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ALEXANDER v. SHALALA

July 31, 1995

MARTHA ALEXANDER, Plaintiff,
v.
HON. DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: BARRY

 Barry, District Judge

 I. INTRODUCTION

 Plaintiff Martha Alexander brings this action pursuant to § 205(g) and § 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) (the "Act"), to review a final determination of the Secretary of Health and Human Services (the "Secretary") denying her application for disability insurance benefits and supplemental security income ("SSI") disability payments. Plaintiff requests that the decision of the Secretary be reversed, or, in the alternative, that this action be remanded to the Secretary for reconsideration.

 II. FACTS

 A. Background

 Plaintiff was born on July 18, 1942 (Tr. at 2) *fn1" and was fifty years old at the time of the hearing before the ALJ on January 15, 1993. Id., at 1. Plaintiff has a high school education. Id., at 2. Plaintiff's first employment, which lasted from 1976 until 1978, was at a day care center in Boston, Massachusetts. Id., at 7. This position required plaintiff to spend the majority of her day sitting, while occasionally assisting children on casual walks. Id. For the next two years, plaintiff was employed as a part-time home health aide. Id., at 5. Plaintiff's duties entailed providing care for patients in their homes, carrying cleaning supplies, and occasionally "turning over" bed-ridden patients. Id., at 5-6. From 1980 to 1983, plaintiff was employed as a cashier at a fast-food restaurant, where she was required to stand for six-hour shifts and carry or lift objects weighing up to ten pounds. Id., at 9-10. Over the next five years, plaintiff assisted at her husband's hardware store, performing both manual and menial tasks. *fn2" Id., at 4-5. Plaintiff's most recent employment dates back to 1990 at which time she worked as a retail sales clerk at Jordan Marsh in Boston. Id., at 3. While so employed, Plaintiff was required to lift or carry objects weighing from twenty-five to thirty pounds, and she spent approximately seven hours per day on her feet. Id.

 On May 20, 1990, plaintiff injured her lower back in a fall at a Boston bank. She terminated her employment with Jordan Marsh approximately two weeks later. Id., at 11. Shortly thereafter, she moved to New Jersey. Id., at 12.

 Plaintiff filed applications for SSI disability payments and for disability insurance benefits on January 27, 1992 and February 5, 1992, respectively. (Rec. at 62-68). Plaintiff alleged that, as a result of persistent lower back pain, she had been disabled within the meaning of the Act since May 21, 1990. (Op. at 1). The claims were denied initially on March 30, 1992 and upon reconsideration on August 7, 1992. (Rec. at 69-76; 77-93). Pursuant to plaintiff's timely request, (Rec. at 94-95), a hearing was held before Administrative Law Judge Irving Fliegler on January 15, 1993. (Tr. at 1). By decision dated February 3, 1993, the ALJ found that plaintiff met the disability insured status requirements of the Act from May 21, 1990 through December 31, 1991, but not thereafter. (Op. at 5). However, the ALJ held that plaintiff was not under a disability within the meaning of the Act at any date through the date of the hearing. Id. Accordingly, he denied plaintiff's request for disability insurance benefits and SSI disability payments. Id., at 6.

 By letter dated July 30, 1993, the Appeals Council denied plaintiff's request for reconsideration, concluding that there was no basis for granting her request for review. (Rec. at 2). Plaintiff then timely filed this action on October 1, 1993 seeking reversal of the Secretary's decision, or, in the alternative, a remand of this action to the Secretary for reconsideration.

 B. Medical History

 Plaintiff claims that she has been disabled as a result of lower back pain since May 21, 1990 and is thus entitled to disability benefits from that date. Plaintiff's Brief, at 1. Plaintiff was first treated for her injury on May 24, 1990 at the New England Medical Center. (Op. at 2). Emergency room records indicate that she suffered from bilateral knee pain with bruising and swelling to both knees. Stipulated Medical Abstracts, at 2. An examination of the lumbar spine revealed the absence of any bone or soft tissue abnormalities. Id. The attending physician diagnosed plaintiff's condition as a lower back strain and recommended that she remain out of work for five days. (Rec. at 121).

 Since the May 20, 1990 accident, plaintiff has been under the care of Dr. Alfano, a chiropractor. (Op. at 10). Dr. Alfano's report from his initial examination of plaintiff on June 20, 1990, described an over-developed female adult with an irregular gait and antalgic posture. Stipulated Medical Abstracts, at 3. Dr. Alfano also noted that plaintiff experienced great difficulty when moving about. Id. A physical examination revealed muscle spasms in the lower back which extended into the lower legs as well as tenderness in the lumbo sacral area, the Gludius Maximus and the calves. Id. In addition, an orthopedic examination produced positive results for the following tests performed on that day: Double Leg Raise, Straight Leg Raise, and Gaensien's Heel to Buttocks. Id. Finally, a neurological examination revealed L1-S1 hypersensitivity. Id.

 Upon reexamination on January 16, 1992, Dr. Alfano reported an improvement in plaintiff's posture and gait, although he noted that plaintiff continued to move with some difficulty, experiencing slight spasms in the lower back. Id. The doctor also reported that plaintiff complained of lower back pain and was experiencing problems with her left leg. Id. The Double Leg Raise test continued to produce positive results. Id.

 In treating plaintiff's condition, Dr. Alfano reported that he performed manipulative corrections (adjustments) of interosseous disrelationships with general spinal mobilization maneuvers. Id., at 4. Further, Dr. Alfano applied ice and galvanic therapy at the beginning of plaintiff's treatment, while later adding heat packs and performing both galvanic and ultrasound therapy. Id. In addition to recommending warm baths and light exercise, Dr. Alfano also instructed plaintiff to use a twenty minutes on - twenty minutes office treatment while at home. Id.

 Based on the "considerable relief" of plaintiff's symptomatic state, Dr. Alfano articulated a prognosis of "fair". Id. He recommended periodic, comparative examinations and x-rays "to determine the actual degree of post traumatic pathology and disability, if any." (Rec. at 134). Dr. Alfano noted that plaintiff continued to experience episodes of discomfort and pain, and opined that plaintiff's condition was most likely permanent. Id.

 On March 6, 1992, plaintiff was examined at the offices of the Newark Diagnostic Radiologists. (Rec. at 135). A lumbosacral spine examination revealed "mild sclerotic deformity of the lumbar spine", and further revealed that the vertebral body demonstrated normal height, that the intervertebral disc spaces were well maintained and that the pedicles were intact. Id. The diagnosis was of "mild scoliosis" and the exam was "otherwise unremarkable". Id.

 On March 10, 1992, Dr. Ronald Forster of the State of New Jersey Department of Labor, Division of Disability Determinations, examined plaintiff. Stipulated Medical Abstracts, at 1-2. Dr. Forster noted that plaintiff was experiencing lower back pain with radiation extending to the right knee. Id., at 1. He also indicated that plaintiff was under the care of Dr. Alfano but had never sought treatment from any orthopedist or neurosurgeon. Id. In addition, Dr. Forster reported that plaintiff had been told that she suffered from "sciatica". Id. Dr. Forster noted that plaintiff took no medication and had regularly refused biweekly physical therapy at Dr. Alfano's office. Id.

 Dr. Forster's examination of plaintiff's lumbosacral spine revealed no scoliosis or lumbar muscle spasm. Id. In addition, Dr. Forster's examination disclosed a normal cervical lordosis, normal dorsal kyphosis, and normal lumbar lordosis. Id. He did detect some tenderness in the area of the lumbosacral joint. Id. Dr. Forster also reported no muscle or sensory loss about the lower extremities, noting that plaintiff walked with a normal gait but experienced lower back pain when squatting. Id., at 2. Dr. Forster diagnosed plaintiff's condition as "probably a very mild chronic lumbosacral sprain." Id., at 2.

 1. Plaintiff's Testimony

 Plaintiff testified as to the details of her medical and employment history at the hearing before the ALJ on January 15, 1993. She testified that she tripped over a rope in a Massachusetts bank on May 20, 1990. (Tr. at 10). A few days later, she sought treatment at the New England Medical Center where she was informed that she had suffered a lower back strain. Id. She also explained that she had attempted to return to work but had quit her ...


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