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KARA v. APFEL

June 24, 1998

GLENN KARA, Plaintiff, against KENNETH S. APFEL, Commissioner of Social Security, Defendant.


The opinion of the court was delivered by: PARKER

MEMORANDUM DECISION AND ORDER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (the "Commissioner") to deny plaintiff's application for disability insurance benefits on the basis that plaintiff was not disabled from May 4, 1994 through May 29, 1995. The Commissioner now moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), contending that his decision was supported by substantial evidence in the record. For the reasons that follow, the Commissioner's motion is granted.

 BACKGROUND

 On May 4, 1994, plaintiff, a twenty-eight year old diesel mechanic with a high school education, injured his back at work. As a diesel mechanic, plaintiff was required to stand for extended periods of time, as well as to crawl, bend, reach, kneel, and regularly lift and carry loads of up to 150 pounds. Plaintiff had worked as a mechanic from approximately 1983 to 1994.

 About a month after his injury, plaintiff sought medical treatment from Dr. William Unis, an orthopedist. Dr. Unis's June 3, 1994 report indicates that plaintiff was suffering from lower back pain that radiated to his left buttock and inner thigh, with accompanying numbness, and morning back stiffness. Dr. Unis noted no reflex or sensory changes and no adductor tenderness although plaintiff reported pain in the area. A pelvic x-ray showed no evidence of fracture, dislocation, or arthritic changes. The hips and sacroiliac joints were normal. Dr. Unis then ordered a magnetic resonance imaging ("MRI") scan of the plaintiff's dorsal lumbar spine and an electromyogram ("EMG"). Review of the MRI revealed degenerative disc disease at L4-L5 and L5-S1, with two disc herniations. The larger of the two herniations, at L4-L5, was impinging on the right L5 nerve root within the thecal sac. Dr. Unis then referred plaintiff to Dr. Nicholas DePalma, a neurologist. In an April 1995 progress note, Dr. Unis observed that plaintiff was periodically symptomatic in his lower back and was taking Aleve as needed.

 Plaintiff first saw Dr. DePalma on June 30, 1994. Plaintiff walked in an erect position and was able to heel and toe walk. His motor, sensory, and reflex functions were within normal limits. Straight leg raising on his right was 75 degrees and on his left 60 degrees. There was no evidence of atrophy or fasciculations. Dr. DePalma noted the results of the MRI and indicated that plaintiff had "radiographic and clinical evidence of radicular involvement." He recommended a course of conservative treatment and that the plaintiff walk and swim to strengthen his back. He advised that the plaintiff should not return to his occupation as a mechanic because of the heavy lifting required, and suggested that plaintiff "either make a lateral move within the company to something more sedentary or be retrained for another occupation." He further opined: "At the present time the patient is totally disabled for his occupation."

 Dr. DePalma reexamined plaintiff on September 15, 1994. At that time, he noted an improvement in plaintiff's condition but again recommended against plaintiff returning to his former occupation as a mechanic. He further urged that plaintiff be moved to a more sedentary occupation within the company or be retrained for more sedentary work.

 On November 15, 1994, plaintiff was examined by Dr. T.V. Seshan, who found that plaintiff's active range of motion of the lumbosacral spine showed moderate limitation of motion with particular limitation of forward flexion to 30 degrees. Dr. Seshan noted that plaintiff's femoral stretch signs were negative and noted no motor or sensory deficits. Dr. Seshan opined that plaintiff was permanently disabled for his particular occupation, and recommended that plaintiff consider vocational retraining.

 In a report dated January 31, 1996 submitted in support of plaintiff's application for disability benefits, Dr. Joseph A. Rossello, a chiropractor, indicated that he had treated plaintiff weekly from May 4, 1994 through August 26, 1995. During that period, plaintiff complained of low back pain and stiffness, jaw pain and discomfort radiating from the neck, headaches, and left leg numbness. Clinical tests revealed foraminal compression, decreased cervical range of motion, weakness of neck extension muscles, and cervical spasms. Dr. Rossello considered plaintiff's prognosis to be "guarded." He treated plaintiff with spinal manipulation and physical therapy but prescribed no medication. He believed that plaintiff's medical condition had lasted or was expected to last at least twelve months, and that plaintiff should lie down for 3-7 hours each day to relieve pain following any activity.

 By checking off the appropriate categories, Dr. Rossello indicated that during a work day, plaintiff could sit, stand, and walk continuously, up to two hours each; that plaintiff could frequently lift and carry up to five pounds; and could occasionally lift and carry 6-10 pounds. Dr. Rossello further indicated that plaintiff should never bend, squat, crawl, climb, or reach; that plaintiff could use his hands for repetitive actions such as simple grasping, pushing and pulling, and fine manipulations; and could use his feet for repetitive movements. Dr. Rossello commented that plaintiff should be treated as needed in order to become stable and physically fit for work. Over the period of his treatment of plaintiff, Dr. Rossello also regularly reported to the Workers' Compensation Board that plaintiff suffered from a total disability. On January 27, 1996, Dr. Rossello wrote that plaintiff was totally disabled from the date of the accident, May 4, 1994, until May 30, 1995, and remained partially disabled.

 On May 30, 1995, plaintiff returned to his former position as a mechanic on full duty for the same salary and for the same hours. He requires assistance to lift more than thirty pounds, and uses a chair with wheels to help him perform tasks at lower levels.

 Plaintiff filed an application for disability insurance benefits on January 12, 1995. In his initial application, plaintiff noted that his job as a mechanic required heavy labor, and that "light duty" was not available. Plaintiff's initial application was denied. In his March 9, 1995 application for reconsideration, plaintiff stated: "I would gladly go back to work under light duty, unfortunately my company does not offer light duty." When his application for reconsideration was also denied, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). This hearing was held on February 1, 1996, before ALJ Christopher P. Lee. During the hearing, plaintiff testified that from May of 1994 through early 1995, he spent much of his time resting in bed, swimming, or watching television. He was able to dress and bathe himself, did his own laundry, and could drive himself to his various doctors' appointments.

 The ALJ issued a written decision on March 25, 1996, in which he found that plaintiff was not disabled within the meaning of the Social Security Act (the "Act"). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied ...


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