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TAVOLETTI v. SULLIVAN

December 12, 1989

SUZANNE TAVOLETTI, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: SMITH

 Plaintiff Suzanne Tavoletti brings this action under sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. § 405(g) and 1383(c)(3), to review a final determination of the Secretary of Health and Human Services denying her application for disability insurance benefits and supplemental security income benefits based on disability. Both parties have moved for summary judgment pursuant to Fed.R.Civ.P. 56(e). For the reasons stated below, defendant's motion is granted and plaintiff's motion is denied.

 Plaintiff applied for Disability Insurance Benefits on September 17, 1986. Certified Transcript ("Tr.") of the administrative record at 65-68. Her claim was denied initially on November 25, 1986 (Tr. at 69-71), and again upon reconsideration on June 16, 1987 (Tr. at 74-75). Thereafter, plaintiff requested a hearing (Tr. at 76-77) which was held on May 19, 1988 (Tr. 22-64) before Administrative Law Judge Roland Mather ("ALJ"). The ALJ denied plaintiff's claim on August 24, 1988 (Tr. at 11-17). Plaintiff then requested a review by the Appeals Council (Tr. at 7). That request was denied on November 29, 1988 (Tr. at 4-5), rendering the ALJ's decision the final decision of the Secretary.

 Plaintiff's complaint seeks a review of the Secretary's final decision pursuant to Section 205(g) of the Act, as amended, 42 U.S.C. § 405(g). Our review is limited to a determination of whether the Secretary's findings are supported by substantial evidence. Id. Findings supported by substantial evidence are conclusive, where substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1981) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938)). Absent substantial evidence to support the findings, we may modify, remand or reverse the Secretary's decision. 42 U.S.C. § 405(g).

 Plaintiff is a female, 49 years of age at the time of the ALJ hearing, who applied for benefits on the basis of osteoarthritis in her back and right knee. (Tr. at 65). The substance of plaintiff's claim is that she is disabled from "physical impairments of post lumbar laminectomy, total right knee replacement secondary to degenerative arthritis, degenerative disc disease at T12-L1 and L5-S1, compression deformity with slight wedge configuration of the T12 vertebrae body." Plaintiff's Motion for Summary Judgment, para. VIII(a).

 Under the law, our review of the ALJ's decision must follow the sequential analysis set forth in the Social Security Regulations. See C.F.R. § 416.920. This analysis establishes a framework for determining whether an individual is disabled according to the regulations. The first inquiry is whether the plaintiff is performing any substantial gainful activity. If so, the plaintiff is not disabled and the inquiry is concluded. 20 C.F.R. § 416.920(b). If not, we must scrutinize whether the individual has a severe impairment as defined by the applicable regulations.

 A severe impairment may be established by showing that a claimant is unable to perform basic work activities, or by demonstrating that the plaintiff's physical and/or mental conditions meet the criteria of a listing in the appendix of impairments. See 20 C.F.R. Part 404, Subpart P, Appendix 1 (hereinafter Appendix 1). If an individual's condition satisfies the requirements of a listed impairment, the plaintiff is automatically determined to be disabled and benefits are awarded. 20 C.F.R. § 416.920 (c),(d).

 If a plaintiff's impairment, though severe, fails to satisfy the criteria of a listed impairment, the individual must prove she is unable to perform past relevant work. If the plaintiff satisfies this burden of proof, then the Secretary must show that the individual has the residual functional capacity to do other work. 20 C.F.R. § 416.920(e),(f).

 In the instant case, the plaintiff was not performing any substantial gainful activity. (Tr. at 30, 49). Therefore, the plaintiff's impairments must be assessed to determine if they were severe. Plaintiff's application for benefits alleged a disability on the basis of osteoarthritis. (Tr. at 65). Plaintiff testified that her claim is based on injuries to both her back and right knee. (Tr. at 49). Plaintiff testified that she had pain, but that she cannot take any medications for relief from the pain due to her allergies. (Tr. at 45, 49-50).

 Plaintiff's medical records reveal a history of lumbar laminectomy in March 1985. (Tr. at 109). Upon discharge, plaintiff was described as ambulating and without leg pain. Id. Subsequently, in September 1985, plaintiff suffered a minor relapse while lifting groceries into a cart. (Tr. at 123, 126). Plaintiff was seen at a rehabilitation clinic on an outpatient basis for approximately five and a half weeks during the months of November and December, 1985 as a result of the relapse. (Tr. at 123-25). Plaintiff's physical therapy essentially resolved the pain, and her gait and station were described as "good" by her treating physician; plaintiff was released to return to work as of December 1, 1985. (Tr. at 126).

 Plaintiff lives with her husband and family in a two-story home. She cooks some meals, does her own dishes, light laundry and light housework. Plaintiff does the shopping with assistance from her sister-in-law. (Tr. at 39-41). Plaintiff does not drive, although she does have a driver's permit. (Tr. at 38). She predicts that at the most she can lift ten pounds. (Tr. at 43).

 The ALJ found that plaintiff walks with an antalgic gait, uses a cane and displays some swelling and tenderness of the right knee. (Tr. at 14). While finding that plaintiff's symptoms limited her ability to do basic work activities which required an extensive amount of standing or walking, the ALJ rejected plaintiff's assertion that she meets the criteria of any of the muscular skeletal system's listed impairments. See § 1.02, 1.03, 1.05 of Appendix 1. The ALJ found plaintiff fails to satisfy the criteria of the listed impairments because her medical reports reflect neurological evaluations of her knee within normal limits and that results of testing of her musculature and deep tendon reflexes also were normal.

 The listed impairments pertaining to arthritis in Appendix 1 require either significant restriction of the function of the affected joint or marked limitation of the motion of the affected joint. In the instant case, the record is devoid of any evidence pertaining to a significant restriction or a marked limitation. Instead, the record contains evidence of only mild limitation of plaintiff's range of motion in her right knee and, to the contrary of an assertion of marked limitation, that plaintiff is ambulatory without significant pain. We conclude that the ...


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