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April 9, 2003


The opinion of the court was delivered by: Robert L. Carter, United States District Judge


Martin Nelson brings this action under 42 U.S.C. § 405(g) challenging a final determination by the Commissioner of Social Security denying his application for Supplemental Security Income ("SSI") disability benefits. Both parties move for judgment on the pleadings pursuant to Rule 12(c), F.R.Civ.P.


Martin Nelson was born on November 5, 1938. (Tr. at 37)*fn1 For over thirty years, from 1966 to 1997, he was a teacher for the New York School for the Deaf. (Tr. at 81.) Starting out as a history teacher, plaintiff was a horticulture/industrial arts teacher for the last thirteen years of his employment, except for his last six months of work, when the school decided to place him in a one-on-one tutoring position. (Tr. at 43, 57, 58.) He had also been a track and field coach for the school, training students in shot and discus. (Tr. at 161.) At the time Nelson was last insured under the Social Security Act he was 60 years old. (Tr. at 84.)

Nelson filed an application for disability insurance benefits on November 28, 1997. (Def.'s Mem. at 1.) This application was denied initially and upon reconsideration. (Id. at 1-2.) He then requested an administrative hearing, which was held on January 5, 1999. (Id. at 2.) Administrative Law Judge ("ALJ") James B. Reap considered the case and found that plaintiff was not disabled. (Id.) On March 9, 2001, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (Id.)

I. Administrative Hearing

A. Medical Evidence

On December 11, 1995, Nelson, who is right-arm dominant, injured his right elbow at work attempting to pull down a window that was frozen open. (Tr. at 160.) On December 20, 1995, he underwent surgery to repair a ruptured bicep tendon in his right arm. (Tr. at 161.) The surgery was performed by Dr. Louis F. McIntyre, an orthopedic surgeon. (Pl.'s Mem. at 3.)

After his surgery, Nelson was seen by McIntyre once every two weeks through January, 1996, and then approximately once every month into the spring of 1996. (Tr. at 161-62.) Dr. McIntyre also sent Nelson for physical therapy to improve his range of motion. (Id.) According Dr. McIntryre's records, by June, 1996, Nelson had regained full strength in his elbow. (Tr. at 163.) In September of 1996, however, the doctor estimated Nelson's disability at 15%, noting that he lacked 20 degrees of terminal extension and experienced numbness over the volar radial aspect of his arm. (Id.)

On September 30 1996, Dr. Richard Freeman, an orthopedic surgeon, examined Nelson in connection with Nelson's worker's compensation claim. (Tr. at 165.) Dr. Freeman noted that Nelson's range of motion in his right arm was less than that of his left arm, and that his grip strength was 160 pounds on the right, compared with 360 pounds on the left. (Id.) The doctor estimated a 30% loss of use of Nelson's right arm. (Id.)

In February of 1997, Nelson saw Dr. McIntyre again, this time due to right shoulder pain. (Pl.'s Mem. at 4; Tr. at 164.) He was diagnosed as having a rotator cuff tear, which required surgery in September of 1997. (Tr. at 167.) Six weeks after the surgery, Dr. McIntyre wrote a note stating that Nelson could return to work but could not perform "vigorous" activities. (Tr. at 172.) In subsequent doctor's visits, Nelson complained of weakness and shoulder pain. (Tr. at 169-70.) Dr. McIntyre diagnosed him as having a recurrent rotator cuff tear, and plaintiff underwent a third operation in October, 1998, to revise his rotator cuff repair and resect his acromiclavicular ("AC") joint.*fn2

In addition to Nelson's right arm and shoulder problems, he also had a long history of hypertension and had suffered two heart attacks in the late 1980's. (Tr. at 123.) On May 15, 1997, plaintiff was brought by ambulance to Westchester County Medical Center Emergency Department after he was found lying unconscious on the floor of the New York School for the Deaf hallway. (Tr. at 122-35.) Plaintiff stated that he had fainted after experiencing dizziness and chest pains. (Tr. at 122.) After an examination which included an electrocardiogram ("EKG"), Nelson was discharged with a diagnosis of stable angina. (Tr. 122, 125.)

Following this incident, plaintiff was seen by a cardiologist, Dr. Anthony Morano, once every three months from May 19, 1997, through September 15, 1998. (Tr. at 184-87.) Dr. Morano diagnosed plaintiff with essential hypertension and variant angina, requiring several different medications. (Id.) In an undated report, Dr. Morano stated that plaintiff's prognosis was good, but noted that his medications cause fatigue and that moderate exertion or heavy lifting could precipitate a variant angina attack, although nitroglycerine administered during such an attack would help control the variant angina. (Id.)

Dr. Morano also examined Nelson prior to his third surgery on October 21, 1998. (Tr. at 189-90.) He noted that Nelson had a long history of essential hypertension and a possibility of variant angina, but stated that both of these conditions were well controlled and stable, presenting no contraindication to the shoulder surgery. (Id.)

On February 4, 1998, the Government sent plaintiff for a consultation with Dr. William Lathan, a board certified physician. (Pl.'s Mem. at 10.) Dr. Lathan's relevant findings were as follows: "Fine manipulation and grasp strength are normal bilaterally. At the right shoulder the patient complains of pain when the joint is maneuvered through forward elevation to 100 degrees and abduction to 90 degrees. The right elbow flexion strength is 3/5, extension strength is 3/5. The left elbow extension and flexion strengths are 5/5 respectively." (Tr. at 137.) Plaintiff was found to have an increased cardiac diameter; his EKG was normal. (Id.) Dr. Lathan's impression was that Nelson had a derangement of the right shoulder, ...

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