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FULLER v. SHALALA

September 15, 1995

RALPH FULLER, Plaintiff, against DONNA SHALALA, Secretary of Health & Human Services, Defendant.


The opinion of the court was delivered by: DENNY CHIN

 CHIN, D.J.

 Plaintiff Ralph Fuller ("Fuller") brings this action under sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (the "Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), challenging a final determination of the Secretary of Health and Human Services (the "Secretary") that Fuller is not entitled to disability insurance benefits and Supplemental Security Income under the Act. Fuller seeks judgment on the pleadings or summary judgment, pursuant to Fed. R. Civ. P. 12(b)(6) or 56(b), respectively. *fn1" The Secretary moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons discussed below, the Secretary's determination denying benefits is affirmed.

 I. BACKGROUND

 A. Prior Proceedings

 B. Facts

 Fuller was born on July 8, 1955 and is a high school graduate. (Tr. 32, 82). He has worked as a security guard and, most recently, in the construction industry as both a timekeeper and a structural iron worker. (Tr. 36, 38, 43). On October 30, 1989, Fuller injured his back and scrotal area while lifting heavy stone. (Tr. 45). Fuller was treated at Our Lady of Mercy Medical Center emergency room and discharged. (Tr. 51, 181). He returned to the emergency room the next day with a fever and right testicle and epididymis enlargement and pain. Fuller was admitted to the hospital for treatment and remained there for one week.

 At the hospital, Fuller complained of scrotal pain and back pain. For his scrotal pain, Fuller was examined by Dr. George Owens, a urologist. Dr. Owens diagnosed Fuller has having acute right epididymal orchitis. (Tr. 182). He instructed Fuller not to lift heavy items, to rest, and to wear scrotal support. (Id.). On December 18, 1989, Dr. Owens reported to the Workers' Compensation Board that Fuller's injury was "unlikely" to restrict Fuller permanently. *fn3" (Tr. 311).

 Dr. Stephen Weitz was the first doctor to examine Fuller for his back pain. He examined Fuller at the hospital on November 3, 1989, noting that Fuller had no back tenderness, mild back spasm, and back and abdominal pain. He diagnosed Fuller as having a back sprain but no herniated disc. (Tr. 190). On April 12, 1990, Dr. Weitz saw Fuller for a second time. He indicated that Fuller stood flexed forward and to the right. Fuller was able to move, but with pain. He detected some paravertebral muscle spasm, but found no neurological deficits. He again determined that Fuller had a lower back sprain, but no herniated disc or other ailment that would require a neurological procedure. (Tr. 309). Dr. Weitz also concluded that, until his pain resolved, Fuller remained disabled. (Id.).

 Dr. Weitz then referred Fuller to Dr. Robert Spindel. Dr. Spindel examined Fuller ten times between April 1990 and September 1990. During his initial examination, Dr. Spindel noted that Fuller complained of pain, had decreased left ankle jerk, and that a straight leg raising test was negative. He diagnosed Fuller has having a resolving epididymitis and back strain along with a great deal of fear and anxiety. (Tr. 346-47). Dr. Spindel prescribed a treatment program of applying ice regularly, followed by a series of motion and strengthening exercises. (Tr. 347). Through May and June 1990, Dr. Spindel noted that compliance with his prescribed therapy regimen led to gradual improvement in Fuller's flexibility and a reduction in pain; however, Fuller's pain returned when he failed to perform his prescribed exercises or to ice his back. (Tr. 194-200).

 By September 5, 1990, Dr. Spindel concluded that Fuller was "doing much better" -- Fuller could flex forward within four inches of touching his toes; his gait was normal; and he no longer was taking Elavil, a prescription medication. (Tr. 193). Dr. Spindel noted Fuller's poor compliance with his prescribed home therapy program. (Tr. 192). Nevertheless, he sent Fuller to Dr. Lenore Gladstone to pursue further physical therapy. (Id.).

 Fuller returned to Dr. Gladstone for treatment in January, July, and September 1991 and March 1992. On April 17, 1992, after another visit from Fuller, Dr. Gladstone reported Fuller's condition. Dr. Gladstone's clinical findings were that Fuller had a mild lumbar sprain and a tender nodule over the right rib. (Tr. 206). Fuller had flexion-extension to 70 degrees. (Tr. 212). Dr. Gladstone also determined that Fuller could carry up to fifteen pounds, could stand or walk up to two hours per day, could sit without limitation, and could do limited pushing or pulling. (Tr. 214).

 Meanwhile, Fuller saw Dr. Mauro in December 1991 to determine whether Fuller was entitled to workers' compensation benefits. Fuller reported to Dr. Mauro that he was seeing his treating physician every three months, was not undergoing therapy, and was not working. (Tr. 204). He had no complaints pertaining to his scrotal area, but had constant pain in his mid and right back. After analyzing Fuller's range of movement, Dr. Mauro concluded that Fuller suffered from a permanent partial disability. (Id.).

 The final doctor to evaluate Fuller was Dr. David MacPeek. Dr. MacPeek saw Fuller one time, on February 22, 1993. After examining Fuller, Dr. MacPeek concluded that Fuller could sit, stand, and walk for two hours each, lift ten pounds, bend and squat for two hours each, grasp for four hours, push ...


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