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GERNAVAGE v. SHALALA

April 24, 1995

ANDREW GERNAVAGE, Plaintiff, against DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

Peter K. Leisure, U.S.D.J.


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 This is an action brought by Andrew Gernavage ("Gernavage") under section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to challenge a final determination by the Secretary of Health and Human Services (the "Secretary"), denying Gernavage's application for disability insurance benefits based on disability. Plaintiff now moves this Court to reverse the decision of the Secretary, and defendant cross-moves for a judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c). For the reasons stated below, defendant's motion is granted.

 BACKGROUND

 A. Procedural History

 Gernavage filed an application for disability benefits on April 17, 1992. See Defendant's Memorandum of Law in Support of Her Motion for Judgment on the Pleadings ("Defendant Mem.") at 1. His application was denied, and his request for reconsideration was also denied. Id. Gernavage then requested a hearing, which was held on January 22, 1993 before Administrative Law Judge Mark J. Hecht (the "ALJ"). See Memorandum of Law to Support Plaintiff's Complaint for Relief Granting Social Security Benefits ("Plaintiff Mem.") at 2. In a decision dated February 18, 1993, the ALJ found that Gernavage was not disabled under the Social Security Act. Id. The decision of the ALJ became the final decision of the Secretary when, on July 28, 1993, the Appeals Council denied plaintiff's request for review. Defendant Mem. at 2. Plaintiff then filed the instant action.

 B. Factual History

 Gernavage, who was 37 years old at the time of the Secretary's final decision, has a high school education and has taken three years of college. Plaintiff Mem. at 9. Prior to his accident, Gernavage worked as an elevator repair mechanic for thirteen years, and before his employment as an elevator mechanic, he worked unloading tractor-trailers. Id. Gernavage describes his job as an elevator repairman as requiring him to lift and carry heavy tools and other weighty objects and as further demanding a great deal of bending, crouching, and climbing. Gernavage alleges that he has been disabled since October 24, 1991, at which time he injured himself lining up a motor with two couplings. He claims disability due to injuries to his neck, back, and right shoulder. Defendant Mem. at 2.

 C. Medical History

 In a report to the Worker's Compensation Board on April 28, 1992, Finelli noted a decreased range of motion of the right shoulder with no atrophy or other deficits. Defendant Mem. at 6. He reported that range of motion testing of the right shoulder revealed: abduction was 80 degrees out of a possible 150 degrees, adduction was 20 degrees out of 30, internal rotation was 25 degrees out of 40, and external rotation was 50 degree out of 90. He further reported that range of motion testing of the cervical spine revealed: lateral flexion was 25 degrees out of 45, flexion was 25 degrees out of 45, extension was 25 degrees out of 45, and rotation was 25 degrees out of 45 on each side. Id. Lastly, Finelli opined that Gernavage's abilities to lift, carry, push and pull were limited, but he noted no limitations with respect to standing, walking, or sitting. Id.

 Dr. Daoud Karam ("Karam"), a specialist in physical medicine and rehabilitation, saw Gernavage for a consultative examination on July 11, 1992, at the request of the Office of Disability Determinations. Defendant Mem. at 6. Karam conducted his own battery of tests. This Court will not repeat all of Karam's findings, but notes that Karam's impression was that Gernavage had suffered cervical derangement with possible C-7 radiculopathy. Id. Karam opined that Gernavage's ability to do work-related activities was limited by cervical pain and irritation when heavy stress was applied to his right arm. Id. Karam did not note any limitations with respect to Gernavage's ability to sit, stand or walk. Id.

 On September 25, 1992, at the request of Finelli, Dr. Morton Finkel ("Finkel") performed a consultative neurological examination of Gernavage. Defendant Mem. at 8. Finkel found: deep tendon reflexes were one-plus and equal; no Babinski's signs were present; temperature and touch sensations were present; vibration was decreased over the right second and third fingers; Gernavage's grip strength was 5/5 in each hand; and he had full range of motion of his upper extremities and his cervical spine. Id. Finkel's diagnosis was cervical radiculopathy, and he opined that Gernavage was totally disabled for his occupation. Id.

 Dr. Anthony C. Milea ("Milea") completed a Worker's Compensation form in which he indicated that he examined Gernavage on November 25, 1992 and December 11, 1992. Defendant Mem. at 9. Milea's reports contained essentially the same information as Finelli's reports. Id.

 Dr. Mindy Pfeffer ("Pfeffer"), a radiologist, reported on December 25, 1991, that plaintiff had undergone magnetic resonance imaging ("MRI") of the right shoulder and arm. Defendant Mem. at 9. The impression was degenerative hypertrophic changes of the acromioclavicular joints with associated impingement syndrome, grade I rotator cuff, compatible with tendinitis, no evidence of rotator cuff tear, and negative MRI of the right humerus. Id.

 Pfeffer reported, on March 17, 1992, that Gernavage had undergone MRI of the cervical spine. Pfeffer's impression was straightening of the cervical spine compatible with muscle spasm; diffuse degenerative changes of the cervical spine from C3 through C7 with most severe changes at C5-C6; small subligamentous disc herniation at C3-4; degenerative bulging annulus at C4-5; chronic anterior and posterior disc protrusion at C5-6 in the midline and extending to the right with impingement on the spinal cord, compatible with chronic ...


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