Poslednik v. Bowen

674 F. Supp. 5, 1987 U.S. Dist. LEXIS 11245, 1987 WL 20506
CourtDistrict Court, S.D. New York
DecidedNovember 30, 1987
DocketNo. 83 Civ. 5556 (JES)
StatusPublished
Cited by6 cases

This text of 674 F. Supp. 5 (Poslednik v. Bowen) 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
Poslednik v. Bowen, 674 F. Supp. 5, 1987 U.S. Dist. LEXIS 11245, 1987 WL 20506 (S.D.N.Y. 1987).

Opinion

MEMORANDUM OPINION AND ORDER

SPRIZZO, District Judge:

Plaintiff Evelyn Poslednik brought this action pursuant to sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3) (1982 & Supp.1987), seeking review of a final decision of the Secretary of Health and Human Services (“the Secretary”) that plaintiff is not disabled as defined by the Act, and therefore not entitled to either disability insurance or supplemental security income (“SSI”) benefits. The parties have filed cross-motions for judgment on the pleadings pursuant to Fed.R. Civ.P. 12(c), and the Court has reviewed the record and heard oral argument on the motions. For the reasons set forth below, the Court concludes that plaintiff’s motion should be granted, and the Secretary’s cross-motion should be denied.

BACKGROUND

Plaintiff, now 57 years old, filed applications for disability insurance and SSI benefits on November 10,1981, alleging disability due to a slipped disc and sciaticia. See Administrative Transcript (“Tr.”) at 51-54, 67-76, 89. After the Secretary finally determined that she was not under a disability, plaintiff brought this action. Pursuant to a stipulation and order, the case was remanded to the Secretary in light of Dixon v. Heckler, 589 F.Supp. 1494 (S.D.N.Y.1984).

On remand, the ALJ determined after a supplemental hearing that “plaintiff’s subjective complaints of severe, constant pain and a greatly reduced functional capacity [were] not essentially credible and [were] not supported by the objective medical evidence” and that plaintiff’s impairment did not prevent her from performing her past relevant work as a secretary. See Tr. at 163. Thus, the ALJ determined that plaintiff was not under a disability as defined in the Act. See id.; see also Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982). After reviewing and considering the evidence submitted, the Appeals Council issued a decision adopting the findings and conclusions of the ALJ and concluding that plaintiff was not disabled because she could return to her past relevant work as a secretary. See Tr. at 146-50.

[7]*7DISCUSSION

The only issue to be determined by the Court is whether the Secretary’s decision that plaintiff was not disabled within the meaning of the Act is supported by substantial evidence. See 42 U.S.C. §§ 405(g) & 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed. 2d 842 (1971); Havas v. Bowen, 804 F.2d 783, 785 (2d Cir.1986). After carefully reviewing the record, the Court concludes not only that the Secretary’s decision is not supported by substantial evidence, but also that the decision is unsupported by any evidence that plaintiff could return to her past relevant work.

Plaintiff’s treating physicians, Dr. Elliott Hershman and Dr. John P. Reilly, each submitted uncontradicted residual functional capacity questionnaires describing plaintiff’s severely limited capacity to sit, stand, or walk. See Tr. at 216-19, 253-55. In addition, Dr. Hershman has consistently described plaintiff as “100% disabled,” id. at 139, 251, 252, and “unable [to] work,” id. at 126, 249. The AU’s decision to the contrary, in the absence of any evidence contradicting the treating physicians’ opinions, clearly violates this Circuit’s treating physician rule, which provides that “a treating physician’s opinion on ... diagnosis and nature and degree of impairment is ... binding on the fact-finder unless contradicted by substantial evidence....” Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir.1986); see also Arzuaga v. Bowen, 833 F.2d 424, 425-26 (2d Cir.1987). Thus, the Court concludes that plaintiff was under a disability within the meaning of the Act.

The next question the Court must address is when plaintiff became disabled. Such an inquiry is not necessary for an award of SSI benefits because Title XVI of the Social Security Act, which governs those benefits, contains no special disability insurance requirement. In contrast, Title II of the Act requires that in order to receive disability insurance benefits, plaintiff must establish that she became disabled prior to the expiration of her insured status. See 42 U.S.C. §§ 423(a)(1)(A) & 423(c)(1).

It is undisputed that in this case, plaintiff met the insured status requirements on December 2, 1980, when she alleges she became disabled, but continued to meet those requirements only through September 30,1981. See Tr. at 66,162; cf. Reply Memorandum in Support of Plaintiff’s Motion for Judgment on the Pleadings and in Opposition to Defendant’s Motion for Judgment on the Pleadings at 10. Thus, in order to receive disability insurance benefits, plaintiff must establish that she became disabled on or before September 30, 1981. Since both the ALJ and the Appeals Council concluded that plaintiff was not disabled, no finding was made by the agency with request to that issue. Nevertheless, for the reasons which follow, the Court concludes that a remand to afford the agency the opportunity to consider that issue is neither necessary nor appropriate in this case.

Plaintiff’s medical record verifies the existence of a degenerative spinal condition beginning in 1968, see Tr. at 106-10,1 for which she was treated in 1968 and again in 1975, see id. at 31-32, 106-10. Plaintiff was next examined by two Social Security Administration consultative physicians on November 20, 1981, neither of whom made any findings as to degree of disability.2

Late in 1981, plaintiff returned to a Dr. Perlroth, who had treated her in the 1970s. On December 1, 1981, and again on January 11, 1982, Dr. Perlroth administered sciatic nerve block shots at the sciatic notch to relieve acute back pain. See Tr. at 133-35. X-rays performed on February 10, 1982 [8]*8demonstrated disc space narrowing and hy-pertrophic degenerative changes in relation to these narrowed disc spaces. See id. at 117. On February 22, 1982, Dr. Hershman stated that plaintiff was “unable to work because of the advanced nature and chron-icity of her condition.” Id. at 126. Dr. Hershman persisted in this conclusion in subsequent records.

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Bluebook (online)
674 F. Supp. 5, 1987 U.S. Dist. LEXIS 11245, 1987 WL 20506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poslednik-v-bowen-nysd-1987.