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PEREZ v. BARNHART

December 5, 2002

GERALDO PEREZ, PLAINTIFF,
V.
JOAN N.E.B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge

OPINION & ORDER

Plaintiff Geraldo Perez ("Perez" or "Plaintiff") brings this action against Jo Anne B. Barnhart, the current Commissioner of Social Security*fn1 ("Defendant" or "Commissioner") pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the Commissioner's decision that plaintiff was not disabled at any time from May 15, 1995 through February 23, 1998. Both Plaintiff and Defendant have moved for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules Civil Procedure. Alternatively, Plaintiff has requested that the matter be remanded for a new hearing.

BACKGROUND

The facts which follow are presented as set forth in the administrative record in this case, which was certified on October 11, 2000.

I. Plaintiff's Background and Testimony

Plaintiff was born in Cuba on September 26, 1956 and immigrated to the United States in 1980. He completed the sixth grade in Cuba, is able to read and write in Spanish only, and speaks some English. Plaintiff currently lives with his wife and two children in a second-floor apartment building that does not have an elevator.

From 1987 to 1993, Plaintiff worked as a housing caretaker for the New York City Housing Authority (NYC HA). That job required lifting and carrying garbage bags, mopping, and cleaning the outside grounds of a building. On March 13, 1993, while shoveling snow on a set of stairs during the course of his employment, Plaintiff fell and injured his back. Plaintiff then filed a Worker's Compensation claim and was awarded disability benefits for the period from M arch 16, 1993 to April 5, 1993. Shortly thereafter, he quit his job because he was "feeling bad" and lost his apartment in New York. Tr. at 48*fn2. Plaintiff then moved to Florida to live with his mother where he worked helping to install sprinkler systems. Most recently, he worked as a security guard in New York. He left this position because the job ended. Neither the position as a sprinkler installer nor as a security guard required any lifting or carrying of heavy objects. Both of these jobs allowed Plaintiff to alternate between sitting and standing during the work day.*fn3

Plaintiff has not held a regular job since May 15, 1995, when his job as a security guard ended, which he attributes to lower back pain, numbness in his legs, knees "falling asleep", and difficulty sleeping at night. He testified that he can walk only half a block without stopping and that he can not sit or stand for more than 15 minutes at a time. Tr. at 51.

II. The Relevant Medical Evidence

After injuring his back, Plaintiff was treated at Bronx Cross County Medical Group by Dr. Martin Valdes on March 16, 1993. Dr. Valdes diagnosed a low back strain and indicated that Plaintiff could return to work one week later on March 22, 1993.

On May 20, 1996 Dr. Robert H. Greenberg, a licenced chiropractor, began treating Plaintiff for his back injury. On June 7, 1996, Dr. Greenberg diagnosed Plaintiff with sacroiliac subluxation on his left side and advised that he could stand or walk for no more than two hours per day, sit for no more than six hours per day, and carry no more than 15 pounds for a few minutes at a time. Tr. at 120. Dr. Greenberg concluded that Plaintiff was "totally disabled and cannot work." (Tr. at 124). Dr. Greenberg later confirmed his diagnosis and submitted a Residual Functional Capacity Form which indicated that in an eight hour work day Plaintiff could lift up to 5 pounds, sit up to 20 minutes, stand for no more than two hours, could not use his left hand for pushing or fine manipulations, and could not use either leg for pushing and pulling.

Dr. Mario Mancheno, a Social Security Administration Consultative Physician, examined Plaintiff on July 9, 1996. Dr. Mancheno found that Plaintiff did not need a cane for ambulation and demonstrated a full range of motion in his neck as well as throughout his upper and lower extremities. Dr. Mancheno diagnosed Plaintiff with discogenic disorder of the lumbosacral spine and indicated that Plaintiff's impairment was moderate with respect to lifting and carrying, standing and walking, pushing and pulling, and sitting.

On October 2, 1997, Plaintiff reported to the emergency room at St. Barnabas Hospital complaining of severe back pain with numbness in the left leg on and off for three days. He was not taking any medications at the time. Plaintiff was diagnosed with a lumbar strain and was given two medications to help alleviate his pain. Three hours later he was feeling better and was discharged to his home.

On October 10, 1997, Plaintiff reported to the orthopedic clinic at St. Barnabas Hospital for a follow-up visit. The parties' memoranda of law conflict with respect to some portions of Plaintiff's diagnosis during this hospital visit.*fn4 However, the physician's notes clearly indicate that Plaintiff's neurological ...


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