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ROSADO v. SHALALA

August 11, 1994

ROBERTO ROSADO, Plaintiff,
v.
DONNA E. SHALALA, SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: DAVID G. TRAGER

 TRAGER, District Judge:

 Before the court are the parties' cross-motions for judgment on the pleadings in this social security case. For the reasons set forth below, the government's motion is granted, and plaintiff's motion is denied.

 I. Background

 On June 26, 1991, plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act. Plaintiff asserted that his disability arose from a back injury that occurred in March 1990, when he had lifted a screen in the course of his employment at a print shop. However, plaintiff continued to work until June 14, 1990, the date he has alleged he became disabled. He was 47 years old at the time.

 In his disability report, plaintiff identified two physicians who he has seen for his back problems, Dr. Placido Menezes and Dr. Herbert Weiner. Both of these physicians first saw plaintiff in early 1991. Before that, plaintiff had been treated by a chiropractor, Dr. Morton Glasser, whose reports to the Workers' Compensation Board indicated that he began to treat plaintiff in July 1990. Dr. Menezes, Dr. Weiner, and Dr. Glasser had all checked off or otherwise noted that plaintiff was totally disabled in their reports to the Workers' Compensation Board, although Dr. Weiner, in his report to the Board dated February 17, 1992, checked off that plaintiff had a partial disability.

 In a report dated February 11, 1991, Dr. Menezes wrote that after the alleged injury, plaintiff claimed to have experienced pain in the lumbar area and experienced difficulty when he walked or sat down or was bent forward. Dr. Menezes found that plaintiff had a moderate degree of spasm in the paravertebral muscles with loss of lumbar lordosis present. Dr. Menezes further found that movements of the lumbar spine were limited. X-rays purportedly showed some narrowing of the disc space at L-3,4 with degenerative changes. Dr. Menezes referred plaintiff to Dr. Weiner for treatment.

 However, an MRI of plaintiff's lumbar spine performed on March 29, 1991 was negative. The report stated that the "MRI of the lumbar spine discloses no disc herniations. No spinal stenosis seen. No soft tissue masses or bony abnormalities identified." Tr. 93.

 On August 2, 1991, Dr. Weiner stated on a form provided by the New York State Department of Social Services that plaintiff had paravertebral spasm and numbness in his neck and lower back. Dr. Weiner did not indicate that plaintiff had any atrophy, or sensory, motor, or reflex abnormalities. Dr. Weiner also did not indicate that plaintiff required any assistance in the performance of daily activities, although the form specifically requested Dr. Weiner to describe such limitations if they were present. In the accompanying range of motion chart, Dr. Weiner indicated that plaintiff had restrictions in his lumbar region. Based on his medical findings, Dr. Weiner opined that plaintiff's ability to push and/or pull was limited due to back pain, but that plaintiff did not suffer other limitations.

 X-rays of plaintiff's lumbar spine, taken on August 29, 1991, were also negative. On that same date, plaintiff was examined by the government's physician, Dr. Mario Mancheno, who found that plaintiff walked normally, and that plaintiff did not exhibit any atrophy, or sensory, motor, or reflex abnormalities. Dr. Mancheno did note that plaintiff had some tenderness from L3 to S1, with minimal paraspinal muscle spasm.

 At the hearing before the Administrative Law Judge ("ALJ"), held on March 16, 1992, plaintiff indicated that he lived on the second floor of a building that does not have an elevator, so he would walk up one flight of stairs to get to his apartment. Plaintiff stated that he took the train that day to get to the hearing. It is worthwhile to note that in his disability report, plaintiff wrote that he was able to use public transportation on his own, that he went for walks, and attended baseball games. However, at the disability hearing, he testified that if he walked a couple of blocks, he would experience pain the subsequent day. He claimed he could sit or stand for only one hour at a time, and could lift ten pounds, but with difficulty.

 The Social Security Act provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. ยง 405(g). Substantial evidence denotes evidence which "'a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). "Where there is substantial evidence to support either position, the determination is one to be made by the factfinder [i.e., the Secretary]." Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). Based on the record in this case, this court must affirm the Secretary's decision to deny plaintiff's application for benefits.

 Although plaintiff's doctors had checked off that plaintiff was disabled on forms sent to the Workers' Compensation Board, the standards which regulate workers' compensation relief are different from the requirements which govern the award of disability insurance benefits under the Act. Accordingly, an opinion rendered for purposes of workers' compensation is not binding on the Secretary. See Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984) "We believe the ALJ could reasonably disregard so ...


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