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January 28, 2004.

JO ANNE BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: JOHN PADOVA, District Judge


Plaintiff Maureen Lauer seeks judicial review of the decision of Defendant, Social Security Commissioner Jo Anne Barnhart, which denied her claim for Social Security Disability (DIB) benefits. Both Plaintiff and Defendant have filed motions for summary judgment. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(d)(1)(C), the Court referred this matter to Magistrate Judge Linda K. Caracappa for a Report and Recommendation. Magistrate Judge Caracappa recommended that Plaintiff's motion for summary judgment be denied, and that Defendant's motion for summary judgment be granted. Plaintiff filed timely objections to the Report and Recommendation. For the reasons which follow, the Court overrules Plaintiff's objections and grant's Defendant's motion for summary judgment in its entirety. Page 2


  Plaintiff is a forty-two year-old female born on December 22, 1960 (Tr. 38). She has a high school education, and past work experience as a cashier, secretary, bank clerk, and payroll assistant (Tr. 40-41). Disability is alleged as of February 7, 1991, when she injured her back at work lifting a box (Tr. 173). Plaintiff's last date insured for DIB was September 30, 1992, and thus, in order to be entitled to such benefits, she must establish disability on or prior to this date. 20 C.F.R. § 404.131 (a). Plaintiff's application for DIB was denied both initially and upon reconsideration (Tr. 130-136). She then requested a hearing before an Administrative Law Judge (ALJ). A hearing was held on February 12, 1999, at which Plaintiff, represented by counsel, testified. Also testifying were a vocational expert, a medical expert, and a witness, her husband (Tr. 34-127). In a decision dated April 28, 1999, the ALJ determined that Plaintiff "has the following severe impairment which causes more than minimal restrictions upon claimant's ability to work: a severe back impairment (herniated lumbar disc)." (Tr. 25). The ALJ further determined that plaintiff, during the period before her date last insured (September 30, 1992), retained the residual functional capacity to perform her past work as a secretary and payroll clerk Page 3 (Tr. 26).*fn1 Thus, the ALJ determined that Plaintiff was not entitled to benefits (Tr. 26-27).

  The ALJ's findings became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 26, 2002. (Tr. 5-6).


  The relevant evidence in this case consists of medical reports and testimony which are summarized as follows:

  Plaintiff was evaluated by an orthopedic surgeon, Dr. Joseph Shatouhy, on September 10, 1991. Dr. Shatouhy diagnosed Plaintiff with "lumbar sprain syndrome superimposed on lumbar degenerative disc disease without any disc herniation." (Tr. 425.) Dr. Shatouhy opined that Plaintiff could return to her job, provided she did not lift objects over 25 pounds and did not sit, stand or walk for more than two hours at a time. (Tr. 425-26.)

  Dr. Philip Spinuzza evaluated Plaintiff on July 10, 1991, and noted that Plaintiff had continued pain in the low back that was aggravated by bending, twisting, lifting and sitting for prolonged periods of time. (Tr. 267.) Dr. Spinuzza saw Plaintiff again on November 6, 1991. On this date, Dr. Spinuzza noted that Plaintiff Page 4 had a normal gait and was taking no medication, but advised her to consider an epidural steroid injection. (Tr. 264.) A doctor from the Philadelphia Orthopedic group*fn2 reported on June 24, 1992 that Plaintiff had a sitting tolerance of 30 minutes maximum, and had difficulty riding in a car or sitting at home for longer periods than that. (Tr. 257.) This doctor further noted that Plaintiff had a normal gait and was neurologically intact. (Id.) This doctor recommended an exercise program. (Id.)

  On August 26, 1992, Dr. George Avetian dismissed Plaintiff from active treatment and advised Plaintiff that she should avoid prolonged sitting, standing, lifting, twisting, forward bending and exercising. (Tr. 249-50.) Dr. Avetian further found that Plaintiff was "partially disabled with regard to daily living activities as defined by the AMA." (Id.)

  Plaintiff was given a functional capacity evaluation at Ridley Sports Therapy on September 3, 1992. Plaintiff was found to have a functional capacity somewhere between light and sedentary work. (Tr. 355-57). The report further found that Plaintiff "exhibit[ed] tendencies toward symptom magnification and inappropriate illness behavior." (Id.)

  Dr. Spinuzza saw Plaintiff again on October 21, 1992. Dr. Spinuzza found that Plaintiff's sitting tolerance was 30 minutes, Page 5 and recommended that Plaintiff continue her exercises. (Tr. 413.) Dr. Spinuzza also opined that, because of Plaintiff's 30 minute sitting tolerance, it would be very difficult for her to return to her past job as a secretary. (Tr. 413.)

  In February 1997, Plaintiff came under the care of an orthopedic surgeon, Dr. Richard Levenberg. Dr. Levenberg found that plaintiff had suffered a rapid deterioration of her neurological function in November, 1996. (Tr. 487-89.) Dr. Levenberg performed a laminectimy on February 24, 1997. (Id.)

  Plaintiff testified at the administrative hearing that her condition had progressively worsened over the years. (Tr. 40-49). Plaintiff used a cane at the hearing, but testified that she only began to use this cane after her surgery in February, 1997. (Tr. 39). Plaintiff testified that she was able to drive a car in 1991, but ...

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