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January 7, 1982

Bernardo SANTIAGO, Plaintiff,

The opinion of the court was delivered by: KNAPP


Plaintiff and defendant cross-move for judgment on the pleadings in this action brought under Sections 1631(c)(3) and 205(g) of the Social Security Act, as amended, 42 U.S.C. §§ 1383(c)(3) and 405(g) (the Act), to review a final determination of the Secretary of the United States Department of Health and Human Services (the Secretary), denying plaintiff's applications for a period of disability and disability insurance benefits, and Supplemental Security Income (SSI) benefits. We treat these motions as motions for summary judgment pursuant to Fed.R.Civ.P. 56 because matter outside the pleadings, specifically the transcript of the record relating to plaintiff's application under the Act (Tr.), has been presented. For reasons which follow, both motions are denied and we remand to the Secretary for further proceedings consistent with this opinion. Furthermore, we place this case on the suspense docket pending the completion of such proceedings, with leave for either party to reinstate the case to the active calendar on ten days notice.


 Plaintiff's application for disability insurance benefits was denied initially on December 4, 1978 (Tr. 60-61), and on reconsideration on May 30, 1979 (Tr. 63-65). Plaintiff also filed an application for SSI benefits (Tr. 66-70) which was denied initially on July 27, 1978 (Tr. 71) and on reconsideration on May 14, 1979 (Tr. 72-74). On May 22, 1979 plaintiff requested a hearing to review both applications (Tr. 75-76), which hearing was held on January 30, 1980 (Tr. 35-55). The decision of the Administrative Law Judge (ALJ) finding the plaintiff not to be under a disability (Tr. 11-15) was filed July 16, 1980 and became the final decision of the Secretary when it was approved by the Appeals Council on November 17, 1980 (Tr. 4-5). Plaintiff, represented by counsel, filed an action in this Court to review the Secretary's decision on January 14, 1981.

 The plaintiff-a native of Puerto Rico whence he came to the mainland in 1974 (Tr. 40)-is now close to 60 years old. He testified that his date of birth was July 20, 1922 (Tr. 40) although his initial application for Disability Insurance Benefits (Tr. 56-59) shows his birthdate to be April 20 of that year. Plaintiff has an uninterrupted earnings record between 1955 and 1976 (Tr. 77) and he alleges that emphysema and arthritis have disabled him since November of 1976. His earnings record also shows that he met the special earnings requirements of the Act through December 31, 1980; insured status, however, is not a consideration for entitlement to SSI.

 Plaintiff's previous employment was that of a foreman and a pipe-worker in Puerto Rico. He testified to being a working supervisor (Tr. 46) of a crew of twelve other pipe-workers in the petroleum industry (Tr. 45). Although he would assign jobs to the other men he would himself do the very same work (Tr. 46), which involved lifting pipes of up to 200 pounds (Tr. 46) and repairing them under physically trying conditions-apparently in off-shore waters (Tr. 45). He succinctly described his job as "brute work" (Tr. 45). Plaintiff appears unable to read or write in English-he required an interpreter at the hearing (Tr. 37)-and his formal education ended, so he testified (Tr. 40), in the sixth grade in Puerto Rico.

 At the hearing plaintiff complained of severe pain in his spinal column, with manifestations in his legs and hands (Tr. 40, 47). He further complained that there were times when he is "short of breath and unable to breathe." (Tr. 41). Plaintiff also claimed that he could not return to his former job because the pain would prevent him from lifting any weight at all. He testified that he could stand only for about fifteen minutes before the pain starts and that he could walk only for about one hundred feet, but with great difficulty. He further testified that he could sit only for about twenty minutes and that while sitting he tries to support himself on his arms to relieve the pain (Tr. 46-47). Plaintiff also testified that "some lumps seem to come out" in the back of his knees interfering with his ability to get about (Tr. 49). He stated that the medication he takes alleviates the pain only to a moderate degree, but that it causes a burning sensation in the stomach as well as some dizziness (Tr. 47).

 Plaintiff's daughter-Ms. Ada Zartlow-also appeared at the hearing on behalf of her father, stating that he often complained of pain (Tr. 53) and that "the lady that lives next to my mother have been taking care of my father helping him getting dressed and undressed" (Tr. 52).

 The medical evidence in the record before us is inconclusive. Records from Bronx-Lebanon Hospital indicate that in July of 1976 there was some evidence compatible with degenerative joint disease and moderate osteoarthritis of both knees. However, plaintiff's lungs were clear, and he had no swelling of the joints. In late 1977 a small cystic lesion was noted on the back of his right knee (Tr. 119). Further entries indicate that plaintiff should "avoid bending, lifting, pushing, pulling and long time standing up on job" (Tr. 103), yet that his neck is supple and that osteoarthritis had stabilized (Tr. 108). An X-ray report of December 1977 shows heart strictures to be within normal limits and lungs to be substantially free from infiltrates or abnormal calcifications (Tr. 124). The last available Bronx-Lebanon records-April 1978-show clear lungs, a normal heart rate, and normal throat and neck. But the primary diagnosis continues to be osteoarthritis (Tr. 129).

 Dr. Wadid Mauad submitted two brief notes dated June 12, 1978 and January 24, 1979 concluding that the plaintiff was unable to work because of emphysema and arthritis (Tr. 143, 146). Dr. Mauad also submitted a report dated August 30, 1978 stating that chest X-rays showed emphysema and that X-rays of the joints showed osteoarthritis in an advanced state. He concluded that plaintiff could neither bend or kneel nor perform more than limited fine and gross hand motions. (Tr. 144-45). However, he also stated that plaintiff was able to sit and stand for 10 minutes, walk 2 blocks, climb up to 3 flights of stairs, and lift and carry up to 5 pounds (Tr. 149-50).

 Dr. Jules Koch, a board-certified internist, examined plaintiff in late November 1978 and found plaintiff's head, neck, and heart to be normal and his lungs clear. Pulmonary functions were normal and the spine showed minimal degenerative changes. All joints were mobile although there was a large cyst on the right knee. Dr. Koch found no clinical evidence of muscle, bone, or lung pathology (Tr. 130-40).

 The Appeals Council also considered a short statement from Dr. Bard Miller dated September 23, 1980 in which he states that he had been treating the plaintiff since June 1979 for chronic low back pain, and that a duodenal ulcer, which caused pain and decreased appetite, had been discovered in June 1980 (Tr. 169).


 In his decision that the plaintiff was neither entitled to a period of disability or disability insurance benefits nor eligible for SSI ...

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