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SHULTZ v. BOWEN

November 12, 1986

WESLEY SHULTZ
v.
OTIS R. BOWEN, M.D., Secretary of Health and Human Services



The opinion of the court was delivered by: POLLAK

 POLLAK, J.

 Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) to review the final decision of the Secretary of Health and Human Services ("the Secretary") denying his claim for disability benefits and supplemental security income. This case comes before us on cross-motions for summary judgment. For reasons discussed below, we grant plaintiff's motion for summary judgment and remand this matter to the Secretary for calculation of benefits.

 I.

 Plaintiff claims that he is disabled as a result of a back injury he suffered in October 1980. An earlier application for disability benefits, alleging onset of disability in January of 1980, was filed on October 29, 1981. Benefits were denied on January 6, 1982, and reconsideration was denied on or about April 6, 1982. Plaintiff again applied for benefits on December 29, 1983, alleging onset of disability in October of 1981. A hearing was held on July 11, 1984 before an administrative law judge (ALJ), whose decision denying benefits was entered on August 23, 1984. The Appeals Council of the Social Security Administration denied review on February 12, 1985. The decision of the ALJ is thus the final decision of the Secretary.

 The first issue we must consider is the time period with respect to which we are to review the Secretary's determination. It appears from the transcript of the July 11, 1984 hearing that plaintiff's counsel was unaware of the 1981 application for and 1982 denial of benefits until the ALJ brought the matter to the attention of counsel. Court Transcript (Tr.) at 26. Plaintiff's counsel's confusion has now been compounded. In his motion for summary judgment, plaintiff makes no reference to having filed a separate application for benefits in December of 1983. Rather, plaintiff treats the 1984 hearing as though it had been a review of the 1982 determination, stating that

 
"the Plaintiff . . . applied for Social Security disability benefits on October 29, 1981. Following the denial of his application and a further denial upon his request for reconsideration, he sought a hearing before an Administrative Law Judge. That hearing was held on July 11, 1984. The Administrative Law Judge denied Plaintiff's claim in a decision handed down on August 23, 1984."

 Docket No. 6 at 1.

 We cannot agree with plaintiff's characterization of the procedural history of his applications for benefits. Plaintiff's request for a hearing on March 21, 1984 was not a timely request for de novo review of the April 1982 determination. See 42 U.S.C. § 405(b)(1) (sixty-day time limit for request for hearing). At most, plaintiff can be understood to have requested that the determination of April 1982 be reopened.

 Under 20 C.F.R. § 404.987(a), a decision may be reopened "if new and material evidence is furnished." A comparison of the list of exhibits before us and the list of exhibits considered by the Secretary in reaching his 1982 decision shows that no new evidence was presented for the period ending April 1982. Thus, we agree with the ALJ that the evidence presented did not warrant reopening the determination of April 8, 1982 denying benefits for the period ending on that date. We hold that the April 1982 decision has res judicata effect with respect to plaintiff's claims for benefits prior to that date. *fn1" See C.F.R. § 404.957(c)(1).

 II.

 As to plaintiff's request for benefits for the period subsequent to April 8, 1982, the question before us is whether the Secretary's denial of benefits was based upon substantial evidence, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). We will consider evidence from the period prior to April 1982 to the extent it provides necessary background for the determination under review.

 Plaintiff saw his treating physician, Dr. Reznak, monthly between January and May 1981. Throughout this period, plaintiff complained of severe pain in his neck and back. Dr. Reznak referred plaintiff to Dr. Shankar, a neurosurgeon, for evaluation for surgery (Tr. 160), and to Dr. Nardini, an orthopedist, for treatment (Tr. 154). Plaintiff was hospitalized at Methodist Hospital three times between March and May 1981. At his intake evaluation, it was noted that plaintiff took Valium and Dervocet for pain. Plaintiff stated that he did not wish to have surgery. Tr. 199. An epidural block was performed, without relief. Tr. 241. Dr. Staas reported that there was no objective evidence of findings to correlate with plaintiff's symptoms, and that "P.T.", most likely meaning physical therapy, had nothing to offer him. Tr. 192. Plaintiff was scheduled for an appointment at the pain center of McGee Hospital for treatment of his chronic pain. Tr. 204. A lumbar discography was performed as a follow-up to the myelogram, with normal ...


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