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February 8, 1980


The opinion of the court was delivered by: KNAPP


Plaintiff, proceeding pro se, has brought this action pursuant to section 205(g) of the Social Security Act ("the Act"), as amended, 42 U.S.C. § 405(g), to review a final determination of the Secretary of Health, Education and Welfare ("the Secretary") which denied plaintiff's application for a period of disability and for disability insurance benefits under sections 216(i) and 223(d)(1) of the Act, as amended, 42 U.S.C. §§ 416(i) and 423(d) (1). Defendant has moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings affirming the Secretary's decision and dismissing the complaint. As matters outside the pleadings have been presented, specifically the transcript of the record relating to plaintiff's application ("Tr."), we treat this motion as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For reasons set forth in this opinion, defendant's motion is denied, and on our own motion we grant summary judgment for plaintiff.


 Plaintiff is a thirty-six year old native of Puerto Rico who came to the United States at the age of thirteen. He has a second grade education, and only a limited knowledge of the English language. He presently lives in the Bronx, New York, together with his wife (or common law wife) and three children. Since the age of fourteen he has worked at various unskilled jobs which included being a material handler for a printer, a cleaner-polisher for an appliances manufacturer, and a handyman in a tile factory. He was last employed as a porter and handyman until October 16, 1975, when he fell and was injured while on the job.

 As the result of that accident, according to Henry Fleck, M.D., a physician who examined him approximately one year later, plaintiff contracted an irreversible impairment of his left hand which has rendered it permanently "useless as a working tool." (Tr. 126) In addition, plaintiff complains of other severe physical and psychological infirmities which he claims were caused by the accident: He alleges that he has difficulties walking, and that he suffers from back pains and a nervous condition.

 On December 22, 1976, plaintiff underwent a psychiatric examination by Hugo M. Morales, M.D., who diagnosed "Anxiety Disorders." According to Dr. Morales, plaintiff's "major disabling factor seems to be related to his physical condition plus some anxiety manifestations, feelings or restlessness, inadequacy, and frustration." He concluded that if plaintiff's "physical condition does not improve in the near future, it is quite possible that a more definite neurotic condition could be developed, complicating the outcome of the case." (Tr. 141)

 Subsequently in a report dated March 2, 1978, another psychiatrist, Gerardo P. Gonzalez, M.D., who had treated plaintiff for a prolonged period of time beginning November 1, 1977, diagnosed his condition as "Depressive Neurosis," stating: "It is my opinion that the patient's physical disability has been a major factor in precipitating his present mental status, complicated with serious drinking habit to which he resorts at times to compensate his inadequacy and frustration." (Tr. 128) More recently, in a report dated January 11, 1979, Dr. Gonzalez wrote (Tr. 143):

"On March 2, 1978 I sent you a report of (plaintiff's) history, mental status diagnosis and my opinion about patient's disability.
"Subsequently the patient continued attending to (sic ) my office for his treatment regularly. Presently he is obsessively preoccupied about his inability to be engaged in a substantial gainful job owe (sic ) to his physical disability, being unable to provide for his family adequately.
"This persistent external stress maintains and reinforces patient's depression and frustration and a possible deterioration of the patient's mental status leading to an overt psychosis and frank suicidal attempts are foreseen. For these reasons he is in need of a continued psychiatric treatment for an undetermined period of time."

 The Administrative Hearing

 This is plaintiff's second application for disability insurance benefits under the Social Security Act. A prior application was denied on July 14, 1977, by the Administrative Law Judge ("ALJ"), and this decision was affirmed by Judge Conner of this District on October 13, 1978. Crespo v. Department of Health, Education and Welfare (S.D.N.Y.1978) 77 Civ. 4963.

 Plaintiff requested a hearing on his second application, and one was held on January 15, 1979, before the ALJ. At this hearing, plaintiff, who was then represented by counsel, amended his application to reflect an onset date of July 15, 1977, the day after the ALJ's denial of the original application. (Tr. 31) Plaintiff testified about his background, his physical and mental condition, and his inability to work, stating, among other things, that: His injured hand was causing him severe pain (Tr. 41); he felt humiliated and rejected by his friends as the result of his condition (Tr. 40-41); he had become excitable and forgetful (Tr. 37); and he had to take pills prescribed by Dr. Gonzalez for his pain and nerves, and to help him sleep (Tr. 37, 42, 44).

 The only other witness at the hearing was Arthur I. Bierman, a vocational expert and director of the Bureau of Vocational Rehabilitation. He testified that: He had made studies of the vocational potentialities of individuals with various type of impairments, including the combination of physical and psychological impairments from which plaintiff claimed to be suffering (Tr. 57); plaintiff would not be able to resume his prior work activity (Tr. 59); and if plaintiff had all the limitations, restrictions and pain that he had claimed to have in the course of his ...

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