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LONGSHORE v. CHATER

July 25, 1996

CAROL LONGSHORE, Plaintiff, against SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Plaintiff Carol Longshore ("Longshore") brings this action pursuant to § 205(g) of the Social Security Act as amended (the "Act"), 42 U.S.C. § 405(g), challenging the final determination of the Commissioner of Social Security (the "Commissioner") *fn1" that Longshore is not entitled to disability insurance benefits under the Act. Longshore and the Commissioner have cross-moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons discussed below, the Commissioner's determination denying benefits is affirmed.

 BACKGROUND

 A. Prior Proceedings

 B. Facts

 Longshore was born on October 25, 1953 and is a high school graduate. (Tr. 72, 141). She is separated from her second husband and has two children. (Tr. 74). From 1971 until 1990, Longshore worked sporadically as a real estate title searcher in the title insurance industry. (Tr. 119, 141).

 Longshore alleges that she has been disabled by degenerative disc disease and gastritis since April 12, 1990. *fn3" (Tr. 72). This condition purportedly has affected her ability to function in several respects. Although she did not testify at a hearing, in conjunction with her current application for disability Longshore submitted statements regarding her ability to perform daily living tasks to the Social Security Administration. (Tr. 89, 137-44, 150-58, 302). Longshore contends that she is unable to bend, sit or stand without experiencing pain and numbness and that she is most comfortable laying down. (Tr. 89, 137). Also, her children do the housework, including cooking. (Tr. 140, 152, 156). While Longshore is able to drive short distances, she can no longer bowl or attend Bible study. (Tr. 140, 152, 302). She acknowledges that her injury does not prevent her from caring for her personal needs. (Tr. 152, 302).

 C. Medical Evidence

 In 1985, Longshore underwent surgery for a ruptured lumbar disc at the L5-S1 region. (Tr. 162, 211). After a car accident in 1989, Longshore was treated for back injuries by Dr. Sieber, an orthopedic surgeon. (Id.). Dr. Sieber recommended an L4-5 suction discectomy; however, Longshore opted not to have the surgery and returned to work on a reduced schedule. (Tr. 149, 159). Her medical condition caused her to take sick leave from work from October 31, 1989 until December 6, 1989 and to cease working permanently on April 11, 1990. (Tr. 149).

 On April 4, 1990, Longshore began treatment with Dr. Waden Emery III, a neurologist. (Tr. 211). On her initial visit, Longshore complained of lower back pain with radiation into the right buttock, lateral thigh and right foot. (Id.). Dr. Emery took X-rays and an MRI scan of Longshore's spine and an electromyogram of her lower extremities. (Id.). He diagnosed Longshore as having a herniated disc at the L4-5 region and L5 radiculopathy and referred her to Dr. Gieseke for a neurosurgical evaluation. (Tr. 212). In June 1990, Longshore was scheduled for surgery with Dr. Gieseke, but later changed her mind and requested physical therapy instead. (Id.). Dr. Emery continued to treat Longshore on a regular basis, seeing her at least 19 times from June 1990 through February 1993 for pain in her lower back and groin and numbness. (Tr. 212-14). During this time, Longshore followed a conservative regimen of physical therapy and medications including Vicodin, Soma, and Xanax. (Tr. 212-14, 217-19).

 On April 14, 1992, Longshore was evaluated by Patty Davenport, a physical therapist, who detected tenderness in the lumbosacral region but noted that Longshore's range of motion was within normal limits. (Tr. 303). Davenport prescribed therapy and a home exercise regimen. (Id.). The following day, at the request of the Office of Disability Determinations, Longshore was seen by Dr. Joel Rapchik for a consultative examination. (Tr. 305-306). Dr. Rapchik noted a full range of motion with minimal related abnormalities, normal ambulation, tone and strength with the exception of a slightly reduced right Achilles reflex and no evidence of paravertebral muscle spasms. (Id.). On April 20, 1992, in a report for the Florida Department of Health and Rehabilitative Services disability determination, Dr. Emery noted Longshore had an independent and normal tandem gait. (Tr. 218).

 Longshore saw Dr. Emery on June 10, 1992, following another car accident, at which time he concluded that while the incident exacerbated her back pain, his objective examination of her was unchanged. (Tr. 214, 217). An MRI of her lumbar spine, performed two weeks later, was consistent with the earlier finding of a herniated disc and also found lipping of the disc material producing mild spinal stenosis. (Tr. 214). An electromyogram, performed the same day, repeated the earlier finding of L5 radiculopathy. (Id.).

 On February 25, 1993, Dr. Emery completed a physical capacities evaluation of Longshore at the request of her non-attorney representative Russell Disparti. (Tr. 214-16). He determined that Longshore was able to sit for one hour at a time for six or more hours during an eight-hour day and walk or stand less than an hour at a time for two or more hours during an entire eight-hour day. (Tr. 215). His report noted that Longshore is able to lift or carry up to nine pounds and is unable to use her hands for pushing or pulling. (Tr. 215-16).

 Based on his evaluations, Dr. Emery concluded that Longshore has the capacity to be gainfully employed given the following work restrictions: no heavy lifting, no repetitive lifting of over ten pounds, and no ...


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