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TRENTINI v. SULLIVAN

December 28, 1989

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



The opinion of the court was delivered by: SMITH

 Plaintiff George Trentini 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 his 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 in this opinion, defendant's motion is granted and plaintiff's motion is denied.

 Plaintiff 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, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1981) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (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 male who was 44 years old at the time of the ALJ hearing. Plaintiff applied for benefits on the basis of back and knee injuries as well as a broken jaw. (Tr. at 340). The substance of plaintiff's claim is that he is disabled from back, knee and neck injuries arising from an auto accident which occurred in 1965. (Tr. at 66-69).

 Our review of the ALJ's decision follows the sequential analysis set forth in the Social Security Regulations. See 20 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, the next step scrutinizes whether an individual has a severe impairment.

 A severe impairment may be established by showing that one 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 he 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 has not performed any substantial gainful activity since May, 1984. (Tr. at 65). Therefore, the plaintiff's impairments had to be assessed to determine if they were severe. Plaintiff's application for benefits alleged a disability on the basis of a slipped disc in the lower back, removed cartilage from the right knee and a broken jaw. (Tr. at 340). We address the manifestations of plaintiff's alleged lower back impairment first. *fn2"

 Plaintiff's medical records reveal a diagnosis of a herniated disc at the L4-5 level in or before March, 1988. (Tr. at 392). Plaintiff, however, had no sensory, reflex or motor loss or restrictions in his range of motion at that time. (Tr. at 396). In February, 1988, plaintiff visited the Veteran's Administration pain clinic. (Tr. at 414). Tens unit treatment was prescribed and he was given a prescription for Halcion. A return visit was recommended in three to four weeks. In April and May, 1988, plaintiff received treatment for pain at the Veteran's Administration Hospital. (Tr. at 403-04). He was given a prescription for amitriptyline and darvocet, respectively, for pain in his lower back radiating to his left leg. In March, 1, Raschid Awan, M.D. (plaintiff's treating physician since April, 1987), reported that plaintiff had a herniated disc which was giving plaintiff "a lot (sic) of symptoms". (Tr. 392). Awan reported plaintiff's symptoms as chronic low back pain and stiffness with pain radiating down the left leg. (Tr. at 392).

 Although the plaintiff's lower back symptoms limit his ability to do basic work activities, the plaintiff fails to meet the criteria of any of the muscular skeletal system's listed impairments. See § 1.05 of Appendix 1. In short, the plaintiff fails to satisfy the criteria of the listed impairments because his condition is one of only mild, if any, limitation. The listed impairments pertaining to disorders of the spine in Appendix 1 require pain, muscle spasm, and significant limitation of motion in the spine as well as appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. Appendix 1, § 1.05(C)(1) and (2) (1988). In the instant case, the record is devoid of evidence pertaining to a significant limitation or to significant motor, sensory or reflex loss. Instead, plaintiff's treating physician, Dr. Awan, reported that plaintiff suffered no gait abnormalities, that he required no assisting device for ambulation, and that he has only a 10 degree range of motion limitation of the lumbar spine. Dr. Awan denied that plaintiff had any sensory, reflex or motor loss. (Tr. at 396). We conclude that the ALJ's determination that the plaintiff failed to satisfy the listed impairments pertaining to spinal disorders is supported by substantial evidence.

 Next, we turn to whether the plaintiff's alleged knee impairment satisfies the listings in Appendix 1. During the plaintiff's hearing before the ALJ, the plaintiff testified that he experiences pain in his right knee and that he suffers from "calcium build up." (Tr. at 67-68). Plaintiff further testified that he can walk for twenty minutes at a time (Tr. at 71), that he can lift twenty pounds (Tr. at 72), and that he can negotiate wooded terrain in order to hunt for sport. (Tr. at 70).

 The ALJ concluded that the plaintiff failed to establish "gross anatomical deformity with either significant joint space narrowing or significant bony destruction, markedly limited ability to walk and stand, reconstructive surgery, or surgical arthrodesis" as required Section 1.03. (Tr. at 11). The report of plaintiff's treating physician, Dr. Awan, is consistent with the ALJ's findings; therefore, we conclude that the ALJ's decision is ...


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