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February 27, 2004.


The opinion of the court was delivered by: ARTHUR SPATT, District Judge


Joseph Teta ("Teta" or the "plaintiff") commenced this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final determination of the Commissioner of Social Security (the "Commissioner") denying disability benefits to him. Both parties move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules Page 2 of Civil Procedure. ("Fed.R. Civ. P.").


 A. Procedural History

  On May 28, 1999 Teta filed an application for social security disability insurance benefits, alleging an inability to work since November 23, 1998. After his application was denied initially and on reconsideration, he requested a hearing before an administrative law judge. On January 10, 2000, a hearing was held before Administrative Law Judge Sy Raynor (the "ALJ"). At the hearing, the plaintiff was represented by an attorney. In a decision dated January 28, 2000, the ALJ found that Teta was not disabled within the meaning of the Act and was therefore not entitled to disability insurance. Subsequently, Teta filed a request for review with the Appeals Council. On October 11, 2002, the Appeals Council declined to review the claim, making the ALJ's decision the final administrative determination. This appeal followed.

  On January 11, 2001, the plaintiff filed a subsequent application for disability benefits. This application alleged an onset date of January 29, 2000, the day after the ALJ denied the above mentioned application by the plaintiff. This subsequent application was granted on September 1, 2001.

  1. Teta's Testimony at the Hearing

  At the January 10, 2000 hearing, the plaintiff indicated that he was born on March 17, 1955, making him 41 years of age at the time of the administrative hearing. The plaintiff Page 3 is about 6' 1" and weighs approximately 250 pounds. Teta is a high school graduate.

  The plaintiff testified that from 1976 to 1986, he worked as a stock person in a supermarket where he was required to load and unload trucks and stock shelves. This occupation required the plaintiff to stand and walk eight hours a day with no sitting. He was also required to lift fifty pounds on a regular basis. Following that job, from May, 1986 until November, 1998, Teta worked in the construction business as an asphalt paver/laborer. There, he was responsible for shoveling asphalt, digging ditches and was required to stand all day and lift and carry objects between fifty and one hundred pounds. This job also involved constant bending.

  The plaintiff further testified that on November 23, 1998, he injured his back while shoveling at work. Immediately thereafter, Teta had difficulty walking and had swelling in his leg. The plaintiff was initially treated at the hospital with medication and epidural injections. On January 13, 1999, the plaintiff underwent back surgery.

  Teta also stated that his orthopedic surgeon, Dr. Vincent J. Leone ("Dr. Leone"), treated him about every eight weeks. Teta also participated in physical therapy which caused him to feel, "a litter bit better." However, three to four months prior to the January 10, 2000 hearing, he reached a plateau in his physical therapy and continued to experience low back and bilateral leg pain. He also reported that unless he consciously lifted his heel first, his foot dragged while walking. Teta testified that by the end of February, 1999, he Page 4 was able to walk independently without a walker.

  At time of the hearing, the plaintiff indicated that he had constant numbness and tingling in his right foot which becomes painful when walking more than four or five blocks.

  With regard to his personal activities, Teta testified that he dresses his three year old son, prepares breakfast for his son and six year old daughter, drives the children to and from school, does light household shopping, makes his own bed, bathes and showers himself, eats at restaurants with friends and drives to the barber. The plaintiff also stated that he could walk four or five blocks, sit between twenty and twenty five minutes at one time, and lift between ten to fifteen pounds but had not tried lifting his three year old daughter.

  The plaintiff's June 22, 1999 written statement, indicated that his current activities were walking, socializing, watching television, reading and driving locally which includes driving to physical therapy three times per week but he did not do household chores. The plaintiff claimed that his medication failed to relieve his pain and that the pain rendered him unable to work, walk, sit or stand for any length of time.

  2. The Treating Physicians

  a. Dr. Vincent J. Leone

  Beginning in June, 1997, the plaintiff was treated by Dr. Leone for lumbar spinal stenosis. From that time until the plaintiff's injury on November 23, 1998, the plaintiff received epidural injections, physical therapy and medication. Page 5

  On November 25, 1998, two days after the plaintiff's injury, he was treated by Dr. Leone. At that time, the plaintiff complained of sharp mid and low back pain which radiated into his buttocks and thighs. The plaintiff also complained of occasional numbness and tingling in his right toes. Dr. Leone's records indicate that the plaintiff had a limited range of flexion, extension, rotation and lateral tilting but that motor strength, sensation and reflexes were intact and he made a diagnosis of a lumbar herniated disc with radiculpathy. He advised the plaintiff to continue taking pain medication. Dr. Leone reported that the plaintiff was totally disabled and should remain out of work until further notice. Dr. Leone further requested Workers' Compensation authorization for physical therapy and a lumbar spine MRI.

  On November 30, 1998, the plaintiff called Dr. Leone and complained of back and leg symptoms. During the telephone conversation, Teta stated that his medication was helping. Because the plaintiff did not have any new neurological symptoms at that time Dr. Leone believed that an emergency admission was not justified. Dr. Leone instructed the plaintiff to return for treatment as previously scheduled.

  On December 31, 1998, the plaintiff returned to Dr. Leone complaining of increasing back pain radiating down his right leg of approximately two weeks duration. The plaintiff was unable to dorsiflex his right toe or foot and had a drop foot with significant edema. Dr. Leone diagnosed acute drop foot, ruled out a herniated disc and prescribed steroid Page 6 medication.

  On January 1, 1999, the plaintiff was admitted to North Shore University Hospital at Glen Cove (the "Hospital") on an emergency basis. Upon admission, he had back pain and difficulty moving his right foot in dorsiflexion with some swelling. The plaintiff was noted to have a history of herniated nucleus pulposis and spinal stenosis since 1997 with an exacerbation on November 23, 1998, which was the date of his injury.

  On January 13, 1999, Dr. Leone performed a complete lumbar bilateral laminectomy at L4 with foramintomy and facetectomies at L3 through L5 at the Hospital. Teta remained in the hospital until January 28, 1999. His discharge diagnoses were herniated nucleus pulposus and spinal stenosis, with neuropathy down the right leg and a right foot drop. Dr. Leone advised the plaintiff to avoid heavy lifting.

  On February 10, 1999, Dr. Leone reported that, although the plaintiff continued to have a right foot drop in terms of weakness, he had some return of neurological functioning to the foot. Dr. Leone noted that the plaintiff had a well — healed midline surgical scar and was otherwise neurogically intact with good range of motion to the lumbar spine. Dr. Leone diagnosed lumbar herniated disc and stenosis with a foot drop requiring urgent decompression. He prescribed Vicodin and sought authorization for physical therapy and an MRI. He opined that the plaintiff was "totally disabled."

  On March 24, 1999, the plaintiff returned to Dr. Leone for a follow up visit. He Page 7 continued to have a slight drop foot but was able to dorsiflex against resistance. Dr. Leone indicated that there was some tenderness to palpitation, but no severe spasms in his back. Dr. Leone noted that the plaintiff had difficulty with a "slapping" of his foot while walking. Dr. Leone prescribed aquatic and physical therapy in addition to Vicodin. From March 31, 1999 to June 16, 1999, Teta engaged in regular physical therapy.

  On March 3, 1999, Dr. Leone discharged the plaintiff from aquatic therapy because the plaintiff's symptoms had "greatly improved" and he demonstrated increased trunk mobility, flexibility and leg strength.

  On May 12, 1999, Dr. Leone reported that the plaintiff's symptoms had further improved but he still had right leg spasms.

  On May 19, 1999, Dr. Leone's records indicate that the plaintiff was "doing well" status post lumbar decompressive laminectomy. Although the plaintiff's drop foot had resolved to the point where he had some residual weakness, he was able to walk. Dr. Leone recommended continued physical therapy and again opined that the plaintiff was totally disabled.

  On September 22, 1999, Dr. Leone reported that the plaintiff continued to have difficulty with back pain and weakness of the foot and believed that the plaintiff had plateaued in physical therapy. Dr. Leone considered the plaintiff to be totally disabled regarding heavy ...

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