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December 8, 1994


JOHN T. CURTIN, United States District Judge

The opinion of the court was delivered by: JOHN T. CURTIN

CURTIN, District Judge

 Plaintiff Ronald Kelly filed this action to challenge a decision of the Defendant Secretary of Health and Human Services that he is not entitled to disability insurance benefits under the Social Security Act ("the Act"), 42 U.S.C. ยง 301 et seq.

 Mr. Kelly applied for disability insurance benefits on October 8, 1991. A.R. 100-02. *fn1" The application was denied initially on May 5, 1992, A.R. 104-06, and on reconsideration on July 3, 1992. A.R. 127-29. Mr. Kelly then requested a hearing, which was held on October 19, 1992. A.R. 38-99. On November 17, 1992, Administrative Law Judge ("ALJ") Karen H. Baker issued a decision finding that Mr. Kelly was not under a disability, and affirming the denial of his application for benefits. A.R. 7-25. Her decision became the final decision of the Secretary on April 8, 1993, when the Appeals Council denied Mr. Kelly's request for review. A.R. 4-5.

 Both parties have moved for judgment on the pleadings. Items 5, 6, 9. They agree that the only issue to be determined is whether the Secretary's decision is supported by substantial evidence.


 A. The Plaintiff

 Ronald Kelly is a 52-year-old former truck driver who lives in Lakeview, New York. He claims to have been disabled by a lower back problem since July 27, 1989, when he was involved in an automobile accident. A.R. 45, 133, 171-72.

 Mr. Kelly was born on July 25, 1942. A.R. 100. He almost completed tenth grade, and obtained a General Equivalency Diploma ("GED") in 1960. A.R. 42-43, 137. He has some difficulty reading and writing, but can read a newspaper. A.R. 83.

 Before his accident, Mr. Kelly had worked for about 20 years as a truck driver. A.R. 43-44, 137. His earnings record indicates that he engaged in relatively little paid work in the years from 1982 through 1989. A.R. 10, 132. For much of the time during those years, he stayed at home to care for his handicapped daughter, while his wife went out to work. A.R. 10, 55-58. In 1988, however, he returned to work because he started to get into financial trouble. A.R. 10, 57-58.

 In January, 1992, Mr. Kelly received $ 125,000.00 plus medical expenses in settlement of an insurance claim resulting from his accident. A.R. 84-85.

 B. Medical Evidence

 Mr. Kelly apparently suffered no significant problems immediately after his automobile accident on July 27, 1989. A.R. 47, 171. Six or seven hours later he began to feel lower back pain, which became severe by the following day. A.R. 171, 176-77. He claims that he consulted his family physician, Lawrence Plumb, M.D., and that he was given pain medication. A.R. 70-71, 171. There is no documentation of this in the record. A.R. 11. However, it appears that on July 28, 1989, the day after his accident, he visited Southtowns Radiology, where x-rays were taken. A.R. 176-77, 188. The Southtowns Radiology report: evidently indicated that his lumbar spine was normal. A.R. 188. Ten months later, however, the x-rays were reviewed by treating physician James J. White, M.D., an orthopedic surgeon, who found that they were "compatible with the MRI examination [done on April 9, 1990 -- see A.R. 190, 192] that showed disc degeneration and herniation centrally at L4-5." Id. Dr. White also referred to a CT scan done at Erie County Medical Center ("ECMC") on September 15, 1989, which showed a central protrusion of the disc at L5-S1 and a more diffuse annular bulge at L4-5, which probably represents a central disc herniation." A.R. 191.

 Between November 20, 1989, and April 23, 1990, Mr. Kelly consulted and received treatment for his back problems from Anthony Amabile, D.C., a chiropractor. A.R. 162-70. On the first visit, Dr. Amabile noted that Mr. Kelly suffered from "moderate chronic subluxations at L4, L5", that he walked with a limp, and that he experienced pain with limited range of motion in the lumbosacral region. A.R. 164. On December 20, 1989, Dr. Amabile noted that Mr. Kelly's condition had improved, that his range of motion had increased, with no indication of pain during examination, and that "he feels much better but occasionally gets pain down leg. Sublux. L4, L5 improved." A.R. 163. There is no record of any assessment by Dr. Amabile of Mr. Kelly's capacity to work. *fn2"

 On December 22, 1989, Mr. Kelly was examined by Dr. Patrick Hughes, a neurologist. A.R. 171-72 Dr. Hughes found no neurological defects. He reviewed the CT scan that had been performed at ECMC, and agreed with the ECMC interpretation that it showed "a bulging disc at L4-5." A.R. 172. He formed the impression (1) that Mr. Kelly's back pain was related to his disc bulging at L4-L5, (2) that this was related to his accident, (3) that Mr. Kelly should be able to return to work in about two months, (4) that if the disc herniated in the future, Mr. Kelly might require surgery, and (5) that at that time, Mr. Kelly was "disabled for truck driving." Id.

 Mr. Kelly was examined by orthopedic surgeon James J. White, M.D., on April 6, 1990. A.R. 190A-91. Dr. White's examination revealed tenderness in the lower lumbar spine at the L4-5 and S-1 disc levels, greater weakness in the right lower extremity than in the left with repetitive tiptoeing, and pain radiating to the left posterior thigh upon forward flexion. Neurological evaluation revealed weakness of the right extensor hallucis longus muscle with decreased sensation to pinprick in the right L-5 and S-1 root distributions. As noted above, Dr. White also examined the CT scan taken at ECMC on September 15, 1989. He expressed the opinion that Mr. Kelly had degeneration in the discs at L4-L5 and S-1, and a central herniation at L4-5. He considered Mr. Kelly to be disabled at that point in time from returning to his occupation as a truck driver, and recommended a Magnetic Resonance Imaging ("MRI") examination.

 An MRI was performed on April 9, 1990. A.R. 190, 192. It confirmed a central disc herniation at L4-5. Id. Dr. White wrote to Mr. Kelly's insurance company that:

my basic feeling, of course, is that there is no reason to do surgery unless the patient feels the pain is unacceptable and he cannot live with it. He tells me that he has not been able to work because of his major complaint of low back pain. He has secondary complaints of pain radiating into the left lower extremity. The central disc herniation is classic for the complaints of low back pain in the face of a normal neurological evaluation.
My recommendation to the patient, therefore, is that he have an L4-5 discectomy and fusion at that level. I would hope that after a period of time, between 4-6 months, that he could return to his previous occupation.


 On June 4, 1990, Dr. White re-examined Mr. Kelly, and reviewed the x-rays that had been taken at Southtowns Radiology on July 28, 1989. A.R. 188-89. He found the x-rays to be compatible with the MRI results showing disc degeneration and herniation at L4-5. He believed that:

a decompression of both L-5 roots and probably a discectomy, and certainly a fusion of 4-5 would resolve the majority of this gentleman's complaints.
. . . .
The most important thing that I tried to discuss with Mr. Kelly is that this surgery can be done any time he feels his disability is great enough to warrant surgical intervention. There certainly is no hurry for us to do anything. If he cannot return to his previous occupation as a long haul ...

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