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THORINGTON v. SHALALA

February 15, 1994

DENISE E. THORINGTON, Plaintiff
v.
DONNA E. SHALALA, Secretary of Health and Human Services Defendant.



The opinion of the court was delivered by: CAROL E. HECKMAN

 This matter was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Plaintiff initiated this action to seek review of the final decision of the Secretary of Health and Human Services (the "Secretary") denying her disability insurance and supplemental security income ("SSI") benefits under the Social Security Act (the "Act"), 42 U.S.C. §§ 401-433 (Title II) and §§ 1381-1383d (Title XVI). The Secretary has filed a motion for judgment on the pleadings with respect to the disability insurance benefits determination, and for remand with respect to the SSI benefits determination. For the reasons that follow, it is recommended that the Secretary's motion for judgment on the pleadings be denied, that the Secretary's motion for remand be granted, and the case remanded to the Secretary for further proceedings with respect to both the disability insurance and SSI benefits applications.

 BACKGROUND

 Plaintiff was born on January 1, 1951 (T. 47). *fn1" She has a twelfth grade education. She was formerly employed as a nurse's aid, a convenience store clerk, and a factory worker. She was last employed in 1988 as a part-time housekeeper at a hotel and restaurant (T. 97).

 Plaintiff applied for SSI benefits on November 12, 1991 (T. 77-80), and for disability insurance benefits on November 18, 1991 (T. 47-49), alleging disability as of December 28, 1988 due to degenerative disc disease (T. 93). It is not disputed that plaintiff met the disability insured status requirements of the Act on the alleged onset date, and continued to meet those requirements through June 30, 1989, but not thereafter (T. 86). *fn2"

 The medical evidence in the record shows that plaintiff was examined by Dr. John R. Scott, an internist, on January 25, 1989 (T. 150). Dr. Scott noted that plaintiff had suffered a "sudden onset one month ago of pain in the right lumbar region" while doing house cleaning. The back pain was accompanied by numbness and tingling radiating down her leg. Following chiropractic treatment, the pain had diminished by fifty per cent, and the numbness had disappeared. Dr. Scott's impression was "L4 right lumbar disc disease, improving, one month duration." He prescribed two weeks of complete bed rest along with anti-inflammatory and pain medication (id.).

 Plaintiff was admitted to Arnot-Ogden Hospital in Elmira, New York on February 2, 1989, for "further evaluation of severe right sciatica" (T. 121). She underwent water soluble myelogram which failed to show major nerve root cut-off . . ." (id., T. 125). She also underwent a bone scan (T. 124), a CT scan and x-rays (T. 125), none of which revealed any evidence of disc herniation or other significant abnormalities. During her stay at the hospital she was treated conservatively with medication and physical therapy. She showed "gradual improvement in her radiating leg pain over many days and slow decrease in back pain complaints" (id.). Upon discharge on February 13, 1989, Dr. McGee advised plaintiff "to slowly increase light activities, to remain off work duty, slow increase in ambulation" (id.).

 Plaintiff attended seven physical therapy sessions at Jones Memorial Hospital in Wellsville during April and May, 1989. Physical therapist Lee Chaffee noted plaintiff's complaints of lower back pain, especially when sitting or in prolonged postures. None of the therapy techniques used resulted in "any immediate alleviation" (T. 128).

 On June 16, 1989, plaintiff was examined again by Dr. Scott. He noted that the myelogram taken at Arnot-Ogden Hospital "did not show any herniated disc but there is some weakening of discs" (T. 149). Dr. Scott further noted that plaintiff had been unable to increase her activity because of continuing pain. "If she walks more than a block she has a lot of pain and she is very tired the next day. It hurts to bend, it hurts to sit in chairs" (id.). According to Dr. Scott, "there is no way that she can continue her previous job duties which included lifting 35 lbs most of the day. She remains disabled" (id.).

 She saw Dr. Scott again on June 30, 1989. His diagnosis was degenerative disc disease, with no improvement noted (T. 148). On July 28, 1989, Dr. Scott noted that medication had not helped alleviate her pain. Dr. Scott "discussed with her and her husband the nature of chronic disc disease" (id.). Dr. Scott was of the opinion that plaintiff would not be able to do bending or lifting or that type of work in the future. This will be a chronic condition" (id.).

 On September 25, 1989, Dr. Scott reported that plaintiff had undergone four nerve blocks, and that was "all she can take" (id.). She had tingling in her leg, urinary problems and nausea following the nerve blocks. He back was "about the same. As long as she doesn't do a lot of lifting she is fine but there is a definite limit to what she can do. She almost has trouble arising in the morning. Driving a long distance in the car is very difficult" (id.).

 On November 29, 1989, Dr. Scott reported that plaintiff's back pain involving the right sciatic nerve had stabilized, and that she had resumed "light work" activity, but that "now for two weeks it has bothered the left leg the same as it did the right leg" (T. 147). He diagnosed lower lumbar disc disease with left sciatica, and prescribed bed rest with medication, "but when discomfort is improved . . . she may be up and about doing very light activity" (id.).

 On December 18, 1989, Dr. Scott reported that plaintiff's condition was virtually unchanged. He noted that she has had several epidural blocks, chiropractic treatment, physical therapy and medication, all with no improvement. He suggested a TENS unit on a trial basis, and mentioned the possibility of referral to the back rehabilitation clinic in Binghamton (T. 147).

 On March 7, 1990, Dr. Scott reported that plaintiff's back pain was "about the same as it has been right along. No better, no worse." He noted that she was looking for a job that did not require a lot of bending or lifting. He also noted recent complaints of migraine headaches (T. 146).

 Dr. Scott's May 25, 1990 report noted that upon further evaluation by Dr. McGee, plaintiff showed "increasing deterioration of the lumbar discs in her back" (T. 145). Dr. Scott recommended physical therapy and a TENS unit on a trial basis, with the possibility of referral to a rehabilitation or pain clinic. According to Dr. Scott, "weight loss would be helpful but would not cure this problem" (id.).

 Plaintiff underwent physical therapy at Cuba Hospital between June and December, 1990, with no significant improvement in her condition (T. 133-38). On October 23, 1990, Dr. Scott reported that plaintiff felt she was getting some benefit from the physical therapy since she could "do some light housework and sit in a chair as long as she can get up and walk around when she needs to" (T. 145). He diagnosed her condition as "several level degenerative disc disease--chronic" (id.). He was of the opinion that plaintiff could not do any kind of physical work, and approved of her plans to start her own business. He suggested she continue with physical therapy (T. 144).

 On April 3, 1991, Dr. Scott reported that plaintiff's low back pain was "about the same, but now she has pain between the shoulder blades and it goes up into her neck . . .. She feels better actually when she is busy or when she is sitting still (T. 144).

 On May 3, 1991, Dr. Scott reported that plaintiff was "much better," apparently due in part to his prescription of Voltaren and Flexor (T. 144). However, on August 2, 1991, Dr. Scott reported that she was experiencing "the same kind of pain that she has been having for the past year and it hasn't changed . . .. The Voltaren just didn't seem to do anything" (T. 143). He again diagnosed degenerative lumbar disc disease, and recommended another MRI "since it has been gradually getting worse and has been over a year . . ." (id.).

 On August 5, 1991, plaintiff underwent another MRI, which revealed herniation of the disc at L3-4 and posterior bulge of the disc at L4-5 and L2-3 (T. 139).

 In a letter to the New York State Department of Social Services Office of Disability Determinations dated January 6, 1992, Dr. Scott reported that plaintiff's "severe back condition . . . just hasn't shown any improvement but also there has not been any surgically correctable problem up to this point" (T. 142).

 On February 26, 1992, Dr. Scott reported that plaintiff "still has the same pain. Now the right hip area is tingling and numb at times especially when she sits. Recent MRI last ...


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