R. Part 404, Subpart P, Appendix
1. Moreover, all listings under 1.00, including 1.04A,
require evidence of the inability to ambulate effectively or
to perform fine and gross movements effectively. See
Leibig v. Barnhart, 243 Fed.Appx. 699, 702 (3d Cir.
2007); Phillips v. Colvin, No. 1:16-cv-1033, 2017 WL
3820973, at *5 (M.D. Pa. Aug. 16, 2017); Listing
1.00(B)(2)(a). The ALJ, in his decision, did discuss whether
Plaintiff met these criteria but found that she did not.
Despite Plaintiff's arguments to the contrary, the Court
Plaintiff relies very heavily on tests performed by
her chiropractor, Dr. Pangonis, on August 21, 2010. However,
the record demonstrates merely that a number of tests were
performed on that date, roughly half with positive results
and half with negative results. (R. 650). Dr. Pangonis did
not provide any interpretation or analysis of these test
results, nor did he make a finding that Plaintiff was
experiencing nerve root compression. More importantly,
though, there is no evidence at all of the type of inability
to ambulate or perform fine and gross movements required by
Listing 1.00(B)(2)(a). Indeed, the record contains findings
that Plaintiff demonstrated normal gait even several years
later. (R. 663, 665). Further, as a chiropractor, Dr.
Pangonis is not considered to be an acceptable medical
source, and therefore, his findings cannot themselves
establish that Plaintiff met a listing, but could only help
establish the severity of a diagnosis from a medically
acceptable source. See SSR 06-3p, 2006 WL 2329939
(S.S.A.), at *2; Rogalska v. Berryhill, No.
15-C-5430, 2017 WL 1178515, at *4 (N.D. Ill. Mar. 30, 2017);
Karpinski v. Astrue, No. 5:11-cv-66, 2011 WL
6941391, at *14 (N.D. W.V. Nov. 14, 2011) (ALJ not required
to consider the opinion of a chiropractor in determining
whether a claimant met Listing ...