The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
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
of Civil Procedure. ("Fed.R. Civ. P.").
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,
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
is about 6' 1" and weighs approximately 250 pounds. Teta is a high
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
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
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
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.
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
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
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
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
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 ...