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WINSTON v. HECKLER

April 25, 1984

Arvon WINSTON, Plaintiff,
v.
Margaret M. HECKLER, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: LACEY

 Plaintiff Arvon Winston filed an application for disability insurance benefits on October 30, 1981 and for Supplemental Security Income (SSI) on November 1, 1981. Plaintiff claimed disability resulting from injuries sustained in a 1979 automobile accident. He claimed that the period of disability began in August 1980, when he was fired from his job. The application was denied initially and on reconsideration. A hearing was held on October 26, 1982. The ALJ, in a decision dated June 20, 1983, found that plaintiff's insured status had expired on December 31, 1982, and that plaintiff had not suffered any impairment that significantly limited his ability to perform work-related functions. The Appeals Council confirmed the ALJ's decision on September 22, 1983, rendering it the final decision of the Secretary. Plaintiff now seeks review of the Secretary's decision under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

 Disability is defined identically for the purposes of disability insurance and SSI benefits as 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." 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). If the applicant is presently engaged in substantial activity, or does not have an impairment severe enough to limit significantly his ability to perform basic work activities, a finding of nondisability is justified. See 20 C.F.R. §§ 404.1520; 404.1526.

 MEDICAL EVIDENCE

 The earliest medical evidence of record is a report from the Hospital Center at Orange, dated November 24 and 25, 1979. It shows degenerative disc disease at C5-6 of the cervical spine and mild levoscoliosis with degenerative disease at L1-2 of the lumbosacral spine. The doctor found tenderness, but no fracture or malalignment. Plaintiff's injuries were sustained in an automobile accident.

 An outpatient report from Beth Israel Medical Center, dated January 8, 1981, noted narrowing of the disc space between C5 and 6, with anterior and posterior spur formation and subchondral sclerosis involving the lower half of C5. The doctor also noted the possibility of chronic bronchitis. A January 7, 1982 report from Beth Israel found narrowing of the intervertebral disc space at L4-5 on the left side with some reactive sclerosis in the lower portion of the body of L4. The radiologist also found slight scoliosis of the dorsal spine to the right and the lumbar spine to the left. He found some mild depression of the superior plate of L2 and osteophyte formation at the lower margin of L1. The diagnosis was mild scoliotic deformity, and degenerative changes in the lumbar spine.

 Dr. Ahmad, an orthopedist, examined plaintiff on June 25, 1982. He diagnosed plaintiff as suffering from cervical and lumbosacral sprain, and fibromyositis. Flexion of the lower back was restricted 30 degrees, and extension 15 degrees. He noted tenderness and pain, particularly when bending or squatting. The report, apparently prepared with Workers' Compensation in mind, found 35% disability.

 Dr. Choudhury examined plaintiff on October 26, 1982 at the request of defendant. The doctor found essentially that plaintiff could bend and function normally and without pain. He found only mild degenerative symptoms in the spine and narrowing of the C5-6 disc space. He stated that plaintiff did not have "any functional limitations in his musculoskeletal system." He did opine, however, that plaintiff should "never" carry more than 25 pounds, though the reason was not given.

 Dr. J. C. Carr, plaintiff's treating physician after the accident, submitted a report dated December 16, 1980. He found continued headaches, pain and neck stiffness. Plaintiff showed multiple fine tremors. Romberg's sign was moderately positive. There was tenderness and muscle guarding of the neck, and tenderness over C-3 and 4. Neck motion was limited. Carr opined that there would be some permanent damage to the neck and nervous system. Plaintiff had made some 27 office visits to Carr between November 1979 and March 1980.

 On December 22, 1981 Dr. Somberg performed a neurological examination at the request of defendant. The doctor found no limitation of motion of the cervical or lumbar spine, but did not elaborate beyond stating that plaintiff could touch his toes. Other than diminished sensation over the left half of the body, plaintiff showed no other abnormalities.

 Dr. Pollock conducted a neuropsychiatric examination on June 24, 1982. Plaintiff complained of coughing, chest pains, back and neck pain, etc. The doctor found hyperactive deep tendon reflexes, tremors, depression of corneal and pharyngeal reflexes, and a positive Romberg test. He diagnosed "neurological residuals of exposure to noxious fumes and dust and loud noise, also sciatic neuritis, and traumatic anxiety psychoneurosis, attributable to exposure at work." *fn1" He estimated "permanent neuropsychiatric disability to be 25% of partial total."

 Dr. Scannapiego, an ophthalmologist, examined plaintiff on June 28, 1982. He found chronic conjunctivitis, blepharitis and pingueculas of both eyes.

 On June 28, 1982, Dr. Ghander, a specialist in otorhinolaryngology, examined plaintiff. He found a 35% hearing impairment, tinnitus, rhinosinusitis, and nasopharyngitis. He estimated a 7 1/2% permanent partial total disability.

 Dr. Hermele examined plaintiff on July 12, 1982. He found bronchovascular markings in the lower lung fields, extending outward with diffuse fibrosis and fibronodularities scattered throughout the mid and lower lung fields. He also found increased heart size and hilar vascular markings. The diagnosis was chronic bronchitis and ...


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