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September 28, 1978

Gertrude DeVAUGHN, Plaintiff,
Joseph CALIFANO, Secretary of the Department of Health, Education and Welfare, Defendant

The opinion of the court was delivered by: NEAHER


This action to review a denial of Supplemental Security Income (SSI) to plaintiff was initially referred to a United States Magistrate to review the administrative record, hear the contentions of the parties and report to the Court his recommended disposition of the defendant Secretary's motion for summary judgment. That has been done and the matter is now before the Court on the Magistrate's recommendation that the defendant's motion for judgment dismissing the action be granted. Plaintiff, who prosecuted her claim Pro se throughout (with some assistance from her daughter), has timely filed a letter detailing her objections to the Magistrate's report, which the Court has considered in reaching its decision.

 After an independent searching review of the record, the Court is unable to agree with the Magistrate's ultimate conclusion that the Secretary's determination denying plaintiff SSI benefits is supported by substantial evidence on the record as a whole. The Magistrate's report is, however, incorporated herein so as to avoid repeating his discussion of the prior administrative proceedings and the medical and other evidence he found supportive of the Secretary's decision.

 Plaintiff, a widow now 57 years old, lives alone in a 1 1/2 room low rent apartment in Brooklyn. She is of small build, giving her height as 5'1 and weight as 111 lbs. She possesses a twelfth grade education and also attended a secretarial school where she learned shorthand and other skills that go with secretarial work. It does not appear that she ever used such skills in steady employment. In fact, it would appear that her only steady employment was that of machine operator in an "electric company." Exh. 3. Plaintiff held that job for some sixteen years, 1952-1968, leaving because she sustained a disabling accident to her foot (not connected with her employment) that made it difficult for her to operate the machine controls. She received a damage award of a little over $ 1,000, which she had been using to help support herself.

 In 1973 plaintiff, who had been hospitalized a number of times for surgery after leaving her former employment, tried her hand at being a telephone operator, first for the New York Telephone Company and later for St. Mary's Hospital. These were only temporary jobs lasting but a few weeks. Aside from such employment, plaintiff has not been gainfully employed since she left the job at the "electric company" in 1968. And she has been in and out of hospitals on a fairly frequent basis since 1973. In fact, the City of New York provided her with a housekeeping aide for three days a week to help her cook and clean because of her apparent inability to get along alone. (Her daughter, who resides in New Jersey, occasionally visits but has her own family to care for.)

 With the foregoing facts in focus, we now examine the rather meager findings and conclusions on which the Secretary relied in denying plaintiff SSI benefits. Tr. 10-16. First, the emphasis on lack of severity in physical impairments is misplaced, even though plaintiff's testimony stressed her physical complaints (except for claustrophobia). The Social Security Act recognizes that mental impairment can also be disabling. 42 U.S.C. § 423(d)(1) (A). Here, two qualified psychiatrists separately examined plaintiff two years apart and arrived at the same diagnosis that she was suffering from an anxiety neurosis with phobic symptoms, particularly those of a claustrophobic nature. Dr. Arnold Mitchell, who examined her in 1973, was of opinion then that plaintiff was not employable and should have psychotherapy "on a continuing basis." Tr. 74. Dr. Eugene Becker, who examined her in 1975, did not state an opinion on employability, but his comment on her need for psychological testing to get to the root of her "multiple symptoms," Tr. 117, is hardly suggestive of any disagreement with Dr. Mitchell regarding her fitness to engage in substantial gainful activity.

 At all events, it is clear from the record that plaintiff is suffering from a mental condition which may or may not be disabling but which was not explored in the De novo hearing. Where, as here, the claimant is unrepresented, it is incumbent on the administrative hearing officer to take a more active role in order to develop sufficient information to resolve that question. Hess v. Secretary of HEW, 497 F.2d 837 (3 Cir. 1974).

 Second, the record also reveals that plaintiff was compelled by injury and illness to leave the long-term employment she formerly held, and strongly suggests her inability to resume such employment. It is axiomatic in this Circuit that a finding of ability to engage in other substantial gainful employment cannot be merely theoretical. Kerner v. Flemming, 283 F.2d 916, 921 (2 Cir. 1960). No attempt was made here to resolve by means of expert testimony this equally important factor in the disability equation what can this claimant really do, taking into consideration her residual physical and mental capacity, her age, education and prior work experience?

 For the foregoing reasons, defendant's motion for summary judgment must be denied, and the case is remanded to the Secretary for the development of additional medical and vocational evidence necessary to determine whether plaintiff's mental condition alone, or combined with other physical impairments, is disabling for Social Security purposes; and, if not, what gainful occupations exist in the national economy for a person of her residual functional capacity.



 A. SIMON CHREIN, Magistrate.

 This is an action brought under § 205(g) of the Social Security Act 42 U.S.C. § 405(g) as incorporated by section 1631(c) of the Act, 42 U.S.C. § 1383(c) to review a determination of the Secretary of H.E.W. denying the plaintiff continued disability benefits under the Supplemental Security Income program (SSI). The plaintiff had been accorded presumptive aid to the disabled from New York State beginning in September 1973 and made retroactive to June 1973 (78).* When the aid to the disabled program was federalized, the plaintiff was converted to SSI effective January 1, 1974 (10). Subsequently, the Social Security Administration determined that the plaintiff had been improperly converted in that the presumption set forth in section 1614(a)(3)(E) did not apply. That section considers individuals as disabled if they are permanently and totally disabled as defined under a particular approved State plan. It was further determined that the plaintiff was not disabled within the meaning of the Act which defines disability as a physical or mental impairment that results from anatomical, physiological or psychological abnormalities determinable by medically acceptable clinical and laboratory diagnostic techniques. The plaintiff received a notice of the change and requested a reconsideration of the determination (10). On October 31, 1974 the plaintiff was notified that upon reconsideration the decision that she was not considered disabled within the meaning of the Social Security Act was affirmed. The plaintiff requested a hearing on the question of her disability and a hearing was held before the Administrative Law Judge (ALJ) on October 30, 1975 (22). The ALJ determined on November 28, 1975 that the plaintiff was not under a disability (10-16) and his decision was approved by the Appeals Council on November 9, 1976 (4-5). The decision by the Appeals Council is the final decision by the Secretary of H.E.W. The question to be decided in connection with this review is whether the determination by the Secretary that the plaintiff is not disabled within the meaning of the Act is supported by substantial evidence.

 The undersigned has carefully reviewed the record submitted by the Secretary and concludes that the Secretary's motion for judgment ...

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