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September 3, 1981

Donald Joseph KOZACZKA, Plaintiff,
Richard SCHWEIKER, Secretary, Department of Health and Human Services, Defendant.1

The opinion of the court was delivered by: ELFVIN


This is an action to review the Secretary's denial of plaintiff's applications for disability insurance benefits and supplemental security income ("SSI"). 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have moved for summary judgment. I have concluded that the Secretary's decisions must be reversed and the case remanded for further proceedings.

 In August, 1973 the Erie County (N.Y.) Department of Social Services found that plaintiff was disabled due to a personality disorder, seizure disorder and chronic alcoholism. Thus, plaintiff began receiving SSI benefits on a "rollback" basis when the SSI program went into effect January 1, 1974. He subsequently was notified that the Social Security Administration ("the SSA") no longer considered him eligible to receive SSI. Upon reconsideration, the SSA adhered to its decision that plaintiff was not disabled and so notified him in a letter dated December 9, 1974. Plaintiff requested an administrative hearing but then waived his right to appear and requested a decision based on the medical record. The Administrative Law Judge ("the ALJ") concluded in a written decision dated April 8, 1975 that plaintiff was not disabled. Plaintiff did not appeal the decision to the SSA's Appeals Council.

 Plaintiff then filed an application for disability insurance benefits in which he claimed to be disabled, beginning in 1966, due to emphysema and seizure disorders. Plaintiff subsequently changed the purported date on which his disability arose to March 1970. His application was denied June 20, 1979. Plaintiff filed a request for reconsideration of said denial July 26, 1979 and, at the same time, filed an application for SSI. Apparently, the SSA elevated plaintiff's SSI application to the reconsideration level due to the pendency of his request for reconsideration of his application for disability insurance benefits. Upon reconsideration the SSA issued notices denying plaintiff's claims for SSI and disability insurance benefits August 31, 1979 and September 2, 1979, respectively. Plaintiff requested an administrative hearing, which was held January 24, 1980. The ALJ issued a written decision February 8, 1980 denying both applications. This decision was affirmed by the SSA's Appeals Council June 16, 1980 and thereby became the Secretary's final decision.

 An individual who is under a disability is entitled to receive disability insurance benefits provided that he is insured for such benefits, is under sixty-five years old and files an appropriate application. 42 U.S.C. § 423(a) (1). For the purposes of determining an individual's eligibility for disability insurance benefits, a disability is defined as:

"inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months * * *." 42 U.S.C. § 423(d)(1)(A).

 An individual is disabled only if his impairments are so severe that he is prevented from performing his previous work and any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). See, Parker v. Harris, 626 F.2d 225, 230 (2d Cir. 1980). Plaintiff last met the insured status requirement imposed for receipt of disability insurance benefits in June, 1973. Therefore, in order to receive such benefits, plaintiff must establish that he was disabled as of that date.

 SSI is a federal program which provides benefits to aged, blind and disabled persons who have limited income and resources. 42 U.S.C. § 1382(a). The standard of disability under SSI "is virtually identical to the definition of disability used in disability insurance benefits cases * * *." Hankerson v. Harris, 636 F.2d 893, 895, n.2 (2d Cir. 1980). See, 42 U.S.C. § 1382c(a)(3) (A). In either case, the evidence which must be considered in making a determination whether an individual is disabled includes: (1) objective medical facts; (2) diagnoses and medical opinions based on such facts; (3) subjective evidence of disability, such as the individual's testimony regarding pain and discomfort; and (4) the claimant's educational background, age and work history. Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980); Marcus v. Califano, 615 F.2d 23, 26, n.2 (2d Cir. 1979); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).

 Plaintiff was born in 1939 and received an eighth-grade education. He served in the United States Navy where he performed metal work on jet aircraft. He has also worked as a switchman for the Hanna Furnace Company and has been self-employed as a painter and carpenter. Plaintiff last worked in 1970. He has a long history of medical impairments such as chronic bronchitis, pulmonary emphysema, grand mal seizure disorder, alcoholism, esophagitis and gastritis. He has also suffered from anxiety, depression, paranoia and suicidal and homicidal ideation, and has been characterized as having an explosive personality.

 Plaintiff was admitted to Our Lady of Victory Hospital in Lackawanna, N.Y. five times between 1966 and 1970. He exhibited symptoms such as nausea, abdominal pain and lightheadedness and was diagnosed as suffering from a chronic duodenal ulcer, chronic bronchitis, peptic esophagitis, pulmonary emphysema and seizure disorder. A vagotomy and a gastroenterostomy were performed in 1966. Plaintiff was admitted to the Veterans Administration Hospital in Buffalo, N.Y. from April 11, 1974 to July 19, 1974 due to nervousness, alcoholism and gastric disorders. He was also admitted to Our Lady of Victory six times and to the Veterans Administration Hospital twice from 1975 to 1979. His longest admission was at the Veterans Administration Hospital from January 27, 1979 to June 29, 1979. It appears that he suffered from abdominal disorders, chronic bronchitis, pulmonary emphysema, alcoholism and psychological problems throughout this period.

 The record contains statements from three physicians that plaintiff is disabled. Dr. JK, who has been plaintiff's treating physician since 1966, has consistently opined that plaintiff is disabled. Exhibit B-45. In a letter to the ALJ dated January 24, 1980, he stated:

"On the basis of my seeing (the plaintiff) for about the last twelve years, I can state that (the plaintiff) is incapable of working now and has been incapable of working since 1969 * * *. (Plaintiff's) personality disorder, seizure disorder, bronchitis, emphysema, gastritis, esophagitis and chronic anxiety reaction prevent him from gaining or maintaining employment.
"My examinations of this patient reveal a severe impairment. His physical conditions are exacerbated by his psychological conditions. * * *
" * * * (Plaintiff's) infirmities are disabling as to employment from July 1969 to the ...

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