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.
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
(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.
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
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,
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,
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 ...