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WENK v. BARNHART

November 6, 2004.

MAURA M. WENK, Plaintiff,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.



The opinion of the court was delivered by: ARTHUR SPATT, District Judge

MEMORANDUM OF DECISION AND ORDER

This case requires the Court to travel back in time to determine whether the Plaintiff was disabled under the Social Security Act as of December 31, 1977. This task is especially difficult given the fact that the medical records of the Plaintiff's then-treating physicians no longer exist.

Maura Wenk ("Wenk" or the "Plaintiff") commenced this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final determination of the Commissioner of Social Security ("Commissioner") denying her disability benefits. Both parties move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ("Fed.R. Civ. P.").

  I. BACKGROUND

  A. Procedural History

  On February 15, 1999, Wenk filed an application for social security disability insurance benefits, alleging an inability to work since May 2, 1976. Wenk last met her insured status on December 31, 1977. After her application was denied initially and on reconsideration, she requested a hearing before an administrative law judge. On February 9, 2000 a hearing was held before Administrative Law Judge Jerry J. Bassett ("ALJ"). At the hearing, the Plaintiff was represented by an attorney.

  In a decision dated February 22, 2000, the ALJ found that Wenk was "not disabled." On March 15, 2000, Wenk submitted additional evidence and on March 27, 2000, she requested review of the decision by the Appeals Council. On July 20, 2000, counsel for the Plaintiff submitted comments in support of Wenk's appeal. On August 12, 2002, the Appeals Council denied the Plaintiff's request for review, making the ALJ's decision the final administrative determination. This appeal followed.

  1. Wenk's Testimony at the Hearing

  The date last insured was December 31, 1977 and the alleged onset date of her disability was May 2, 1976. The Plaintiff was born on January 4, 1953, stands approximately 5'5" and weighs 148 pounds, approximately 20 pounds heavier than her normal weight. The Plaintiff is divorced and has three children. With regards to her education, the Plaintiff graduated from high school and completed two years of junior college.

  The Plaintiff testified that from 1972-1973, she worked as a music coordinator for a radio station. From 1973 until May 1976, she worked for the sales division of CBS. In that position, the Plaintiff testified that in an eight hour day she would sit for two to three hours per day and stand for approximately four hours per day. The Plaintiff did not do any significant lifting at that job. In May 1976, when she was about two and one half months pregnant, the Plaintiff left CBS because "the baby was on [her] sciatica nerve," she had previous back problems, and she had phlebitis in her leg. The Plaintiff testified that she was unable to return to work nor could she travel to work. She also testified that she had to rest often because her back would hurt and her feet would swell. The Plaintiff also suffered from sciatica. When she had her baby in November 1976 the problems did not go away. The Plaintiff did not return to work because "she had constant back pain and leg pain . . . just climbing up the stairs was very difficult on [her] back and [getting to work] also made her leg swell." The Plaintiff had another child in February 1978. That pregnancy also caused sciatica, phlebitis and back problems. The Plaintiff testified that her back pain and phlebitis was a continuous problem from the time it began in 1976 until the time she had surgery in 1982. She testified that she saw Dr. Sherwood Greiner and Dr. J. Grant Harrison "quite often." The Plaintiff has not worked since leaving her position at CBS.

  Wenk also testified that she had three surgeries on her wrist but does not know the exact dates of these surgeries. The Plaintiff testified that she injured her wrist while playing golf. In addition, she had back surgeries in 1982, 1989 and 1994. The Plaintiff also suffers from chronic asthma.

  The Plaintiff completed a "Disability Report" in which she indicated that she cannot sit, stand, walk, [or] bend for any length of time." In this Report, the Plaintiff also stated that at her job at CBS, she walked for 6 hours, stood for 6 hours, sat for 2 hours, kneeled for 4 hours and that the heaviest weight she lifted was 20 pounds. In this report, she also indicated that she saw Dr. Granier for her back problems and thrombophlebitis of the left leg and her last visit with him was in 1979. She also stated that she was admitted to the Winthrop University Hospital in the "late 1970's" for three weeks for severe back problems. She also saw Dr. J. Grant Harrison in the mid-1970's for acute thrombophlebitis of the left leg. The Plaintiff stated that she "cannot sit, stand, walk, bend for any length of time . . . [and that she has] severe chronic pain."

  2. Evidence Relating to the Period Prior to the Plaintiff's Date Last Insured — December 31, 1977

  A claim under Title II of the Act for disability benefits require the claimant to demonstrate that she was disabled at the time she last met the Title's special insured status requirement. 42 U.S.C. § 423. It is undisputed that the Plaintiff last met this requirement on December 31, 1977. Thus, the ALJ must find that the Plaintiff was disabled on or before that date in order for her to qualify for disability benefits. Ogbunugafor v. Barnhart, 2002 WL 31886260, at *4 (S.D.N.Y. December 27, 2002). The Court has reviewed the records which contain medical documentation from 1977 through 1999. However, the Court will only summarize the medical data from the period prior to the expiration of the Plaintiff's insured status.

  From July 17, 1977 — July 26, 1977, the Plaintiff was hospitalized at Nassau Hospital in Mineola, New York for complaints of back pain. She was diagnosed with low back pain with right sciatic radiculitis. The Plaintiff stated that she believed that the pain may have been aggravated because she frequently carried her child. On July 17, 1977, the Plaintiff performed straight leg raising to forty-five degrees. Dr. Harrison found mild bilateral leg edema which was ...


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