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July 28, 1981

Dalila RODRIGUEZ, Plaintiff,
Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant

The opinion of the court was delivered by: TENNEY

Plaintiff Dalila Rodriguez seeks review of a final decision by the Secretary of Health and Human Services ("Secretary") denying her applications for disability insurance benefits and Supplemental Security Income ("SSI") based on disability. 42 U.S.C. §§ 405(g), 1383(c)(3). The denial of disability insurance benefits is affirmed on the ground that plaintiff has not established that she was disabled during the time that she met the insured status requirements. Id. § 423(a). *fn1" The SSI claim is remanded to the Secretary for a redetermination in light of new and material evidence that was not available at the time the hearing was held before the Administrative Law Judge. Id. § 405(g). *fn2"

Background and Prior Proceedings

Ms. Rodriguez, a forty-three year old woman, filed applications for disability insurance benefits and SSI on June 3, 1976. *fn3" She stated that she suffered from "persistent severe chest pains" which were caused by stab wounds received in 1968 when she was stabbed several times above the heart and on her left side. Tr. at 41, 62. *fn4" She was hospitalized after the stabbing and told that she had fluid in her chest. Id. at 42. Although she continued to feel ill, she returned to work after she was released from the hospital. Id. Ms. Rodriguez last held a job in 1975 when she worked as a floor guard in a discount store. She was fired after approximately three weeks because she became too ill to work. Id. at 39. When she applied for disability benefits, Ms. Rodriguez stated that she had been unable to work since December 1975 and that a doctor had told her to stop working. Id. at 59, 62.

 After her applications for benefits were denied, Ms. Rodriguez requested a hearing on the matter. A hearing was held before an Administrative Law Judge in September 1977. At that time, Ms. Rodriguez was undergoing treatment at the Mount Sinai Hospital outpatient cardiac clinic. She was receiving treatment biweekly and was told to come to the emergency room if she felt very sick. Id. at 33-34. She was taking sorbitrate, *fn5" nitroglycerine, and Tylenol for pain. Id. at 37. She had previously been taking inderal, *fn6" which she stated was for her "heart," and medication for arthritis, but the doctor at the clinic terminated her use of these drugs. Id. Ms. Rodriguez had been going to the clinic for about a month, id. at 33, following an examination at Mount Sinai hospital. Records from the hospital, dated August 16, 1977 through October 13, 1977, indicated possible cardiac ischemia that was treated with isordil. *fn7" Id. at 96-102. The final entry indicated that Ms. Rodriguez missed an appointment at the clinic where she had been referred for further consultation. Id. at 102.

 About one year earlier, in August 1976, Ms. Rodriguez had been examined by an internist at Diagnostic Health Services, Inc. She was then suffering from chest pain, pain and numbness in her left arm, and shortness of breath. Id. at 78. The internist's report lists his "Impressions" as follows: post-stab wounds; pterygium (a thickening of the conjunctiva) in the right eye; respiratory insufficiency; and bursitis in the left shoulder. Id. at 79. A chest x-ray revealed that her lungs were clear and there was no evidence of "cardiac enlargement." Id. at 78. Her muscular skeletal system was normal except for mildly limited rotation of the left shoulder. Id.

 One other medical report submitted at the hearing concerned Ms. Rodriguez's chest pains. In September 1970, she was treated at Metropolitan Hospital for complaints of chest pain on the left side which radiated to the neck.

 The other medical records reviewed by the Administrative Law Judge primarily covered other types of emergency room visits (accidents, cold with fever) and gynecological problems. In February 1977, Ms. Rodriguez spent seventeen days in Arthur C. Logan Memorial Hospital undergoing gynecological tests and procedures (including a fractional D & C) for treatment of a cyst in her right ovary. Id. at 83-90. She was discharged in satisfactory condition, was told to see her doctor in two weeks, and was permitted to engage in moderate physical activity. Id. at 85.

 Ms. Rodriguez, who was not represented by counsel, was the only person to testify at the half-hour hearing. Although she speaks and understands English, an interpreter was requested and supplied because, in her words, "sometimes my English is not so good that I could defend myself. There are some words, and I cannot explain myself in English what the word mean." Id. at 31. In response to a question posed by the Administrative Law Judge, Ms. Rodriguez stated that she lived in a second floor walk-up apartment and had taken the subway from the Bronx to the hearing. Id. at 38.

 Ms. Rodriguez explained that she had lost her last job in 1975 when she became too ill to work. At that time, she experienced severe chest pains, numbness in her limbs, and throbbing in her eyes. Id. at 40. She was hospitalized for about a week, id. at 41, and frequently suffered from pain after that incident. The left side of her neck swells and she has to lie down because she feels so sick. Id. She finds walking difficult, tires easily, and needs help with the housework. Ms. Rodriguez testified that she spent most of her time at home, where she lived with her son and daughter, and did small household chores. She is divorced and, at the time of the hearing, her welfare payments had just been terminated. Id. at 43.

 Ms. Rodriguez applied for a few jobs after losing the floor guard position but received no offers and, furthermore, was unable to go to work. Id. She stated on her Medical History and Disability Report that her doctor told her to stop working after she became ill in 1975. Id. at 62. Her prior employment history is rather sketchy but it appears that she worked on the assembly line at a Westinghouse plant in Puerto Rico, was once employed as a crossing guard, and has made handbags in plastic manufacturing factories. Id. at 39, 42, 64.

 About two months after the hearing, the Administrative Law Judge issued his decision denying benefits to Ms. Rodriguez. On the basis of her official Earnings Record, id. at 60, he concluded that her "last met" date for disability insurance benefits was June 30, 1973 because she did not satisfy the special earnings requirements after that time. Id. at 25. Since she was employed after this date and was able to work until December 1975, she did not qualify for disability insurance benefits under the Social Security Act.

 After reviewing Ms. Rodriguez's testimony and documentary evidence, the Judge asserted that the record "does not evidence any impairment or combination of impairments so severe as to preclude any kind of substantial gainful employment for a continuous period of a year or more." Id. at 25. This conclusion was based on "the lack of any record of sustained complaints or treatment for any severe condition," and on "such indicia of physical fitness for functioning as her hospital discharge summary on February 18, 1977, which states that even then, but two weeks or so after an operation, it was felt that she could engage in moderate physical activity, and (on) her testimony in which she stated that after her last employment in 1975 she filled out several applications for employment." Id. With respect to Ms. Rodriguez's vocational capabilities, the Judge noted that she had "work experience as an assembler" and took "administrative notice of the existence (of) substantial numbers of assembly jobs, including sedentary ones, in the Metropolitan New York area." Id. at 26. He therefore concluded that Ms. Rodriguez's application for SSI disability benefits must also be denied. Id.

 The Administrative Law Judge's ruling became the final decision of the Secretary when it was approved by the Appeals Council in February 1978. In connection with her appeal, Ms. Rodriguez submitted additional medical reports to the Council which were incorporated into the record. Id. at 16-18, 127-28. These records indicated that Ms. Rodriguez was admitted to the Cardiac Intensive Care Unit of Flower and Fifth Avenue Hospitals (New York Medical College) on November 23, 1977 with a condition diagnosed as pulmonary embolism. *fn8" Id. at 127. A physician's report dated December 12, 1977 stated that Ms. Rodriguez was being treated with anti-coagulants for pulmonary emboli and "it is inadvisable for her to return to work at this time." Id. at 128. In affirming the Administrative Law Judge's decision, the Appeals Council concluded that this additional evidence "does not indicate that this new impairment can be expected to incapacitate you for a continuous period of twelve months." Id. at 16.

 Represented by counsel, Ms. Rodriguez requested a reopening of the Appeals Council determination in light of further medical evidence concerning her physical condition. By letter dated December 11, 1978, her request for reopening was denied. Id. at 4. The letter indicated that the following additional evidence had been reviewed to determine whether reopening was warranted: medical records covering Ms. Rodriguez's 1977 hospitalization for pulmonary embolism; April 1978 reports on diagnostic tests that were conducted because of another episode of chest pain; and September 1978 medical records indicating that she was admitted to Metropolitan Hospital for four days complaining of severe chest pains. Id. A progress record dated September 21, 1978 stated that: "Patient develop (sic) chest pains on exertion and walking a few blocks, accompanied by shortness of breath and (illegible)." The record noted that ...

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