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.").
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 ...