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DE LA CRUZ v. CHATER

July 2, 1996

BRIGIDA DE LA CRUZ, Plaintiff, against SHIRLEY S. CHATER, Commissioner, Social Security Administration, Defendant.


The opinion of the court was delivered by: DEARIE

 DEARIE, District Judge.

 Pro se plaintiff Brigida De La Cruz was born on September 7, 1939 in the Dominican Republic and came to the United States in 1967. Tr. 21-22. She has no formal education and cannot read or write in any language. Tr. 23. She worked for 18 years as a sewing machine operator and stopped working in December 1991. On May 24, 1993, plaintiff filed an application for disability benefits, alleging disability based on "degenerative disc disease" and arthritis beginning on October 1, 1992. Tr. 42-45. The Commissioner denied the application initially and on reconsideration.

 The Administrative Law Judge ("ALJ") held a hearing on September 12, 1994, at which plaintiff represented herself. In a decision dated October 6, 1994, the ALJ found that plaintiff was not disabled and that she could return to work as a sewing machine operator. Tr. 9-15. The Appeals Council denied plaintiff's request for review on February 2, 1995. Tr. 2-3.

 Plaintiff filed this action or March 15, 1995, alleging that she was entitled to disability benefits beginning in January 1993 by virtue of "back pains, spams [sic], numbness feet (legs) hands." On September 11, 1995, the Commissioner moved for judgment on the pleadings. By letter dated October 27, 1995, the Court reminded plaintiff that her response to defendant's motion was due on November 27, 1995. On November 13, 1995, somebody telephoned chambers on behalf of plaintiff and requested an extension. The Court indicated that it would grant the extension provided that it was made in writing. Although a written request for an extension was never made, the Court granted plaintiff until February 12, 1996 to file her response to defendant's motion. By Order dated February 12, 1996, the Court directed plaintiff to inform the Court by March 4, 1996 whether she would like the assistance of counsel and informed plaintiff that, if she failed to respond to the Order, the Court would decide the motion on submission. Plaintiff never responded to the Order, and she never responded to defendant's motion.

 Medical Evidence

 On April 10, 1993, Dr. Lodha examined plaintiff for complaints of epigastric pain, right side abdominal pain, intermittent chest pain, and shortness of breath. Her blood pressure was 140/90. An EKG revealed some tachycardia but was otherwise normal. A bronchoscope was normal. Tr. 116.

 On April 16, 1993, Dr. Ginde, a radiologist, examined x-rays of plaintiff's chest, right hip, and lumbosacral spine. Tr. 128. Dr. Ginde concluded that plaintiff's chest was normal and that her right hip was normal. Dr. Ginde observed a "narrow L4-L5 disc space with vacuum space phenomenon" and suggested a CT scan. Tr. 128.

 On April 29, 1993, Dr. Lodha saw plaintiff again, noted that she complained of back pain, advised that she rest for two months due to "disc disease in back," and referred her to the orthopedic clinic at Beth Israel Medical Center. Tr. 117. On May 13, 1993, Dr. Lodha prescribed Naprosyn for plaintiff's back pain. Tr. 119. On May 21, 1993, plaintiff was seen at the Beth Israel Medical Center, and progress notes reflect that plaintiff reported a two-year history of intermittent low back pain radiating down her right leg and that she complained of pain with forward flexion. The clinic doctor prescribed Toradol, ordered a CT scan, recommended rehabilitation, and told plaintiff to return to the clinic in four months. Tr. 131. X-rays of plaintiff's lumbar spine taken on May 21, 1993 showed no appreciable narrowing of the intervertebral disc spaces and minimal degenerative changes in the lower lumbar spine. Tr. 134. Dr. Yang performed a CT scan on May 25, 1993 and diagnosed degenerative disc disease at L4-L5 with minimal posterior bulging of the disc. Tr. 133.

 On July 8, 1993, plaintiff visited the rehabilitation clinic at Beth Israel, stating that she had a two-year history of low back pain that had increased during the last six months. The attending doctor noted that the nonsteroidal anti-inflammatory drug relieved plaintiff's back pain to some extent. Plaintiff was diagnosed with muscular/ligamentous strain. Tr. 141. The doctor stated that plaintiff should continue taking the nonsteroidal anti-inflammatory medication, that she should continue her home exercise program, and that she should return to the clinic in two months. Beth Israel progress notes dated July 16, 1993 show that plaintiff had a full range of motion and listed her diagnosis as degenerative joint disease at L4 and L5. Tr. 132.

 Dr. Hwang saw plaintiff in a consultative examination on August 17, 1993. Tr. 88-91. Dr. Hwang noted that plaintiff was in no acute distress and that her gait and station were normal. Her blood pressure was 140/90. Dr. Hwang observed that flexion of plaintiff's lumbar spine was accomplished to 30 degrees and that extension, lateral bending, and rotation of the lumbar spine were accomplished to 20 degrees. He also found that plaintiff's lumbar lordosis was "normal with no scoliosis" and noted that there was no paraspinal muscular spasm and no tenderness over the spine. Dr. Hwang commented that plaintiff's cervical spine had a full range of motion. Dr. Hwang also examined plaintiff's extremities and determined that she had the full range of motion in her joints. Based on his examination, Dr. Hwang concluded that plaintiff had lumbago and that this condition placed a "mild limitation" on walking, climbing, carrying, pushing [and] pulling" but that it imposed no limitation on sitting. Tr. 91. An x-ray of plaintiff's lumbosacral spine taken on August 17, 1993 showed a narrowing with discogenic sclerosis at L5-S1. Tr. 92.

 On September 23, 1993, plaintiff returned to the Beth Israel clinic, again complaining of back pain. She was unable to forward flex. Plaintiff was directed to take anonsteroidal anti-inflammatory medicine and was told to return to the clinic in two months. Tr. 142. On October 2, 1993, plaintiff returned to Dr. Lodha, complaining of chest-pain and abdominal pain. Dr. Lodha noted that her abdomen was soft with hepatomegaly. An echo doppler was normal, and an abdominal sonogram was normal. Tr. 120-121.

 Dr. Mescon saw plaintiff in a consultative examination on November 3, 1993. In his report, Dr. Mescon stated that plaintiff was claiming disability based on alcohol abuse and asthma. Dr. Mescon recorded that plaintiff has smoked one pack of cigarettes a day for forty years and that she drinks 3-4 beers a day and 5-10 shots of rum on the weekends. He noted that her blood pressure was 150/80. Tr. 95. Plaintiff told Dr. Mescon that, as a result of her low back pain, she could only walk four blocks, that she could only sit for two hours, and that she could only stand for one hour. Plaintiff also complained that the pain radiated down her right leg. Based On his examination, Dr. Mescon diagnosed plaintiff with mild hypertension and low back pain with radiculopathy. Dr. Mescon stated that plaintiff's ability to sit and stand would not be compromised by her back condition, but he opined that her ability to climb, push, pull or carry heavy objects would be ...


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