Berestecki v. Secretary of Health & Human Services

662 F. Supp. 1521, 1987 U.S. Dist. LEXIS 5616
CourtDistrict Court, S.D. New York
DecidedJune 23, 1987
DocketNo. 86 Civ. 6029 (RWS)
StatusPublished

This text of 662 F. Supp. 1521 (Berestecki v. Secretary of Health & Human Services) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berestecki v. Secretary of Health & Human Services, 662 F. Supp. 1521, 1987 U.S. Dist. LEXIS 5616 (S.D.N.Y. 1987).

Opinion

OPINION

SWEET, District Judge.

Plaintiff Bronislawa Berestecki (“Beres-tecki”) has moved pursuant to Fed.R.Civ.P. 12(a) for an order granting her judgment on the pleadings in an appeal from a denial of disability insurance benefits. Defendant Otis R. Bowen, M.D., Secretary of Health and Human Services (the “Secretary”) has cross-moved pursuant to 42 U.S.C. § 405(g) for an order remanding the case for further administrative action. For the reasons set forth below, the Secretary’s application is denied and Berestecki’s application is granted. The Secretary’s decision denying Berestecki disability benefits is reversed, and the case is remanded for the calculation of benefits.

[1522]*1522Prior Proceedings

Berestecki applied for disability insurance benefits on April 10, 1985. Receiving an adverse decision, she requested reconsideration on August 5, 1985, and was again denied benefits on November 15, 1985. A hearing was held on February 21, 1986 before Administrative Law Judge Emanuel Tannenbaum (the “AU”) at which Berestecki was represented by Howard E. Hedgeman, a paralegal with M.F.Y. Legal Services.

On March 14, 1986 the AU issued a decision denying the application. Beres-tecki filed a request for review with the Appeals Council on May 6, 1986, the Appeals Council denied the request for review on June 5, 1986, and this action was commenced.

At the time of her administrative hearing, Berestecki was 51 years old. She was educated to the seventh grade in Russia. As a result, she is literate in Russian and Polish, but testified that she cannot read and write English well. Her only work background in the United States is as a custodian, cleaning offices, schools, and finally, rooms at the Vista International Hotel. On February 10, 1983, she suffered an accident on the job while making a bed. Since that time, she has not returned to work due to back pain.

Berestecki described the duties of a hotel chambermaid to the AU at her hearing. She explained that she had to make up the beds with fresh linen, discard the dirty laundry, distribute clean towels and vacuum the rooms. She carried her supplies, such as clean towels, on a large cart which she pushed up and down the hallways.

In discussing her physical condition, Ber-estecki testified that she suffers pain in her lower back and numbness in her left leg. According to Berestecki, she has difficulty in either sitting or standing for more than a few minutes and during the course of her administrative hearing, she had to stand up due to pain. She wears a back brace and takes Tylenol for the condition, which the AU opined were “conservative measures.” In addition to her back problem, Berestecki also reported suffering from allergies and an ulcer, which causes her stomach pain and vomiting.

According to Berestecki, she is limited in her daily activities due to the pain in her back in a number of ways. She estimated herself able to sit only for approximately five minutes without pain, and to stand for only ten minutes. She has trouble walking up and down stairs. She can lift only five pounds. She has help from her sister and her sons to clean her apartment, wash the dishes, shop and do the laundry.

At the time of the hearing the AU had before him medical evidence from the physician treating her back, Dr. Albert Rubell. Dr. Rubell indicated that he had been treating Berestecki since May 12, 1983 for a chronic back sprain, chronic disc disease, and left sciatics with paresthesias (abnormal burning, pricking, tickling or tingling) and pain, as well as limitation of motion of the lumbosacral spine. In his reports, Dr. Rubell indicated three times that Beres-tecki cannot work. He stated twice that she can sit or stand continuously for only five to ten minutes, lift and carry only five to ten pounds, and walk only one block without resting. He also stated twice that she has to lie down during the day to relieve pain, and that she presents a credible clinical picture of someone experiencing severe pain.

Dr. Rubell’s reports are supported by the report of Dr. Abraham Posniak, to whom Dr. Rubell had referred Berestecki. Dr. Posniak diagnosed Berestecki as suffering from a “low back derangement with cervical radiculitis and paresthesia of the left leg.” He noted spasm of the muscles on both sides of the back, but greater on the left side than on the right. He ordered a CAT scan, the results of which were consistent with the existence of degenerative disc disease. He also ordered an electro-myelogram, which was consistent with “bilateral lower lumbar radiculopathies.” Based upon his findings, Dr. Posniak also expressed the opinion that Berestecki was disabled, and initiated treatments of hydro-collator packs to the lower back, ultrasound therapy, and progressive low back exercises to tolerance.

[1523]*1523Berestecki’s general physician, Dr. Teresa Sauer Plewinski, provided a report concerning recurrent peptic ulcer syndrome, surgery to correct urinary stress incontinence, and a recurrent upper respiratory infection. Dr. Plewinski concluded: “In addition to her back problem, patient is in poor general condition due to her multiplicity of concurrence [sic] medical problems. In my opinion, she is unable for gainful work.”

Dr. Pecoraro, a chiropractor, treated Ber-estecki from April 1984 to December, 1984, approximately three times per week. His findings of numbness in the legs, severe lumbar spasm, and decreased reflexes in the lower extremities are corroborative of Dr. Rubell’s reports and of Berestecki’s claims of back pain and numbness in the legs. He also confirms Dr. Rubell’s impressions of limited range of motion of the spine, finding forward flexion limited to 45° out of a possible 90° and lateral flexion limited to 10° out of a possible 20°.

The Social Security Administration referred Berestecki to a single medical examination with Dr. Caleb Medley. He noted that she walked with a limp favoring the left leg, that her left lower leg had atrophied and was one inch smaller than the right leg, and that she suffered from curvature of the spine, documented by x-ray evidence. He noted no sensor or reflex abnormality, nor a limitation of range of motion.

A physician employed by the Administration reviewed Berestecki’s medical records, and without seeing her personally, expressed an opinion on her ability to do work. On July 15, 1985, Dr. F. Randall expressed the opinion that Berestecki could lift and carry ten pounds, stand and walk six hours of an eight hour day, and could not climb, balance, stoop, kneel, crouch or crawl at all. Dr. Randall was then assigned to re-review the file three months later, in November, 1985. Although little had been added to the file in those three months,1 this time Dr. Randall found that Berestecki could lift 50 pounds, frequently carry 25 pounds, and climb, balance, stoop and kneel occasionally.

Discussion

In analyzing a Social Security claimant’s entitlement to collect disability benefits, the AU is directed to apply a five-step test set forth in 20 C.F.R. § 404.1520. The Second Circuit has described the test thus:

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662 F. Supp. 1521, 1987 U.S. Dist. LEXIS 5616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berestecki-v-secretary-of-health-human-services-nysd-1987.