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SIVILLO v. HECKLER

May 16, 1984

Tina SIVILLO, Plaintiff,
v.
Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: WEXLER

SUPPLEMENTAL MEMORANDUM

WEXLER, District Judge.

 This is an action brought under 42 U.S.C. Section 405(g) to review defendant's determination which denied plaintiff disability insurance benefits. Both parties moved for judgment on the pleadings. On April 19, 1983, we granted plaintiff's motion for judgment on the pleadings.

 I. PRIOR PROCEEDINGS

 The Administrative Law Judge (ALJ) who heard this case and whose decision was adopted by the defendant Secretary determined that plaintiff does not suffer from a severe impairment within the meaning of 20 C.F.R. Section 404.1521(a), which provides that "[a]n impairment is not severe if it does not significantly limit your physical or mental abilities to do basic work activities", and that plaintiff must therefore be deemed not disabled pursuant to 20 C.F.R. Section 404.1520(c).

 Dr. Bruce Reitberg, a board-certified orthopedic surgeon, testified that he examined the plaintiff on March 15, 1982 and found limited motion of the cervical and lumbar spine, back spasm, limitation of range of motion of the right shoulder, and limited straight leg raising. Dr. Reitberg concluded that plaintiff was not capable of engaging in substantial gainful activity.

 Dr. Justus Kaufman, a specialist in abdominal surgery, examined the plaintiff on September 28, 1981 and made the following diagnosis: old fracture of T11 and T12; cervical hypertrophic osteoarthritis with resulting restriction of motion of the right arm and weakness of the right hand; low back derangement with hypertrophic osteoarthritis; obesity; essential hypertension with resulting dizziness. Dr. Kaufman concluded that these conditions resulted in plaintiff's total disability.

 Dr. Mohan Lal Sarwal examined the plaintiff as a consulting physician on June 12, 1981. Physical examination revealed plaintiff's neck had a full range of motion in all directions. The right shoulder had a range of motion with normal limits, but was slightly painful and spasmodic. There was no spasm of the spine muscles. An x-ray examination of the lumbosacral spine revealed a compression fracture of D-11 with anterior wedging and slight osteoarthritic degenerative disease changes. X-rays of the right shoulder and right hip were normal. Dr. Sarwal made diagnosis of degenerative arthritis of the cervical spine, right shoulder and lumbar spine and estimated that plaintiff could sit four hours a day, stand two hours a day, walk one hour a day, frequently lift up to 20 pounds and frequently carry up to 10 pounds.

 Dr. Ray Haag, plaintiff's treating physician, stated on August 7, 1981:

 When I examined her, I found no abnormal findings other than obesity generally. Neck seemed to have full motion without spasm. There was still some slight restriction, about 10% of restriction in right shoulder. No passive loss of motion of right upper extremity. No abnormal neurological findings in lower extremities. Patient appears to be totally disabled from her pain and has slight limitation of motion of right shoulder.

 During 1981, Dr. Haag issued several reports stating that plaintiff is totally disabled. On October 6, 1981, however, ten months after the alleged date of onset of disability, Dr. Haag issued a report stating:

 Patient still has complaints of pain in the neck and right and low back and right buttocks and feet. She also complains that her legs go to sleep at times. When I examined her she grimaces and seems to require a great deal of effort to move her neck fully. She won't put her right shoulder over her head, she only brings it up part way.But passively there is motion of the right shoulder. There is no deformity of the neck or upper extremities. She had good motion of the low part of the back. Nothing wrong in lower extremities. She is gaining weight. She weights 220 pounds now, I think she is unable to do the kind of work she did before which is heavy manual work such as scrubbing floors and making beds but I think she could do some light form of work. I think she has a partial disability, moderately so.

 Dr. Ronald Bennett, a rheumatologist, examined plaintiff several times in 1982, and found:

 Mrs. Sivillo is a 58-year old woman who has suffered compression fractures of her thoracic vertebra, which have led to significant wedge deformities, associated with osteoarthritic changes. In addition, she has recently had an exacerbation apparently complicated by blunt trauma that occurred at work. There is, therefore, a combination of events, both pre-existing mechanical derangement of the spine, with secondary osteoarthritis and degenerative changes having been exacerbated by blunt trauma in the recent past. In terms of her ability to function, it would appear to me that the patient based upon x-ray reports, as well as physical findings, would find it impossible to ...


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