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PEREZ v. SHALALA

April 7, 1995

RAMONA PEREZ, Plaintiff, against DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

JOHN F. KEENAN, United States District Judge


The opinion of the court was delivered by: JOHN F. KEENAN

JOHN F. KEENAN, United States District Judge:

 Before the Court is Plaintiff's motion for judgment on the pleadings, pursuant to 42 U.S.C. sections 405(g) and 1383(c)(3) of the Social Security Act (the "Act"), to reverse the administrative decision of the Secretary of Health and Human Services, or in the alternative, to remand the case to the Secretary for further evidentiary proceedings. Also before the Court is defendant's cross-motion for judgment on the pleadings affirming the Secretary's decision and dismissing the complaint. For the reasons that follow, Plaintiff's motion for judgment on the pleadings is denied. Defendant's cross-motion is granted.

 BACKGROUND

 A. Current Status of Case

 Plaintiff Ramona Perez, now 49 years of age, is appealing a decision by the Secretary of Health and Human Services ("Secretary"), that partially granted Plaintiff's application for Social Security Income ("SSI") under Title XVI and Social Security Disability ("SSD") under Title II of the Social Security Act. Plaintiff initially applied for disability insurance on March 15, 1990. That application was denied on May 29, 1990. After that denial Plaintiff sought no additional administrative review. Plaintiff then filed for SSD and SSI benefits on October 11, 1991 which were both denied initially and on reconsideration. Subsequently, Plaintiff requested a hearing to review the applications which was held on December 16, 1992 before an Administrative Law Judge ("ALJ").

 On January 28, 1993 the ALJ determined that as of February 13, 1992, Plaintiff was under a disability as defined in 20 C.F.R. sections 404.1520(f) and 416.920(f) of the Social Security Act for the purpose of receiving SSI benefits, but that Plaintiff was not disabled prior to that date. Consequently, the ALJ determined that Plaintiff is not entitled to receive SSD benefits because she was not disabled on or prior to December 31, 1989, the date on which her insured status expired.

 In order to receive SSD, Plaintiff must prove she was disabled on or prior to December 31, 1989, the expiration date of her last insured status. See Arnone v. Bowen, 882 F.2d 34, 38 (2d Cir. 1989). Plaintiff may not use evidence of a disability that developed after the expiration date in order to qualify for benefits. *fn1" However, qualification for SSI benefits is not related to the date of her last insurance, but will not be granted for any months prior to October 1991, the month in which she filed her application. See 20 C.F.R. §§ 416.330 and 416.355. The Appeals Council rejected Plaintiff's request for review on August 13, 1993. Upon that rejection, the ALJ's decision became the final decision of the Secretary and therefore this action is ripe for review.

 B. Medical Evidence Prior to February 13, 1992

 The only medical evidence presented to the ALJ for the period prior to December 31, 1991 was a report from Plaintiff's treating physician Dr. Andre Celestin dated May 16, 1990, covering the period of January 17, 1988 through March 19, 1990. The report indicated that during that period Dr. Celestin saw Plaintiff eleven times for arthritis of the knees. He noted that Plaintiff had tenderness in the knees, but no heat or effusion; that she had a normal range of bilateral motion; and that her gait and station were completely normal, thus precluding assistance of an orthotic device. Dr. Celestin also acknowledged that Plaintiff's arthritic pain was aggravated by her weight gain from 176 pounds to 190 pounds which occurred between January of 1988 and May of 1990.

 Plaintiff also underwent a series of three tests, including a CAT scan, from February 25, 1991 to August 26, 1991 ordered by Dr. Raphael P. Gonzalez. *fn2" The CAT scan dated February 25, 1991 showed good visualization of the vertebral bodies which were all within normal limits. All other discs were normal except for a right sided disc herniation at disc level C4-5.

 On August 24, 1991 an MRI indicated that there were minimal centrally bulging discs at the levels of C4-5, C5-6 and C6-7. There was no evidence of frank disc herniation, nerve root impingement, spinal stenosis, fracture, dislocation, neoplasm, inflammatory disease, hematoma, white matter plaque or congenital abnormality. The cervical spinal cord was also intact. The final test, an MRI dated August 26, 1991, found disc degeneration at the disc levels of T12-L1, L1-2, L3-4, L4-5 and L5-S1. All other evidence indicated no abnormalities.

 C. Medical Evidence After February 12, 1992

 On February 20, 1992 Dr. Agustin Sanchez reported that he examined Plaintiff on February 13, 1992 for complaints of cervical thorax and lower back pain, right hand numbness and decreased strength. Dr. Sanchez found that she had knee flexion-extension of 110 degrees on the right and 120 degrees on the left out of 120 degrees. Lateral flexion of her cervical spine was ten degrees to the right and fifteen to the left out of a possible forty-five degrees. Flexion of Plaintiff's cervical region was thirty degrees and extension was forty-five degrees out of forty-five degrees. Plaintiff's rotation of the cervical region was thirty degrees to the right and thirty-five degrees to the left out of forty-five degrees. Dr. Sanchez found Plaintiff's flexion-extension of the lumbar region was sixty degrees out of ninety degrees, and lateral flexion was ten degrees on the right and fifteen degrees on the left out of a possible thirty degrees. Dr. Sanchez concluded that Plaintiff was limited to occasionally carrying less than five pounds and frequently carrying less than two pounds. Plaintiff was unable to stand or walk for over two hours per day and to sit less than six hours per day. Finally, Dr. Sanchez found she had limited ability to push and pull. He prescribed Naprosyn, ultrasound treatments and hot pack treatments.

 On May 1, 1992, Plaintiff was examined by Dr. Mario Mancheno who found she walked with a limp, favoring the left lower extremity with a cane. He observed that despite some difficulty in toe-heel walking, she did not need assistance of a cane. She had no difficulty getting on the examination table or lying down. An examination of her neck revealed some tenderness from C4-7 and mild paraspinal muscle spasm bilaterally. She had no gross deformity, and could flex 20 degrees, extend to 20 degrees, bend laterally to thirty-five degrees on each side and rotate to thirty degrees on each side. An examination of Plaintiff's upper extremities revealed full range of motion in both hands and no impairment of fine manipulation. Tests of her lower extremities revealed full range of motion in her hips with negative straight leg raises bilaterally. She had scars of arthroscopic surgery on her left knee with slight stiffness but no acute inflammation. She could flex each knee to 140 degrees, with stiffness and slight crepitation, or cracking, of the right knee. Her ankle joints, knee and ankle jerks were all normal. The muscle power and tone of the lower extremities was 4 due to slight atrophy of the muscles of both thighs. She had normal superficial touch and temperature. Plaintiff had a full range of motion of the lumbosacral spine without tenderness or deformity. A neurological examination revealed no sensory, motor or reflex abnormalities. X-rays of her left knee revealed mild to moderate osteodegenerative changes. An X-ray of the lumbosacral spine showed scoliotic deformity.

 Dr. Mancheno's diagnosis of Plaintiff was "rule out discogenic disorder of the cervical spine; status post surgery of the left knee and arthritis of the right knee." He found she could do light lifting and carrying, moderate standing and walking, light pushing and pulling and sit without restrictions.

 Dr. M.S. El Dakkai submitted a report dated November 12, 1992 of Plaintiff's residual functional capacity regarding disorders of the spine. Dr. Dakkai found that Plaintiff had limited right neck rotation and decreased extension. Plaintiff had radiculopathy along disc levels C4-5-6 and her right arm as well as radiculopathy in both legs. Plaintiff had tingling and numbness in her right arm and right leg. Dr. El Dakkai indicated that Plaintiff had a myelogram of the cervical spine that revealed a herniated disc at C4-5 and a bulging disc at the lumbosacral spine. Plaintiff also under went arthroscopic surgery on both knees.

 Dr. El Dakkai diagnosed Plaintiff with disc disease at C4-5-6, and found this impairment could last up to at least twelve months. He recorded that Plaintiff could continuously stand for up to two hours, sit continuously sit for up to two hours, and alternatively sit and stand for up to three hours. Plaintiff would have to lie down at sometime during the day and could not walk further than two blocks without stopping, and lift and carry a maximum of ten pounds. Dr. Dakkai indicated without explanation that Plaintiff had problems doing one or more of the following; bending, squatting, kneeling or turning parts of her body. Finally, he indicated that Plaintiff could travel alone by bus or by subway and that she did not suffer from an impairment that limited her physical/mental ability to do basic work activities.

 D. Medical Evidence Submitted After Close of Administrative Record

 Plaintiff asserts that two medical reports considered by the Appeals Council in deciding not to grant administrative review of the ALJ's determination, but not submitted to the ALJ, should also be considered by ...


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