Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-31-2003

Newell v. Comm Social Security
Precedential or Non-Precedential: Precedential

Docket No. 03-1358




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                     PRECEDENTIAL

                              Filed October 14, 2003

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                No. 03-1358


             JANICE NEWELL,
                                  Appellant
                     v.
  COMMISSIONER OF SOCIAL SECURITY

Appeal from the United States District Court
         for the District of New Jersey
            (D.C. Civ. No. 01-2850)
District Judge: Honorable Anne E. Thompson

        Argued: September 9, 2003
BEFORE: BARRY, BECKER, and GREENBERG,
             Circuit Judges

     (Opinion Filed: October 14, 2003)

              Abraham S. Alter (argued)
              Langton & Alter
              2096 St. Georges Avenue
              Rahway, NJ 07065
                Attorneys for Appellant
                              2


                       Christopher J. Christie
                       United States Attorney
                       Peter G. O’Malley
                       Assistant United States Attorney
                       970 Broad Street, Suite 700
                       Newark, NJ 07102
                       Barbara L. Spivak
                       Chief Counsel - Region II
                       Karen T. Callahan (argued)
                       Assistant Regional Counsel
                       Office of the General Counsel
                       Region II
                       26 Federal Plaza
                       New York, NY 10278
                       Social Security Administration
                         Attorneys for Appellee


                 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
                                   3


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

1. The Commissioner has not contended that we should not consider this
case on the basis of Newell allegedly being disabled for the reasons she
emphasized at oral argument.
                                    4


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.

2. Originally, Newell argued that her eligibility for widow’s benefits ran
until August 1998, but at oral argument her attorney abandoned that
argument and thus accepted August 31, 1997, as the cut-off date.
                                     5


     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

3. Tr. refers to the administrative transcript.
                             6


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
                              7


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 non-
prescription 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 seek medical attention until June 1998 because she
had no insurance. Tr. 32. When she went to the doctor, he
diagnosed her with diabetes and neuropathy. Tr. 33-34.
She testified that she is unable to bathe, dress herself, and
drive. Tr. 43-44.
  3.   The ALJ’s Findings
  ALJ Ryan found that Newell’s allegations were not
supported by objective medical evidence and were
contradicted by her own statements and actions. He noted,
for example, that there was no evidence that Newell sought
or received regular medical treatment from 1990 to 1998.
Nor did she receive treatment for her back injury in 1997.
ALJ Ryan also found that it was not until August 1998, a
year after she was last eligible for benefits, that she began
to experience neuropathy in her lower extremities and that
her medical problems worsened. Thus, he concluded that
prior to August 31, 1997, she did not have a severe
impairment that lasted or could be expected to last 12
months or more, which significantly limited her ability to
engage in work-related activities. Accordingly, he
determined that she was not entitled to widow’s disability
benefits.

                     II.   DISCUSSION
  A.   Standard of Review
  We exercise plenary review over the order of the district
court, see Knepp v. Apfel, 

, 83 (3d Cir. 2000),
but review the decision of the Commissioner to determine
                              8


whether it is supported by substantial evidence. See
Richardson v. Perales, 

, 390, 

,
1422 (1971). Substantial evidence has been defined as
“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” 

91 S.Ct.
at 1427 (quoting Consolidated Edison Co. v. NLRB, 

, 229, 

, 217 (1938)). It is more than a mere
scintilla of evidence but may be less than a preponderance.
See Brown v. Bowen, 

, 1213 (3d Cir. 1988).
Of course, we exercise plenary review over questions of law.
See Krysztoforski v. Chater, 

, 858 (3d Cir.
1995).
  B.   Statutory and Regulatory Framework
   In order to establish a disability under the Social Security
Act, a claimant must demonstrate that there is some
“ ‘medically determinable basis for an impairment that
prevents him from engaging in any “substantial gainful
activity” for a statutory twelve-month period.’ ” Stunkard v.
Secretary of Health & Human Servs., 

, 59 (3d
Cir. 1988) (quoting Kangas v. Bowen, 

, 777
(3d Cir. 1987)); 42 U.S.C. § 423(d)(1)(A). A claimant is
considered unable to engage in any substantial gainful
activity “only if his physical or mental impairment or
impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind
of substantial gainful work which exists in the national
economy . . . .” 42 U.S.C. § 423(d)(2)(A).
   The SSA has promulgated regulations incorporating a
five-step sequential evaluation process for determining
whether a claimant is under a disability. See 20 C.F.R.
§ 404.1520; Williams v. Sullivan, 

, 1180 (3d
Cir. 1992). The first two steps involve threshold
determinations. In step one, the Commissioner must
determine whether the claimant currently is engaging in
substantial gainful activity. Burnett v. Comm’r Soc. Sec.
Admin., 

, 118 (3d Cir. 2000). If a claimant is
found to be engaging in substantial gainful activity, the
disability claim will be denied. 

two, the
Commissioner must determine whether the claimant has a
medically    severe  impairment      or   combination   of
                                  9


impairments. See 

claimant does not have a severe
impairment or combination of impairments, the disability
claim is denied. See 

three, the Commissioner
compares the medical evidence of the claimant’s
impairment to a list of impairments presumed severe
enough to preclude any gainful work. 

impairment
is equivalent to a listed impairment the disability claim is
granted without further analysis. If a claimant does not
suffer from a listed impairment or its equivalent, the
analysis proceeds to steps four and five. 

requires the ALJ to consider whether the claimant retains
the residual functional capacity to perform his past relevant
work. 

bears the burden of demonstrating
an inability to return to his past relevant work. 

claimant does not meet the burden the claim is denied.
   If the claimant is unable to resume his former
occupation, the evaluation moves to the final step. 

stage, the burden of production shifts to the
Commissioner, who must demonstrate the claimant is
capable of performing other available work in order to deny
a claim of disability. 

must show there
are other jobs existing in significant numbers in the
national economy which the claimant can perform,
consistent with his or her medical impairments, age,
education, past work experience, and residual functional
capacity. 

must analyze the cumulative effect of
all the claimant’s impairments in determining whether he is
capable of performing work and is not disabled. 

19.
  C.   The Step-Two Determination
  As mentioned above, at step two of the five-step
sequential inquiry the ALJ determines whether the claimant
has a medically severe impairment or combination of
impairments. See Bowen v. Yuckert, 

, 140-41,

, 2291 (1987); Social Security Ruling (“SSR”)
86-8, 1986 SSR LEXIS 15, at *6-7; SSR 85-28, 1985 SSR
LEXIS 19, at *1. The Social Security Regulations and
Rulings,4 as well as case law applying them, discuss the

4. Social Security Rulings constitute the SSA’s interpretations of the
statute it administers and of its own regulations. Chavez v. Dep’t of
                                   10


step-two severity determination in terms of what is “not
severe.” Smolen v. Chater, 

, 1290 (9th Cir.
1996). According to the Commissioner’s regulations, “an
impairment is not severe if it does not significantly limit
[the claimant’s] physical ability to do basic work activities.”

C.F.R. §§ 404.1520(c), 404.1521(a)(1991)).
Basic work activities are “abilities and aptitudes necessary
to do most jobs, including, for example, walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying or
handling.” 

C.F.R. § 140.1521(b)).
   The step-two inquiry is a de minimis screening device to
dispose of groundless claims. See Smolen v. 

; McDonald v. Secretary of Health & Human Servs.,

, 1124 (1st Cir. 1986). An impairment or
combination of impairments can be found “not severe” only
if the evidence establishes a slight abnormality or a
combination of slight abnormalities which have “no more
than a minimal effect on an individual’s ability to work.”
SSR 85-28, 1985 SSR LEXIS 19, at *6-7. Only those
claimants with slight abnormalities that do not significantly
limit any “basic work activity” can be denied benefits at
step two. See Bowen v. 

, 107 S.Ct.
at 2300 (O’Connor, J., concurring). If the evidence
presented by the claimant presents more than a “slight
abnormality,” the step-two requirement of “severe” is met,
and the sequential evaluation process should continue. See
Smolen v. 

. Reasonable doubts on
severity are to be resolved in favor of the claimant.5

Health & Human Servs., 

, 851 (9th Cir. 1996). Social
Security Rulings do not have the force of law, id.; nevertheless, once
published, they are binding on all components of the SSA. Walton v.
Halter, 

, 708 (3d Cir. 2001).
5. SSR 85-28, 1985 SSR LEXIS 19, at *11-12, states that “[g]reat care
should be exercised in applying the not severe impairment concept. If an
adjudicator is unable to determine clearly the effect of an impairment or
combination of impairments on the individual’s ability to do basic work
activities, the sequential evaluation process should not end with the not
severe evaluation step. Rather, it should be continued.”
                              11


  1.   The ALJ Denied Newell’s Claim At Step Two on
       Erroneous Bases
   According to ALJ Ryan, the objective medical evidence in
Newell’s record did not support her allegation of disability
and thus he denied her claim at step two of the sequential
evaluation. It is true that her record lacks evidence of
treatment for liver disease, diabetes, or neuropathy prior to
August 31, 1997. Nonetheless, this lack of evidence in the
particular circumstances of this case did not provide an
adequate basis to support a conclusion that Newell was not
disabled prior to August 31, 1997. We note that several
courts have questioned the relevance of infrequent medical
visits in determining when or whether a claimant is
disabled. For example, the Court of Appeals for the Ninth
Circuit has held that the fact that a “claimant may be one
of the millions of people who did not seek treatment for a
mental disorder until late in the day” was not a substantial
basis to reject that an impairment existed. Nguyen v.
Chater, 

, 1465 (9th Cir. 1996).
   In fact, SSR 96-7p, 1996 SSR LEXIS 4, at *22, states that
“the adjudicator must not draw any inferences about an
individual’s symptoms and their functional effects from a
failure to seek or pursue regular medical treatment without
first considering any explanations that the individual may
provide, or other information in the case record, that may
explain infrequent or irregular medical visits or failure to
seek medical treatment.” Here, Newell’s explanation for her
failure to seek treatment prior to August 31, 1997, is
adequate — she claims she could not afford treatment until
her father gave her money in June 1998. Moreover, the
record demonstrates that her income during the germane
period was very low and that she did not have medical
insurance, circumstances that support her claim that she
could not afford treatment. Accordingly, we disagree with
the ALJ’s statement that “[i]t is reasonable to assume that
if [Newell] was experiencing the degree of pain and
functional limitation which she has alleged that she would
have sought medical treatment.” Tr. 16.
  It is Newell’s position that her liver disease, diabetes, and
neuropathy are slowly progressing conditions that existed
well before their documentation in 1998. She argues that
                             12


her medical record must be studied retrospectively to
determine when her medical conditions actually became
disabling. Retrospective diagnosis of an impairment, even if
uncorroborated by contemporaneous medical records, but
corroborated by lay evidence relating back to the claimed
period of disability, can support a finding of past
impairment. See Loza v. Apfel, 

, 396 (5th Cir.
2000); Likes v. Callahan, 

, 191 (5th Cir. 1997).
Thus, even non-contemporaneous records of Newell’s liver
disease, diabetes, and neuropathy are relevant to the
determination of whether their onset occurred by the date
Newell alleges. See Ivy v. Sullivan, 

, 1049
(5th Cir. 1990). Here, the ALJ failed properly to consider
the non-contemporaneous evidence presented by Newell in
order to perform a retrospective analysis.
  The ALJ also erred in using Newell’s lack of treatment
prior to August 31, 1997, as a basis for discrediting her
credibility regarding her pain and level of function. Lay
evidence need not be corroborated by contemporaneous
medical evidence to be credible. See Basinger v. Heckler,

, 1169 (8th Cir. 1984) (lay evidence must be
considered even if uncorroborated by medical evidence).
Moreover, SSR 96-7p, 1996 SSR LEXIS 4, at *1, provides
that an “individual’s statements about the intensity and
persistence of pain or other symptoms or about the effect
the symptoms have on his or her ability to work may not be
disregarded solely because they are not substantiated by
objective medical evidence.” The ALJ also failed to give
proper reasons for discrediting her credibility. Thus in
Sousa v. Callahan, 

(9th Cir. 1998), the
Appeals Council had cited the length of time between the
actual events and the testimony and the lack of
corroborating objective evidence as reasons for rejecting the
lay testimony but the court of appeals found that “[t]hese
justifications for the rejection of the lay testimony are not
sufficient.” 

  2.   The ALJ Failed To Apply SSR 83-20
  SSR 83-20, 1983 SSR LEXIS 25, provides ALJs with an
analytical framework for determining a disability onset
date. SSR 83-20 defines the “onset date of disability” as
“the first day an individual is disabled as defined in the Act
                                    13


and the regulations.” 

In cases in which the onset
date is critical to a determination of entitlement to benefits,
an ALJ must grapple with and adjudicate the question of
onset, however difficult. See 

to determining
that an individual is disabled, the decisionmaker must also
establish the onset date of disability. In many claims, the
onset date is critical; it may . . . even be determinative of
whether the individual is entitled to or eligible for any
benefits.”).6
  Here, the ALJ’s task was to determine when, if ever,
Newell’s liver disease, diabetes, and neuropathy became
disabling. According to SSR 83-20, 

     [w]ith slowly progressive impairments, it is sometimes
     impossible to obtain medical evidence establishing the
     precise date an impairment became disabling.
     Determining the proper onset date is particularly
     difficult, when, for example, the alleged onset and the
     date last worked are far in the past and adequate
     medical records are not available. In such cases, it will
     be necessary to infer the onset date from the medical
     and other evidence that describe the history and
     symptomatology of the disease process.
                                     . . .
     In some cases, it may be possible, based on the
     medical evidence to reasonably infer that the onset of
     a disabling impairment(s) occurred some time prior to
     the date of the first recorded medical examination . . . .
     How long the disease may be determined to have
     existed at a disabling level of severity depends on an
     informed judgment of the facts in the particular case.
     This judgment, however, must have a legitimate
     medical basis. At the hearing, the administrative law
     judge (ALJ) should call on the services of a medical
     advisor when onset must be inferred.
                                     . . .

6. Under SSR 83-20, 1983 SSR LEXIS 25, at *3, an ALJ should consider
three factors in determining an onset date: (1) the claimant’s allegations;
(2) the claimant’s work history; and (3) medical and other evidence.
                                   14


     If reasonable inferences about the progression of the
     impairment cannot be made on the basis of the
     evidence in file and additional relevant medical
     evidence is not available, it may be necessary to
     explore other sources of documentation. Information
     may be obtained from family members, friends, and
     former employers to ascertain why medical evidence is
     not available for the pertinent period and to furnish
     additional evidence regarding the course of the
     individual’s condition.
  Newell is correct that the ALJ in this case failed to follow
this formula. The ALJ should have consulted a medical
advisor to help him infer the onset date as required by SSR
83-20 and our decision in Walton v. Halter, 

(3d Cir. 2001).7 See DeLorme v. Sullivan, 

, 848
(9th Cir. 1991) (“In the event that the medical evidence is
not definite concerning the onset date and medical
inferences need to be made, SSR 83-20 requires the
administrative law judge to call upon the services of a
medical advisor. . . .”); Spellman v. Shalala, 

, 363
(5th Cir. 1993) (“[B]ecause Spellman’s mental impairment
was of a slowly progressive nature, and the medical
evidence was ambiguous with regard to the disability onset
date, the Appeals Council could not have inferred an onset
date based on an informed judgment of the facts without
consulting a medical advisor.”); Bailey v. Chater, 

, 79 (4th Cir. 1995) (“[T]he date on which the synergy [of
the claimant’s numerous ailments] reached disabling
severity remains an enigma. In the absence of clear
evidence documenting the progression of Bailey’s condition,
the ALJ did not have the discretion to forgo consultation
with a medical advisor.”).

7. In Walton, we held that the ALJ must call upon the services of a
medical advisor in a situation where the alleged impairment was a slowly
progressing one, the alleged onset date was far in the past, and adequate
medical records for the most relevant period were not available. See 

                              15


                     III.   CONCLUSION
   A district court, after reviewing the decision of the
Commissioner may under 42 U.S.C. § 405(g) affirm, modify,
or reverse the Commissioner’s decision with or without a
remand to the Commissioner for a rehearing. See
Podedworny v. Harris, 

, 221 (3d Cir. 1984). A
court of appeals also retains this discretion and, in
reversing or modifying the Commissioner’s decision, may
choose to direct a remand of the case to the Commissioner
for a further hearing or simply direct the district court to
order the award of benefits. 

court of appeals
should make the decision to direct the district court to
order the award of benefits only when the administrative
record of the case has been developed fully and when
substantial evidence on the record as a whole indicates that
the claimant is disabled and entitled to benefits. 

22. As Newell notes, this case has not been developed fully
as the ALJ denied her claim at step two of the sequential
evaluation on erroneous bases. He failed properly to review
the evidence in the record dated post August 31, 1997, and
he improperly used Newell’s lack of treatment during her
coverage period as a basis for discrediting her credibility.
Finally, the ALJ failed to comply with SSR 83-20, and he
failed to consult with a medical advisor to determine the
onset date of Newell’s alleged disability. It is therefore
necessary to reverse the district court’s order affirming the
Commissioner’s denial of benefits.
  For the foregoing reasons we will reverse the order of
December 3, 2002, and will remand the case to the district
court to remand it in turn to the Commissioner for further
proceedings in accordance with this opinion.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit