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October 21, 1991

ROBIN SMITH, S.S. # 064-48-7602, PLAINTIFF,

The opinion of the court was delivered by: Glasser, District Judge:


This is an action under 42 U.S.C. § 1383(c)(3) to review a final decision of the defendant Secretary of Health and Human Services (the "Secretary of HHS") in which the Secretary denied the application of plaintiff Robin Smith for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act. For the reasons stated below, the decision of the Secretary is reversed.


1. Procedural Posture

Ms. Smith first applied for SSI benefits on June 25, 1986 (Tr. 39-48); she claimed disability by reason of asthma, "nerves", and drug addiction. The denial of her application was affirmed by an Administrative Law Judge ("ALJ") after a hearing at which Ms. Smith appeared pro se. (Tr. 4-10). Review of the decision of the ALJ was denied by the Office of Hearings and Appeals of HHS. (Tr. 1A-2).

Ms. Smith then brought suit in the Eastern District of New York under docket number CV-87-3320. By order dated February 10, 1988, Judge Costantino remanded the case "so that a fuller examination may be made of plaintiff's ability to work with regard to her asthmatic condition." (Tr. 218). The Appeals Council of HHS vacated the decision of the ALJ and remanded the case to a second ALL (Tr. 174-176). Ms. Smith failed to appear at a new hearing held before the second ALJ; he subsequently concluded that she was not disabled and was not entitled to SSI benefits. (Tr. 151-159). The Appeals Council accepted the decision of the second ALL (Tr. 150). Ms. Smith thereupon filed the present suit under docket CV-90-1044; she is now represented by counsel.

2. Evidence of Plaintiff's Disability

Ms. Smith is a black female in her middle thirties. Her education extends only to the ninth grade, and she has not received a high-school equivalency certificate. She has worked only once in her life when she spent six months in 1982 assembling components for radio switches. (Tr. 84). There is evidence that she has been addicted to heroin since her early teens and that she engaged in prostitution from a very early age to support her drug habit. She dropped out of school at age 14 to give birth to her first child, and she has since then delivered four other children; she has also had two elective abortions. It appears that all of her children have been placed in the custody of her relatives. One examining neuropsychologist, Dr. Roman Pabis, remarked of her:

(Tr. 261).

As to her claims of disability, there is a disappointing absence of evidence from any treating physician in the administrative record. Indeed, even when her case was remanded by Judge Costantino, Ms. Smith failed to provide reports or affidavits from any treating physician. It is disturbing in this regard that the ALJ who conducted Ms. Smith's first hearing in 1987 — a hearing at which she appeared pro se — appears to have told her that a report from a physician who may have been treating her for asthma was not necessary. (Tr. 37-38). He asserted this on the basis of her representation that the report simply listed the medicines that had been prescribed for her; however, whether or not this physician's report may have provided additional relevant evidence is impossible to discern from the transcript. Thus, only the reports of examining and consulting physicians are available for consideration.

A. Evidence Regarding Physical Impairment

Ms. Smith was an outpatient at Brookdale Hospital Medical Center on March 29, 1985 for matters concerning a pregnancy test. (Tr. 99-116). At that time, an examination revealed that her lungs were clear. (Tr. 114). A chest x-ray conducted at the hospital on April 14, 1985 confirmed that her lungs were not significantly abnormal. (Tr. 102). After two visits to St. Mary's Hospital in March of 1986 for gynecological problems, she was diagnosed by the hospital as having bronchial asthma, and she was instructed to continue taking Tedral.*fn1

Ms. Smith was examined by Dr. Howard Finger on September 11, 1986 with respect to her complaints about bronchial asthma. (Tr. 133-137). She recounted a history of asthma since childhood and reported that her asthma is exacerbated by physical exertion, damp weather, and upper respiratory tract infections. She reported that she has severe asthma attacks approximately once a month, and that, at best, she can walk only a few blocks before experiencing shortness of breath. She also told Dr. Finger that she has a "nervous condition" and reported heaviness in her legs because of varicose veins. She denied any current cocaine and alcohol abuse, but she acknowledged a past history of intravenous ...

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