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SHIVER v. APFEL

October 2, 1998

LILLIE SHIVER, Plaintiff, against KENNETH S. APFEL, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.


The opinion of the court was delivered by: NICKERSON

MEMORANDUM AND ORDER

 NICKERSON, District Judge:

 Lillie Shiver brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to review a final decision of the defendant Commissioner of Social Security that she is not entitled to disability insurance benefits and supplemental security income benefits under the Social Security Act.

 I

 Plaintiff filed the application for disability insurance benefits and supplemental security income on January 4, 1990. After the Commissioner denied the application, plaintiff requested a hearing which was held on June 12, 1991. In a decision dated September 27, 1991, Administrative Law Judge, Robert Sugerman, determined that the plaintiff was not disabled within the meaning of the Social Security Act. On September 4, 1992, the Appeals Council remanded the case to Administrative Law Judge Sugerman for further proceedings. The Appeals Council said that the decision did not address properly the plaintiff's subjective symptoms and complaints.

 Plaintiff's second hearing was held on October 20, 1993. On December 9, 1993 Administrative Law Judge Sugerman again found the plaintiff not disabled. On June 16, 1994 the Appeals Council remanded the case to a different Administrative Law Judge for further hearings. The Appeals Council said that Administrative Law Judge Sugerman had not adequately addressed certain of plaintiff's requests and complaints.

 On June 22, 1995 plaintiff appeared for a hearing with an attorney before Administrative Law Judge Michael P. Friedman. On October 13, 1995, he found that the plaintiff was not disabled. The Appeals Council denied plaintiff's request for review on March 26, 1997, and this action followed.

 II

 Plaintiff was born on January 12, 1950. She graduated from high school and attended two years of college. She worked for the New York City Transit Authority from 1974 through January 1989, as a token booth clerk through 1985, and as a cleaner from 1985 through 1989. As a token booth clerk, she had to sit and stand for prolonged periods. As a cleaner, she did constant walking, climbing, bending, pushing, pulling, heavy lifting, and prolonged standing.

 Plaintiff fell while cleaning a bathroom in May 1985, injuring her left shoulder, lower back and knee. She was then placed on light duty as a cleaner sweeping the subway station and picking up garbage. Plaintiff states that in April 1988, she stopped working because of severe pain in her back and left knee. She resumed work in November 1988 on restricted duty status and was assigned to work on a refuse train emptying garbage cans into a dumpster. She stopped this work in January 1989 because the job was no longer considered a restricted duty job.

 In her claim, plaintiff said that her disability began in January 13, 1989 due to an accident on the job. The Administrative Law Judge Friedman noted that plaintiff initially alleged an onset date of January 13, 1989, but later changed the onset date to April 18, 1988. Plaintiff attributes her disability to hypertension, diabetes, claustrophobia, and multiple physical impairments including osteoarthritis and multiple orthopedic injuries. Plaintiff has not engaged in substantial gainful activity since April 18, 1988.

 During the hearing, plaintiff testified that she experienced pain in her left shoulder, lower back, knees, legs, and ankles, and numbness in her left arm and left hand. She said that treatment had included physical therapy, hospital treatments, periodic visits to her treating physician, Dr. Ernesto Lee, and the use of special wraps for the waist and heating pads.

 Plaintiff testified that she is able to stand for up to ten minutes, walk about one block, and lift and carry light things. When asked by Administrative Law Judge Friedman how long she could sit, she responded, "I sit for as long as I have to." She travels by taxi, bus or subway, but the latter only if essential. Plaintiff shops for groceries but her children perform most of the household chores. Her leisure activities include reading and watching television. She testified that the television was on "all the time." She also socialized with others and attended church three times a week.

 Administrative Law Judge Friedman made the following formal findings. The plaintiff met the disability insured status requirements on April 18, 1988, and continued to meet them through December 1993. He determined that while plaintiff's impairments were "severe," particularly those to the low-back and left upper extremity, her condition did not meet or equal the criteria of any impairment listed in Appendix 1, Subpart P, Regulations No. 4. He also found that plaintiff's history of anemia, ...


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