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BENNETT v. SECRETARY OF U.S. DHHS

August 1, 1991

CHARLES BENNETT, PLAINTIFF,
v.
SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.



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

MEMORANDUM AND ORDER

Charles Bennett ("plaintiff") brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. § 405(g), for review of a final decision of the Secretary of the United States Department of Health and Human Services ("Secretary"), denying plaintiff's application for disability insurance benefits and supplemental security income benefits. Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

The following facts are not in dispute. On December 9, 1987, plaintiff filed an application for disability insurance benefits and supplemental security income benefits, alleging disability as of December 17, 1986. The application was denied initially and again on reconsideration. Plaintiff then requested a hearing, which was held on October 5, 1988, before an Administrative Law Judge ("ALJ"). In a decision dated February 18, 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, on August 3, 1989, the Appeals Council denied plaintiff's request for review.

Plaintiff now appeals to this Court seeking reversal of the Secretary's decision. After careful consideration, this Court finds that additional evidence is required with respect to plaintiff's current residual functional capacity, and therefore, remands the case to the Secretary for further proceedings consistent with this opinion.

BACKGROUND

On the date that plaintiff filed for benefits, he was forty-one years old and had a history of heart complications. He has a high school education and has earned some college credits. Plaintiff has been employed in the past as a modified machinist in the aircraft industry, an auto mechanic, and a field technician. He was last employed as a sheet metal mechanic for an air conditioning company, where he apprenticed for six months before injuring his back in December of 1986.

Plaintiff sustained an injury to his lower back while at work on December 17, 1986. He initially was seen at the emergency room of Brookhaven Memorial Hospital for pain in his left ribs. X-rays of plaintiff's ribs and chest taken at that time were negative, and plaintiff was instructed to rest and avoid heavy lifting for four days. He was advised to see an orthopedist if his condition did not improve within the four day period.

Dr. Edward Yambo, plaintiff's family physician, treated plaintiff from January 12, 1987 to June 4, 1987. X-rays taken of plaintiff's lumbosacral spine proved negative. Dr. Yambo's examination disclosed a bulging disc at L4-L5 without evidence of herniation or spinal stenosis.

Dr. Yambo referred plaintiff to Dr. Dwight C. Blum, an orthopedic surgeon, in early April of 1987. Dr. Blum reported that plaintiff exhibited tenderness over the sacroiliac joints and paraspinals, as well as decreased range of motion. No neurologic deficits were discovered, however, and Dr. Blum's x-rays of plaintiff's lumbosacral spine disclosed no bony abnormalities, fractures, or dislocations. Dr. Blum diagnosed plaintiff's condition as an "acute lumbosacral sprain contusion." Dr. Blum prescribed Clinoril, and advised plaintiff to begin a physical therapy regimen.

Plaintiff subsequently underwent computerized tomographic evaluation ("CT-scan") of his lumbar spine. The CT-scan revealed a bulging disc at L4-L5, but yielded no evidence of herniation or of spinal canal stenosis. No further medication or treatment was prescribed at that time. Plaintiff pursued a course of physical therapy through the summer of 1987, then ceased to participate in the program, claiming that the activity exacerbated his condition.

An early residual functional capacity assessment, completed in February of 1988, specified that plaintiff was capable of lifting or carrying a maximum of twenty pounds; unlimited pushing or pulling; frequently lifting or carrying ten pounds; standing or walking a total of about six hours in an eight hour day; and sitting approximately six hours in an eight hour day. The assessment indicated, further, that plaintiff could frequently climb, balance, stoop, kneel, crouch, and crawl, and that his capacity to reach and handle was unlimited.

Plaintiff began treatment with Dr. Victor Gold in February of 1988, in response to plaintiff's complaints of pain in his lower spine. Upon examination, Dr. Gold determined that plaintiff had markedly decreased range of motion in flexion, extension, and bending of the lumbosacral spine. Plaintiff's reflexes and motor and sensory responses, however, were deemed normal, and leg raising was negative. Dr. Gold concluded that plaintiff demonstrated disc bulging at L4-L5 and, in view of plaintiff's continued symptomology and persistent complaints of pain, recommended that plaintiff undergo a magnetic resonance imaging ("MRI") of his lumbosacral spine, and that he be fitted for a corset. An MRI of plaintiff's spine, performed in June of 1988, revealed a left-sided asymmetric bulge at L4-L5.

On July 6, 1988, Dr. Gold submitted a medical progress report to the New York State Workers' Compensation Board based on his examination of plaintiff that same day. The report indicated that plaintiff's pain continued and that straight leg raising was positive. Dr. Gold requested authorization for a lumbosacral brace, and suggested that plaintiff begin a back exercise program. Dr. Gold indicated on the Workers' Compensation ...


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