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KENDALL v. APFEL

August 6, 1998

DONNA KENDALL, Plaintiff,
v.
KENNETH S. APFEL, Commissioner of Social Security, 1 Defendant.



The opinion of the court was delivered by: WEXLER

MEMORANDUM AND ORDER

 WEXLER, District Judge

 Plaintiff, Donna Kendall, seeks judicial review, pursuant to Section 205 (g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. 405 (g), of a final determination of the Commissioner of Social Security (the "Commissioner") denying her application for disability insurance benefits. Both parties have moved for judgment on the pleadings pursuant to Rule 12 (c) of the Federal Rules of Civil Procedure. The issue presented to the Court is whether the Commissioner's decision is based upon the correct legal standards and supported by substantial evidence. For the reasons discussed below, the case is remanded to the Commissioner for further administrative proceedings.

 BACKGROUND

 I. Procedural History

 Plaintiff applied for a period of disability, and disability insurance benefits on December 27, 1994, alleging an onset date of February 17, 1994, and claiming to suffer from a "soft tissue injury of lower extremity, post three surgeries [right] knee." Transcript of Administrative Record ("Tr.") 64. Plaintiff met the special insured status requirements of the Act and is fully insured through June 30, 1999 (Tr. 64-68). The Social Security Administration ("SSA") denied her application on March 29, 1995 (Tr. 70). On April 5, 1995, plaintiff filed a request for reconsideration which was denied by letter of June 6, 1995 (Tr. 71, 74).

 On June 16, 1995, plaintiff filed a request for a hearing which was held before an Administrative Law Judge (ALJ) on January 22, 1996 (Tr. 75). On January 26, 1996, the ALJ found that plaintiff was not disabled within the meaning of the Social Security Act (Tr. 19-23). The ALJ based his conclusion on the medical reports, x-rays, clinical examinations, and an MRI of plaintiff's right knee, all performed by or reviewed by plaintiff's treating physician, Dr. Ratzan. Dr. Ratzan's reports concerning plaintiff's knee revealed a stable patella, good tracking, full mobility, increased motor strength, and lessened pain (Tr.111-132). After review of the medical evidence, the ALJ weighed the necessary factors and concluded that plaintiff was not disabled within the meaning of the Act because (1) her medical condition did not "meet or equal in severity the clinical criteria of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1"; (2) plaintiff might not have been physically capable of performing her past relevant work as a dental assistant, which he categorized as light work; but (3) she retained a residual functional capacity to perform sedentary work based on her vocational profile and exertional capacity for sedentary work (Tr. 21). Therefore, the ALJ determined that plaintiff was capable of performing "at least" sedentary work (id.). Thus, plaintiff was not entitled to disability insurance benefits.

 On March 5, 1996, plaintiff filed an appeal from the ALJ's opinion, and supplemented the appeal by letter of March 20, 1996. Plaintiff's request for review was denied on August 9, 1996 (Tr. 2-3). As a result of the Appeals Council's action, the ALJ's determination of January 26, 1996 became the final decision of the Commissioner. Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996).

 II. The Administrative Record

 A. Vocational Evidence

 Plaintiff was born on May 18, 1963, and was thirty-two years old at the time of the ALJ's decision (Tr. 64). She has a high school education, and was last employed as a dental assistant (Tr. 47, 48). Plaintiff's job involved standing and sitting (Tr. 48) and on occasion she would have to physically extract a patient from a chair and administer cardio-pulmonary resuscitation (Tr. 48, 55).

 On September 5, 1991, plaintiff injured her knee at work. She has not worked since February 19, 1994 (Tr. 48-49). As a result of her knee injury, she underwent three surgical procedures on her right leg. In January of 1992, plaintiff had her first knee surgery, and her second and third surgeries were in February and August of 1994 respectively (Tr. 49-51).

 As a result of the pain in plaintiff's knee, she takes Anaprox, a prescription anti-inflammatory and muscle relaxant, on an "as needed" basis to relieve the "sharpness" of the pain (Tr. 50-51, 57). Plaintiff also uses a TENS unit, which electrically stimulates her leg, as another way to relieve pain, (Tr. 56-57) and attends physical therapy two to three times a week (Tr. 52).

 Plaintiff complains that her right knee has given out twice, causing her to fall, and that she experiences right leg pain and numbness (Tr. 52-53). She used a cane when her leg was "tender" but she discontinued its use when the cane caused her arm pain (Tr. 55). Plaintiff admittedly can walk for ten to fifteen minutes with intermittent pausing, but at a slower pace with a slight "pitch" (Tr. 53-54). She also admitted to being able to stand and sit for fifteen minutes to one half-hour (Tr. 54-56, 59). Plaintiff has trouble negotiating stairs, and needs help with household chores, but she can dress herself, and do leg exercises daily and has difficulty driving only on her "bad days" (Tr. 58, 59).

 B. Medical Evidence Before the ALJ

 1. Knee Pain

 On January 7, 1992, plaintiff underwent arthroscopic surgery and surgical release of the right medial plica in order to remedy her post-traumatic medial condyle chondromalacia and medial synovial plica (Tr. 92). On February 22, 1994, due to findings of recurrent lateral subluxation dislocation of the right patella with chondromalacia, Dr. Ratzan performed a right knee arthrotomy with patella realignment and internal fixation. Plaintiff's discharge summary dated February 26, 1994 stated, inter alia, that plaintiff's condition was "improved" (Tr. 98-99). From the date of this surgery, February 22, 1994, until October 19, 1995, Dr. Ratzan listed plaintiff as totally disabled (Tr. 110-133).

 Between March 3, 1994, and July 18, 1994, plaintiff was x-rayed five times. Each exam showed progressive healing, and a stable patella (Tr. 111-118). On August 23, 1994, Dr. Ratzan removed a "painful" screw from plaintiff's knee (Tr. 105-106). She stopped therapy for ...


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