Rosario v. Sullivan, 92-CV-1843 (DGT).

• Decision Date: 30 January 1995
• Docket Number: No. 92-CV-1843 (DGT).,92-CV-1843 (DGT).
• Citation: 875 F. Supp. 142
• Parties: Genevieve ROSARIO, Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Eastern District of New York

875 F. Supp. 142

Genevieve ROSARIO, Plaintiff, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.

No. 92-CV-1843 (DGT).

United States District Court, E.D. New York.

January 30, 1995.

COPYRIGHT MATERIAL OMITTED

Robert E. Grey, Grey & Grey, Farmingdale, NY, for plaintiff.

Nancy A. Miller, Asst. U.S. Atty., Brooklyn, NY, for defendant.

MEMORANDUM AND ORDER

TRAGER, District Judge:

In this social security disability benefits case, before the Court are plaintiff's and defendant's cross-motions for judgment on the pleadings. For the reasons which follow, the cross-motions for judgment on the pleadings are denied, and the case is remanded to the Administrative Law Judge (ALJ) for a determination consistent with this decision.

Background

Plaintiff, Genevieve Rosario, is a 42-year-old woman with a high school equivalency diploma and 12 college credits. On June 9, 1989, plaintiff was injured in an automobile accident during the course of her employment as a nurse's aide. As a result of the accident, plaintiff sustained injuries to her neck, back, shoulders and legs.

On June 13, 1989, plaintiff was examined by her physician, Dr. Piontkowski, who found the following: 1) "paracervical spasm, moderate with limitation secondary to pain"; 2) "marked spasms" of the lower back; 3) mild to moderate degenerative changes over the superior aspect of the lumbosacral spine; 4) ecchymosis over the tibia and fibula of the left and right legs; 5) normal neurological examination of the upper extremities; and 6) positive straight leg raising to 50 degrees with normal neurological functioning of the legs. Dr. Piontkowski diagnosed plaintiff as having lower back derangement, sciatica and cervical sprain. In addition, he concluded that a herniated disc could not be ruled out. Plaintiff was advised to rest, take anti-inflammatory and muscle relaxant medication and to seek therapy with ultrasound, electrical stimulation and eventually exercise.

Plaintiff was examined by Dr. Donald Holzer, a neurologist, on July 19, 1989. Dr. Holzer found, among other things, a "moderate degree of paracervical muscle spasm with punch tenderness over the cervical spine and limitation of range of motion of the cervical spine ... in all directions." (Tr. at 94). Dr. Holzer's diagnosis was "cervical sprain, rule-out radiculopathy" and "lumbar sprain, rule-out radiculopathy." (Tr. at 95).

A CAT scan, MRI and EMG were performed at Dr. Holzer's recommendation. The MRI of plaintiff's spine, which was performed on October 10, 1989, was unremarkable. The CAT scan, performed on November 3, 1989, revealed a diffuse annular bulge at L4-L5 with mild compression on the anterior thecal sac. The EMGs and nerve conduction studies of plaintiff's lumbar and cervical spine were conducted on November 29, 1989 and December 11, 1989, respectively. Both were within normal ranges and showed no evidence of entrapment neuropathy or radiculopathy.

Plaintiff continued to see Dr. Holzer through August of 1990. Throughout that time, plaintiff's condition improved somewhat, but she continued to have neck, back, and leg pain. Dr. Holzer prescribed Amitriptyline, Midrin, and transcutaneous electrical nerve stimulation (TENS) (Tr. at 105).

On June 4, 1990, plaintiff returned to work as a nurse's aide for a period of three days. Plaintiff could not continue in this capacity as she experienced "recurrent pain in the neck and low back" when lifting a patient (Tr. at 108). Dr. Holzer examined plaintiff again on June 12, 1990, and reported that the examination revealed severe paracervical and paralumbar muscle spasm and tenderness. Plaintiff was to continue biofeedback and physical therapy in addition to using her TENS unit and was prescribed Soma compound (Tr. at 108).

At Dr. Holzer's request, plaintiff was examined by Dr. James Dana on August 21, 1990. Plaintiff complained of headaches, neck pain, low back pain, numbness and tingling in both legs and that her right leg "gave out" at times. Based upon his examination and the results of the MRI, CAT scan and EMGs, Dr. Dana diagnosed plaintiff as having cervical sprain, bilateral sacroiliac joint and ilio-lumbar ligament sprain, myofascial pain syndrome and bulging annulus at L4-L5. Dr. Dana recommended physical therapy, electrostim, trigger point therapy, a variety of massage therapies, hydrocortisone injections and a sacroiliac joint belt (Tr. at 121).

Dr. K. Seo, an orthopedic surgeon, conducted a consultative examination on behalf of the Social Security Administration (SSA) on September 10, 1990 (Tr. at 113-15). Based on his examination and plaintiff's medical records, Dr. Seo's impression was "status post motor vehicle accident, cervical derangement with low back derangement" (Tr. at 115).

Plaintiff continued to see Dr. Dana through April 1991. During this period, Dr. Dana's diagnosis of August 21, 1990, remained unchanged except for an additional diagnosis of nerve root irritation at C8 (Tr. at 117-130). On April 16, 1991, Dr. Dana completed a disability certificate, presumably for plaintiff's workers' compensation benefits, which indicated that plaintiff was "totally incapacitated" from June 9, 1989, to that date. (Tr. at 122). On April 25, 1991, Dr. Dana completed a medical assessment of plaintiff's ability to perform work-related activities, at SSA's request, which stated that plaintiff had the capacity to lift up to 10 pounds, stand/walk for a total of 2-3 hours per day, ½ hour without interruption, and sit a total of 8 hours per day, 1 hour without interruption. (Tr. at 123-25).

Plaintiff applied for disability benefits on April 7, 1990. Her initial application was denied on September, 28, 1990. Reconsideration of the application was denied on December 10, 1990.

In February 1991, plaintiff requested a hearing in front of an ALJ to review the denial of her application for benefits. The hearing was held on May 1, 1991. At the hearing, plaintiff testified that she had worked steadily since March 25, 1991, as a public safety dispatcher for the Suffolk County Police Department (Tr. at 38). Plaintiff stated that although she still experienced pain in her back, legs and head, her employer permitted her to alternate between sitting and standing in an effort to alleviate the pain (Tr. at 40-43). In addition, plaintiff testified that the use of the TENS unit, and various medications helped to alleviate the pain.

In a written decision dated May 29, 1991, the ALJ determined that plaintiff was "not under a `disability,' ... at any time through the date of" the decision (Tr. at 18). Specifically, the ALJ found that although the plaintiff's impairments preclude the performance of her past relevant work, they do not, given her age and education, preclude her from performing any substantial gainful activity which exists in the national economy (Tr. at 20-22). Noting Dr. Dana's medical assessment of plaintiff's ability to do work related activities, prepared on April 25, 1991, the ALJ concluded that plaintiff retained the residual functional capacity to perform sedentary work — work that entails approximately six hours of sitting and two hours of standing/walking during an eight hour workday, and lifting no more than 10 pounds (Tr. at 20, exhibit 14). Finally, the ALJ noted that although the plaintiff had established her inability to perform past relevant work as a nurse's aide, the Secretary had met her burden of proving the existence of other jobs in significant numbers in the national economy which plaintiff could perform. Accordingly, the ALJ determined that plaintiff was not disabled within the meaning of Title II of the Social Security Act.

Plaintiff appealed the decision of the ALJ on July 29, 1991. The ALJ's decision was upheld by the Appeals Council on March 20, 1992. The Appeals Council concluded that there was no basis under the regulations for granting the requested review as the ALJ's determination was consistent with the treating physician's assessment of plaintiff's ability to perform work-related activities, dated April 25, 1991.

Discussion

Title 42 U.S.C. § 405(g) provides the Court's jurisdictional basis and scope of review. According to the statute, the Court may review the factual findings of the Secretary only to determine whether those findings are supported by substantial evidence in the administrative record.

The Supreme Court has defined "substantial evidence" in the context of Social Security cases to be evidence which "a reasonable mind might accept as adequate to support a particular conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991). The Secretary's decision is not undermined where there is evidence which would support a different conclusion so long as there is substantial evidence for the Secretary's decision in the record. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.1972). Accordingly, the Court's inquiry is whether the record, when read as a whole, contains evidence which would allow a reasonable mind to accept the Secretary's conclusions, and where there is evidence susceptible of more than one rational interpretation, the Secretary's conclusion should be upheld. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982).

The main issue in this case is whether the Secretary's determination that plaintiff was "not under a `disability,' ... at any time" is supported by substantial evidence. (Tr. at 18) (emphasis added). The Secretary noted that although plaintiff had sustained her burden of proving that she could no longer perform her prior work, given plaintiff's age, education, the medical evidence, and the fact that she had started a new job, plaintiff at all times retained the residual functional capacity to perform a full range of sedentary work. This determination, which was the underlying premise of the ALJ's conclusion that plaintiff was never disabled, is not...