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ROONEY v. APFEL

August 14, 2001

RICHARD ROONEY, PLAINTIFF,
V.
KENNETH APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

  MEMORANDUM OF DECISION AND ORDER

The plaintiff, Richard Rooney ("Rooney"), commenced this action pursuant to the Social Security Act, 42 U.S.C. § 405(g) (the "Act"), seeking review of a final administrative determination of the Commissioner of the Social Security Administration (the "Commissioner"), denying his application for Social Security Disability Insurance Benefits. In particular, Rooney challenges the Commissioner's finding that he was not "disabled" as that term is defined in the Act. At issue are the cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

I. BACKGROUND

A. Procedural History

On December 30, 1997, Rooney filed an application for Social Security Disability Insurance benefits. His application was denied, both initially on March 11, 1998, and on reconsideration on June 10, 1998. Rooney's request for an administrative hearing was granted. The hearing was held on February 22, 1999 before an Administrative Law Judge ("ALJ"). The ALJ found that Rooney was not entitled to disability insurance because his injuries did not rise to the level of a disability within the meaning of the Act. In particular, the ALJ determined that Rooney could perform sedentary work. On March 21, 2000, the Appeals Council denied Rooney's request for review. He commenced this action on December 22, 2000, seeking a review of the Commissioner's decision.

(i) The Plaintiffs Testimony at the Hearing

Rooney was born on June 7, 1950 and is now 51 years of age. He possesses a High School Equivalency Certificate. Rooney was employed by the New York City Department of Sanitation for twenty-three years. During that time, he rode on the back of a sanitation truck and performed both cleaning and collection tasks.

On September 25, 1991, Rooney stepped into a water-filled pothole while he was working. He suffered severe pain in his left knee and was unable to return to his duties as a sanitation worker. At the hearing, Rooney said that his doctor prescribed a knee brace, which he wears while walking and driving. He was wearing the brace at the hearing.

It appears from the record that Rooney did not work at all for the two-to-three years following his accident. Thereafter, the Department of Sanitation placed him on light duty, which entailed answering the phones. Rooney testified that he could not perform this work either, because sitting for long periods of time caused his knee to throb. He also stated that the act of rising from his chair and walking to find people to pick up the phone was very painful. He claimed that when he stands up, his knee "slips and slides." Rooney further stated that he feared slipping on the oil and grease that was on the floor at work. Accordingly, on an unspecified date, Rooney discontinued performing light duty at the Department of Sanitation. Rooney explained that he spends his days on the first floor of his house where he reads, watches TV, and rests in bed.

According to Rooney, the pain in his left knee has caused him to place more of his weight on the right leg, which has caused pain in the right knee. He claimed that the limping has caused him to be "out of alignment," which has caused his back to hurt. Rooney said that doctors have operated on his left knee twice, but the condition of the knee has not improved. Rooney further stated that a doctor discussed the possibility of a total knee replacement. However, Rooney has thus far refused such an operation, because he fears that his body will reject the artificial joint, and he does not want to have the joint replaced every 10 years.

Rooney stated that he had been receiving Accident Disability Retirement benefits since approximately June, 1995. Although the record is vague as to the source of these disability benefits, it appears that they originate from the New York City Department of Sanitation.

(ii) The Medical Evidence

(a) Dr. Barry Fisher

Rooney was initially seen by Dr. Barry Fisher, an orthopedist, who recommended a magnetic resonance imaging scan ("MRI") of Rooney's left knee. The MRI scan was performed on November 5, 1991, and it showed that Rooney had sustained a Grade 3 tear of the posterior horn of the medial meniscus. Although the record is unclear as to the precise date, at some point between November 5, 1991, and September 9, 1992, Dr. Fisher performed an arthroscopic evaluation of Rooney's knee.

(b) Dr. Mitchell Goldstein

On September 9, 1992, Rooney was seen by Dr. Mitchell Goldstein ("Dr. Goldstein"), who is an orthopedist specializing in sports medicine. In Dr. Goldstein's note from that initial visit, he wrote that Rooney had been out of work since the date of the accident, and that despite the arthroscopy, Rooney continued to experience joint pain and stiffness, locking and clicking sensations, and difficulty squatting, walking, and holding his one-year-old child. Dr. Goldstein observed mild genu varum, posterior medial joint line tenderness, and three-quarters of an inch of atrophy in the left knee when it was compared to the right knee. Dr. Goldstein also noted a positive Apley grind test and recommended a follow-up MRI and extensive formal physical therapy. He discussed with Rooney the possibility of another arthroscopic evaluation.

On September 30, 1992, Rooney underwent a second MRI scan. The results of the scan showed a torn medial meniscus and a possible tear of the anterior cruciate ligament ("ACL").

Rooney saw Dr. Goldstein on October 14, 1992, and again on November 11, 1992. During both visits, Dr. Goldstein noted that Rooney continued to experience pain in his left knee and difficulty walking. Rooney also had a positive Apley grind test. Although Dr. Goldstein and Rooney discussed the surgical options, Rooney continued non-surgical management.

On February 2, 1993, Dr. Goldstein wrote a treatment note stating that Rooney's left knee was still causing him pain. Dr. Goldstein also wrote that Rooney was experiencing locking and buckling sensations in his left knee. The Apley grind and McMurray tests were both positive. Dr. Goldstein recommended that Rooney undergo a second arthroscopic evaluation.

Rooney saw Dr. Goldstein again on May 12, 1993, and the doctor noted that his patient continued to have pain in his left knee and difficulty walking. Dr. Goldstein discussed the upcoming surgical procedure with Rooney.

On May 17, 1993, Dr. Goldstein performed a left knee arthroscopy, partial medial meniscectomy, and chondroplasty of the medial femoral condyle and the medial tibial plateau. The postoperative diagnosis was internal derangement of the left knee, a torn medial meniscus, and chondral lesions of the medial tibial plateau and femoral condyle.

During the June 16, 1993 follow-up visit with Dr. Goldstein, Rooney said that he had the same pain and buckling in his left knee and the same difficulty walking and squatting as he did before the operation. Dr. Goldstein noted that Rooney was wearing an ACL brace and had an antalgic gait. The doctor recommended that Rooney continue physical therapy.

From July 21, 1993 through June 28, 1995, Rooney saw Dr. Goldstein ten times. Each of the ten treatment notes states that Rooney continued to complain about pain and buckling in his left knee as well as difficulty walking, bending, and rising from a seated position. Dr. Goldstein recommended physical therapy at each of the visits. The record does not specifically indicate that Rooney underwent the recommended physical therapy. However, Dr. Goldstein's notes state that Rooney "continue with his therapy program," which statement indicates that Rooney told Dr. Goldstein that he was following the prescribed physical therapy regimen.

In his note regarding the September 29, 1993 follow-up visit, Dr. Goldstein wrote that Rooney "[c]ontinues to be disabled." In a letter dated October 25, 1993 and addressed "To Whom It May Concern," Dr. Goldstein advised that Rooney was "permanently and totally disabled from doing his job as he is unable to push pull, lift, or carry." The doctor reiterated this conclusion in a similar letter dated February 16, 1994.

Following a November 2, 1994 visit, Dr. Goldstein concluded, "Due to persistent symptoms, [Rooney] still remains permanently disabled from his job." In his March 1, 1995 treatment note, Dr. Goldstein opined that Rooney "is still unable to work because of this." Then, after a June 28, 1995 visit, Dr. Goldstein reiterated his finding that "[d]ue to persistent symptoms, patient is still disabled from his job."

Dr. Goldstein did not see Rooney again until March 1, 1999. During the examination on that date, the doctor observed that Rooney displayed three-quarters of an inch of atrophy in his left quadriceps; a positive Apley grind test; retropatellar tenderness; pain with sitting; medial and lateral joint line tenderness; a negative Lachman and anterior drawer test; range of motion of zero to 110 degrees; an antalgic gait; and an inability to squat past 60 degrees. An X-ray performed on the left knee revealed "mild tricompartmental arthritis with slight spurring, particularly the tibial spine and the medial aspect lateral femoral condyle."

Dr. Goldstein also observed that Rooney's right knee exhibited mild joint line tenderness and retropatellar tenderness; negative Apley grind, Lachman, and anterior drawer tests; and a range of motion of zero to 130 degrees. The doctor further noted that Rooney's spine was slightly tender.

Dr. Goldstein concluded that Rooney had osteoarthritis of the left knee that had caused permanent loss of range of motion and functional difficulties including sitting, standing, carrying, walking, and going up and down stairs. The doctor stated that at some point in the future, Rooney will require a total knee replacement. He further opined that the injury to Rooney's left knee and the ...


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