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 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
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 ...