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May 23, 1984

ROBERT WALKER, Plaintiff, against MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: WEINFELD


These are cross-motions on the pleadings in an action brought by the plaintiff pursuant to 42 U.S.C. ยง 405(g), for review of a final determination of the Secretary of Health and Human Services ("the Secretary") denying plaintiff's application for disability insurance benefits. Plaintiff claims to be disabled as a result of a brain tumor, which was removed by surgery in 1970. Because plaintiff last met the special earnings requirement of the Social Security Act *fn1" on June 30, 1959, in order to qualify for benefits, plaintiff must establish that the tumor removed in 1970 existed on or before the cutoff date in 1959. *fn2"

 Plaintiff asserts that he met his burden of proof. However, after a hearing at which plaintiff was represented by counsel, the ALJ determined that plaintiff had no medically determinable impairment on that date. The Secretary maintains that the ALJ's determination was supported by substantial evidence and must be affirmed by this Court.


 The ALJ heard testimony from the plaintiff, his wife, and Dr. Rupert Green, one of plaintiff's personal physicians. The testimony indicated that plaintiff was born in 1919, completed the tenth grade, and worked as a merchant marine from 1942 to 1960. According to plaintiff, he had trouble working throughout the 1950's because he was "getting fired all the time . . . [because he] didn't have the pep and the zing of other workers . . . [he] was sleeping all the time and . . . had this itching and vomiting . . . [and] was like a living dead man." *fn3" His difficulties included, according to his testimony, confusion, headaches, itching, vomiting, double vision, and pains in the back. *fn4" Plaintiff states that his sporadic work history throughout the 1950's was due to his physical condition, and to the fact that he had been blacklisted from 1954 to 1957, and again from June, 1957 to 1960, because he belonged to or was sympathetic with the American Labor Party. *fn5"

 Plaintiff's wife, who had been separated from plaintiff since 1970, testified that plaintiff had a seizure in 1946 or 1947 and was unconscious for about ten minutes. *fn6" She stated that he did not seek medical treatment for the seizure because they "were both young [and] thought nothing of it" and because they assumed that the seizure was caused by plaintiff's drinking earlier in the evening. *fn7" She testified that plaintiff began vomiting frequently in 1953 or 1954, and that he then began to complain of headaches and tiredness. She stated that his complaints got steadily worse, and that the vomiting was not relieved until plaintiff's brain surgery in 1970. *fn8"

 Dr. Green testified that he had treated plaintiff between 1956 and 1970 for various ailments, including a recurring cough, pain on the right side of the neck, a rash, muscle pains, recurring pain in the shoulders, dizziness and distress of ears, a recurring sensation of weakness in the right leg, dizziness and lightheadedness, headaches, and a decreased attention span. *fn9" Dr. Green did not at any time detect the tumor that was removed in 1970, and testified that based upon his treatment of the plaintiff prior to 1970, he could not state with a reasonable degree of medical accuracy whether the plaintiff was suffering from the brain tumor on June 30, 1959. *fn10" He stated further that plaintiff had a "fixed stare" perhaps as early as 1957 that could have been caused by "anything causing pressure, including a tumor." *fn11" He also testified that the neck pains, rash, cough, and dizziness and distress of ears that plaintiff complained about in the late 1950's and the 1960's all are consistent with, but do not necessarily indicate, the existence of a brain tumor at that time. *fn12"

 After the hearing closed, plaintiff's counsel submitted to the ALJ an affidavit from Dr. Vallo Benjamin, the surgeon who removed plaintiff's tumor in 1970. The affidavit states that Dr. Benjamin had been advised of Mrs. Walker's testimony that plaintiff had a seizure in the late 1940's and had complained of headaches and dizziness thereafter. Dr. Benjamin then stated:

 Premised upon such information and in view of my findings relative to this patient in 1970, I can state with an overwhelming [degree] of medical certainty that if such symptons did exist that Mr. Walker had the tumor which I removed in 1970 at the time of the existence of the above stated symptons. *fn13"

 In addition to Dr. Benjamin's affidavit, the record before the ALJ included several hundred pages of medical records from Dr. Green and Dr. Benjamin, and from various other doctors and hospitals that had treated plaintiff since the 1940's.

 On the basis of this evidence, the ALJ concluded that plaintiff had not proved the presence of a significant medical impairment prior to June 30, 1959. The ALJ rejected Mrs. Walker's testimony regarding the alleged seizure, and the testimony of both the Walkers about the dizziness, headaches and vomiting plaintiff allegedly suffered throughout the 1950's, stating that there was no "acceptable diagnostic or clinical evidence" supporting the Walkers' testimony, and that it lacked credibility. The ALJ also rejected the affidavit of Dr. Benjamin because it lacked "documentary support and persuasiveness." He then found that "the persuasive medical evidence establishes that the first indication of a significant functional involvement occurred in June, 1970, when claimant was hospitalized [for the removal of the tumor]."


 The factual findings of the Secretary, if supported by substantial evidence on the record as a whole, are conclusive. *fn14" Substantial evidence is such "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." *fn15" While the substantial evidence standard "implies deference to the expertise of the agency," *fn16" the courts "retain a responsibility to conduct a searching inquiry and to scrutinize the entire record, having in mind that the Social Security Act . . . is remedial in purpose." *fn17" Further, the Court "must be satisfied that the claimant has had a "full hearing under the Secretary's regulations and in accordance with the beneficiant purposes of the Act." *fn18" The Court must be satisfied as well that the ALJ evaluated the evidence in accord with the law. *fn19" While this matter has been before the Secretary and the courts for a very extended period, *fn20" the Court is persuaded, after a word-by-word study of the record, that the ALJ did not evaluate the evidence in accord with the law of this Circuit, and that he did not fulfill his obligation to ensure that plaintiff had a full and fair hearing.

 The major evidence supporting plaintiff's claim was Dr. Benjamin's affidavit. The ALJ disregarded Dr. Benjamin's opinion, however, because it "lacked documentary support and persuasiveness." While it is not exactly clear what the ALJ meant by "documentary support," *fn21" he states elsewhere that the symptons upon which Dr. Benjamin based his opinion were not supported by "acceptable diagnostic or clinical evidence" and were "unestablished and undocumented." Thus, it appears that the ALJ rejected the opinion because it was not corroborated by clinical, laboratory, or diagnostic reports. It is well established in this Circuit, however, that "there is no requirement that the physician's medical testimony "be supported by "objective" clinical or laboratory findings." *fn22" Here, Dr. Benjamin's opinion was based upon a report of plaintiff's symptons during the relevant period. "A medical opinion does not become unacceptable . . . simply because it is based upon a claimant's symptomology." *fn23" Indeed, "any medical diagnosis must necessarily rely upon the patient's history and ...

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