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May 23, 1984

MARGARET HECKLER, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: POLLACK

MILTON POLLACK, Senior District Judge

Plaintiff commenced this action, pursuant to the Social Security Act, 42 U.S.C. ┬ž 1383(c)(3), to obtain judicial review of a final decision by the Secretary of Health and Human Services, which determined that plaintiff's disability, which plaintiff established before the Social Security Administration ("SSA") in May 1980, had ceased in September 1982, and that therefore his entitlement to Supplemental Security Income ("SSI") benefits had ended in November 1982.

 The parties have submitted cross motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, the Court grants plaintiff's motion and reverses the decision of the Secretary.


 Plaintiff is a fifty-seven-year-old Spanish speaking male with a two-year college education. He lives alone and has no relatives. He was determined to be disabled within the meaning of the Act in May 1980, due to a psychological disorder and a cardiac condition, and he accordingly began receiving SSI disability benefits at that time.

 Plaintiff, according to evidence in the record, has not worked since some time prior to 1980. At the administrative hearing he was unable to recall when he last worked. He stated that his last job involved the writing of social programs.

 In September 1982, SSA determined that plaintiff's medical condition had improved and was not disabling beginning in September 1982, and that his entitlement to SSI benefits had therefore ceased in November 1982.

 At plaintiff's request, a de novo hearing before an Administrative Law Judge ("ALJ") was held to review this determination on January 26, 1983. Plaintiff was represented by an attorney at the hearing, and was the only person to testify.

 On April 26, 1983, the ALJ issued a decision which again found that plaintiff's disability had ceased in September 1982. The decision stated:

 The medical evidence establishes that beginning September 1982, the claimant did not have any impairment or impairments which significantly limited his ability to perform basic work activities; therefore, beginning in that month he did not have a severe impairment (20 C.F.R. 416.921).

 Plaintiff requested a review of this determination by the SSA Appeals Council, which denied the request and left the ALJ's decision to stand as 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's testimony at the ALJ hearing was disjointed, rambling, and seriously limited by his professed failures of memory -- problems which plaintiff's attorney explained are a result of his psychological impairment. With respect to his psychological disorder, plaintiff testified he has been under the treatment of a psychiatrist on a regular basis, once every one to three weeks, for several years; that he perceives a force or power which drives him to do things, including attempts at suicide, against his will; that he locks himself up alone in his apartment for long periods of time because he is afraid of this force and its threat to his life; that he has difficulty remembering things and experiences headaches when he tries to remember; and that a drug he takes for this condition has a side effect of "doping" him and making him sleepy.

 With respect to his heart condition, plaintiff testified that he has had a heart attack, has been hospitalized for his heart problem and receives outpatient treatment for the condition once every two months, and wears nitroglycerin patches and takes nitroglycerin pills as a treatment for this condition. He further stated that he is unable to walk for more than two blocks and has difficulty bending over, climbing stairs, and carrying a grocery bag, although he said he is able to utilize public transportation. Finally, he testified that while he can cook for himself and do some household chores, he is unable to do chores involving pushing or lifting and must leave such work to a woman who comes to his home to assist him.

 The documentary evidence consisted of the following. First, a psychiatric medical report by the psychiatrist who has treated plaintiff since 1978, Dr. Sidney Lytton, prepared at SSA's request *fn1" and dated May 5, 1982, states that plaintiff's problems are paranoid thinking, loss of memory, and depression, that he "shows deterioration (organic) in psychological test", that he is "unable to function even in a sheltered workshop [and] becomes paranoid and suicidal", and that there is "little chance for significant improvement" in his condition. Dr. Lytton concluded that plaintiff has a "moderate" impairment of his abilities to comprehend and follow instructions, to perform work requiring minimal contact with others, and to perform simple tasks, and that he has a "severe" impairment of his abilities in the following areas: performing work requiring frequent contact with others, performing complex tasks, performing repetitive tasks, performing varied tasks, responding to supervision and customary work pressures in a routine work setting, and meeting production, quality, and attendance standards. *fn2"

 Second, in a later report, apparently dated October 13, 1982, Dr. Lytton diagnosed plaintiff's condition as depression and latent schizophrenia and expressed the following findings: the impairment to plaintiff's ability to relate to other people is moderately severe to severe, the degree of deterioration of his personal habits is moderately severe, and the degree of constriction of interests is moderately severe to severe.

 Third, a consultive report by a psychiatrist who saw plaintiff once, dated July 29, 1982, diagnosed plaintiff's condition as a "character disorder that affects his personal, social and occupational adjustments to some degree." This report concludes that the degree of limitation on plaintiff's ability to perform the following basic work functions on a sustained basis is "moderate": performing work requiring either frequent or minimal contact with others; performing simple, complex, repetitive, or varied tasks; responding to supervision and customary work pressure in a routine work setting; and meeting production, quality, and attendance standards.

 Fourth, a report of a one-time consultive psychiatric examination, dated August 31, 1982, diagnosed plaintiff's condition as follows: "reactive depression with psychotic features in remission; personality disorder, dependent type." This report stated that plaintiff's ability to perform seven of nine basic work functions on a sustained basis is subject to a "moderate" limitation.

 Fifth, a "mental capacities assessment" dated September 10, 1982, signed by R. LaPlaca, M.D., a non-examining review physician for the New York State Office of Disability Determinations, stated that plaintiff "can carry out [and] remember instructions, deal with work stress, work with others, [and] perform adequately on a sustained basis." Dr. LaPlaca filled out a one page "QED" form which concluded that plaintiff's total psychiatric impairment rating, on a scale of one (for normal) to five (most severe), was three.

 Sixth, a report of a post-hearing consultive examination conducted on February 15, 1983, apparently at the request of the ALJ, concluded that plaintiff has "hysterical neurosis, conversion type, with mild depression." This report did not address plaintiff's ability to function in a work environment.

 Seventh, a report of a social worker's visit to plaintiff's apartment on August 6, 1982, prepared at SSA's request, stated that "it is apparent that plaintiff is able to carry out the functions of food shopping, ...

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