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October 19, 1983

Lillian EDWARDS, Plaintiff,

The opinion of the court was delivered by: WEINSTEIN


 WEINSTEIN, Chief Judge:

 Plaintiff had been receiving supplemental security income ("SSI") since January 1, 1974. Her benefits were terminated when the Secretary of Health and Human Services decided that as of November, 1981 she was no longer disabled within the meaning of the Social Security Act. The Secretary's determination rests on a decision by the Administrative Law Judge ("ALJ") who presided over a de novo hearing on plaintiff's claim that she continues to be disabled. The ALJ's decision became the Secretary's final determination when it was approved by the Appeals Council.

 Reversal of the decision is sought on the grounds that it is contrary to law and unsupported by substantial evidence; and that the ALJ 1) failed to apply this Circuit's legal standards for evaluating the medical conclusions of a claimant's treating physician; 2) did not develop the evidence on which the decision was based; 3) neglected to assist an unrepresented claimant in producing evidence that favors her claim; and 4) ignored substantial evidence of disability.

 Since plaintiff was without counsel in this court as well as in the administrative phases of her case an attorney from the court's pro bono panel was appointed. The panel consists of volunteers who devote their legal skills to aid those too poor to afford a lawyer. Private contributions support a fund to pay for some of the expenses of the litigation. A public corporation, the Eastern District Civil Litigation Fund, Inc., administers these funds. In this case it made available enough money to permit a post-ALJ hearing evaluation by a doctor that fully confirmed, what the record before the ALJ established, that plaintiff's medical condition was completely disabling.

 Plaintiff has offered in this court to produce new evidence at a future hearing before the ALJ, including medical records subsequent to her hearing and four hospitalizations in the last four months. Such an additional hearing is not necessary. The records before the ALJ substantiated Ms. Edwards' own testimony, the conclusions of her treating physician, medical records and circumstantial proof. This evidence demonstrates that the ALJ was wrong when he concluded, without any warrant in the record, that plaintiff's condition had improved since the original determination of disability in 1974 and was improving. Given the presumption of accuracy in the 1974 disability decision of the Secretary and the degenerative nature of her condition, in addition to overwhelming proof of current disability, the ALJ's finding that she is now capable of working is explicable only by reference to budgetary considerations, not by any valid legal or medical criteria.

 A remand to the Secretary for reconsideration of all the evidence would serve no purpose. When the proper legal standards are applied, there is more than enough evidence on the record to mandate a determination of disability. In addition, there are no gaps in the record for which the Secretary can be expected to produce evidence of non-disability. Consequently the Secretary's decision denying continuing SSI benefits must, for the reasons indicated below, be reversed.


 Lillian Edwards was born in June of 1928 in Brooklyn, New York. Following her graduation from high school she worked steadily at a variety of relatively low-level jobs as a secretary and cashier.

 In 1969 she had a total cystectomy (removal of urinary bladder) and a radical hysterectomy (removal of the uterus and nearby tissue) required by cancer of the cervix. She had already submitted to prolonged radiation therapy. An ileostomy (surgical opening of the abdomen to create an artificial anus so that the contents of the small intestine can be discharged) was performed at the same time. Subsequent to this surgery, and as an unavoidable result of it, Ms. Edwards became subject to recurrent attacks of pyelonephritis (inflammation of the kidneys and kidney pelvis). This resulted in further operations in 1972 and 1974 for surgical revision of urethral implantations.

 In January of 1974 Ms. Edwards was determined by the Secretary to be disabled and began receiving SSI benefits. Her kidney disorders continued, with frequent hospitalizations. In 1976 her right kidney was removed due to renal failure from the pyelonephritis.

 By letter dated February 2, 1982, Ms. Edwards was notified by the Social Security Administration that she was no longer considered disabled. This letter was apparently predicated on a cost-cutting program by the Secretary. See, e.g., Lopez v. Heckler, 713 F.2d 1432, 1434, n. 3 (9th Cir.1983), reversed, 463 U.S. 1328, 104 S. Ct. 10, 77 L. Ed. 2d 1431 (Rehnquist, Circuit Justice, 1983); Report of the Senate Subcommittee on Oversight of Government Management on the Senate Governmental Affairs, noted in the New York Times, Sept. 29, 1983, A18; remarks of Senator Cohen, 12 Congressional Record, S13209, Sept. 29, 1983; "New York and Other States Flout U.S. Rules for Disability Benefits," New York Times, Sept. 11, 1983, A1; "The Disability Nightmare," Newsday, March 20-22, 1983.

 Claimant requested a hearing. It took place before the ALJ in May of 1982. She explained to the ALJ that she had attempted to obtain an attorney but could not do so because Legal Aid's resources were already overstrained -- a fact which the court judicially notices on the basis of many cases in this court where the poor cannot obtain any legal assistance. See Fed.R.Evid.R. 201.

 At the hearing, Ms. Edwards testified that she has pyelonephritis for which she was taking a diuretic ("water pill"). There was no contradiction of her testimony that the diuretic required that on many occasions she empty her ileostomy bag every fifteen minutes. She also has diarrhea which she cannot completely control because of the ileostomy, although she had been taking Lomotil for this problem. If she is required to travel, as for example to the hearing itself, she cannot take the medication for her remaining kidney or eat anything beforehand. Her medications and conditions produced abdominal pains for which she took Zactirin or Percodan. To combat extreme nausea "about every other day," she takes Compazine. She is also on antibiotics for recurrent urinary tract infections. She takes Aldomet for her hypertension. Her pain and other extremely discomforting symptoms are consistent with side effects attributable to her medications. Judicial Notice supports these subjective symptoms. Physician's Desk Manual (1983); cf. Fed.R.Evid.R. 201; Sinatra v. Heckler, 566 F. Supp. 1354, 1356 (E.D.N.Y.1983).

 She had, she testified without contradiction, tried to find work but could not hold a job. Neither the ALJ nor the record raises any doubt about the claimant's bona fides and credibility. There is no suggestion in the record of malingering.

 At the hearing there was some confusion about the need to secure Ms. Edwards' medical records from Downstate Medical Center ("Downstate"). The ALJ told her -- despite the fact that it was his duty to obtain these records -- that he would leave open the record for twelve days for her to obtain "whatever medical evidence you would like to submit." Within this time Ms. Edwards submitted laboratory reports, hospital records and a letter from her treating physician, Dr. Stanley L. Wallace, dated May 11, 1982, all of which she had made reference to at the hearing. The letter from Dr. Wallace concluded that Ms. Edwards was "certainly disabled and unable to work."

 In August of 1982 the ALJ issued a decision denying Ms. Edwards' claim for continued SSI benefits. He acknowledged that Ms. Edwards had a "severe medical impairment," but concluded that "it is one that the claimant can still function with." He did not mention her treating physician's conclusion of disability. He also made no mention in his findings of Ms. Edwards' difficulty with travel, her frequent need to empty her ileostomy bag, her testimony regarding her past attempts to work, or of the seriously debilitating side effects which she had described as resulting from her prescribed medications.

 Ms. Edwards requested review by the Appeals Council of the ALJ's decision. In a letter accompanying her request dated September 9, 1982, she indicated that she now had blood in her urine. She also indicated that the ALJ "did not listen to my testimony" and did not consider the medical reports from Downstate or Dr. Wallace's letter. Without comment the Appeals Council denied her request for review. She then filed this action under Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. § 405(g) and § 1383(c)(3), to review the final determination of the Secretary.


 We start with the basic proposition that on this record, the plaintiff did not have the burden of coming forward with further proof of her ...

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