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BETHGE v. SHALALA

April 17, 1995

EUGENE BETHGE, 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 29, 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 13, 1994, and Plaintiff's cross-motion for judgment on the pleadings, filed November 3, 1994.

 BACKGROUND

 Plaintiff, Eugene Bethge, seeks review of the Defendant's decision denying him Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-403 (1988). In denying Bethge's application for benefits, Defendant determined that Bethge had the capability to perform sedentary work-related activities, including his past work, except for work involving prolonged sitting or standing and repetitive bending, and was, therefore, not disabled as defined by the Social Security Act. (R. 17-19). *fn1"

 On January 18, 1994, Bethge filed an action seeking a determination that he was entitled to disability benefits. Bethge contends that the Defendant's decision was not supported by substantial evidence, and that it should be reversed. On July 13, 1994, Defendant filed a motion for judgment on the pleadings, seeking dismissal of the action. Plaintiff filed a cross-motion for judgment on the pleadings on November 3, 1994.

 No oral argument was held on the matter.

 PROCEDURAL HISTORY

 Bethge initially filed for disability benefits on November 21, 1991. The application was denied on May 11, 1992. A request for reconsideration was filed on October 14, 1992, and the claim for benefits was again denied on November 4, 1992. Bethge appealed the determination.

 On May 18, 1993, a hearing was held in Buffalo, New York before an administrative law judge ("ALJ"), Office of Hearings and Appeals of the Social Security Administration, Department of Health and Human Services, regarding the denial of disability benefits. On June 15, 1993, the ALJ denied disability benefits to Bethge. Bethge then requested a review of the hearing decision by the Secretary. On November 23, 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 January 18, 1994, Bethge filed this action seeking review of the administrative decision. The matter was referred to the undersigned on April 29, 1994. On July 13, 1994, Defendant filed a motion for judgment on the pleadings, and on November 3, 1994, Plaintiff filed a cross-motion for judgment on the pleadings. No oral argument was deemed necessary.

 For the reasons as set forth below, the Defendant's motion should be GRANTED, and the Plaintiff's cross-motion should be DENIED.

 FACTS

 Bethge worked for Westinghouse Electric from 1967 through 1970 as an electrical draftsman. (R. 49, 256). From September of 1972 through September of 1985, Bethge worked for E.G.W. Associates as a design draftsman. (R. 49, 256). Bethge subsequently formed his own company, Buffalo Services Group, Inc., and worked under contract as a field design draftsman at General Mills until November 4, 1986. (R. 49). The position of draftsman required Bethge to take field measurements, design new equipment and make related drawings, work with other contractors, coordinate jobs and write up job progress reports. (R. 49). In performing his duties as a draftsman, Bethge, on a daily basis, walked for up to two hours, stood for three to four hours, sat for an hour, and was constantly reaching and bending. (R. 50).

 On December 10, 1985, while Bethge was taking measurements to design a safety catwalk system for General Mills, he fell from a safety ladder to the floor, injuring his back. (R. 256-258). As the result of this accident, Bethge was taken by ambulance to the hospital; he was released the same day. *fn2" (R. 259).

 A physician at the hospital suggested that Bethge obtain some elastic back supports to wear. (R. 272). Bethge did not feel he could continue working at that time, as he was having headaches, and pain in his neck, lower back, and legs. (R. 259). Bethge returned to work on December 16, 1985, and continued to work until November 4, 1986. (R. 260). During the period from December 16, 1985 through November 4, 1986, Bethge indicated that he was having trouble bending to take measurements, and his pain ranged from mild to severe. (R. 260).

 Bethge sought medical treatment while he was working from Dr. Thomas F. McClenathan, a general practitioner. (R. 260-261) Dr. McClenathan, prescribed Soma, a muscle relaxant, and Valium, a sedative, after Bethge's accident. (R. 261).

 On May 19, 1986, Dr. Kailash C. Lall, a general practitioner, performed a needle electromyography, a method of recording the electrical currents generated in an active muscle, and nerve study on Bethge's left lower extremity. (R. 103). The test was normal. (R. 103-105). Bethge was later examined by Dr. Lall, on August 8, 1986. (R. 101). Dr. Lall indicated that Bethge had normal strength bilaterally in both upper and lower extremities, his muscle tone was normal, straight leg raising was normal, no reflex or sensory deficit was present, and there was no tenderness in the lumbosacral area, however, minimal muscle spasms were located along the vertebral column. (R. 101-102). Dr. Lall's diagnosis was that Bethge had a lumbar sprain, however, the prognosis was guarded as Bethge's condition did not seem to improve since the accident eight months earlier. (R. 102).

 On November 4, 1986, Bethge went to work, however, he began to have sharp pains in his back which radiated down his left leg. (R. 262). Dr. McClenathan indicated that Bethge was to stop working until he could figure out what was causing the pain. (R. 262). Bethge continued to visit Dr. McClenathan every other week until late 1986, when he was referred to Dr. H. Roy Silvers and his associate, Dr. Ikram U. Hague, both neurological surgeons. (R. 64, 264-265).

 Dr. Hague subsequently examined Bethge on December 18, 1986, and found a mild spasm next to the vertebral column which prevented full flexion of the spine, and some mild tenderness in the lumbar region. (R. 64). Straight leg raising was to seventy degrees on the left, and almost ninety degrees on the right. (R. 64). New x-rays of both hips taken by Dr. Hague were normal, and no motor or sensory deficit was found. (R. 64).

 On January 7, 1987, Bethge was admitted to Mercy Hospital for a myelogram. (R. 61, 69). The attending physician examined Bethge and found that Bethge's straight leg raising was to seventy degrees on the left, and ninety degrees on the right. (R. 62). Bethge's strength was fair, his gait was slow, but normal, and he had no sensory deficit. (R. 62). The attending physician's impression was that Bethge's lower back pain was probably the result of the slipping of a lumbar disc from its usual location. (R. 62). Dr. Silvers also examined Bethge on January 7, 1987. (R. 59-60). An electromyography and nerve conduction study were normal, and lumbosacral spine films and a neurological examination were essentially unremarkable. (R. 60). A CAT scan was also performed by Dr. Silvers, which was found to be normal. (R. 60). Dr. Noel M. Chiantella, a roentgenologist, subsequently performed a lumbar myelogram which showed a small external defect of questionable significance on the left side at the L3 to L4 and L5 to S1 levels. (R. 60, 69). A second CAT scan was performed post-myelography in order to more closely evaluate the anomaly. (R. 60, 69). Dr. Chiantella's impression was that the L3 to L4 and L4 to L5 levels were unremarkable, but there appeared to be L5 to S1 central disc herniation. (R. 69).

 A bone flow study was also performed on Bethge on January 7, 1987. (R. 70). The lumbosacral spine appeared to be normal, however, there were abnormalities in both knee joints as well as ankle joints, which were attributed to degenerative arthritic changes. (R. 70).

 Dr. Silvers examined Bethge on January 19, 1987, R. 96, finding Bethge's myelogram was unremarkable; however, the post-myelogram CAT scan showed a central disc herniation at the L5 to S1 level. (R. 96). Dr. Silvers explained the microdiscectomy, the surgical procedure he recommended, and its risks to Bethge, who indicated that he understood the risks and accepted them. (R. 96).

 X-rays were again taken of Bethge's lumbosacral spine on March 4, 1987, by Dr. Henry Young S. Oh, a roentgenologist, R. 97, which showed normal alignment of the spine, with disc spaces preserved. (R. 97). There was no evidence of any degenerative abnormalities, and Dr. Oh's impression was that Bethge had a normal lumbosacral spine. (R. 97).

 Notwithstanding Dr. Oh's findings, on March 22, 1987, Bethge was admitted to the hospital for a microdiscectomy at the L5 to S1 level which was scheduled for March 23, 1987. (R. 76, 266). The surgery was performed by Dr. Hague, R. 79-81, 90, 266, and Bethge was discharged from the hospital on March 28, 1987. (R. 77).

 After the surgery, on April 15, 1987, Dr. Silvers indicated that Bethge's condition had improved, though he still complained of pain in his left leg. (R. 77, 83, 118). Dr. Silvers watched Bethge walk into the medical building carrying the cane, yet when he walked to the examining room with the cane, Bethge acted as if he could barely walk. (R. 118). Dr. Silvers found that Bethge had zero mobility of his spine when he was asked to bend forward from a standing position, however, when Bethge sat down, he could flex his spine to ninety degrees. (R. 118). The doctor indicated that these findings were "incongruous." (R. 118). Dr. Silvers found no lumbar muscle spasm present, however when he touched Bethge's back, Bethge would jump in pain. (R. 118). Further, Dr. Silvers stated that although Bethge complained of swelling in his legs, the doctor could not find any edema, an accumulation of an excessive amount of watery fluid in the cells or tissue, or swelling. (R. 118). When Bethge performed the straight leg raising, he complained of pain immediately when Dr. Silvers lifted his leg, however, when Dr. Silvers lifted either leg slowly, the test was normal (R. 118). Additionally, when Bethge performed the straight leg raising in a seated position, he did not complain at all. (R. 118). Further tests indicated that Bethge's knee and ankle jerks were normal, however, he had weakness in both hip flexors, and the muscles in his feet. (R. 118). Dr. Silvers indicated that these tests were fairly subjective and the results did not truly indicate weakness. (R. 118). Dr. Silvers also noted that Bethge had sensory loss to pinprick in his entire left leg. (R. 118). Dr. Silvers' impression was that Bethge's complaints were functional, an ailment not caused by a structural defect, but rather a function of the mental processes, and he requested a CAT scan of the lumbar spine. (R. 119). Dr. Silvers also prescribed Equagesic, a muscle relaxant. (R. 119).

 On May 11, 1987, a CAT scan was performed on the L4 to S1 levels of Bethge's back. (R. 117). Dr. Silvers indicated that he could identify post-surgical changes, however, a recurrent disc could not be diagnosed based on the study. (R. 117). Dr. Silvers examined Bethge again on May 13, 1987. (R. 116). At that time, Bethge was experiencing lower back pain, but no leg pain. (R. 116). Bethge's neurological examination was unchanged from previous examinations, and was unremarkable. (R. 116). Dr. Silvers prescribed Motrin, an analgesic drug, to help relieve Bethge's back pain. (R. 116).

 On June 10, 1987, Bethge was reexamined by Dr. Silvers. (R. 115). Dr. Silvers indicated that Bethge's neurological examination was unremarkable, and that Bethge stated he was experiencing only forty to fifty percent of the pain he experienced before the surgery. (R. 115). Dr. Silvers noted that if Bethge did not improve on his own within one month, the doctor would admit for a myelography. (R. 115).

 Dr. Silvers examined Bethge on July 22, 1987. (R. 114). Although Bethge continued to complain of back and left leg pain, he stated that the pain was only about forty to fifty percent of the pain he experienced before the surgery. (R. 114). Bethge's neurological examination was unremarkable, however, Dr. Silvers indicated that he believed Bethge to be partially disabled, specifically, thirty to forty percent disabled. (R. 114).

 A neurological evaluation of Bethge was performed by Dr. Patrick J. Hughes, a neurologist, on September 11, 1987. (R. 108). Dr. Hughes found that Bethge had extreme tenderness of the lower back, and all movements of the lower back were limited to a few degrees. (R. 108-109). Straight leg raising produced complaints of severe low back pain at about twenty degrees. (R. 109). Dr. Hughes indicated that Bethge had weakness in the muscles on the left side of his left foot, however, ankle jerk was normal, and sensation was intact. (R. 109). Based on this examination, Dr. Hughes indicated that Bethge had a herniated disc, but no objective findings substantiated his complaints of pain. (R. 109). Dr. Hughes believed that Bethge was no longer disabled and that he was not in need of any further medical treatment. (R. 109).

 On September 15, 1987, Bethge was examined by Dr. Lall. (R. 100). At that time, Bethge indicated that he was experiencing pain in his back, and was using a cane to walk. (R. 100). Dr. Lall found that his straight leg raising test was abnormal, and told Bethge that he should have a myelogram done. (R. 100).

 Dr. Silvers again examined Bethge on October 12, 1987. (R. 112). He indicated that Bethge originally claimed that his pain was only about forty to fifty percent of the pain before his surgery, however, Bethge felt, at the time of examination, that the back pain was as severe as it had been prior to the surgery. (R. 112). Bethge also claimed that he experienced pain in his right hip, tingling, numbness, and weakness in both legs. (R. 112). On examination, Dr. Silvers found that despite a marked limitation in the range of motion of Bethge's lumbosacral spine, no muscle spasm was present, and reflexes and straight leg raising were normal. (R. 112). Dr. Silvers recommended a myelogram, and indicated that Bethge's pain could be the result of a recurrent disc problem. (R. 113).

 On November 12, 1987, Dr. McClenathan sent a progress report to the Workers Compensation Board based on an examination on November 10, 1987, indicating that Bethge was totally disabled, and continued to have lower back pain and muscle spasms. (R. 132). Dr. McClenathan recommended that Bethge have a myelogram. (R. 132).

 Dr. Hughes performed a second neurological evaluation of Bethge on November 21, 1987. (R. 107). Dr. Hughes noted that Bethge walked with his cane, and stood about ten degrees in the forward flexed position. (R. 107). Dr. Hughes also found that Bethge had an exaggerated curvature of the lumbar spine. (R. 107). Although Dr. Hughes found no muscle spasm, Bethge complained that all movements of his lower back were limited as the result of severe pain. (R. 107). Straight leg raising also produced complaints of severe pain. (R. 107). Bethge's reflexes were normal, and there was no weakness in the muscles of his feet. (R. 107). As Dr. Hughes found that the weakness and sensory abnormalities that Bethge previously complained of had all disappeared, and Bethge's neurological examination had changed, he opposed the recommendation that Bethge have a myelogram. (R. 107). Dr. Hughes indicated that he believed his impression of September 11, 1987, that Bethge had a herniated disc but was no longer disabled, to be correct. (R. 107).

 Dr. Francis Fernandez, a roentgenologist, took x-rays of Bethge's chest and lumbosacral spine on February 1, 1988. (R. 147). Dr. Fernandez found that Bethge had no active cardiopulmonary disease, and that there was mild disc space narrowing at the L5 to S1 level with minimal degenerative changes in the lower lumbar region. (R. 147). Two days later, on February 3, 1988, Bethge was admitted to the hospital for a myelogram. (R. 139-140). Dr. Silvers examined Bethge, and found that he had a limited range of motion of the lumbosacral spine, but no muscle spasm was present. (R. 140). The examination was normal except for depressed left ankle jerks, which were present before the operation. (R. 140). The myelogram and a CAT scan of the lumbar spine were ...


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