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January 16, 1980


The opinion of the court was delivered by: SAND

This is an action brought under the Social Security Act, 42 U.S.C. § 405(g) (the "Act") to review a final determination of the Secretary of the Department of Health, Education and Welfare (the "Secretary") who determined that plaintiff is not disabled within the meaning of 42 U.S.C. § 423(d)(1)(A), § 223(d)(1)(A) of the Act as amended. *fn1" Plaintiff asserts that this Court should order that the matter be remanded for consideration of "new evidence". Plaintiff's Memorandum of Law at 4-7. The issue before this Court is thus whether plaintiff has met her statutory burden of demonstrating "good cause" for such a remand. *fn2"

The Court concludes that this case should be remanded to the Secretary.


 A. Prior Proceedings

 On October 28, 1976, plaintiff Lucy Rivera applied for Supplemental Security Income "SSI"), and on December 1, 1976, she filed for Social Security disability insurance benefits. (Tr. 46-53). *fn3" On February 25, 1977, the Secretary informed plaintiff that her application for SSI benefits had been denied, and on February 27, 1977, the Secretary denied plaintiff's application for disability benefits. (Tr. 54-55). On March 3, 1977, plaintiff requested that the Secretary reconsider these determinations and on May 12, 1977, the Secretary reaffirmed the decisions. (Tr. 61-63). On May 18, 1977, plaintiff requested a hearing ("the hearing") concerning these determinations, which hearing was held before an administrative law judge ("ALJ") of the Bureau of Hearings and Appeals on September 8, 1977. (Tr. 65, 29). Plaintiff was not represented by counsel at the hearing. On November 14, 1977, ALJ Milton Pravitz found that plaintiff was not disabled and was also not entitled to SSI benefits. (Tr. 23). On February 6, 1978, the Appeals Council affirmed the decision of the administrative law judge.

 Counsel for plaintiff thereafter requested an extension of time within which plaintiff could commence a civil action challenging this decision. The reason stated for this request was to allow plaintiff "to secure additional information from her treating psychiatrist, K. L. Clark (sic), M.D., to support a possible request for remand or for reopening." (Tr. 8). In subsequent correspondence of October 19, 1978 with the Department of Health, Education and Welfare, plaintiff's attorney elaborated upon his request for an extension of time and his difficulties in obtaining supporting documents necessary for a remand. He indicated that he:

"(first) wrote to Ms. Rivera's source of psychiatric treatment, the Lincoln Community Mental Health Center, on March 16, 1978. . . . The clinic's response to this letter was substantially delayed due to uncertainty on the part of Ms. Rivera's treating psychiatrist, Dr. K. L. Clark (sic), as to whether disclosure of such information might violate privacy provisions of the N.Y. Mental Hygiene Law. When a response was finally made on April 20, 1978, it consisted solely of a completed residual functional capacity form (the supplemental questionnaire) devoid of any supporting diagnostic or other clinical information." (Tr. 4).

 On December 4, 1978, the Appeals Council granted plaintiff's request for an extension of time. At the same time, the Council informed plaintiff's attorney that after consideration of the plaintiff's questionnaire, it found "no basis for changing its prior action" and the decision of the Secretary was therefore final. (Tr. 3).

 On February 2, 1979, plaintiff commenced this action challenging the decision of the Secretary insofar as it denied plaintiff's claim for disability benefits.

 B. Non-Medical Evidence Concerning Plaintiff's Disability

 Plaintiff is a 51 year old woman with a sixth grade education who has worked for 23 years in a variety of jobs, including cleaning swim suits in a swim wear factory, putting paper towels in a dispenser, filling bottles with oil in a plant, and applying rhinestones on materials. Her last employment, which ended in May, 1976, was as a busgirl in a fast food restaurant. Plaintiff testified at the hearing that she was forced to leave this job, as was the case with respect to all her previous jobs, because of her asthma and shortness of breath. (Tr. 33-38).

 Plaintiff is 4'10 tall and weighs approximately 188 pounds. (Tr. 157). She testified that she has been suffering from asthma for 20 years (Tr. 35) for which she is currently taking medication. (Tr. 41). She also stated that she is under treatment and taking medication for her nerves: "They have been treating my nerves because I feel very excited, very excited, from my nerves." (Tr. 40). She indicated that she

"cannot work anymore, because of the very strong anemia and the type of tiredness I feel. I feel depressed. I feel like I don't want to do anything. And, during the day I get very nervous."

 (Tr. 43). She said that she feels particularly nervous when in proximity with other people because she has been ...

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