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BOSLEY v. SHALALA

March 9, 1995

SUE A. BOSLEY, Plaintiff, -vs- DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

JOHN T. CURTIN, United States District Judge


The opinion of the court was delivered by: JOHN T. CURTIN

CURTIN, District Judge

 Plaintiff Sue A. Bosley appeals from a decision of the Defendant Secretary of Health and Human Services which granted her disability insurance benefits under the Social Security Act ("the Act"), 42 U.S.C. § 301 et seq., from October 11, 1989, to October 31, 1991, but denied benefits thereafter.

 Ms. Bosley applied for disability insurance benefits on October 25, 1991. The application was denied initially on February 6, 1992, and upon reconsideration on May 11, 1992. A.R. 70-72, 97-99. *fn1" Ms. Bosley then requested a hearing, which was held on August 17, 1992. A.R. 41-65. On September 4, 1992, Administrative Law Judge ("ALJ") John C. Mowrer issued a decision finding that Ms. Bosley had been entitled to a period of disability commencing on October 11, 1989. A.R. 19-24. Based upon a determination that Ms. Bosley's disability ceased on October 31, 1991, the ALJ ruled that Ms. Bosley's entitlement to a period of disability and disability insurance benefits ended on December 31, 1991. A.R. 24. That decision became the final decision of the Secretary when the Appeals Council denied Ms. Bosley's request for review on April 9, 1993. A.R. 4-5.

 Both parties have moved for judgment on the pleadings. Items 5-7. At oral argument on August 19, 1994, I observed that there was a question as to whether the ALJ had employed the correct legal standard, under 42 U.S.C. § 423(f) and 20 C.F.R. § 404.1594, in determining that Ms. Bosley's disability ceased on October 31, 1991. Item 11. I asked both parties to provide me with notes on that issue. Id. They have now done so. Items 12, 14.

 FACTS

 A. The Plaintiff

 Sue A. Bosley is a 39-year-old woman who suffered a lower back injury in a slip-and-fall accident at work on September 18, 1989. A.R. 184. She claims to have become disabled shortly thereafter, on October 11, 1989. A.R. 66. At the time of her accident, she was employed as a short-order cook. A.R. 48. Previously, she had worked as a home health care aide, a school bus driver, a grocery store manager, and a nursing home dietary aide. A.R. 124-29. She has a General Equivalency Diploma ("GED"), and has taken some college coursework. A.R. 47-48. She has not worked since the date of her injury. A.R. 48-50.

 B. Medical Evidence

 1. Before October 31, 1991

 There is no real dispute over the medical evidence in this case. Following her accident on September 18, 1989, Ms. Bosley was initially treated for lower back pain by a chiropractor, without improvement. A.R. 218. Between November 8, 1989, and June 18, 1990, she was seen and evaluated on numerous occasions by four orthopedic surgeons, Donald J. Nenno, M.D., A.R. 218, Edward D. Simmons, M.D., A.R. 178-83, Charles R. Schen, M.D., A.R. 130-34, and Eugene E. Cisek, M.D., A.R. 138-42, and by a neurologist, Patrick J. Hughes, M.D., A.R. 135-37.

 On June 25, 1990, she again visited Dr. Simmons. He noted that Ms. Bosley had been observed and treated conservatively for almost ten months, but that she had not improved and felt that her condition had worsened. A.R. 176. There was objective evidence of lower back disability and nerve root irritation, and an MRI scan had confirmed "the markedly degenerative discs at L4-5 and L5-S1 associated with some degree of herniation." Id. Dr. Simmons requested approval to perform an L4-5 and L5-S1 discectomy and fusion. Id. at 176-77. See also, A.R. 145.

 Surgery was performed by Dr. Simmons on September 25, 1990. A.R. 145-46. Ms. Bosley tolerated the procedure well, and the perioperative course was unremarkable. A.R. 144. She was discharged from hospital on October 6, 1990. Id. Follow-up visits with Dr. Simmons were conducted on five occasions between November 12, 1990, and October 7, 1991. A.R. 167-73.

 On April 10, 1991, Dr. Simmons found that the fusion mass had consolidated well, and that Ms. Bosley "continue[d] to do quite well with regard to her lower back." A.R. 170. He noted, however, that she reported pain in her left buttock and left groin area, which radiated down the left anterior thigh. X-rays of her left hip showed a slight inferior osteophytic formation. Examination of the hip revealed tenderness on palpation over the anterior hip. Ms. Bosley experienced pain when she tried to extend the hip fully while lying in a supine position, with abduction and flexion, and with internal or external rotation, all centered in the hip area. Dr. Simmons viewed Ms. Bosley's current problems as stemming from the left hip. Id. He recommended a bone scan in order to evaluate the hip, and noted that once a scan had been done, a decision could be made regarding Ms. Bosley's return to work. A.R. 171. At that time, she was unable to return to her former employment. Id.

 On July 1, 1991, Dr. Simmons again examined Ms. Bosley. A.R. 168. She was continuing to do well, and had no problems with lower back pain. However, she was experiencing a sensation of weakness in her lower left extremity. On physical examination she had very slight decreased power of dorsiflexion and plantar flexion of the left compared to the right side, revealed by repetitive toe raises and heel walking. She felt that she was unable to stand long enough to do her former job. Dr. Simmons recommended that she undergo vocational rehabilitation counseling, and opined that "she would be best suited for a desk type job where she doesn't have to stand for long periods of time." Id.

 After a further examination on October 7, 1991, Dr. Simmons reported that Ms. Bosley was "doing quite well with regard to her lower back pain with good improvement compared to her pre-operative state. She still has some sensation of weakness in her left lower extremity and as well, has described some flushing sensations and pain radiating up into her upper thoracic spine and upper extremities occasionally." A.R. 167. He noted that she was undergoing vocational rehabilitation, and stated that "I think she should have reasonable prospects in terms of getting some form of work not requiring prolonged standing." Id.

 The record contains the report of a neurologist, Kailash C. Lall, M.D., dated October 23, 1991. AR. 164-66. Dr. Lall's examination of Ms. Bosley apparently revealed no neurological problems. However, he noted that there was tenderness in the midlumbar region, and that "she still has chronic low back pain which usually gives rise to the pain going down into the left lower extremity." He expressed the view that she was "still partially disabled." A.R. 165.

 2. After October 31, 1991

 Ms. Bosley's family physician, John C. Stubenbord, M.D., examined her on November 21, 1991. A.R. 184-91, 195. On a report to the Workers' Compensation Board, he noted that she had numbness of her legs and cold feet. A.R. 195. She was experiencing pain, mainly in her lower back, left hip area, and left leg. She had weakness in her left leg, and a tender left sciatic notch. She could flex her back to 150 degrees with pain. Dr. Stubenbord marked a box on the report form indicating that Ms. Bosley was totally disabled at that time. Id. In a report for the New York State Department of Social Services, Office of Disability Determinations, based upon the same examination, Dr. Stubenbord noted that Ms. Bosley had a healed scar in her lumbrosacral region, that there was tenderness in both the left and the right paravertebral areas lateral to the scar, and that she experienced left sciatic notch tenderness. A.R. 184. He noted that wearing a brace helped Ms. Bosley in both standing and sitting. A.R. 185. In his ...


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