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MANNS v. SHALALA

February 16, 1995

LEVI MANNS, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: LESLIE G. FOSCHIO

REPORT and RECOMMENDATION

 JURISDICTION

 This matter was referred to the undersigned for report and recommendation on April 28, 1994 by the Honorable Richard J. Arcara, pursuant to 28 U.S.C. § 636(b)(1)(B). The matter is presently before the court on Defendant's motion for judgment on the pleadings, filed July 14, 1994.

 Plaintiff, Levi Manns, seeks review of the Defendant's decision denying him Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385 (1993). In denying Manns' application for benefits, Defendant determined that Manns had the capability to perform a broad range of sedentary to light work, excluding work involving lifting or carrying more than fifteen pounds with his left arm, standing or walking for more than six hours a day, and allowing for his inability to perform fine manipulation with his left hand, and was, therefore, not disabled as defined by the Social Security Act. (R. 19-20). *fn1"

 On April 23, 1993, Manns filed an action seeking a determination that he was entitled to supplemental security income. Manns asserts that the Defendant's decision was not supported by substantial evidence, and that it should be reversed. On July 14, 1994, Defendant filed a motion for judgment on the pleadings, seeking dismissal of the action.

 No oral argument was held on the matter.

 PROCEDURAL HISTORY

 Manns initially filed for Supplemental Security Income ("SSI") on July 22, 1991. This application was denied on November 20, 1991. A request for reconsideration was filed on December 16, 1991, and the claim for benefits was again denied on March 13, 1992. Manns appealed the determination.

 On October 7, 1992, a hearing was held in Buffalo, New York before an administrative law judge ("ALJ") from the Office of Hearings and Appeals of the Social Security Administration, Department of Health and Human Services, regarding the denial of supplemental security income. On October 23, 1992, the ALJ denied supplemental security income benefits to Manns. Manns then requested a review of the hearing decision. On February 24, 1993, the Appeals Council concluded that there was no basis for granting the request for review, and determined that the decision of the ALJ was the final decision of the Social Security Administration.

 Thereafter, on April 23, 1993, Manns filed this action seeking review of the administrative decision. On July 14, 1994, Defendant filed a motion for judgment on the pleadings, and a related memorandum of law in support of the motion.

 The matter was referred to the undersigned on April 28, 1994. No oral argument was deemed necessary.

 For the reasons as set forth below, I recommend that Defendant's motion for judgment on the pleadings be GRANTED.

 FACTS

 As of October 7, 1992, the date of the hearing before the ALJ, Levi Manns was forty-one years old. (R. 13, 85). Manns lived alone in a third floor apartment and did some of his own cooking, grocery shopping and cleaning. (R. 16, 35-36, 135). Manns had completed the tenth grade at Grover Cleveland High School, and had continued his schooling by taking carpentry classes at Emerson High School. (R. 36-37, 60).

 From 1965 to 1966, Manns worked for the United States Corps of Engineers doing landscaping in Buffalo, New York. (R. 146). From 1968 to September of 1969, Manns worked as a flyboy for the Greater Buffalo Press. (R. 146). Manns also held a job as a laborer for Bethlehem Steel from 1969 until mid-1970. (R. 38, 146). His job consisted of moving sheets of rolled steel and other materials, pressing them and welding them together. In 1970, Manns entered the military service, however, he was discharged one month later as his reading and writing abilities were impaired. (R. 13, 37).

 Manns subsequently worked for Ford Motor Company as an automation tender from August of 1970 through July of 1973. (R. 37, 123). His employment was terminated as the result of his becoming belligerent when he was confronted regarding marijuana use. (R. 237).

 In 1984, Manns made his first attempt at detoxification at the Erie County Medical Center. (R. 155, 159, 165). He was admitted on June 16, 1984, however, he left after only three days of treatment. (R. 159, 165). At that time, Manns was using Dilaudid, heroin and marijuana. (R. 165). Manns was treated with repeated doses of methadone until his condition was stabilized. (R. 165). When the doctor began to reduce the levels of methadone, Manns discharged himself against medical advice. (R. 165).

 On October 26, 1988, Manns was admitted to a detoxification program for heroin and cocaine dependence, again at the Erie County Medical Center. (R. 13, 154-156). At the time Manns was admitted for treatment, he was using two or three bags of heroin a day and one-half gram of cocaine every three days. (R. 155, 157, 159). Manns was taking the heroin intravenously and admitted using contaminated needles. (R. 155). Manns was discharged against his doctor's advice on October 30, 1988, and was found to be intoxicated later that day. (R. 154-156).

 Manns became a client of the City of Buffalo Division of Substance Abuse Services on September 25, 1989, at which time he was taking two bags of heroin a day intravenously. (R. 176-177, 180). Manns was subsequently admitted to the Erie County Medical Center for opiate dependency on October 26, 1989. (R. 182-184). Manns was started on methadone during his hospital stay and was gradually weaned from the methadone. (R. 183). His tentative discharge was November 8, 1989, however, he was discharged on November 6, 1989 at his request. (R. 183). Manns received both group and individual counseling while in the hospital. (R. 183). Although Manns stated that he was using heroin intravenously every day, none of the toxicology reports indicated this assertion. (R. 189).

 During his stay at the hospital, Manns had a psychological assessment. (R. 192). Dr. Wilmoth F. Roberts, a clinical psychologist, believed that Manns had an adjustment disorder with anxious mood, and a dependent personality disorder. (R. 52, 192).

 On October 12, 1990, an examination by Dr. Rafael C. Rondon for the City of Buffalo Division of Substance Abuse Services diagnosed mixed substance abuse. He found Manns' neck, chest, joints, extremities and neurological tests to be normal, with the exception that his muscles and reflexes were not checked. (R. 251-252).

 Manns began another inpatient detoxification treatment program at Columbus Hospital, beginning on January 9, 1991 and ending on January 16, 1991. (R. 124, 198-199). His bloodwork revealed no significant abnormalities. (R. 242). However, his toxicology screen was positive for cannabinoids, cocaine and opiate metabolites. (R. 199, 207, 242). Methadone treatment was started and gradually tapered. (R. 199, 242). Manns underwent the detoxification uneventfully and was referred to the Division of Substance Abuse Services of the City of Buffalo to follow up with outpatient counseling. (R. 199, 242). His drug treatment counsellor reported that Manns was cooperative and demonstrated good insight into the nature of his chemical dependency. (R. 201). A physical examination documented that Manns retained a full range of motion in his limbs, and the doctor found his neurological status to be intact. (R. 200).

 On August 21, 1991, Manns was admitted, for the fourth time, to the Erie County Medical Center Substance Intervention Unit for detoxification. (R. 221). During his withdrawal, he experienced periods of insomnia, depression and anxiety. (R. 222). Manns was treated with Methadone and Vistaril. (R. 222). His recovery was gradual and his withdrawal symptoms slowly diminished in their intensity. (R. 222). Manns' mental outlook improved and he was advised to obtain follow up counselling at the City of Buffalo Counselling Center, and given an appointment for follow up in the Medical Clinic for the possibility of hypersensitive disease. (R. 222). No other physical problems or related complaints were noted. (R. 222). Manns was discharged on August 31, 1991. (R. 221-222).

 On September 23, 1991, Dr. Won Hoon Park, a consultative psychiatrist, performed a mental status examination on Manns. (R. 237-239). Manns discussed his history of substance abuse and physical problems, including his back, left wrist, and forearm injuries. (R. 237). Dr. Park found Manns to be cooperative and attentive, and did not find any evidence of psychotic symptoms. (R. 238). However, the doctor was troubled with Manns' insight, in that Manns believed that his current drug use was not serious, so he was not motivated to stop. (R. 238). Dr. Park's diagnosis included Manns' history of drug use and his current opiate dependence, as well as documenting a possible anti-social personality disorder. (R. 238).

 Manns was again admitted to Columbus Hospital for detoxification on April 14, 1992, and was released on April 22, 1992. (R. 143). This detoxification program was apparently successful as at the hearing on October 7, 1992, Manns was involved in a methadone maintenance program, and had not used heroin or cocaine for about five months. (R. 40-41, 48, 52, 58). He went to the Drug Abuse Research and Treatment Center to receive his Methadone shot at 8:30 each morning, and met with his counsellor, Mr. Moore, once a week. (R. 58).

 Manns has also had several altercations with the law. He was convicted for armed robbery and third degree assault in his mid-twenties, and was incarcerated for six months. (R. 237). More recently, in August of 1991, Manns was arrested for possession of heroin. (R. 62-63). He had another arrest for possession of heroin one or two months later. (R. 63).

 Manns' other medical problems began in 1974, when his left forearm and wrist were stabbed during a mugging. (R. 42, 237, 241). The laceration involved the nerves of the mid and lateral portion of the wrist. (R. 241). These injuries were repaired by Dr. Fineberg at the Buffalo General Hospital, where Manns spent seven days, and then began physical therapy. (R. 42, 241). While the tendon and nerve damage was repaired, the use of Manns' left hand was impaired. (R. 42, 237). Manns retained little strength in his left hand, and cannot lift anything weighing over fifteen pounds. (R. 42, 237). This injury was aggravated when Manns received a gunshot wound on his left index finger along with face and elbow lacerations in 1977. (R. 242). These problems were also repaired at Buffalo General Hospital. (R. 242).

 Manns' back, neck and right leg were injured in a car accident in 1977. (R. 41, 237). He received treatment for these injuries at Buffalo General Hospital. (R. 41). Manns also experienced back problems since a bus accident he was involved in 1989. (R. 43, 242). Manns asserts that this accident aggravated the injuries to his left wrist, back and leg. (R. 242). He has had trouble getting out of bed, as well as some stiffness and aching. (R. 43). He has also had pain in his legs and knees, for which he took 600 milligrams of Fenoprofen (an anti-inflammatory) twice daily. (R 44-45). Manns stated that Dr. Allen Bernstein, who treated him after the bus accident in 1989, recommended that he use a cane to help relieve any pain in his back and legs. (R. 45-46, 243). Dr. Bernstein prescribed some medication, including Tylenol, muscle relaxants and a pain killer. (R. 46). Manns had physical therapy on his back and his hand three times a week. (R. 46).

 As for Manns' neck injuries, on August 15, 1989, Manns was admitted to Buffalo General Hospital for swelling on the right side of his neck. (R. 280). His range of motion was decreased due to the swelling, which the doctors believed was the result of a deep soft tissue infection of the neck. (R. 280). Manns was started on intravenous hydration and Clindamycin, which was later changed to Nafcillin. (R. 281). These drugs are antibacterial and antibiotic agents which are intended to fight infection. Manns responded well to the Nafcillin and the swelling decreased. (R. 281). Prior to discharge, Manns could flex his neck to approximately ninety percent, and did not have any pain or tenderness. (R. ...


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