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February 1, 1980

EXIO REYES, Plaintiff, against PATRICIA R. HARRIS, Secretary, Department of Health, Education, and Welfare, Defendant.

The opinion of the court was delivered by: WARD

This is an action brought pursuant to sections 205(g), 221(d) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g), 421(d) & 1383(c) (3), for judicial review of a final decision of the Secretary of Health, Education, and Welfare ("the Secretary") denying plaintiff's applications for disability insurance benefits and for supplemental security income ("SSI"). The Secretary has moved under Rule 12(c), Fed.R.Civ.P., for judgment on the pleadings affirming the administrative determinations. Plaintiff's cross-motion, also for judgment on the pleadings, seeks a remand of this matter to the Secretary for further administrative proceedings. For the reasons set forth below, both motions are denied.

On April 27, 1977, plaintiff filed an application for disability insurance benefits and an application for SSI disability benefits. In both applications plaintiff alleged that he had been unable to work since March 1973. However, the New York State Disability Determinations Bureau found that plaintiff's claimed impairments did not significantly limit his capacity to perform work-related functions, and the Secretary advised plaintiff that he was not entitled to disability insurance or SSI disability benefits. On July 20, 1977, plaintiff requested reconsideration, but the Secretary reaffirmed the earlier decisions.

 Plaintiff subsequently brought his claim to an administrative law judge ("ALJ") for a de novo determination of his eligibility for disability benefits. On April 5, 1978, a hearing was conducted by the ALJ, at which plaintiff appeared and testified. Plaintiff appeared without counsel and without any other person assisting him. An interpreter was present to assist the ALJ should plaintiff have wished to speak in Spanish, his native tongue, but apparently plaintiff decided to present his case in English and the interpreter's services were not used. A vocational expert also was present at the hearing and testified in response to questions asked by the ALJ.

 In a June 8, 1978 decision, the ALJ determined that plaintiff was not under a disability severe enough to entitle him to disability insurance or SSI disability benefits. On August 28, 1978, the Secretary's Social Security Appeals Council affirmed the ALJ's decision, and this action followed.

 The record before the ALJ included plaintiff's applications for disability insurance and SSI benefits, medical reports from four physicians and one psychotherapist, a pathology report and an X-ray report. Three of the five medical reports, and the pathology and X-ray reports, were obtained at the request of the Secretary acting through the New York State Bureau of Disability Determinations. Plaintiff submitted two additional medical reports from his personal physician, Dr. S. R. Patelo, and from his psychotherapist, Dr. Demaris Jacob.

 The reports plaintiff submitted were brief. Dr. Patelo merely listed, by number, plaintiff's eight "problems": (1) hay fever, (2) bronchial asthma with frequent severe attacks, (3) allergies to "many things," (4) hypertension, (5) mild diabetes, (6) severe anxiety or (7) depression, and (8) mild osteoarthritis. Dr. Jacob provided plaintiff with a one-page letter in which he stated that plaintiff had been receiving chemotherapy treatment and attending family therapy sessions for "his nervous condition which includes severe anxiety and depression." Neither Dr. Patelo nor Dr. Jacob offered an unequivocal opinion on the ultimate question of plaintiff's ability to engage in substantial gainful activity. *fn1"

 In his disability insurance and SSI applications plaintiff alleged disability based on diabetes, asthma, high blood pressure, arthritis, a trick knee, pain in his hips and in his kidneys, and nerves. Accordingly, the Secretary had plaintiff examined by Dr. Benjamin Yentel and Dr. James Grossman, specialists in internal medicine and cardiovascular diseases, and Dr. Sidney Elpern, a specialist in neurology and psychiatry. Although none of these physicians offered an opinion on the issue of plaintiff's disability, each provided the Secretary with a detailed report on clinical findings and medical determinations.

 Dr. Yentel, who examined plaintiff on June 10, 1977, measured plaintiff's blood pressure at 162/95, found his ears, eyes, nose and throat to be within normal limits, and observed plaintiff's lungs to be clear to percussion and auscultation with no rales, wheezing or rhonchi present. Plaintiff's spine and joints were found to have a normal range of motion for walking, standing, sitting and bending, except that Dr. Yentel noticed that a laceration over plaintiff's left middle finger caused a slight (5 to 10%) impairment of the finger's motion with a resulting impairment of the ability to grasp. Reviewing plaintiff's X-ray report, Dr. Yentel observed that while there were some minimal osteoarthritic changes around plaintiff's left knee joint, his left hip was within normal limits. Dr. Yentel found that plaintiff's arthritis could not be clinically determined and saw no signs of atrophy. Plaintiff's endocrine system was normal, and Dr. Yentel observed no evidence of edema, trophic changes or gangrene in plaintiff's right or left extremities. Evaluating plaintiff's cardiovascular system, Dr. Yentel found nothing to suggest angina, congestive heart failure, dyspnea or retinal, cerebral or renal involvement. Dr. Yentel concluded that (1) while plaintiff had a history of diabetes mellitus, and had been treated since 1963, there was no systemic involvement; (2) although plaintiff had a history of bronchial asthma, there was no evidence of asthmatic difficulties during the examination; (3) while plaintiff also had a history of hypertension, and had been under treatment for this since 1973, there was no evidence of hypertension during the examination; and (4) though he diagnosed low back syndrome and observed neuralgic pain in plaintiff's joints, plaintiff's range of motion remained normal.

 In a letter dated September 29, 1977, Dr. Grossman reported on his examination of plaintiff. Dr. Grossman measured plaintiff's blood pressure at 190/120 and concluded that plaintiff suffered from moderate systemic hypertension. Noting plaintiff's history of asthma, Dr. Grossman observed plaintiff to be in mild respiratory distress with audible wheezing and diagnosed moderate bronchial asthma. Dr. Grossman saw no evidence of retinal, cerebral or renal involvement, and a pulmonary test revealed minimally reduced vital capacity with a fair response after bronchodilators were applied. A neurological examination of plaintiff revealed nothing unusual, and Dr. Grossman read plaintiff's electrocardiogram as normal and saw no evidence of congestive heart failure. Plaintiff's chest pain did not appear to be anginal in nature. Aware of plaintiff's history of diabetes and having measured plaintiff's blood sugar as slightly elevated, Dr. Grossman diagnosed mild diabetes mellitus which he determined could be treated by diet alone.

 Dr. Sidney Elpern examined plaintiff on August 18, 1977. Plaintiff complained to Dr. Elpern of dizziness, allergies, headaches and emotional and nervous disorders. He informed the physician that his dizzy spells often resulted in a loss of consciousness and that he was subject to spells of crying. Dr. Elpern noted that plaintiff's complaints were "expressed with great emotion and tearfulness" and observed that plaintiff was "obviously highly neurotic and probably depressed." But, although a specialist in psychiatry, Dr. Elpern did not report on the results of any evaluation of plaintiff's psychological difficulties; apparently no such evaluation was undertaken.

 What Dr. Elpern's examination did reveal was that plaintiff displayed no sign of organic brain disease and had normal cerebral electrical activity. The electroencephalogram analyzed by Dr. Elpern revealed a well-organized pattern with no abnormal potential. Dr. Elpern observed no muscle atrophy, equal and active deep tendon reflexes, and normal plantar reflexes. However, as a result of plaintiff's poor cooperation Dr. Elpern was unable to perform a reliable sensory examination. In addition, Dr. Elpern could not determine the nature of plaintiff's blackouts, although he thought they might be caused by hyperventilation syndrome.

 Plaintiff's administrative hearing lasted approximately seventy minutes. At the outset the ALJ noted that because plaintiff was appearing without representation it was his duty as presiding officer to assist plaintiff at the hearing. *fn2" After admitting the exhibits in plaintiff's claim file into evidence, the ALJ proceeded to question the claimant. The interrogation does not appear to have been overly fruitful, however, for, while the ALJ learned about plaintiff's daily activities, means of support (absent disability benefits), and past employment, the ALJ uncovered little about the basis of plaintiff's claim of inability to work. Though plaintiff was asked about each of his alleged ailments, the ALJ's inquiries did not elicit testimony from plaintiff on the reasons why plaintiff believed these medical and psychological difficulties kept him from working.

 The ALJ carefully questioned plaintiff on the physicians he had seen and on the clinics and hospitals he had visited. Plaintiff's responses revealed that there were no reports in the administrative record from the following: Dr. Flores, a physician whom plaintiff had seen on at least one occasion; the Veterans Administration Hospital, where plaintiff had been examined in July 1977; and the Martin Luther King and Matalorca Clinics, each of which plaintiff had visited a number of times. The ALJ, however, did not inform plaintiff that the Social Security Administration would attempt to obtain reports from Dr. Flores, the hospital and the clinics, nor did the ALJ suggest that plaintiff himself obtain these reports. *fn3"

 A vocational expert, William Mooney, testified at the hearing. The ALJ asked the expert to assume that plaintiff had normal ability to walk, stand, lift, sit, bend, grasp and manipulate his hands, that plaintiff could use public transportation, and that plaintiff suffered from moderate asthma, moderate hypertension and mild diabetes. Based on these assumptions, and considering plaintiff's age, education and work experience, Mr. Mooney testified that plaintiff could return to his former work as taxicab driver as well as engage in other light work activities. However, in evaluating plaintiff's capability to resume driving a taxicab, the vocational expert apparently did not take into ...

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