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November 5, 1986

EILEEN MAHER, Plaintiff,

The opinion of the court was delivered by: CARTER

CARTER, District Judge

Plaintiff Eileen Maher brought this action pro se seeking review of a final determination of the Secretary of Health and Human Services (the "Secretary") that plaintiff is not entitled to disability benefits under 42 U.S.C. § 423 or supplemental security income ("SSI") benefits under 42 U.S.C. § 1382c(a)(3)(A) of the Social Security Act, 42 U.S.C. § 301 et seq. *fn1"

 The Secretary requests that the case be remanded in light of the Appeals Council's failure to apply the correct legal standard in analyzing plaintiff's medical record. Plaintiff opposes the Secretary's motion to remand. *fn2"


 Plaintiff, a 30 year old woman with an 11th-grade education (Tr. 45), *fn3" had a work record until 1980. She worked as a clerk, carrier and letter sorting machine clerk at the United States Postal Service, a production manager at a silkscreen factory, and as a school janitor. (Tr. 63). Plaintiff alleges disability since October 4, 1980, due to chronic pulmonary obstructive disease, tachycardia, polycistic ovarian disease, a pinched nerve in both wrists, asthma, drug allergies, hormone imbalance, an ulcer, and gall bladder disease. (Tr. 22, 41). Plaintiff has been hospitalized at least six times for a variety of ailments and tests. (Tr. 288, 294-303). Her treating physician, Dr. Dyan, indicated in six separate reports from August, 1981, to August, 1984, that plaintiff was totally disabled. (Tr. 267-71, 280-81).

 This case has an extensive administrative background. Plaintiff first filed an application for disability insurance benefits on March 7, 1983. (Tr. 41-44). The application was denied initially (Tr. 45-48) and on reconsideration (Tr. 50-53). *fn4" Plaintiff similarly filed an application for SSI benefits on March 7, 1983. (Tr. 21-30). This application was also denied initially (Tr. 31-35) and on reconsideration (Tr. 36-39). Plaintiff requested a hearing to review both applications (Tr. 56-57), but waived her right to appear at the hearing (Tr. 56, 118). An Administrative Law Judge ("ALJ") considered the case de novo and on August 19, 1983, found that plaintiff was not under a disability (Tr. 15-20). The ALJ's decision became the final decision of the Secretary. when the Appeals Council denied plaintiff's request for review on October 21, 1983. (Tr. 3-4).

 Thereafter, plaintiff commenced this act seeking judicial review of the Secretary's decision. On August 14, 1984, upon stipulation of the parties, the court remanded the case to the Secretary pursuant to the order in Dixon v. Heckler, 589 F. Supp. 1494 (S.D.N.Y. 1984) (Lasker, J.), aff'd, 785 F.2d 1102 (2d Cir.), app. pending, U.S. (1986), which held invalid the Secretary's policy of denial of federal disability claims if the claimant's impairment is judged to be [not severe] based on medical criteria alone, because the policy conflicts with the statutory definition of "disability."

 The Appeals Council, in turn, remanded the case to an ALJ (Tr. 136A-136C), who recommended that plaintiff be found not disabled (Tr. 135). The Appeals Council remanded the case to the ALJ once more to submit new evidence to be obtained. (Tr. 134-36). A supplemental hearing was held on April 4, 1985. (Tr. 137-61). Relying on medical report by treating physicians which established the presence of severe pulmonary, gastrointestinal, and neurological impairments, the ALJ recommended on April 15, 1985, that plaintiff be found disabled. (Tr. 128-33). *fn5" He determined that plaintiff is entitled to a period of disability beginning on October 4, 1980, and disability insurance benefits as of that date, as well as SSI benefits as of March 7, 1983, the date of her application. (Tr. 133).

 The Appeals Council, however, declined to accept the ALJ's recommended findings and determined that plaintiff was not disabled. (Tr. 122-27). *fn6" It focused solely on the pulmonary function studies in the record which it interpreted as showing a mild to moderate impairment (Tr. 123-25), without discussing at all the treating physician's opinion that plaintiff is disabled (Tr. 267-71, 280-81). The Appeals Council found that although plaintiff suffers from "mild restrictive and mild to moderate obstructive lung disease and bilateral carpal tunnel syndrome," she had the residual functional capacity to return to her past relevant work as a letter sorting machine clerk. (Tr. 126). This finding became the final decision of the Secretary presently at issue in this case. See 20 C.F.R. §§ 404.981, 416.1481 (1986).


 No one disputes that the Secretary's action contravened the law. The decision was legal error for two different reasons.

 First, in reversing the ALJ's finding that plaintiff is disabled, the Appeals Council violated the "treating physician" rule. The Appeals Council was obliged to accept the medical opinion of plaintiff's treating physician, Dr. Dyan, unless it could point to substantial evidence to the contrary. Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir. 1986); Bluvband v. Heckler, 730 F.2d 886, 892-93 (2d Cir. 1984). Moreover, the treating physician's opinion deserves "some extra weight," as compared to other medical reports, because the treating physician is generally most familiar with the claimant's medical condition. Schisley, supra, 787 F.2d at 81.

 The Secretary's confession of error on this score is quite complete: The Appeals Council did not, he admits, give Dr. Dyan's expert opinion the "great weight" it was due. Defendant's Memorandum of Law at 6. It did not weigh Dr. Dyan's six reports of disability against contrary opinions of other doctors. Indeed it could not have done so because no physician, according to the Secretary, expressed a contrary opinion. See id. The Appeals Council did not address or so much as mention Dr. Dyan's several regrets concluding that plaintiff is disabled. Rather, as the Secretary now concedes, the Appeals Council "substituted its own lay analysis for that of the treating physician." Id. In short, the Secretary's decision was legally erroneous and unsupported by substantial evidence. See, e.g., Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir. 1981).

 Second, the Appeals Council violated the rule that in determining the claimant's capacity to work, the impairments she complains of must be evaluated in combination, not individually. Dixon v. Heckler, 785 F.2d 1102, 1107 (2d Cir.), app. pending, U.S. (1986); De Leon v. ...

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