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March 31, 2003


The opinion of the court was delivered by: John G. Koeltl, United States District Judge


The plaintiff, Marie P. Garvin ("Garvin"), brings this action pursuant to 42 U.S.C. § 405(g). The plaintiff seeks review of a final determination of the Commissioner of Social Security ("Commissioner") determining that the plaintiff was not entitled to disability insurance benefits ("DIB").*fn1 The plaintiff and the defendant both move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

The issue on this motion is whether substantial evidence supports the Commissioner's finding that the plaintiff is not "disabled" as the term is defined in the Social Security Act ("the Act") for the period for which she seeks DIB, November 22, 1997 (the initial onset date) through October 10, 2000 (the date of the Administrative Law Judge's ("ALJ") decision denying DIB). See 42 U.S.C. § 423(d)(1)(A) (defining disability as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months").

The plaintiff filed an application for DIB on January 25, 1999 in which she alleged that she was disabled since November 22, 1997. (R. at 61.) The application was initially denied on March 26, 1999. (R. at 39-42.) The application was denied again upon reconsideration on January 20, 2000 (R. at 44-46.)

On September 12, 2000, a hearing was held on the plaintiff's claim before an ALJ. (R. at 20-33.) The plaintiff was represented by counsel at the hearing. (R. at 9, 19.) The plaintiff alleged that she was "unable to work due to constant right knee and right shoulder pain and instability." (R. at 10.) Garvin testified that she takes prescription Motrin and Advil to manage her pain. (R. at 26.) Garvin reported that her shoulder injury inhibited her ability to do things for a long period of time that require reaching or pulling, and that she was limited by severe pain and spasms in her neck and shoulder. (R. at 23.) The plaintiff testified that she could reach about mid-way over her head. (R. at 24.) Garvin informed the ALJ that she was scheduled to undergo further surgery on her right shoulder on September 28, 2000. (R. at 30-31.) She also indicated that she had received arthrospcopic surgery on her right knee in June 1998 and that the knee had started to bother her again in March or April 2000 for no apparent reason. (R. at 31.)

The ALJ considered the case de novo, and on October 10, 2000 found that the plaintiff was not disabled under the Act. (R. at 17-18.) The ALJ's decision became the final decision of the Commissioner on April 20, 2001 when the Appeals Council denied the plaintiff's request for review. (R. at 3-5.)


The administrative record contains the following facts. The plaintiff was born on November 29, 1955. (R. at 61.) Garvin speaks and reads English and has a GED. (R. at 67, 74.) Until November 1997, the plaintiff worked as a corrections officer. (R. at 69.) The plaintiff lives with her spouse and children. (R. at 84.) She is able to shop for groceries and to cook by herself and performs these activities three to four times per week. (Id.) She is able to perform household chores with her children two to three times per week. (Id.) Her other activities include reading, watching TV, and listening to the radio. (Id.)

The plaintiff was injured on the job on November 22, 1997 when she was kicked in the shoulder while trying to restrain an inmate. (R. at 68, 75, 154.) She was terminated from her job for being absent for over one year. (R. at 68.) The plaintiff receives Workers' Compensation, and has applied for retirement benefits from her former employer. (R. at 27.) The plaintiff has not worked since 1997. (Id.)

The plaintiff was examined for the first time by her treating physician, Dr. U. Paul Brief ("Dr. Brief"), on August 11, 1993. (R. at 119.) At that time, the plaintiff complained of pain in the right knee, hip, shoulder and hand caused by an incident on May 13, 1993 when she was forced to restrain a violent prisoner while working as a corrections officer. (Id.) Upon examination, the knee moved well and had normal range of motion with no evidence of instability or swelling although there was tenderness. (Id.) The right shoulder revealed some pain at the extreme amount of abduction and the hip moved well. (Id.) The hand showed a weak grip with normal motor power. (Id.) Dr. Brief listed his impressions as 1) acute traumatic internal derangement of the right knee, 2) internal derangement of the right shoulder, and 3) acute cervical strain. (Id.) He requested authorization for a magnetic resonance imaging ("MRI") of the knee and instructed the plaintiff to curtail her activities. (Id.)

Dr. Brief recorded on March 2, 1994 that an MRI revealed a questionable tear but that examination showed the plaintiff's knee to be stable. (Id.) On March 23, 1994 he wrote that he doubted "actual ACL tear but probably problem is mostly soft tissue." (Id.) The plaintiff was seen by Dr. Brief five times between April 1994 and October 1994. (R. at 118, 181.)

The plaintiff next saw Dr. Brief on July 16, 1996 after reinjuring her right knee on July 1, 1996 in a fall at work. (R. at 117, 179.) On September 4, 1996 Dr. Brief noted that the plaintiff was still awaiting authorization for operative arthroscopy for the right knee which she had been awaiting since March 1994. (R. at 117-19.) On June 18, 1998 the plaintiff underwent operative arthroscopy on her right knee. (R. at 117, 179.) Dr. Brief reported performing arthroscopic surgery on the right knee, a partial synovectomy, ACL repair, removal of a loose body, and resection ligamentum mucosum. (Id.) In July and August of 1998, Dr. Brief noted continued improvement in the knee. (Id.)

After the November 22, 1997 incident, the plaintiff saw Dr. Brief on December 9, 1997 complaining of right shoulder pain. (R. at 116.) Dr. Brief's impressions were of acute traumatic myositis of the right shoulder, impingement syndrome of the right shoulder, and acute cervical strain. (Id.) The plaintiff's treatment included a cortisone injection and physical therapy. (R. at 116, 154-55.) The plaintiff continued complaining of shoulder pain in 1998 and Dr. Brief sought authorization for right shoulder arthroscopic surgery, which he received in January 1999. (R. at 116.)

The plaintiff was treated by a chiropractor, Dr. Richard Gregory ("Dr. Gregory"), from November 25, 1997 through March 3, 1999. (R. at 110-13, 190.) In February 1999, Dr. Gregory described the plaintiff's symptoms as neck pain, pain and weakness in the right arm, and dorsal and lower back pain. (R. at 103.) In a report dated March 2, 1999, Dr. Gregory opined that, "The patient is not able to perform any normal work related tasks" with her right arm because of pain and restrictions in the right shoulder. (R. at 105.) The doctor reported no limitations with regard to Garvin's ability to stand, walk, or sit. (R. at 106.) He did limit the maximum number of pounds she could lift or carry to 2-5 pounds in short lifts with no sustained lifting. (Id.) The doctor reported that "the normal ...

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