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STUPAKEVICH v. CHATER

December 5, 1995

STEPHEN STUPAKEVICH, Petitioner, against SHIRLEY S. CHATER, Commissioner of Social Security, Respondent.


The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 Petitioner Stephen Stupakevich brings this action under 42 U.S.C. § 405(g) challenging a final determination of the Commissioner of Social Security [alternately, the "Commissioner" or the "Secretary"] which denied his application for disability insurance benefits under the Social Security Act. Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Petitioner argues that the Administrative Law Judge [the "ALJ"] failed to evaluate properly the medical evidence, the testimony of the petitioner, and the relevant vocational factors. The Commissioner, in turn, contends that the ALJ's decision is supported by substantial evidence in the record. Based upon the Court's review of the administrative record, the Court finds the ALJ's determination that the petitioner retained the ability to perform a significant number of jobs in the national economy to be supported by substantial evidence. Accordingly, for the reasons more fully discussed below, the decision of the Commissioner denying benefits is affirmed.

 FACTUAL BACKGROUND

 Petitioner Stephen Stupakevich is a 46 year old man, who was born on April 27, 1949. Tr. at 177. He is a high-school graduate with some college credit, and worked in the aerospace industry as a lathe operator (machinist) for L & F Manufacturing and IBM. Id. at 100, 179, 182-83. Petitioner claims that injuries to his right arm, in conjunction with an inguinal hernia and depression, caused him to become disabled on April 3, 1992.

 A. Medical History prior to April 3, 1992

 The record indicates that petitioner underwent a resection of a ganglion neuroma from the right axillary area on July 24, 1989. Id. at 155-63. Wrist flexion, hand use, and use of the distal arm and forearm were normal but petitioner exhibited signs of nerve deficit in his biceps and deltoid muscles. Id. at 157. Petitioner had difficulty using his right arm, flexing his right elbow and using his right shoulder normally. Id. at 146. The final analysis indicated that the C5 root was compromised in order to remove the tumor, id. at 157, causing injury to the right brachial plexus at the C5-C6 level. Id. at 139, 154.

 An electromyography (EMG) conducted two days after the operation, and nerve conduction studies performed by Dr. Jack Sokolow revealed sensory loss along the C5-C6 dermatome on the right side and motor deficit along the deltoid, biceps and bracheoradialis on the right side. Id. at 118-19. Petitioner had good wrist extension, hand grasp and triceps. Dr. Sokolow also found electrical evidence of mild carpel tunnel syndrome, but the petitioner was asymptomatic. Id. at 119.

 On August 28, 1989, the petitioner paid his first visit to Dr. Mauro Romita. Id. at 143. The record states that petitioner showed an inability to flex the elbow and abduct the shoulder during an exam conducted on August 30, 1989. The shoulder joint showed signs of weakness as well.

 On September 8, 1989, the petitioner underwent multiple nerve graft reconstruction of the brachial plexus at Booth Memorial Medical Center. Id. at 126-33.

 On January 31, 1990, Dr. Finger performed a consultative exam on behalf of the Social Security Administration and noted that petitioner's sensory loss was improved or eliminated following the reconstructive surgery. Petitioner could make a full fist with his right hand, and had grip strength of grade four out of five. He could also flex and extend his right wrist normally. However, the petitioner still exhibited nearly complete loss of abduction of the right humerus and could only voluntarily flex the right humerus about 40 degrees. Dr. Finger found a complete loss of voluntary flexion at the right elbow but full voluntary extension. He also noted near complete atrophy of the right deltoid muscle. Dr. Finger agreed that there was injury to the right brachial plexus resulting in loss of function. He also mentioned petitioner's claims of a history of bronchial asthma, but noted the absence of any clinical evidence in support of such claims. Id. at 134-38.

 On February 23, 1990, Dr. Mauro Romita, a plastic surgeon, noted that his initial exam of the petitioner was conducted on August 30, 1989. Id. at 139. The results of the examination were consistent with the findings of the other examining physicians. However, Dr. Romita further opines that the petitioner "is now considered totally disabled and the prognosis is guarded." Id. at 141.

 On January 12, 1993, Dr. Romita noted that he had seen petitioner approximately fifty times since 1990. During that time he found petitioner to have gradually improved his biceps flexion to essentially normal range and that his pronation and supination were weak but with full range of motion. There was very little return of the deltoid muscle and it showed weak spontaneous abduction, and that despite attempts at rehabilitation the petitioner "still has a marked disability with regard to the right shoulder." Id. at 144. Petitioner's bicep had returned to approximately 50% of normal, but abduction was still limited to 20-25 degrees. Finally, he noted that the rehabilitation consults felt that the treatment had plateaued. Id.

 On July 20, 1993, Dr. Romita reiterated that petitioner's prognosis was guarded and that "at this point he must be considered significantly disabled with regard to the use of his right arm." Id. at 154. On October 28, 1993, Dr. Romita stated, in a one-sentence letter, that "the patient has been disabled since 4/2/92." Id. at 153. However, Dr. Romita had ...


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