Opinion
98-CV-0791E(F)
August 23, 2000
ATTORNEYS FOR THE PLAINTIFF:
John A. Galeziowski, Esq., c/o Godinho Galeziowski, 69 Delaware Ave., Suite 500, Buffalo, N.Y. 14202.
ATTORNEYS FOR THE DEFENDANT:
Jane B. Wolfe, Esq., Asst. United States Attorney, 138 Delaware Ave., Buffalo, N.Y. 14202.
MEMORANDUM and ORDER
Plaintiff Webb filed an action for a review of the final decision of defendant Apfel denying Webb's application for Social Security disability benefits. The issue to be determined here is whether there is substantial evidence to support Apfel's decision that Webb is not entitled to Social Security Disability Insurance under Title II of the Social Security Act ("the Act"), 42 U.S.C. § 401-433 because he is not disabled as therein defined.
This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g) which authorizes judicial review of final decisions of the Commissioner of Social Security. The undersigned referred this matter to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1)(B) for a recommended determination of the merits of the factual and legal issues raised by the plaintiff. Apfel filed a motion for Judgment on the Pleadings and such also was considered by Judge Foschio. After Judge Foschio had filed has Report and Recommendation ("the R R") February 8, 2000 recommending that the motion be denied and that the matter be remanded solely for the calculation of benefits, Apfel timely filed has Objections to such. Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the undersigned has made a de novo review of those portions of the R R to which Apfel has objected. Such objections will be overruled and Apfel's decision will be remanded solely for the calculation of benefits.
The R R recommended that the case be remanded solely for the calculation of benefits because Webb had met the listing requirements to be considered disabled per se. In the alternative, should the Court not accept this recommendation, the R R secondarily recommended that the determination be upheld because there was substantial evidence to support the determination that Webb could perform sedentary work if he was not considered disabled per se under the listing requirements.
While familiarity with the R R is presumed, the facts are briefly summarized herein. Plaintiff Webb worked for the City of Lockport for more than 25 years doing heavy manual labor, first in the Streets Department and then in the Water Maintenance Department. On January 15, 1995 while repairing a water main, he injured has back. Webb has not returned to work since this injury. On May 14, 1996 he applied for Social Security Disability Benefits. Webb's application was denied as was has request for reconsideration. Webb requested a hearing before an Administrative Law Judge ("the ALJ"). After a hearing the ALJ denied Webb disability benefits December 17, 1997 and Webb requested a review of that decision by the Appeals Council which allowed Webb to present additional medical evidence and made such a part of the record. The Appeals Council then denied Webb's request for review and the December 17, 1997 decision of the ALJ became the final decision. After hearing arguments the Magistrate Judge recommended that the decision be reversed and the case remanded solely for a determination of benefits because there was no substantial evidence to support the determination that Webb was not disabled.
Apfel has objected to the R R principally on the ground that Webb does not meet the disability requirements for a disorder of the spine because he had not had a muscle spasm for at least three months, such spasm being required by the Act in order to grant benefits. To meet the listing requirements to be considered disabled per se for a back injury such as sustained by Webb, a claimant must have suffered
"[o]ther vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last at least 12 months: With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss." 20 C.F.R. Pt. 404 Subpt. P, App. 1 § 1.05C.
Pursuant to section 405(g) of the Act, the findings "as to any fact, if supported by substantial evidence, shall be conclusive. However "[s]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Tejada v. Apfel, 167 F.3d 770, 773-774 (2d Cir. 1999). No substantial evidence supports Apfel's finding that Webb did not suffer back spasms over the requisite three-month period. Muscle spasms had been observed by Webb's chiropractor, Dr. Keegan, January 27, 1995 and June 25, 1996. In addition a neurologist, Dr. Sarpel, observed muscle spasm when he examined Webb on April 23, 1996. muscle spasm was also noted by an orthopedist, Dr. Cappuccino, when he examined Webb April 14, 1998 and August 11, 1998.
Citations and internal quotation marks omitted.
While Apfel is correct that he "has the discretion to determine the appropriate weight to accord the chiropractor's opinion based on all evidence before him" — Diaz v. Shalala, 59 F.3d 307, 313-314 (2d Cir. 1995) —, the R R did not consider such but relied only on the observations of muscle spasm by the chiropractor, not the chiropractor's opinion that Webb was disabled. Notably, the ALJ did not consider the chiropractor's observations of muscle spasm in making has decision, but only the chiropractor's opinion that Webb was totally disabled. The opinions of the chiropractor and the various physicians as to Webb's total or partial disability are irrelevant, however, because Webb meets the requirements to be considered disabled per se under the Act.
Apfel argues that the observation of muscle spasm by Dr. Sarpel should not have been considered by the Magistrate Judge because the evidence was not before the ALJ. However, Dr. Sarpel had observed muscle spasm April 23, 1996 which is within the relevant time period pertinent to the determination of whether Webb was disabled — i.e., from January 15, 1995 when he was injured until December 17, 1997 when the ALJ denied disability benefits. The Second Circuit Court of Appeals has held that "new evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision." Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). Although Dr. Sarpel's report had not been before the ALJ, it was properly considered by the Magistrate Judge because the Appeals Council had accepted the report into evidence and thereby made it a part of the administrative record relied on by Apfel in denying Webb disability benefits and for judicial review.
Apfel is correct in has contention that the report of Dr. Cappuccino is not relevant to determining if Webb was disabled. Although such report was accepted by the Appeals Council and made part of the record for judicial review, the observations of muscle spasm by Dr. Cappuccino occurred April 14, 1998 and August 11, 1998, after the ALJ had issued has decision denying Webb disability benefits and thus after the relevant period. In determining whether a plaintiff is disabled under the Act, a court can consider evidence submitted to the Appeals Council after the ALJ has issued has decision but that evidence must relate to the relevant period, which is between the date of injury and the date the ALJ issued has decision. Costanzo v. Apfel, No. 98-CV-606H, 2000 WL 575660 at *6 (W.D.N.Y. Feb. 8, 2000). Inasmuch as the observations of muscle spasm by Dr. Cappuccino were made after the ALJ had issued has decision, such is not relevant to determine if Webb was disabled. However, the Magistrate Judge did not rely on the observations of muscle spasm by Dr. Cappuccino in determining that there was no substantial evidence to support Apfel's determination that Webb was not disabled.
Even without considering Dr. Cappuccino's observations of muscle spasm — which this Court similarly cannot do because they occurred after the relevant time period —, there is still no substantial evidence to support Apfel's decision that Webb had not had muscle spasm for the necessary duration during the relevant time period which extended from the date of has injury — January 15, 1996 until December 17, 1997, the date the ALJ concluded that Webb was not disabled. To meet the listing requirements, the muscle spasm must have persisted for at least three months and have been expected to last for at least twelve months. Muscle spasm is noted in Webb's medical records on three occasions during the relevant time period. On January 27, 1995 and June 25, 1996 muscle spasm was noted by Dr. Keegan and on April 23, 1996 muscle spasm was noted by Dr. Sarpel. Although the muscle spasm is required to persist only for three months under the listing requirements and needs only to be expected to last for twelve months, muscle spasm was actually noted in Webb's medical records for more than a twelve-month interval during the relevant time period. Thus Webb has been shown to have met the listing requirement of muscle spasm so as to be considered per se disabled under the Act.
Apfel not having contended that Webb did not meet all of the other requirements to be considered per se disabled under the Act during the relevant time period and the undersigned not having found any substantial evidence to support Apfel's decision that Webb did not meet the listing requirements to be considered per se disabled, it is hereby ORDERED that Apfel's determination is reversed and that the case is remanded to Apfel solely for the determination of benefits.