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HERNANDEZ v. HECKLER

April 24, 1984

ANA HERNANDEZ, Plaintiff,
v.
MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: POLLACK

OPINION AND ORDER

MILTON POLLACK, Senior District Judge

 ANA HERNANDEZ, Plaintif v. MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant, 83 Civ. 5500(MP)

 Plaintiff Ana Hernandez commenced this action, pursuant to the Social Security Act, 42 U.S.C. § 405, to obtain judicial review of a final decision by the Secretary of the Department of Health and Human Services, which determined that under the provisions of the Act and the regulations thereunder the plaintiff's disability and entitlement to disability insurance benefits had ceased in May, 1981.

 The parties have submitted cross motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons appearing hereafter, plaintiff's motion will be granted and the decision of the Secretary will be reversed.

 I. FACTUAL AND PROCEDURAL BACKGROUND

 Plaintiff was born August 19, 1958 and completed eleven years of school in the Dominican Republic. Her ability to communicate in English is limited. In the past she was employed full-time as a sample maker and seamstress, but she has engaged in no work since July 1979.

 On July 4, 1979 plaintiff fell to the ground from a second-story window. She sustained multiple serious injuries, including fractures of two vertebrae of her dorsal spine, fractures of both ankles, and a fracture of the left femur. She was hospitalized from the time of the fall until the middle of November 1979, a total of nearly four and one-half months, and continued in out-patient therapy and treatment at least through February 1980. In addition, plaintiff has continued to see physicians at least twice a month through the time of the administrative hearing.

 On April 6, 1982, the Social Security Administration ("SSA") notified plaintiff that it had determined that she had become able to do substantial gainful work in May 1981, and that her entitlement to disability benefits had therefore ceased in July 1981.

 Plaintiff requested, and there was held on September 28, 1982, a de novo hearing before an Administrative Law Judge to review this determination. Plaintiff was unrepresented at the very brief hearing, and was the only person to testify. At the direction of the ALJ, plaintiff was subjected to consultive orthopedic and neurological examinations conducted in November 1982 by physicians designated by SSA, and the reports of these physicians were made part of the administrative record before the ALJ.

 On December 27, 1982, the ALJ issued a decision which found that plaintiff's disability had ceased in this determination, and it thereby became the final decision of the Secretary.

 A transcript of the hearing, the documentary evidence contained in the administrative record, and the decision of the ALJ have been placed before the Court by way of the Secretary's answer.

 Plaintiff testified at the ALJ hearing that she wears a back brace due to her injuries; that pain and stiffness make it impossible to sit for more than one hour and that otherwise she must lie flat on her back; that it is impossible for her to stand for more than five or ten minutes; and that she is unable to walk for more than one block. She further testified that due to her condition a home attendant comes to her house five days a week to perform household chores and take care of her children, and that family and friends cook for her on weekends.

 The documentary evidence consisted of the following. First, a musculoskeletal medical report, dated July 14, 1980, prepared by a physician who had examined and treated plaintiff, found that she had a 90 percent loss of all bending functions of the back and a 40 to 60 percent loss of all motions of both ankles, that during an eight-hour work day she could sit and walk for at most fifteen minutes each and could stand for zero hours, and that she could never lift or carry ...


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