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FRANCESE v. SHALALA

August 31, 1995

RANDY FRANCESE, Plaintiff,
v.
DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: DEBORAH A. BATTS, U.S.D.J.

 DEBORAH A. BATTS, U.S.D.J.:

 Randy Francese ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 405(g), for judicial review of a final decision of the Secretary of Health and Human Services ("Secretary") denying his application for disability insurance benefits under Title II and of the Social Security Act ("Act"), 42 U.S.C. § 401, et seq. Both parties have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons set forth below, the decision of the Secretary is affirmed.

 Procedural History

 Plaintiff, Randy Francese, filed an action for Social Security Disability benefits on March 31, 1992. (Tr. 69-72.) *fn1" Plaintiff's application was denied both initially (Tr. 83-85) and upon reconsideration. (Tr. 89-91). A hearing was held before Administrative Law Judge Hastings Morse ("ALJ") on April 15, 1993. (Tr. 37-63). In a decision dated May 17, 1993, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act ("Act"). (Tr. 15-25). On October 19, 1993, the Appeals Council denied Plaintiff's request to review the ALJ's decision. (Tr. 5-6). This was the final decision of the Secretary. (Id.). Plaintiff now seeks judicial review of the Secretary's determination.

 Plaintiff was born on March 8, 1952. (Tr. 41). He obtained a high school equivalency degree (G.E.D.) in 1972, and attended Westchester Community College for one semester. (Tr. 43).

 From 1977 to September, 1981, Plaintiff was employed as a tractor trailer driver at a garbage company. (Tr. 46, 104, 202). From October, 1981, to October, 1991, Plaintiff was employed as a fire fighter with the Yonkers Fire Department. (Id.). On October 7, 1991, while working as a fire fighter, Plaintiff tripped on something, fell and then something fell on him. (Tr. 47). He alleges that because of the fall his back began to "kill him". (Id.). Plaintiff now alleges that his back injury is so severe that he is unable to work at all, thus qualifying him for disability insurance.

 On November 14, 1991, Plaintiff was examined by Doctor Nicholas DePalma, a neurosurgeon. Dr. DePalma concluded that Plaintiff "is totally disabled for his occupation at the present time." (Tr. 195).

 On February 7, 1992, Doctor Robert E. Zickel, an orthopedist, examined Plaintiff. In a letter to Oracle Management Services ("Oracle") , Plaintiff's insurance carrier, Dr. Zickel concluded that Plaintiff was unable to work as a fire fighter. He also stated, however, that Plaintiff was able to perform "sedentary or light work". (Tr. 141). On March 2, 1992, in response to an inquiry from Oracle, Dr. Zickel stated that Plaintiff was able to operate a motor vehicle. (Tr. 139).

 In March 1992, Plaintiff began medical treatment with Dr. John Mazella *fn2" for the pain in his back. (Tr. 191). On March 5, Dr. Mazella noted Plaintiff's history of psoriatic arthritis as well as a lumbar disc protrusion, recommended physical therapy, and concluded that Plaintiff was "totally disabled." (Tr. 163). After an April 14, 1992, follow-up examination of Plaintiff, Dr. Mazella stated that he observed some improvement, but that Plaintiff was still "totally disabled". (Tr. 163, 170, 192).

 On May 19, 1992, Dr. Mazella again examined the Plaintiff. He noted that Plaintiff continued to have trouble heel walking, and demonstrated dorsiflexion weakness in his right foot. (Tr. 168, 192). Dr. Mazella sent a report to Plaintiff's attorney on October 23, 1992, summarizing June 24, July 29, and September 9, 1992, examinations. In that report, he concluded that Plaintiff was in good health other than the back pain and psoriasis, for which he was receiving light treatment. Dr. Mazella concluded, however, that Plaintiff was "totally disabled for his job as a fire fighter. (Tr. 193). Further, he opined that Plaintiff was unable to sit or stand for any prolonged period and was unable to do light or sedentary work. (Id.).

 On January 29, 1993 Plaintiff underwent arthroscopic surgery on his left knee. Dr. Mazella performed the surgery. (Tr. 185-6).

 On April 12, 1993, Dr. Mazella assessed Plaintiff's Residual Functional Capacity. (Tr. 206-07) . He found that Plaintiff could sit for 2 hours and stand/walk for 2 hours, frequently lift and carry 0-10 pounds, and occasionally lift and carry 10-20 pounds. (Tr. 206) . Plaintiff could bend occasionally and reach and climb steps frequently. (Id.) . Further, Plaintiff was capable of grasping, pushing/pulling, and fine manipulations with both hands and both legs. (Id.). Dr. Mazella stated that Plaintiff was moderately restricted from engaging in activities involving unprotected heights and ...


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