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Arnone v. Bowen

decided: August 4, 1989.

NICOLO ARNONE, PLAINTIFF-APPELLANT,
v.
OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Appeal from a judgment of the United States District Court for the Eastern District of New York, Platt, C.J. The district court upheld the denial by the defendant-appellee Secretary of Health and Human Services of plaintiff-appellant's application for disability insurance benefits. Affirmed.

Oakes, Chief Judge, Wisdom*fn* and Meskill, Circuit Judges.

Author: Meskill

MESKILL, Circuit Judge:

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.

BACKGROUND

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 patient as a result of his accident sustained a herniated lumbar disc. At the present time he is totally disabled." The doctor recommended hospitalization for bed rest and traction, and "should 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 has 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 "post lumbar disc surgery syndrome. Patient has a moderate partial disability and further treatment is indicated." 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 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."

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.

On January 19, 1981, Arnone applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433 (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, "in terms of functional capacity of this patient to work, he should be able to walk 3-4 blocks; sit for 2 hours; stand for 1 hour and capable of lifting 10-15 lbs. He has slight difficulty bending."

Dr. Nathaniel Shaffer, after examining Arnone in March of 1982, diagnosed "status 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. § 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 ...


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