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March 27, 1984

LYDIA CRUZ, Plaintiff, against MARGARET HECKLER, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: CONNER



 Plaintiff Lydia Cruz ("Cruz" or "the claimant") brought this action under sections 205(g) and 1631(c)(3) of the Social Security Act (the "Act"), as amended, 42 U.S.C. 405(g) and 1383(c)(3), seeking review of a final determination by the Secretary of Health and Human Services (the "Secretary") that her period of disability had ended and she was no longer entitled to receive disability benefits or Supplemental Security Income ("SSI"). The Secretary has moved for judgment on the pleadings pursuant to F.R.Civ.P. 12(c), and Cruz has cross-examined for summary judgment pursuant to F.R.Civ.P. 56. Because the Secretary failed to develop and consider evidence critical to a just detremination of the claimant's application, and because the lack of crucial information makes it impossible to discern whether the Secretary's determination is supported by substantial evidence, this matter will be remanded for further proceedings in accordance with the discussion below.


 Cruz is a 59-year-old woman who speaks only Spanish and whose education ended with the first grade. See tr. at 27-28. *fn1" She filed an application for disability benefits and SSI benefits in May 1978, alleging a disability as the result of bronchial asthma and gall bladder surgery. She was awarded a period of disability, retroactive to April 30, 1978, based upon her asthma condition.See tr. 47. The Social Security Administration ("SSA") subsequently conducted a continuing disability investigation, and determined that as of October 1981, plaintiff's impairment was no longer sufficiently severe to prevent her from engaging in substantial gainful activity. See tr. at 45. Cruz was notified in December 1981 that she was no longer deemed disabled, and that her payments would cease immediately. See tr. at 46-47. She was told that a physician had reviewed her case and that according to the available medical evidence, her asthma condition had stabilized following treatment. It was the SSA's view that she was able to perform light work. See tr. at 53.

 Cruz immediately requested a hearing in order to have this determination reviewed de nove; the hearing was held before Administrative Law Judge Robert J. Gallagher (the "ALJ") on May 7, 1982. A Spanish interpreter was provided to assist plaintiff, but she appeared without witnesses and without counsel. At the commencement of the hearing, the ALJ indicated to Cruz, through the interpreter, that since she had received notice of her right to counsel and had appeared without counsel, he assumed she wished to proceed without counsel. He asked whether that was correct, and Cruz responded "Yes". See tr. at 25-26. He then proceeded to question her about her medical condition.

 During the hearing, which lasted approximately one-half hour and produced only sixteen pages of transcript, see tr. at 19, 38, plaintiff explained that before she stopped working in 1978, she had been employed by a bookbinder, and that her job primarily entailed carrying boxes filled with small pieces of cardboard and putting them into a machine. See tr. at 29. She stated that her job required her to stand almost all the time. See tr. at 30.

 The ALJ inquired of Cruz when she had last experienced an asthma attack, and she replied that the previous December she had suffered "quite a strong one." See tr. at 30. She then testified that she went to the emergency room at Bellevue Hospital three times during December. See tr. at 30, 32. Plaintiff stated that she made trips to the emergency room at Gouverneur Hospital prior to December, see tr. at 32, and that when she could not get to an emergency room quickly, she would go somewhere closer. See tr. at 33.

 Cruz testified that she lives alone, cleans house, and cooks for herself. See tr. at 34. She said, however, that she gets asthma attacks when she exerts herself, such as when she bends to lift things or to clean. See tr. at 37. In describing these asthma attacks, she stated that she experiences a shortness of breath and gets very nervous; she must open a window and sit down in bed in order to get air. See tr. at 36. Cruz testified that she goes to bed at about 10:00 in the evening and gets up at about 9:00 in the morning, but that she does not sleep well because she is nervous. See tr. at 34. She said that if she walks three blocks she becomes tired and must lie down, see tr. at 33, and that when she goes to the grocery store, which is four blocks from her home, she must go "little by little." See tr. at 35. She is able to ride buses and subways, but testified that when she goes to the emergency room, she takes a taxi. See tr. at 35.

 Cruz described other ailments in addition to her asthma.She mentioned a broken wrist sustained in a fall following a dizzy spell, see tr. at 33, and a resulting tendon problem that causes her great pain and renders her unable to use that hand. See tr. at 35. She explained that her doctors had wanted to operate on her hand, but that she refused because she was very sick. See tr. at 38. Cruz also complained of a swelling on the left side of her face, which might require surgery. See tr. at 37. She indicated that she had consulted a doctor about this condition, and although the ALJ expressed initial interest in ascertaining the doctor's name, he subsequently indicated that the information was unnecessary. See tr. at 38. The hearing then concluded.

 A substantial accumulation of medical data was admitted into evidence at the time of the hearing, and the record was reopened on two subsequent occasions in order for the ALJ to receive additional relevant materials. Included among the records are outpatient treatment records from Gouverneur Hospital for the period 1962 to 1982; inpatient and outpatient records from Mt. Sinai Hospital for the period 1958 to 1982; the results of two consultative examinations, one performed in 1978 and the other in 1981; a 1981 evaluation of residual functional capacity; and letters from five doctors who had treated Cruz for asthma and other maladies in recent years. These records make it apparent that over the past several years, plaintiff has spent a considerable amount of time visiting doctors and hospitals, and she has suffered from a vast array of problems, including severe allergies, chronic rhinitis, arthritis, lower back pain, neck pain, an injured thumb, tendonitis, a fractured wrist, and "pains all over her body."

 On the basis of these documents and the testimony given by Cruz at the hearing, the ALJ delivered a written decision on June 9, 1982. He found that the medical evidence did not substantiate plaintiff's allegation that her asthma was severe, or that she was precluded from performing substantial gainful activity. See tr. at 15. The ALJ declined to credit her testimony of discomfort and severe difficulty in breathing, and he concluded that after October 1981 she was not under a disability within the meaning of the Act. Id.

 The ALJ was particularly impressed by the report of a consultative examination performed by Dr. Quereshy, and by the findings of a Dr. DeGuzman. See tr. at 14. Dr. Quereshy examined plaintiff on October 20, 1981, and found that her lungs sounded clear to percussion and auscultation, that a forced expiration revealed a few sibilant rhonchi, and that pulmonary tests revealed "a moderate degree of chronic obstructive lung disease." See tr. at 113, 124.Dr. Quereshy noted that Cruz did not exhibit respiratory distress while completing the pulmonary tests, but that she was very nervous and upset, and exhibited an inability to follow directions or perform properly. See tr. at 124. He concluded that plaintiff's condition did not appear to be severe, as she was taking very little medication, and that she was fit for light or sedentary work. See tr. at 113.

 Dr. DeGuzman saw Cruz for bronchial asthma twice in March of 1981. He did not find her to be in acute respiratory distress during her visits, and his examinations revealed no wheezing and no rales, symptoms which the ALJ felt ...

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