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SANTOS RIVERA v. SECRETARY OF HHS

May 24, 1984

SANTOS RIVERA, Plaintiff, against SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.


The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, D.J.:

 Plaintiff, Santos Rivera, was born in Puerto Rico on October 10, 1948; that year his family moved to the continental United States. Transcript ("Tr.") at 19. He has a ninth grade education and has worked as a store clerk and security guard. Tr. at 19-21. Plaintiff was working as an undercover security guard when he was diagnosed as suffering from Von Recklenhausen's disease. *fn1"

 In 1975, Rivera applied for disability insurance benefits and was found to be disabled effective February 28, 1975. Tr. 8. He has been receiving benefits and has not worked since that date. In a letter dated July 7, 1982, the New York State Department of Social Services informed Rivera that it was assisting the Social Security Administration in an accelerated Continuing Disability Interview ("CDI") process and was therefore reviewing the eligibility of recipients of benefits under the Social Security Act. Tr. 35. The Disability Specialist stated in the letter that a determination had been made that Rivera was able to "engage in substantial gainful activity in 7/82." Id. Accordingly, his disability benefits were to be terminated as of September 1982. The determination was stated to have been made on the basis of medical reports submitted by Dr. Joseph Polifrone (dated May 11, 1982) and Dr. A. Hyman Kirshenbaum (dated March 18, 1982). Id. Furthermore, the disability specialist stated that although Rivera could not perform many jobs, he could perform sedentary work. Id. A formal determination by the Social Security Administration was made on August 9, 1982.Tr. 36. In february of 1983, Rivera's request for reconsideration was denied and the reviewer concluded that the medical evidence demonstrated muscle weakness and that Rivera's condition had stabilized since it was treated. Tr. 41.

 Rivera requested a hearing on February 18, 1983. Tr. 47. A short hearing before an Administrative Law Judge ("ALJ") was held on April 11, 1983 at which Rivera testified. On April 29, 1983 the ALJ upheld the termination of Rivera's benefits. The Appeals Council denied review of the ALJ's decision and the decision thereby became the final decision of the Secretary of Health and Human Services. Tr. 2.

 A. Medical Evidence

 In a neurological report dated January 7, 1982, plaintiff's treating physician, Dr. Kirshenbaum diagnosed Rivera's disease as multiple neurofibromas or Von Ricklenhausen's disease. Tr. at 57. The report states that on February 19, 1972, plaintiff underwent a "laminectomy of C2, 3, 4 and part of C1 and part of C5, for removal of multiple neurofribromas." Id. Dr. Kirshenbaum reported that although the tumors were successfully removed, plaintiff's condition became progressively worse. Rivera was readmitted to Beth Israel Hospital where a myelogram was performed on January 13, 1978. The test revealed a large lesion at the C5, 6 level.Id. On January 18, 1978, Dr. Kirshenbaum performed a "lower cervical laminectomy" to remove the "intradural extrameduallary tumor." Id. Plaintiff was finally discharged from the hospital on February 25, 1978. In his January 7, 1982 report, Dr. Kirshenbaum states that Rivera visited his office for periodic examinations. During the course of his treatment, a second myelogram was performed which revealed "two to three dozen intradural lesions in the cervical, thoracic and lumbasacral areas." Id. Dr. Kirshenbaum indicated that if Rivera's "sciatica progresses," the lesions would also have to be removed. In addition, the report states that plaintiff was readmitted to Beth Israel Hospital between September 25, 1979 and October 2, 1979. Finally, Dr. Kirschenbaum noted that plaintiff walks with a "spastic gait" and has weakness in the upper extremities. Plaintiff last visited Dr. Kirshenbaum on August 20, 1981 and complained of pain in the left hip which caused him to sway and loose his balance when he walked. Id. The report states that Rivera tires easily, drops objects from his left hand, and is unable to go up and down stairs. Id. In a letter dated July 20, 1982, Dr. Kirshenbaum reviewed plaintiff's medical history and concluded that Rivera's physical condition renders him totally disabled. Tr. 62.

 In November 1982, Dr. Kirshenbaum completed a Spinal Disorders Medical Report and a Neurological Medical Report. The spinal report included a description of plaintiff's symptoms and treatment consistent with his earlier reports of January and July 1982. Tr. at 63. Dr. Kirshenbaum also included the results of a tendon reflex test; Rivera registered "200" on the "dynamometer" with his right hand, but only measured "20" with his left hand. Id.

 In addition to the reports submitted by Rivera's treating physician, the record includes two medical reports completed by consulting physicians. The first, completed by Dr. Joseph C. Polifrone on May 11, 1982, concludes that Rivera suffers from weakness in the left extremities, poor equilibrium, and atrophy in the left hand, arm and leg muscles. Tr. 61. Dr. Polifrone found Rivera to be of normal mental ability and indicated that he believed that plaintiff's condition was permanent and would continue to prevent him from performing fine manipulations with his left hand. Id. Dr. Polifrone concluded, however, that "there are many types of work that [plaintiff] would be able to do." Id.

 Dr. Rubenstein performed a second consultative examination on January 4, 1983. Dr. Rubenstein's report includes a discussion of plaintiff's past medical history as well as the results of his own physical and neurological examinations. Dr. Rubenstein indicated that plaintiff has multiple "cafe-au-lait" spots, or skin lesions, in addition to "multiple dermal neurofibromas." Tr. at 67. A neurological examination found plaintiff's mental abilities, cranial nerves, and sensory perceptions intact. Tr. at 68. A motor examination revealed that plaintiff has no atrophy, and that the tone and strength in his arms and hands are intact. Id. Dr. Rubenstein found moderately increased tone in the legs. Id. In addition, Dr. Rubenstein found that plaintiff has normal finger to nose coordination, but he indicated that plaintiff walks with a spastic gait. Id. Dr. Rubenstein's conclusion was that Rivera suffers from "disseminated neuro fibromatosis" and "mild spastic paraparesis secondary to cervical and perhaps thoracic neuro fibromas." Id. He also recognized that plaintiff may need further surgery if his condition progressed. Id.

 Finally, plaintiff's current treating physician, Dr. David Rosenberg, completed a Social Security Administration medical report on April 8, 1983, in which he identified plaintiff's disease a "neuro fibromas." On each page of the report, Dr. Rosenberg scrawled the words "totally disabled." Tr. 70-73. Dr. Rosenberg prescribed clinoril and recommended that he take Bufferin, both to relieve his pain and stiffness in the hip joints. Tr. at 75.

 At the April 11, 1983 hearing, Rivera testified that his condition renders him totally disabled and prevents him from working. Tr. at 24. He indicated that he experiences pain in the left arm, hip and leg when it is damp. Id. Plaintiff testified further that he can sit for one-half hour, stand for twenty minutes and walk about a block and a half before becoming fatigued. Id. In addition, plaintiff stated that he can only lift three pounds, and that he becomes dizzy when he bends to pick up something. Tr. at 26-27.

 Plaintiff also testified that his daily activities are generally limited to sleeping, eating, and watching television. Tr. at 30. He stated also that he occasionally helps his wife with the house work, and that he attends church on Sunday. Tr. at 29. In addition, he testified that he occasionally takes his son to a nearby park. Id. Finally, plaintiff testified that he did not like to go walking because he is afraid that somebody will mistake his lack of coordination and imbalance as manifestations of drug or alcohol abuse. Tr. at 32.

 The ALJ found that Rivera suffers from severe Von Recklehausen's disease, but stated that Rivera did not establish that he suffers from an impairment listed in Appendix 1 of the regulations. Tr. 8 (P2). Thus, he found that Rivera has the residual functional capacity to perform work related functions, excluding work involving extensive periods of standing and walking, or requiring the ability to lift more than a few pounds. Id. (P4). The ALJ found, therefore, ...


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