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November 8, 1985

EUGLA SPEARS, Plaintiff,
MARGARET M. HECKLER, Secretary, Department of Health and Human Services, Defendant

The opinion of the court was delivered by: WARD


This action is brought pursuant to sections 205(g) and 1631(c)(3) of the Social Security (the "Act") as amended, 42 U.S.C. §§ 405(g) and 1383(c)(3), for judicial review of a final decision by the Secretary of Health and Human Services (the "Secretary"), denying plaintiff's application for supplemental security income based on disability ("SSI") (hereinafter "disability benefits"). The Secretary held that plaintiff was not under "disability" within the meaning of the Act during the period in question because plaintiff's impairments were not "severe" as that term is defined in the Act.

On February 27, 1984, plaintiff moved for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. Subsequently, on April 25, 1984, defendant cross-moved for judgment on the pleadings pursuant to Rule 12(c). On September 14, 1984, defendant filed a superseding motion for an order of this Court remanding the case to the Social Security Administration in accordance with the district court's order in Dixon v. Heckler, 83 Civ. 7001(MEL) (S.D.N.Y. July 25, 1984). For the reasons hereinafter stated, plaintiff's motion for judgment on the pleadings is granted insofar as it seeks a remand, defendant's motion for a remand pursuant to Dixon also is granted, and defendant's original cross-motion for judgment on the pleadings is denied as moot.


 Plaintiff Eugla Spears is thirty-eight years old. She was born in South Carolina, where she attended school through the ninth grade and did farm work before moving to New York City in the late 1960s. For approximately five years, plaintiff worked on an assembly line making pens and pencils, but stopped working in 1973 because of repeated fainting spells and severe nosebleeds. (T. 44,200) She has been unemployed since that time. Plaintiff has three children. Her sole means of support is public assistance.

 Plaintiff applied for disability benefits on December 14, 1981. After her application was denied initially and upon reconsideration, plaintiff requested a hearing on the Secretary's reconsidered determination. That request was deemed to have been untimely made and was dismissed by order of an administrative law judge dated August 2, 1982. On review of this order of dismissal, the Appeals Council concluded that plaintiff's request for a hearing indeed been made in a timely fashion. The Appeals Council therefore remanded the case for a hearing, which was scheduled for November 4, 1982.

 In late October, plaintiff secured the assistance of an attorney from the Legal Aid society ("Legal Aid") to represent her at the hearing. Shortly thereafter, attorneys for Legal Aid went on strike. A supervising attorney from Legal Aid contacted Helen C. Anyel, the Administrative Law Judge scheduled to conduct the hearing on November 4, 1982 (the "ALJ"), to request a three-week adjournment of hearing date so that plaintiff could seek other legal assistance. This request was denied. On the day of the hearing, the Legal Aid supervisor appeared with plaintiff and plaintiff's companion, Rosemarie Youngblood, and again requested an adjournment so that plaintiff could obtain relevant medical records and attempt to secure new counsel. The ALJ refused to adjourn the hearing, and informed plaintiff that if she did not proceed at the time without an attorney, her case would be dismissed. (Tr. 33) Plaintiff elected to proceed with the hearing. The ALJ thereupon took testimony from plaintiff and from Ms. Youngblood. At Youngblood's suggestion, the ALJ agreed to procure and consider additional medical records before rendering a decision in the case.

 In a written decision issued on February 25, 1983, the ALJ determined that plaintiff was not eligible for disability benefits because plaintiff was not disabled within the meaning of the Social Security Act. Specifically, the ALJ found that plaintiff had a "history of anemia, history of hypertension, history of veneral [sic] disease and anxiety," and that plaintiff suffered from "some pain [,] lightheadedness, and discomfort." (Tr. 16) Nevertheless, the ALJ concluded that "such pain and heavy menustral [sic] flow are not sever, constant of [sic] incapacitating and does not interfer [sic] with [plaintiff's] ability to perform work related duties." Id. Accordingly, the ALJ determined that plaintiff did not suffer from a severe impairment and therefore was not under a "disability" as defined in the Act.

 Plaintiff requested review of the ALJ's decisions. *fn1" This request was denied by the Appeals Council on April 27, 1983. Plaintiff's further request for a new administrative hearing was likewise denied by the Appeals Council in a letter dated July 15, 1983. Thus, the ALJ's decision of February 25, 1983 stands as the final decision of the Secretary with respect to plaintiff's December 14, 1981 application for disability benefits.

 On July 27, 1983, plaintiff again applied for disability benefits. This application was granted by the Secretary without a hearing, and plaintiff was awarded benefits for the period beginning July 27, 1983. *fn2" In the instant action, then, the relief plaintiff seeks is an award of retroactive disability benefits limited to the period between December 14, 1981 and July 27, 1983.


 The legal principles that govern the Court's decision on the instant motion are well settled. "Disability" is defined in the Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). *fn3" The mere presence of an impairment is of such severity that the claimant is not only unable to do his or her previous work, but cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

 The initial burden of proving disability is on the claimant. 42 U.S.C. § 423(d)(5); see Schauer v. Schweiker, 675 F.2d 55 (2d Cir. 1982); Carter v. Schweiker, 649 F.2d 937, 940 (2d Cir. 1981). The claimant satisfies this burden by making out a prima facie case, that is, by showing that his or her impairments prevents return to his or her prior employment. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). The burden then shifts to the Secretary, who must produce evidence to show the existence of alternative substantial gainful work that exists in the national economy and that the claimant could perform. Id.

 In reaching a conclusion as to disability, both objective and subjective factors are to be considered. These include objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence or pain or disability testified to by the claimant or other witnesses, and the claimant's educational background, age, and work experience. Rivera v. Harris, supra, 623 F.2d at 216; Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978). These factors need not be given equal weight. The expert opinion of the claimant's treating physician, for example, is entitled to particular weight, and "in the absence of substantial contradictory evidence, the opinion of the claimant's treating physician is binding on the Secretary." Hankerson v. Harris, supra, 636 F.2d at 896; see also Eiden v. Secretary of HEW, 616 F.2d 63, 64 (2d Cir. 1980); Alvarado v. Califano, 605 F.2d 34, 35 (2d Cir. 1979).

 The Secretary has the duty of making the determination of disability under the principles set forth above. It is not the function of this Court, which sits in the present context as a reviewing court, to determine de novo whether the claimant is disabled. Assuming the Secretary has applied proper legal principles, judicial review is limited to an assessment of whether the findings of fact are supported by substantial evidence. If they are so supported, they are conclusive. 42 U.S.C. § 405(g). See Rivera v. Harris, supra, 623 F.2d at 216; Bastien v. Califano, supra, 572 F.2d 912. However, where evidence has not been properly evaluated because of the application of an erroneous legal standard, the determination of the Secretary may not be upheld. See Marcus v. Califano, 615 F.2d 23, 28 (2d Cir. 1979). "Substantial evidence" means "more than a mere scintilla. it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). See generally Parker v. Harris, supra, 626 F.2d at 230-32.

 Applying these principles to the instant case, the Court concludes that the Secretary's decision denying plaintiff disability benefits must be reversed and remanded. Plaintiff's disability claim was denied by the Secretary through application of the SSA's so-called "severity regulation." Therefore, plaintiff is a member of the plaintiff class in Dixon v. Heckler, No. 83 Civ. 7001(MEL) (S.D.N.Y.). Remand of the instant case is appropriate in view of Judge Lasker's decision in Dixon, in which he preliminarily enjoined the Secretary's enforcement of the severity regulation and ordered that the Secretary move for or consent to a remand of all disability cases implicating members of the Dixon class. In addition, this Court concludes that remand is necessary because the record reveals that the ALJ failed adequately to consider relevant medical evidence, did not provide plaintiff with an adequate hearing, and did not perform her duty affirmatively to develop the record.

 Application of the Severity Regulation

 The Secretary determined that plaintiff was not suffering from a disability under the Act by applying the "severity regulation" promulgated by the SSA. See 20 C.R.F. §§ 404.1520 et seq., 416.920 et seq. These regulations require the Secretary to evaluate disability claims by employing the following five-steps sequence:

 First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe ...

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