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KLEMENTOWSKI v. SECRETARY

September 8, 1992

VICTOR KLEMENTOWSKI, Plaintiff,
v.
SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

DECISION AND ORDER

 WILLIAM M. SKRETNY

 DISTRICT JUDGE

 INTRODUCTION

 Defendant Louis W. Sullivan, M.D., Secretary of Health and Human Services ("the Secretary"), submits written objections to the December 30, 1991 Report and Recommendation of Magistrate Judge Edmund F. Maxwell, pursuant to Fed.R.Civ.P. 72(b).

 The December 30, 1991 Report and Recommendation reversed the final determination of the Secretary, and directed that the Secretary make the appropriate payment on behalf of plaintiff Victor Klementowski ("plaintiff"), under Medicare Part B for the air ambulance service provided to plaintiff on October 22, 1987.

 This Court has jurisdiction pursuant to 28 U.S.C. 1331 and 42 U.S.C. § 405(g).

 As the parties are aware, plaintiff submitted a claim to Medicare's insurance carrier for reimbursement for air ambulance transportation from Buffalo, New York to Cleveland, Ohio, pursuant to 42 C.F.R. § 410. *fn1" The carrier denied benefits and plaintiff was granted a hearing contesting the carrier's denial before an ALJ. The ALJ also denied reimbursement benefits, finding that there was no evidence presented indicating that the procedure could not have been performed in Buffalo, or nearer to Buffalo than Cleveland, as required by 42 U.S.C. § 410.40. The Appeals Council denied plaintiff's request for review, thereby making the ALJ's decision the final decision of the Secretary.

 Plaintiff then filed a Complaint seeking review of the final decision of the Secretary, and reimbursement of $ 1,785.00 for the cost of air ambulance transportation from Buffalo to Cleveland. This matter was referred to the Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), to determine the merits. The Secretary moved, and plaintiff cross-moved, for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). The Magistrate Judge issued a Report and Recommendation, reversing the Secretary's denial of reimbursement, and directing the Secretary to make the payment on plaintiff's behalf for the air ambulance service.

 The plaintiff contends that the Magistrate Judge properly concluded that the Secretary's decision is not supported by substantial evidence. The plaintiff argues that the record contains ample evidence that the nearest hospital with the necessary facilities and care, in compliance with 42 C.F.R. § 410.40, was the Cleveland Clinic. The plaintiff further contends that the information from his treating physicians was properly considered by the Magistrate Judge, since the treating physician rule applies to selection of proper medical treatment and use of appropriate health services, as well as to conclusions about a patient's medical condition. The plaintiff further contends that the record contains no substantial evidence in contradiction of the Magistrate Judge's decision, and endorses the Magistrate Judge's conclusion that the record must be interpreted with attention to common sense.

 In opposition to the Magistrate Judge's Report and Recommendation ("Rep. & Rec."), the Secretary submits its written Objections dated February 21, 1992 ("Sec. Obj."); and a Reply Memorandum of Law dated March 20, 1992 ("Sec. Rep. Memo.").

 In support of the Magistrate Judge's Report and Recommendation, plaintiff submits a Memorandum of Law dated March 12, 1992 ("plaint. Memo.").

 For the reasons articulated below, the Magistrate Judge's December 30, 1991 Report and Recommendation is affirmed.

 FACTS

 The facts relied upon by this Court are recited in the Magistrate Judge's December 30, 1991 Report and Recommendation, as well as in the submissions of the parties listed above. This Court notes that the parties are not in dispute concerning the facts at issue.

 In his Report and Recommendation, the Magistrate Judge noted the ALJ'S questionnaire to plaintiff's treating physician, the answers provided to the questionnaire by Dr. Robert F. Glover, *fn2" the ALJ's lack of mention of Dr. Glover's answers in rendering his decision, and the Appeal Council's notation in its denial of review that the responses of Dr. Glover were not a part of the record before the ALJ at the time of his decision. (Rep. & Rec., pp.4-5). The Magistrate Judge also noted the Appeals Council's observations, in its denial of review, that it is unclear from the questionnaire whether two Buffalo hospitals could have performed the angioplasty on unstable, emergency patients, whether there was a scheduling problem with either local hospital, and that plaintiff's admission record at the Cleveland Clinic reported him to be in stable condition upon arrival. (Rep. & Rec., p.5).

 Based upon his review of the record, the Magistrate Judge found that the Cleveland Clinic was the nearest appropriate hospital to treat plaintiff's emergency condition. The Magistrate Judge found, therefore, that the Secretary's decision to deny reimbursement ...


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