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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. Secretary of Health & Human Services, 734 F.2d 930, 937 (2d Cir. 1984).

 Plaintiff asserts that her disability is a result of nine different ailments as enumerated above. The ALJ concluded from the medical evidence in the record that plaintiff is suffering from severe pulmonary, gastrointestinal, and neurological impairments. To the extent that the Appeals Council addressed these ailments at all, it discussed them individually and dismissed each one as less than severe. It did not suggest that any evidence in the record contradicts the finding of Dr. Dyan and the ALJ. Instead, as noted above, it displaced the conclusions of the experts and the fact finder with its own opinion of the evidence. Again, this disposition was an error of law and had no substantial basis in fact. See Dixon, supra, 785 F.2d at 1107; De Leon, supra, 734 F.2d at 937.

 The remaining issue is whether to remand this case to the Secretary for yet more proceedings or to reverse his decision outright. The Secretary urges that the court remand "for a proper analysis of the treating physician's opinion and a new determination of plaintiff's residual functional capacity." Defendant's Memorandum of Law at 4.

 The court's authority to review decisions of the Secretary derives from 42 U.S.C. § 405(g), as amended, and § 1383(c)(3), which incorporates the provisions of § 405(g) by reference. With respect to disposition of the Secretary's decision on the pleadings, section 405(g) empowers the court to affirm, modify, or reverse, "with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).

 As the Secretary correctly argues, the court's power of remand is not restricted by section 405(g) when as in this case the Secretary's determination is erroneous as a matter of law and unsupported by substantial evidence. Carter v. Schweiker, 649 F.2d 937, 942 (2d Cir. 1981); Aubeuf v. Schweiker, 649 F.2d 107, 116 (2d Cir. 1981).

 However, the fact that the court may remand the case does not mean that it should. On the contrary, reversal rather than remand is proper when the record already "provides persuasive proof of disability" and "further evidentiary proceedings would serve no purpose." Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980); see Gold v. Secretary of Health, Education & Welfare, 463 F.2d 38, 44 (2d Cir. 1972); Pena v. Heckler, No. 84 Civ. 1462, slip op. at 1 (S.D.N.Y. July 9, 1985) (Carter, J.).

 The court finds that the proof of disability in the record is persuasive indeed. Evidently, it is also persuasive to plaintiff's treating physicians, all other examining physicians, and the ALJ. The court is in no better a position than the Appeals Council to reject the informed opinions of these people, all of whom have firsthand familiarity with plaintiff.

 Nor would remand serve any legitimate purpose at this point. The Secretary has previously entered into a stipulation seeking a remand to apply the correct legal standard and the court has so ordered the stipulation. The Secretary has had one bite at the apple and offers no reason now why a second bite would be more fruitful. More to the point, substantial evidence indicates that plaintiff is disabled. No evidence contradicts that conclusion. As a matter of law, plaintiff is disabled and entitled to benefits. See Coleman v. Weinberger, 538 F.2d 1045, 1047-48 (4th Cir. 1976); Mersel v. Heckler, 577 F. Supp. 1400, 1407 (S.D.N.Y. 1984) (Carter, J.).

 Remands in cases such as this one are worse than purposeless. They are expensive. Plaintiff applied for benefits over three-and-a-half years ago. She has already demonstrated entitlement to benefits. Quite apart from the administrative expenses that another remand would entail, each day of delay exacts a cost from a demonstratedly deserving claimant. See Carroll v. Secretary of & Human Services, 705 F.2d 638, 644 (2d Cir. 1983); Grable v. Secretary of Health, Education & Welfare, 442 F. Supp. 465, 471 (W.D.N.Y. 1977). Moreover, as the Secretary's track record on the sorts of error made in this case is none to impressive, see Schisler, supra, 787 F.2d at 82-83; De novo, supra, 734 F.2d at 937, the court finds no basis for reassurance that this time the Secretary will act to "foreshorten the often painfully slow process by which disability determinations are made," Carroll, supra, 705 F.2d at 644.

 For these reasons the Secretary's decision is reversed. The Secretary is instructed to pay plaintiff retroactive disability insurance benefits as of October 4, 1980, and SSI benefits as of March 7, 1983, consistent with the ALJ's findings (Tr. 133).

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