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April 10, 1981

Natividad ROSARIO, Plaintiff,

The opinion of the court was delivered by: BRODERICK


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.


 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.


 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 v. Califano, supra, 615 F.2d at 27.

 The government's own vocational expert testified that plaintiff would be incapable of performing any of her former jobs "assuming that she has all the physical and mental impairments, limitations, restrictions and pain that she alleges." *fn3" He based his conclusion upon the testimony plaintiff offered with respect to the pain she was experiencing:


A. The basis is the complaints of frequent pain upon minimal exertion, such as walking or going down a flight of stairs, which requires rest according to her testimony; and also the description of interrupted sleep, nightmares, voices that she hears. The frequent rest periods during the day when she says she has to lay down. It would be she would be unable in my opinion to sustain a full work day which would involve the use of public transportation to and from work, and seven or eight hours of work.

 The ALJ discounted the claimant's testimony concerning her discomfort:


This administrative law judge finds the claimant overstated her complaints and does not find her allegations credible. The claimant's treating physician reported that the claimant is unable to work. However, this is a conclusion which might be arrived at by the administrative law judge with weight given to this statement to the extent it is supported by and consistent with all other evidence in the record. As previously indicated, the preponderance of the medical opinion herein reflects that the claimant is capable of light work.

 The ALJ reinforced this view in his second "finding":


2. The claimant's subjective complaints of pain and extreme nervousness are not supported by the medical evidence of record.

 The ALJ has given no justification for discrediting the plaintiff's testimony apart from the divergence between the medical opinions and plaintiff's subjective symptomatology. According to the rule established by Marcus v. Califano, supra, an ALJ is entrusted with discretion to evaluate the credibility of the claimant, and a decision to discredit the claimant's testimony will be upheld if the ALJ has arrived at his determination "after weighing the objective medical evidence in the record, appellant's demeanor and other indicia of credibility..." Id. at 27. On the other hand, it is a ground for reversal as an error of law "if the ALJ did not consider the credibility of (plaintiff's) claims of disabling pain, but instead rejected her claim on the ground that objective, clinical findings did not establish a cause for such pain ..." Id. "(T)he Administrative Law Judge need not accept a claimant's testimony. He may not, however, simply disregard it; he must evaluate the substance of the testimony and make findings with respect to the plaintiff's motivation and credibility." Rosario v. Harris, 492 F. Supp. 414, 418 (D.N.J.1980). Accord, Boyle v. Harris, 506 F. Supp. 294 (E.D.Pa.1980); Mosey v. Califano, 490 F. Supp. 1165, 1168 (W.D.Pa.1980). This duty is consistent with the general rule that "the Secretary has an obligation both to claimants and to reviewing courts to make full and detailed findings in support of his ultimate conclusion." Small v. Califano, 565 F.2d 797, 801 (1st Cir. 1977). Accord, Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931, 95 S. Ct. 1133, 43 L. Ed. 2d 403 (1975); Bryant v. Califano, 484 F. Supp. 213, 215 (S.D.Tex.1980); Cassel v. Harris, 493 F. Supp. 1055, 1056 (D.Colo.1980).

 There is no indication in the ALJ's findings of fact or conclusions of law that, in discrediting plaintiff's testimony, he weighed all of the factors he was bound to consider in evaluating plaintiff's credibility. It is because the ALJ has failed to set forth sufficiently detailed findings underlying his conclusion, *fn4" and because he appears to have rejected the plaintiff's testimony for the sole reason that clinical findings did not establish a cause for the pain she claimed to be suffering that I have set aside the determination of the Secretary. *fn5"

 The appropriate disposition in a case like this where "there are gaps in the administrative record or the ALJ has applied an improper legal standard" is to remand to the Secretary "for further development of the evidence." Hankerson v. Harris, supra, 636 F.2d at 892 (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). See, e.g., Boyle v. Harris, supra. *fn6"

 This case is placed on the suspense docket of this court pending further proceedings of the Secretary.


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