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DIBERNARDO v. CHATER

October 6, 1997

CARMINE DIBERNARDO, Plaintiff, against SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY, 1 Defendant.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Plaintiff Carmine Dibernardo brings the instant action challenging a decision of defendant Commissioner of Social Security (the "Commissioner") denying his application for disability insurance benefits for the period between February 23, 1991, and September 13, 1993. Pursuant to Federal Rule of Civil Procedure 12(c) and 42 U.S.C. 405(g), Dibernardo moves for judgment on the pleadings, or in the alternative for a remand and new hearing, and the Commissioner cross-moves for judgment on the pleadings. For the reasons set forth below, Dibernardo's motion is denied and the Commissioner's motion is granted.

 BACKGROUND

 Plaintiff Carmine Dibernardo was born on September 13, 1943, in New York. See Transcript of Administrative Record ("Tr.") at 31. Dibernardo lives in a two-family house in Queens with his mother, wife and two of his children and has lived there for over nineteen years. Tr. at 31. His formal education ended after two years at high school in Brooklyn and he has held various jobs since then as a truck driver, merchant seaman and most recently as a vehicle service attendant for a rental car company at Kennedy Airport. Tr. at 32, 35, 141. Dibernardo held a commercial driver's license under the 'B' and 'P' classifications for a heavy, single unit truck with power brakes. Tr. at 33.

 On February 23, 1991, while working as a service vehicle attendant, Dibernardo slipped on ice that had formed on the ground and injured his back. Tr. at 43. He was taken to the Kennedy Medical Center in the airport where x-rays were taken and a sprained back was diagnosed. Id. Dibernardo visited five doctors at Kennedy Medical Center over the next two to three weeks, receiving therapy and a prescription for Tylenol with codeine. Tr. at 44.

 From March 1991, through June 1993, Dibernardo was examined and treated by Dr. King, an orthopedic surgeon. *fn2" Tr. at 45, 112-27. Dibernardo met with Dr. King on a monthly basis to satisfy the treatment requirements set forth by the Workers' Compensation Board. Tr. at 112-127. Dr. King diagnosed Dibernardo as having a low back sprain and contusions of the back muscles, neck muscles, and of the left shoulder, tenderness and restriction of motion in the lumbar spine, and tenderness and pain over the neck and left shoulder. Id. Furthermore, he directed that Dibernardo perform physical therapy and use a transcutaneous electrical nerve stimulation ("TENS") unit. Tr. at 49, 116-17, 121. Dr. King also prescribed the muscle relaxant, Zarisoprodol, for Dibernardo's leg and back pain, and gave him "acenomenophen" with codeine on one occasion. Tr. at 49-50, 123. *fn3" By October 22, 1992, Dr. King noted that Dibernardo was still experiencing pain, back muscle spasm and restricted motion, but had reached the maximum benefit from treatment, even though he would continue to be seen for Workers' Compensation. Tr. at 118.

 On August 12, 1991, a Magnetic Resonance Imaging Scan ("MRI") was taken of Dibernardo's lumbar spine. Tr. at 111. The results revealed a mild annular disc bulging at L3-4 and L4-5 levels, which abut the thecal sac, but do not significantly deform the sac or the neural foramina. Id. Moreover, the remainder of the intervertebral discs were noted to be normal in appearance. Id. No abnormal masses were observed within the thecal sac or paraspinal soft tissues. Id. Furthermore, the examiner's impression of the MRI was that Dibernardo suffers from a mild exaggeration of the lumbar lordosis. Id.

 On February 4, 1992, Dibernardo was examined by Dr. Snow, a neurosurgeon, who noted that Dibernardo complained of low back pain radiating into his leg, and increasing pain with bending and lifting. Tr. at 130. Dr. Snow further noted that Dibernardo wears a back brace. Id. Dr. Snow's impression was that it was a normal neurologic exam with the exception of the degenerative lumbar disc disease. Id. He did not feel that Dibernardo was an operative candidate or that a myelogram would reveal a significant enough lesion to warrant surgery. Id.

 Pursuant to his application for a Workers' Compensation claim, Dibernardo was also examined by Dr. Silberman on July 9, 1991, December 3, 1991, and May 5, 1992. Tr. at 131. Dr. Silberman noted that Dibernardo had been examined by Dr. Snow, but disagreed with Dr. Snow's conclusion. Id. Dr. Silberman stated that in his opinion Dibernardo shows clinical evidence of a herniated disc, that a CT Myelogram would be of benefit to document discogenetic pathology, and that Dibernardo should have surgery if the Myelogram is positive. Tr. at 57, 132. Furthermore, Dr. Silberman explained that Dibernardo had received the maximum benefits from physical therapy and presents a marked degree of partial disability in the sense that with a low back brace Dibernardo could perform a very limited, light duty type of work on a part-time basis without multiple bending or any lifting. Tr. at 132.

 On October 15, 1992, a CT Scan and an electrodiagnostic study ("EMG") were performed on Dibernardo. Tr. at 164. The CT Scan did not show any evidence of a disc bulge, herniation or neural impingement. Id. However, the examiner's impression was that the CT Scan did substantiate a Grade 1 lytic spondylolisthesis. Id. Moreover, Dr. Colon, who conducted the EMG, concluded that while Dibernardo showed normal latencies in both motor nerve and sensory nerve conduction, there was electrical evidence of bilateral multi- level lumbosacral radiculopathy affecting the posterior rami and the left L5-S1 anterior rami. Tr. at 134.

 On September 30, 1992, Dibernardo filed an application for disability insurance benefits, alleging disability as of the date of his accident. Tr. at 13. His claim was denied initially and after reconsideration. Id. *fn4" Dibernardo requested a hearing before an Administrative Law Judge ("ALJ"), which was held on November 9, 1993. Id. At the hearing, the ALJ received testimony from Dibernardo, represented by counsel, and Dr. Katz, a Board-Certified Orthopedic Surgeon and medical expert employed by the Office of Hearings and Appeals. Id. Furthermore, the ALJ received into evidence numerous medical notes and reports concerning Dibernardo. Tr. at 13-19, 69-163.

 Dibernardo testified that he rarely gets a full night sleep due to back pain and headaches and his typical day consists of sitting on the sofa and resting. Tr. at 55. Furthermore, Dibernardo testified that while he occasionally will drive his wife three blocks to the supermarket, he never goes in or does any of the shopping. Id. Moreover, Dibernardo stated that he walks with the aid of a cane, wears a back brace which Dr. King prescribed to him in 1991, and was advised by Dr. King not to do any work such as lifting or bending as such activity would aggravate his condition. Tr. at 48, 56.

 Dr. Katz testified that Dibernardo suffers from degenerative lumbar disc disease, but found no sign of a herniation or spinal stenosis which would call for an operation. Tr. at 58-60. Furthermore, Dr. Katz, relying on Dr. Snow's reports, concluded that Dibernardo does not show any neurological impairment or herniation because the disc degeneration documented does not press hard enough or deep enough on the thecal sac to cause any type of impingement, which is necessary in order to restrict a person's ability to sit. Tr. at 59, 65. In addition, Dr. Katz stated that Dr. Silberman's opinion of a herniated disc was pure speculation since that opinion rested on the circular assumption that it would be confirmed by a Myelogram, which was never performed. Tr. at 63. Dr. Katz concluded that Dibernardo should be able to perform sedentary work for six hours at a time and should have a lifting capacity of ten pounds maximum. ...


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