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SAVIANO v. CHATER

March 5, 1997

PAUL SAVIANO, JR., Plaintiff, against SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY, Defendant.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 This lawsuit arises from the claims of the plaintiff, Paul Saviano, Jr. ("plaintiff" or "Saviano"), that he was wrongfully denied social security disability benefits. Saviano commenced this action pursuant to 42 U.S.C. ยง 405(g), in which he appeals from the February 7, 1995 decision of Administrative Law Judge Richard Karpe ("ALJ"), finding that he was not disabled as of the last date of his insured status, March 30, 1991, and as a result, was not entitled to benefits.

 Presently before the Court is the motion of the plaintiff and cross motion of the defendant, Shirley S. Chater, Commissioner of Social Security (the "defendant," "Commissioner" or "Secretary") *fn1" , for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).

 I. Background

 A. The events leading to the plaintiff's claim

 The plaintiff, Paul Saviano, was born on May 27, 1945 and is presently 51 years of age. He was 45 years of age on March 31, 1991. In the early 1980's, he was employed by the New York City Department of Sanitation as an electrician. According to Saviano, his job was to "troubleshoot[] for electric cranes . . . [by] climbing cranes to check electrical problems." R. 111. *fn2" His work required bending, climbing and kneeling. R. 52. In August 1982, Saviano injured his knee when he slipped on some debris while working in a landfill. R. 45. He was taken to Victory Hospital in Staten Island. R. 46. Although he went to a clinic run by his employer shortly after being released, he did not seek further medical treatment, opting instead to "take care" of the injury himself, which he did for "a year or better." R. 46-48. According to Saviano, he continued to work during this period, but "kept falling down [and] buckling." R. 46. In 1984, the plaintiff underwent arthroscopic surgery on his knee which did not relieve the problem, and consequently, he retired. R. 52. The surgery was performed by a "Dr. Lambert" or "Dr. Lampert" who treated Saviano on earlier occasions, but whose records could not be located. R. 39, 118.

 In addition to his knee problems, the plaintiff began experiencing backaches eight to ten years prior to the hearing, which was held on January 19, 1995, and in any event no later than 1990. R. 57-58. During this period he also developed difficulty breathing and shortness of breath but did not seek medical attention because he assumed it was the result of his being overweight. R. 59-60.

 In August 1992, he had a heart attack. R. 59. On September 1, 1992, Saviano was treated by Dr. Barton Cohen for his heart problem. R. 137. He was hospitalized at North Shore University Hospital where his condition was diagnosed as a myocardial infarction. Id. Dr. Cohen found Saviano to suffer from hypertension, diabetes, and high cholesterol. R. 159.

 On September 13, 1993, Saviano was examined by Dr. Harry Kousourou, a Social Security consultant. R. 140-42. Dr. Kousourou noted the plaintiff's diabetes, atherosclerotic heart disease, and the status post left knee injury. R. 140. Examination of plaintiff's chest revealed a "regular rate of rhythm, normal S-1, S-2." Tr. 141. There were no murmurs, gallops, rubs or clicks. Id. Saviano was wearing a left knee brace and had a greatly diminished range of motion of the left knee due to crepitus. Id. He also had diminished girth of the left quadricep. Id. Saviano's gait was antalgic, secondary to knee pain and he was not able to ambulate without a cane. R. 142. A resting EKG revealed a normal sinus rhythm, normal electrical axis and normal intervals. There was no evidence of ischemia, infarction, hypertrophy or ectopy, and no change on heavy inspiration. Id. Dr. Kousourou's impression was atherosclerotic heart disease with chronic stable angina, degenerative arthritis of the left knee and diabetes mellitus. Id.

 According to a letter dated July 18, 1994 written by Dr. Barton Cohen, on June 16, 1994, the plaintiff was hospitalized for a second cardiac catheterization which revealed "no re-stenosis in the circumflex, but a severe lesion in the right coronary artery." R. 159. The following day, plaintiff underwent angioplasty which reduced the lesion from 90% to approximately 30%. Id. Dr. Cohen found that plaintiff's obesity, diabetes, and hypertension precluded him from working in any profession at that time. Id.

 The plaintiff's current treating physician is Dr. Gale Pugliese who began seeing him in 1992. R. 132. According to Saviano, Dr. Pugliese's earliest note, which is handwritten and unsigned covers treatment from October 8, 1992 through July 11, 1993 during which she saw him every three to six months. R. 132-36. Dr. Pugliese reported that on June 11, 1993, the plaintiff exhibited a slow antalgic gait, left quadricep atrophy and swelling of the left knee which had a decreased range of motion, as did plaintiff's right ankle. R. 132. There was spasm of the left knee and the left quadricep strength was 3 out of 5. Id. The plaintiff was wearing a double upright pro brace and orthotics, and taking Lopressor, Lopid and Micronase. R. 133. Dr. Pugliese's diagnosis was diabetes, cardiac disease, and hypertension. R. 133. The doctor reported that, in her medical opinion, plaintiff could occasionally lift one to two pounds, but could frequently lift no weight. R. 136. Also, Saviano could stand and walk less than two hours a day and sit less than six hours a day. Id. He was limited with respect to pushing and pulling, was unable to bend and squat, and had slow mobility. Id.

 In a subsequent letter dated May 23, 1994, Dr. Pugliese states that during her initial meeting with Saviano, he claimed that he had been suffering from "fatigue, shortness of breath with exertion, and decreased ability to ambulate" and "knee pain" for "five years." R. 155. The letter continues by noting that after directing the plaintiff to engage in therapeutic exercises, a cardiac rehabilitation program and a diet, that

 
the prognosis is poor. The knee will only progressively worsen. Whenever he attempts to squat, sit for more than 2 to 3 hours or walk for more than 0 to 1 hour his knee gives out. He either falls or the knee locks. He is unable to lift more than 10 pounds on a regular basis. He is unable to bend or reach without exacerbating his conditions. . . . His cardiac condition renders him unable to lift or walk for absolutely any functional working activity.

 Id. Dr. Pugliese concluded the letter by stating that "these medical conditions indeed existed prior to March 31, 1991. . . ." R. 156. She reiterated this opinion in a second unaddressed letter dated February 6, 1995. R. 169

 On May 31, 1994, plaintiff was examined consultatively by Dr. Mark P. Figgie. R. 149-50. Physical examination of Saviano revealed no gross abnormalities in Saviano's upper extremities, although there was a mild loss of motion in the lumbar spine and slight restriction in the hip range of motion. R. 149. The plaintiff had tenderness on the joint line in the left knee with patello-femoral crepitus. Id. Saviano exhibited mild medial-lateral instability but no anterior or posterior instability. Id. Plaintiff's right ankle was tender and swollen over the medial joint line and he had a slight decrease in sensation of the left medial calf. Id. Saviano's quadriceps strength was 3 out of 5, the extension of halluces longus muscle strength was 4 out of 5, and abduction strength was 5 out of 5. Id. X-rays of the lumbar spine revealed slow changes at L1-L2 and L3-L4 with a spina bifida at L5. R. 149, 153. Saviano had mild degenerative changes in both hips and his knee had mild osteophytes. Id.

 Dr. Richard Goodman, who had not examined the plaintiff, testified at the hearing as a medical expert on behalf of the Commissioner. R. 62-69. Based on the medical records and plaintiff's testimony, Dr. Goodman concluded that the plaintiff was able to perform sedentary work on or before March 31, 1991. R. 66-67. He found that Saviano could, on a sustained basis, sit six hours a day and lift up to ten pounds. R. 67. Dr. Goodman further concluded that the degree of the plaintiff's back pain would not have stopped him from sitting for six hours. Id. As a result, prior to March 1991, according to Dr. Goodman, Saviano had the ability to perform sedentary work. R. 68.

 B. Procedural history

 The plaintiff filed an application for Social Security disability benefits on June 24, 1993. R. 70. The application was initially denied on November 16, 1993 and again upon reconsideration on March 16, 1994. R. 86, 94. The plaintiff then requested a hearing which was held on January 19, 1995 before an ALJ Karpe. R. 97. On February 7, 1995, the ALJ issued a written decision finding that the plaintiff was not disabled prior to March 31, 1991, the date he was last insured for disability benefits. Accordingly, Judge Karpe determined that he was not entitled to social security payments. R. 15-20. On October 20, 1995, the Appeals Council denied the plaintiff's request for review. On December 19, 1995, the plaintiff commenced this action in federal court.

 As set forth above, the issue presented is whether there is substantial evidence to support the Commissioner's decision that the plaintiff was not disabled prior to March 31, 1991, the date he was last insured for purposes of obtaining social security disability benefits.

 II. The ALJ's decision

 On February 7, 1995, the ALJ issued a written decision denying the plaintiff's application for benefits "finding that the claimant was not disabled on or before March 30, 1991 and, therefore, is not entitled to disability insurance benefits." R. 15. The ALJ's decision was based in part on the testimony of medical expert Dr. Richard Goodman:

 
Based on a hypothetical question, assuming that the claimant's allegations of left knee pain, back pain, problems walking, chest pain and shortness of breath on exertion and thirst due to diabetes, the medical expert opined that such a person nevertheless would have been capable of performing sedentary work which, in an eight-hour workday, requires approximately six hours of sitting, two hours of standing/walking and lifting carrying up to 10 pounds occasionally [on March 30, 1991].

 ALJ Dec. at 3, R. 17. The ALJ also rejected the conclusions of Dr. Pugliese that Saviano was disabled prior to March 31, 1991 as binding upon the Commissioner:


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