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DIAZ v. BOWEN

September 2, 1986

Jose Diaz, Plaintiff,
v.
Otis R. Bowen, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: LEVAL

MEMORANDUM AND ORDER

 Leval, U.S.D.J.

 Plaintiff seeks review under 42 U.S.C. § 405(g) and 1383(c)(3) of the Secretary's determination denying his application for Disability Insurance Benefits and Supplemental Security Income. Both parties moved for judgment on the pleadings and the case was referred to Magistrate Gershon.

 The Magistrate found that the Secretary had improperly ignored plaintiff's subjective allegations of pain and recommended reversal and remand to the Secretary for computation of benefits owing to the plaintiff. No objections to the Magistrates report were filed.

 I find the Magistrate's recommendation appropriate and accordingly adopt her report as the court's decision. The case is remanded to the Secretary solely for computation of benefits.

 REPORT AND RECOMMENDATION

 GERSHON, United States Magistrate:

 This is an action under Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (the Act), 42 U.S.C. §§ 405(g) and 1383(c)(3), to review a final determination of the Secretary of Health and Human Services (the Secretary) which denied plaintiff's application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). This report contains my recommendation to Judge Leval on the parties' motions for judgment on the pleadings.

 PROCEDURAL BACKGROUND

 Plaintiff filed an application for DIB on March 18, 1982, claiming that he was disabled because of injuries to his back and right knee and a sinus condition (74-77). *fn1" The application was denied initially (80-84) and on reconsideration (88-90). According to the defendant's brief, plaintiff filed an application for SSI benefits on June 22, 1982, which was also denied initially and on reconsideration. The documents relating to that SSI application are not in the record. Upon plaintiff's request (91), a hearing was held before Administrative Law Judge (ALJ) Jeffrey Kohlman. In a decision dated August 24, 1983, ALJ Kohlman found that plaintiff was not disabled (187-192). The Appeals Council affirmed that decision (183-185).

 Plaintiff sought review of the final decision of the Secretary by commencing this action on December 14, 1983. Upon consent of the parties, Judge Leval ordered that the case be remanded to the Secretary for a de novo hearing because the tape of the hearing before ALJ Kohlman was inaudible and could not be transcribed (20).

 Pursuant to Judge Leval's order, a second hearing was held on January 10, 1985, before ALJ Irwin Bernstein (25-42). In a decision dated March 11, 1985, ALJ Bernstein found that plaintiff was disabled as of March 18, 1982, and was thus entitled to DIB (13-19). (Plaintiff was insured for purposes of entitlement through December 1983 (10).) The Appeals Council modified the ALJ's decision, holding that plaintiff did not become disabled until March 1, 1984 (7-12). The Appeals Council found that, prior to that date, plaintiff was able to return to his past work and was therefore not disabled (19). The result of the Appeals Council's decision to limit plaintiff's benefits to those available under SSI. Plaintiff seeks to have this Court reverse the Secretary's determination that plaintiff's disability did not begin until March 1, 1984.

 FACTS

 Plaintiff was born on August 26, 1925 in Puerto Rico (27). He is married, but lives alone. He completed the eighth grade and can read and write in Spanish (28). He does not speak or understand English (28). Plaintiff worked from 1970 to 1978 as a forklift operator in a factory manufacturing corrugated cartons (29-30, 105).

 During a typical day, plaintiff's job required seven hours of walking -- plaintiff did not ride on the forklift (29) -- one hour of standing, no sitting, and constant bending and reaching ...


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