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September 29, 1995

GLENN JONES, Plaintiff, against DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: CHIN


 Plaintiff Glenn Jones ("Jones") brings this action under section 205(g) of the Social Security Act, as amended (the "Act"), 42 U.S.C. § 405(g), challenging a final determination of the Secretary of Health and Human Services (the "Secretary") that Jones is not entitled to disability insurance benefits under the Act. The parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Secretary's determination denying benefits is affirmed.


 A. Prior Proceedings

 Jones filed an application for disability insurance benefits on March 5, 1992 (Tr. 50-53), *fn1" alleging disability due to a lower back injury and other impairments. The application was denied initially and on reconsideration. (Tr. 63-65, 68-70). Jones then requested a hearing before an administrative law judge. This request was granted and a hearing was held on May 20, 1993 before Administrative Law Judge Mark Hecht (the "ALJ"), who considered Jones's petition de novo. (Tr. 23-49). Jones was represented by counsel at the hearing. On June 8, 1993, the ALJ issued a decision finding that Jones was not disabled under the Act and therefore was not entitled to disability insurance benefits. (Tr. 9-17). This decision became the Secretary's final decision when the Appeals Council denied Jones's request for review on August 26, 1993. (Tr. 4-5). Jones then commenced this action seeking a reversal of the Secretary's decision or remand for a new hearing.

 B. Facts

 Jones was born on April 2, 1955 and is a high school graduate with two years of college credit. (Tr. 27, 29). He has worked as a bus operator, street vendor, tow truck operator, census worker and construction worker. (Tr. 30-31). On September 8, 1988, Jones injured his back when the bus he was operating hit a pothole causing the driver's seat to collapse. (Tr. 32). Upon sustaining the injury, he immediately went to Metropolitan Hospital emergency room, where he was told that he had stiffness and swelling, and was then released. (Id.).

 Jones was next treated for his injuries on September 23, 1988 by Dr. Joseph C. Polifrone. (Tr. 117). In his examination, Dr. Joseph Polifrone found limitation of plaintiff's range of motion of the lumbar spine in all directions, limitation in neck movement, spasm in the paravertebral lumbar muscles, pain on movement of the lumbar spine, absence of right Achilles tendon reflex, right calf atrophy, S1 hypalgesia in both feet, loss of normal lordotic lumbar curve, and positive straight leg raising on the right at 45 degrees. (Id.). Dr. Joseph Polifrone conducted follow-up examinations on October 5, November 11, December 9, and December 28, 1988. (Tr. 111-12). During these examinations, Dr. Joseph Polifrone saw signs of S1 radiculopathy, and the doctor's diagnosis was midline disc protrusion or herniation. (Tr. 111). A CT scan performed on January 20, 1989 was inconclusive due to Jones's obesity. (Tr. 116).

 Upon referral, Dr. Annarose Polifrone performed a consultative examination upon Jones on December 13, 1988. (Tr. 121-22). This examination revealed a loss of normal lumbar lordotic curve and bilateral paravertebral spasm. (Tr. 121). However, Dr. Annarose Polifrone also noted that Jones had a full active range of motion and good strength in both lower extremities. (Id.).

 Dr. Joseph Polifrone saw Jones again two years later on August 8, 1990. After that examination, he diagnosed Jones with lumbar radiculopathy which resulted in "permanent partial disability." Dr. Joseph Polifrone indicated that Jones's injury would preclude him from doing his "usual work" at that time. (Tr. 113). On October 16, 1990, in response to a CUNA Mutual Insurance Society questionnaire, Dr. Joseph Polifrone changed his assessment of Jones's diagnosis to "permanently disabled." (Tr. 93-95). In this questionnaire, Dr. Joseph Polifrone stated that Jones was capable of lifting up to ten pounds occasionally, and was able to sit, stand and walk for up to one hour in an eight-hour work day. (Tr. 94).

 Two years after this diagnosis, on December 12, 1992, Dr. Joseph Polifrone evaluated Jones again. (Tr. 109-111). At that time, Dr. Joseph Polifrone stated that Jones could lift or carry five pounds, and could sit, stand, or walk for a total of three hours in an eight-hour day. (Tr. 109). According to Dr. Joseph Polifrone, Jones could not perform any postural activities, such as climbing, crouching, or kneeling, and Jones was restricted from humidity and extreme temperatures. (Tr. 110).

 Dr. Joseph Polifrone's medical report four months later, on April 28, 1993, stated that Jones had limited movement of the lower back, spasm in the lumbar muscles, S1 hypalgesia of the feet, lack of right Achilles reflex, right calf atrophy, positive straight leg raising at 45 degrees on the right, loss of normal lordotic curve, and neck injury. (Tr. 139-40). He diagnosed Jones with a herniated lumbar disc at the L5-S1 level, S1 radiculopathy and cervical sprain. (Tr. 141-42). Dr. Joseph Polifrone opined that physical therapy and analgesics gave Jones little temporary relief, and that his condition was permanent and precluded him from being gainfully employed. (Tr. 142). In this report, Dr. Joseph Polifrone also stated that EMG studies revealed Si radiculopathy and that a CAT scan could not rule out a herniated disc due to plaintiff's large size. (Tr. 141).

 Jones also received four separate orthopedic examinations from Dr. Robert Swearingen. (Tr. 96-104). On November 15, 1990, Dr. Swearingen found that Jones could flex and extend his neck without pain and it appeared that his biceps and triceps reflexes were present and normal. (Tr. 98). Upon flexing his leg to 45 degrees, claimant reported some pain in the lower right lumbar area but did not complain of pain in the leg. When pressure was applied to the top of Jones's head, he complained of mild back pain. (Id.). Dr. Swearingen reported that both of Jones's legs could be extended at the knees while sitting without pain and his reflexes were normal. (Tr. 96, 99). Further, Jones's right big toe did not exhibit the numbness he complained about during the exam; rather, his toe extensors ...

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