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ROSARIO v. SULLIVAN

December 28, 1992

JAMIE ROSARIO, Plaintiff,
v.
LOUIS W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: MAURICE B. COHILL, JR.

 This case is before us on appeal from a final decision by the defendant, Secretary of Health and Human Services (the "Secretary"), denying James Rosario's claim for Supplemental Security Income ("SSI") and disability insurance benefits ("DIB"). The parties have submitted cross motions for summary judgment. The plaintiff has also asked us to remand the cause to the Secretary for further proceedings. For the reasons stated below, we will deny plaintiff's motion for summary judgement or remand and grant the defendant's motion.

 I. PROCEDURAL HISTORY

 The plaintiff applied for DIB and SSI under Titles II and XVI, respectively, of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-433, §§ 1381-1383c (West 1992), in 1990. The Pennsylvania Bureau of Disability Determination denied the plaintiff's application initially and on reconsideration. Tr. 67-116, 121-34. A hearing was held in Erie, Pennsylvania before an Administrative Law Judge ("ALJ"), and on August 16, 1991 he determined that the plaintiff was not eligible for DIB or SSI. Tr. 16. The ALJ reasoned that even though Mr. Rosario is unable to perform his past work as a farm laborer, he has the residual functional capacity to perform a significant number of sedentary and light exertional jobs. Tr. 8-16, Finding Nos. 5-11. The ALJ therefore denied the plaintiff's claims because he is ineligible for DIB or SSI.

 The Plaintiff requested review of this decision by the Appeals Council of the Social Security Administration which found no basis for granting Mr. Rosario's request. Tr. 3. The ALJ's August 16, 1991 determination ("ALJ Decision"), therefore, is a final decision of the Secretary and may be reviewed by this Court.

 II. FACTS

 The plaintiff was forty three years at the time of the ALJ Decision. Tr. 37, 135. He is five feet, eleven inches tall and weighs one hundred sixty-nine pounds. Tr. 159. Mr. Rosario completed the sixth grade and attended schools in both Puerto Rico and New York City. Tr. 37. Although Spanish is his first language, tr. 158, Mr. Rosario understands and speaks English. Tr. 37. He receives welfare benefits and a food stamp allowance. Tr. 38. He currently maintains a medication regimen of Voltaren and Tylenol. Tr. 38, 170.

 From 1968 until 1986, Mr. Rosario was employed as a laborer in the farm and textile industries, which required him to bend and stand for long periods of time. Tr. 166-67, 172. While employed in his last job as a farm laborer, Mr. Rosario injured his back when he fell off a ladder on October 24, 1986. Tr. 29, 142, 146, 166-67, 171. Almost one month later Mr. Rosario sought medical attention for a testicle problem and flank pain. Tr. 177-78. He was told to seek the advice of a urologist and was prescribed Dolobid for discomfort. Tr. 177.

 Mr. Rosario then returned to work. Plaintiff's Brief at 4. The next time he sought medical treatment was in January 1989 when he claimed he had low back pain resulting from a work-related injury. Physicians prescribed pain medication after finding sclerosis of the joints at the lumbosacral junction due to an old trauma. Tr. 201-202. Mr. Rosario's lumbar spine X-rays indicate a "good" range of back motion, a mild deformity of a part of his vertebra; he was prescribed medication for his discomfort. Tr. 190, 201, 212.

 Apparently Mr. Rosario canceled this second scheduled surgery and sought a second opinion which resulted in a conservative approach to his ailment. Tr. 184, 135-36, 211. His insured status for purposes of DIB entitlement then expired in June 30, 1990. Tr. 135-36. Later that year, on September 20, 1990, Mr. Rosario described his leg discomfort as "much better" and was given epidural steroid injections for his back pain. Tr. 31-32, 209-210.

 Orthopedic surgeon Dr. George Hochreiter examined Mr. Rosario twice in 1990. On March 21, 1990, Dr. Hochreiter found no acute distress and no evidence of motor, reflex or sensory deficits. Tr. 179-81. The doctor noted that Mr. Rosario walked slowly with some difficulty with toe-heel walking on the right side, but that he had exhibited extreme loss of range of back motion. The doctor's conclusion after the initial consultation was that Mr. Rosario's disc herniation diagnosis was founded in history rather than in "hard neurologic findings." Tr. 179-80.

 After a second examination on December 8, 1990 the same doctor found Mr. Rosario "healthy," with "excellent" muscle development in both his legs, despite his claims of extreme pain and functional limitations. His straight leg raising test was negative for pain in both legs, but Mr. Rosario still claimed that his back motion was severely limited and that he suffered much discomfort. Tr. 205-07. Mr. Rosario toe-heel walked for four feet and had to stop after becoming anxious. Dr. Hochreiter found that Mr. Rosario could perform straight leg raising exercises to the ninety degree point. The doctor further concluded that Mr. Rosario was a poor surgical candidate and that Mr. Rosario's symptomatic complaints were disproportionate to the clinical evidence. Tr. 205-206.

 Mr. Rosario explained at the June 7, 1991 hearing that he had constant back discomfort, as well as weakness, discomfort and numbness in his left leg. Tr. 32-34. He stated that this pain hindered his sleeping, bending, and climbing steps. Tr. 33-35. To alleviate the discomfort, Mr. Rosario took Voltaren and acetaminophen and applied a heating pad. Tr. 34-35, 38-39. At the hearing he further testified that he did cancel the first scheduled surgery due to the risks involved but that the second surgery was canceled by his physicians. Tr. 30, 35-36. He claims that he tried to work in 1987 or 1988 but stopped when he injured his back by bending. Tr. 29-31. He also testified that his physician told him not to lift anything over ten pounds in weight, Tr. 37, and that he could only sit for one-half hour intervals. Tr. 33, 37. Mr. Rosario claims that his pain causes him to have difficulty getting out of bed and navigating stairs. Tr. 34, 42. He ...


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