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September 22, 1982

JOSE RIVERA, Plaintiff,
RICHARD S. SCHWEIKER, Secretary of Health and Human Services, Defendant

Haight, District Judge.

The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge:

 Plaintiff Jose Rivera brought this action pursuant to §§ 205(g) and 1631(c) (3) of the Social Security Act, as amended (the "Act"), 42 U.S.C. §§ 405(g) and 1383(c) (3), for review of a final determination of the Secretary of Health and Human Services (the "Secretary"), which denied plaintiff's applications for disability insurance benefits and Supplemental Security Income ("SSI"). Plaintiff moves pursuant to Rule 12(c), F.R.Civ.P., for judgment on the pleadings. Defendant cross-moves pursuant to Rule 12(c), for affirmance of the Secretary's decision and a dismissal of the complaint. Since matters outside the pleadings have been presented, specifically the transcript ("Tr.") of certain of the proceedings below, I treat this motion as one for summary judgment pursuant to Rule 56, F.R.Civ.P., see Crespo v. Harris, 484 F. Supp. 1167 (S.D.N.Y. 1980). For the reasons stated, summary judgment is granted for plaintiff, and defendant's motion is denied.


 On December 6, 1977 plaintiff filed an application for disability insurance benefits and SSI, alleging that he was disabled due to an "emotional disorder" and an ulcer (Tr. 85). On February 20, 1978 the Secretary denied his applications, finding that plaintiff had not established his disability. On March 17, 1978 Rivera filed a request for reconsideration of the Secretary's denial of benefits. Upon reconsideration, the Secretary affirmed the denial of benefits (Tr. 92, 100-104). Rivera subsequently requested a hearing with the Secretary's Bureau of Hearings and Appeals (Tr. 29) which was held on October 11, 1978 before an Administrative Law Judge ("ALJ"). Plaintiff, who was represented by counsel, testified as to how his background, his medical history and his physical and mental condition rendered him unable to work. The only other witness at the hearing was a vocational expert, William Mooney (Tr. 220).

 On April 11, 1979, the ALJ denied plaintiff's application for disability insurance benefits and SSI upon finding that he was not disabled within the meaning of the Act. Rivera's request to the Secretary's Appeals Council to review this decision (Tr.6) was denied on July 5, 1979 (Tr.5). The decision of the ALJ thus became the final decision of the Secretary and is reviewable by this Court under 42 U.S.C. §§ 405(g), 1383(c) (3).


 Plaintiff is a 46 year old male who came to the United States from Puerto Rico in 1950 (Tr.13, 36). While his proficiency in the English language is considerable and expanding (Tr. 39), Rivera's formal education ended at the third grade. He has never enrolled in any specialized training courses (Tr. 13, 39).

 Rivera's employment history consists of unskilled or semi-skilled jobs which lasted from a few months to two years (Tr. 41). These positions required either an ability to operate a machine or the physical capacity to do heavy lifting (Tr. 39-43, 66, 67). Claimant was last employed in 1967 as a machine operator in a handbag factory (Tr. 39).

 Plaintiff claims that the onset of a nervous breakdown in 1967 caused him to cease working. His continuing psychological problems have caused him to separate from his wife (Tr. 37-38) and four children (Tr. 96-98).

 Plaintiff started treatment for his alleged emotional disorder at Bronx State Hospital in 1967. He subsequently sought psychiatric care in January 1968 at Bellevue Psychiatric Hospital ("Bellevue") (Tr. 233). The Administrator of Psychiatry found plaintiff to be "extremely agitated and tremulous, incoherent and in a panic." The medical abstract states that, according to his family, plaintiff was neither violent nor assaultive. He appeared to be experiencing "paranoid ideation," despite the fact that he neither exhibited paranoid traits nor experienced hallucinations or delusions. The abstract also noted that plaintiff was oriented in the three spheres and that his physical condition was within normal limits. He had had a history of psychiatric hospitalization some ten years earlier. At the time of his discharge, plaintiff was diagnosed as having an anxiety reaction, "not psychotic" and "improved." Neurological tests taken at Jacobi Hospital's Emergency Room were found to be negative, and therefore normal (Tr. 57, 235).

 Approximately three weeks after his discharge from Bellevue, plaintiff was admitted as an in-patient to Bronx State Hospital. The hospital records describe plaintiff's behavior just prior to admission as depressed and acutely agitated. He became concerned with "things looking dirty" and was frequently found washing the walls and floors. Plaintiff became both anoretic and insomniac, and exhibited depression as well as somatic preoccupations. The attending psychiatrist made a temporary diagnosis of incipient schizophrenia. Aggressive treatment, consisting of extensive drug and electroconvulsive therapy, was required because of "plaintiff's stormy hospital course" (Tr. 237). On final diagnosis, plaintiff was characterized as a chronic reactive depressive with anxiety in a borderline personality.

 Although he was discharged in an improved condition, plaintiff was readmitted six months later to Bronx State Hospital. He again exhibited chronic reactive depressive tendencies and adjusted poorly to hospital routine (Tr. 238). Suicidal precautions were advised (Tr. 239). While noting the patient's concern with planets, monsters and science fiction, plaintiff's attending physician stated that he was well oriented with good memory and average intelligence, but that insight and judgment were impaired. Rivera was discharged from leave without consent status on January 20, 1969 in an improved condition (Tr. 240).

 Plaintiff has also had extensive contact with the Bronx-Lebanon Hospital Center ("Bronx-Lebanon"). He has used its out-patient services since June, 1968 (Tr. 132, 217, 225, 243), and was receiving treatment from Bronx Lebanon at the time of the hearing (Tr. 54-55). Upon the completion of a ninety-day daily therapy program, plaintiff engaged in treatment requiring group psychotherapy and chemotherapy (Tr. 55-56). The psychiatric resident felt that Rivera's emotional status rendered him unable to assume childrearing responsibilities (Tr. 132). Additionally, in a letter to the Social Security Administration dated March 15, 1978, the physician in charge of the day hospital stated that the plaintiff's prognosis was poor and that he was unemployable. Rivera's poor prognosis was confirmed by another psychiatrist and social worker at the day center.

 Plaintiff was also a patient at the Dr. Martin Luther King Health Center (the "King Center"). On December 11, 1973, Dr. Kuebler, a member of the team of physicians who had treated Rivera, stated that he had a history of severe psychologic disease which had rendered him unable to work (Tr. 129). Plaintiff was diagnosed by another physician as possessing an anxiety/depression (chronic) borderline character disorder, and a chronic peptic ulcer disease (Tr. 130). Plaintiff was receiving care for these ailments at the King Center and the Bronx-Lebanon Psychiatric Clinic in the latter portion of 1978.

 Rivera took the following prescription drugs during the course of his treatment to alleviate or reduce the mental and physical symptoms he experienced: Librium and Darvon (Tr. 137), Thorazine (Tr. 151, 154, 155, 156, 158), Dormatol (Tr. 152, 164), Ethyl Chloride (Tr. 153, 163), Valium ...

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