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March 2, 1990


The opinion of the court was delivered by: Wexler, District Judge.


Plaintiff Linda Nappa ("plaintiff") brings this action pursuant to § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), for review of a final determination of the Secretary of Health and Human Services ("Secretary") denying plaintiff's application for a period of disability and disability insurance benefits. Currently before the Court are motions by both sides for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

Plaintiff first applied for disability insurance benefits on August 3, 1987, alleging disability from March 6, 1986 due to back and leg problems sustained in a work related accident. The application was denied initially and again upon reconsideration. Plaintiff then requested a hearing, which was held on November 29, 1988, before an Administrative Law Judge ("ALJ") who considered the case de novo. In an opinion dated January 19, 1989, the ALJ found that plaintiff was not disabled within the meaning of the Act. The ALJ's ruling became the final decision of the Secretary when the Appeals Council denied plaintiff's request for review in a notice dated May 9, 1989.


Plaintiff, who was thirty-two years old at the onset of her injury, has an Associate's Degree and is a registered nurse. She had worked as a practical nurse at several nursing homes during the period 1978 through 1981, and subsequent to that worked as a registered nurse at the Stony Brook University Hospital from 1982 through March of 1986. Her job required constant standing and walking, bending and reaching, and frequent lifting of both equipment and patients, weighing up to three hundred pounds. On March 6, 1986, plaintiff suffered a back injury while transporting a patient.

Plaintiff testified at the administrative hearing that since the injury she suffers from constant back pain which radiates down her left leg, causing numbness, lack of feeling, and stated that occasionally her leg "just gives out." (Tr. 34).*fn1 Plaintiff further stated that the pain sometimes radiates down her right leg as well, and that she suffered urinary problems which she had been told were due to the stress associated with the back injury.

Plaintiff estimated that she could sit for a half an hour at a time, stand for a half an hour and walk for fifteen to twenty minutes, and that she could not do any lifting. She reported that she was unable to do housework, grocery shopping, or even take a shower alone, for fear of her legs giving out. Plaintiff claims to have social contact only with her mother, no recreational activities or hobbies, and the ability to do only local driving. She takes up some time by working one to two hours per day, twice a week, at a business she established from her home. To this end, plaintiff claims to only answer phones and do some light filing.

Plaintiff began seeing her treating physician, Dr. Frank P. Vaccarino, a board certified orthopedic surgeon, on March 10, 1986, four days following her accident. He reported that x-rays taken of her back at the time of the injury were negative as to recent fractures or dislocations. The physical examination by the doctor showed that plaintiff was in obvious distress. He diagnosed acute sprain of the lumbar spine, with pain radiating persistently to the left leg and knee, and occasionally to the right leg and knee, prescribed orthopedic care and physiotherapy, and ultimately declared plaintiff totally disabled. Over the next several months, Dr. Vaccarino saw plaintiff frequently, during which time he additionally diagnosed intermittent parathesia, sciatica, a palpable nodule at the left iliac crest, a large anterior bulging disc between L4-L5, a posterior herniation of the disc between L3-L4 in the midline, and limited trunk motion.

The most recent report from Dr. Vaccarino, dated June 22, 1988, indicated that plaintiff was still suffering from the above mentioned symptoms as well as the development of a neurogenic bladder with frequency and nocturia and incomplete bladder evacuation. The doctor advised surgery, but noted that in view of previous cardiac abnormalities plaintiff would be a high risk. He further stated that plaintiff was still markedly disabled and not considered employable.

In connection with her Workers Compensation claim, plaintiff was referred by the State Insurance Fund to Dr. Arnold M. Illman, also a board certified orthopedic surgeon. He examined her on September 22, 1986, and reported that she was not able to move freely without severe pain down both legs and into her back. Dr. Illman confirmed a bulging at L4-L5 and a diminished range of motion, and also declared plaintiff markedly disabled.


At the November 29, 1988 hearing, plaintiff testified that she knew she could not go back into nursing, so she attempted to start her own business. She learned how to read blueprints of office designs and how to place bids with furniture distributors for the installation of their modular office furniture. To this end, plaintiff hires workers from local unions to do the physical assembly and installation of the furniture and has a payroll service do some of the financial work. Her own activity is limited to reading the blueprints, telephone work, and writing out invoices, for a total of about an hour a day. The business, which was incorporated as J.I.G. Furniture, Inc. in November of 1985, is a subchapter S corporation.

Plaintiff testified that she actually began doing business in January or February of 1987, and further testified that she did not draw any salary from the business because she needed to keep profits in reserve to meet payroll expenses. Ultimately, the business did show a profit of $19,147 for 1987, and under subchapter S, it is considered personal income to plaintiff. The business began ...

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