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NATIVIDAD ROSARIO v. SECRETARY OF HHS

April 10, 1981

Natividad ROSARIO, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant



The opinion of the court was delivered by: BRODERICK

I.

Plaintiff Natividad Rosario has brought this action seeking review of a decision of the Secretary of the Department of Health and Human Services ("the Department") to terminate her disability insurance benefits as of March, 1978, and to deny her application for Supplemental Security Income based on disability. *fn1"

 Plaintiff has moved for summary judgment, and defendant has cross-moved for judgment on the pleadings.

 For the reasons that follow, the determination of the Secretary is set aside and the matter is remanded for a new hearing.

 II.

 The plaintiff was born in the Dominican Republic, understands no English, and has a second grade education.

 Her prior work history reveals that she worked for two years as a machine operator in a purse factory and for 7 years at a zipper factory as both a machine operator and an inspector. A vocational expert described the purse factory and zipper factory machine work as "unskilled, sedentary to light"; the inspection work at the zipper factory was characterized as "light to moderate" because it required lifting.

 The plaintiff began receiving disability insurance benefits in March, 1976, following a determination that a herniated disc prevented her from working. She sustained an operation on her back (a laminectomy) in August, 1977.

 Plaintiff has also been a patient of a psychiatric clinic since April, 1979. She has been diagnosed as having "Depressive Neurosis with Anxiety." She sees a therapist regularly.

 The Secretary followed plaintiff medically since she first began to receive disability benefits; he determined that she was no longer disabled in January 1978, and terminated her disability benefits in March, 1978. In May, 1978, plaintiff applied for disability benefits under the Supplemental Security Income program. Her applications for SSI disability benefits and for reconsideration of the termination of her disability insurance benefits were denied. A hearing was held on July 24, 1979, where plaintiff was unrepresented by counsel and communicated via an interpreter. The administrative law judge ("ALJ") found that Rosario was not entitled to benefits. The decision was affirmed by the Appeals Council.

 III.

 In determining whether the claimant was eligible for disability benefits, the ALJ was bound, as a matter of law, to consider four sources of evidence: 1) the objective medical facts; 2) diagnoses or medical opinions based on these facts; 3) subjective evidence of pain and disability testified to by the claimant and family or others; and 4) the claimant's educational background, age and work experience. Gold v. Secretary of HEW, 463 F.2d 38, 41 at n. 2 (2d Cir. 1972).

 It is by now well established in this circuit that "subjective pain may serve as the basis for establishing disability, even if such pain is unaccompanied by positive clinical findings or other "objective' medical evidence." Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979) (emphasis in original). Accord, Hankerson v. Harris, 636 F.2d 893 (2d Cir. 1980). *fn2"

 In the instant case, the subjective evidence of the plaintiff's pain "is more than ample to establish her disability if believed." See Marcus ...


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