Arnone v. Bowen, 1061
| Decision Date | 04 August 1989 |
| Docket Number | D,No. 1061,1061 |
| Parties | , Unempl.Ins.Rep. CCH 14845A Nicolo ARNONE, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee. ocket 88-6192. |
| Court | U.S. Court of Appeals — Second Circuit |
Max D. Leifer, Astoria, N.Y. (Ira H. Zuckerman, Astoria, N.Y., of counsel), for plaintiff-appellant.
Andrew J. Maloney, U.S. Atty. for the Eastern District of New York, Robert L. Begleiter, August V. Sellitto, Asst. U.S. Attys., Eastern District of New York, Brooklyn, N.Y., for defendant-appellee.
Before OAKES, Chief Judge, WISDOM * and MESKILL, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Eastern District of New York, Platt, C.J. The district court affirmed a decision of the defendant-appellee Secretary of Health and Human Services (the Secretary) denying plaintiff-appellant Nicolo Arnone's application for disability insurance benefits. Arnone appeals. We affirm.
Plaintiff-appellant Nicolo Arnone was born in Italy in 1929. He worked in Italy as an ice cream vendor until he came to the United States in 1968. Once here, he worked as a porter in a meat packing plant. This work involved cleaning meat cutting tables, using an electric saw, lifting items weighing up to seventy pounds and using a hose to clean floors and equipment. In November 1973, Arnone injured his back at work while lifting a heavy object, resulting in lower back and leg pain.
Arnone sought treatment from Dr. Harold Goldberg who apparently saw Arnone regularly for a number of weeks. Dr. Goldberg referred Arnone to Dr. Irving Liebman, and Dr. Liebman examined Arnone on December 6, 1973. Dr. Liebman stated his opinion that The doctor recommended hospitalization for bed rest and traction, and "[s]hould he fail to improve, a myelogram is indicated."
On January 15, 1974, Dr. Francis B. Roth examined Arnone and concluded that Arnone "has a severe low back derangement and possibly a herniated disc." Roth stated that Arnone was "presently disabled."
Arnone initially rejected recommendations of an operation. As a result of continuing back and leg pain, however, he was hospitalized for six weeks beginning March 1, 1974. On April 1, Arnone underwent a lumbar laminectomy performed by Dr. Ralph A. Olson. A herniated lumbar disc on the left side of L4-L5 and numerous degenerated fragments were removed. Dr. Liebman then performed a lateral fusion.
Following his operation, Arnone continued to complain of lower back pain and numbness in his legs, particularly his left leg. He claimed that his condition did not improve at all after the operation, and perhaps even worsened. During 1974-75 and perhaps into mid-1976, he was examined by several doctors. Dr. John J. Lalli examined Arnone on December 27, 1974 and reported On January 2, 1975, Dr. Olson saw Arnone for the first time since his discharge from the hospital. He reported finding diminished sensation and reflexes in the left leg, "probably secondary to his previous disc and/or surgery." Dr. Olson recommended that Arnone lose some weight and continue physiotherapy. He repeated these recommendations after another Between 1976-81, Arnone received no medical treatment for his ailments. Nevertheless, he maintains that throughout this period he was unable to work due to his back problems and pain and numbness in his legs.
examination on January 27. Dr. Seth F. Abramson examined Arnone on January 20 and diagnosed a "partial disability." Dr. C. Volpe examined Arnone on October 8, 1975 and noted Arnone's complaints of pain and numbness in his left leg. Dr. Volpe's report included the notation "permanent partial disability."
On January 19, 1981, Arnone applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. Secs. 401-33 (1982 & Supp. IV 1986). His application stated that his disability was a "slipped disc--replaced by artificial one," and that he had become unable to work due to this disability as of November 16, 1973.
Following his application for benefits, Arnone again visited a number of doctors. Dr. S.K. Dutta, examining Arnone on February 26, 1981, diagnosed post-herniated disc removal and degenerative joint disease of the lumbosacral spine. He added,
Dr. Nathaniel Shaffer, after examining Arnone in March 1982, diagnosed "[s]tatus post lumbar spine surgery with herniated intervertebral lumbar disc and osteoarthritis," and concluded that Arnone was "totally disabled." The record also includes post-examination reports of Drs. O. Fukilman and A.P. Tambakis, both dated January 17, 1984.
Arnone's application was denied initially and on reconsideration. Arnone requested a hearing before an Administrative Law Judge (ALJ), which was held on August 29, 1984 and September 5, 1984. On December 12, 1984, the ALJ found that Arnone was not entitled to disability insurance benefits. On March 14, 1985, the Appeals Council rejected Arnone's request to review the decision of the ALJ.
Arnone then brought an action pursuant to 42 U.S.C. Sec. 405(g) in the United States District Court for the Eastern District of New York, seeking review of the Secretary's decision. In a Memorandum and Order dated January 27, 1987, Chief Judge Platt remanded the case to the Secretary for further proceedings, stating "this Court questions whether the Secretary's findings are supported by substantial evidence in that the ALJ did not specify with sufficient particularity the evidence to support his conclusions."
On February 27, 1987, the Appeals Council vacated its denial of Arnone's request for review and the decision of the ALJ and remanded the case to an ALJ for further proceedings. The ALJ held hearings, and Arnone subsequently supplemented the record with a letter dated June 18, 1987 from Dr. Liebman. Dr. Liebman recounted his diagnosis and treatment in 1973-74 and reported a new examination of Arnone. Accompanying the letter were the results of a CT scan. Dr. Liebman stated
[i]t is my opinion that the patient has been totally disabled from work from 11/16/73 to the present time, secondary to a herniated lumbar disc at L4-L5 with a subsequent development of advanced degenerative disc disease and osteoarthritic degeneration of the L4-L5 interspace. This disability has been continuous and total in nature.
The ALJ issued a recommended decision on September 24, 1987. The ALJ recommended
the claimant is entitled to a period of disability from January 4, 1974 through June 30, 1976 but is not entitled to a period of disability or disability insurance benefits under sections 216(i) and 223, respectively, of the Social Security Act at any time prior thereto or subsequent to that time.
By letter to the Appeals Council dated September 30, 1987, counsel for Arnone took exception to the ALJ's recommendation. Relying heavily on the June 1987 report of Dr. Liebman, he maintained that Arnone was entitled to a continuous period In a decision dated February 17, 1988, the Appeals Council modified the recommended decision of the ALJ. The Appeals Council accepted the ALJ's finding that Arnone had been disabled during 1974-76, but nevertheless concluded that Arnone was not entitled to any disability insurance benefits. The bases for this conclusion were the expiration of Arnone's insured status as of March 31, 1977 and his failure to apply for benefits before January 1981. Interpreting the applicable regulations to require Arnone to demonstrate a continuous disability between March 31, 1977 and January 1980, the Appeals Council focused on the absence of any evidence of Arnone's condition during that period. Noting evidence in the record that Arnone's condition had in fact improved during that period, the Council found that Arnone had failed to meet his burden of demonstrating the required period of disability and was therefore not entitled to any disability benefits.
of disability since November 16, 1973, as his condition had not improved since that time.
Arnone again sought review in the district court under 42 U.S.C. Sec. 405(g). He submitted to the district court an April 15, 1988 letter written by Dr. Liebman. The letter read, "[a]fter [a] complete review [of Arnone's medical file], including a review of the physical examination which I performed on 6/18/87, it is my opinion that this patient's disability on 6/18/87 was quite similar to the disability which was present in 1975."
In a July 12, 1988 Memorandum and Order, Chief Judge Platt found that the Secretary had now "specifically noted the reasons denying benefits and because such reasons rest on substantial evidence, the Secretary's decision must be affirmed."
Arnone appeals from this decision of the district court. We affirm.
"In reviewing district court decisions in disability cases, we undertake our own plenary review of the administrative record to determine whether substantial evidence supports the Secretary's denial of benefits." Havas v. Bowen, 804 F.2d 783, 785 (2d Cir.1986); see 42 U.S.C. Sec. 405(g). "[W]e may only set aside a determination which is based upon legal error or not supported by substantial evidence." Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam). Substantial evidence " 'means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d...
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