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DIAZ v. SECRETARY OF THE HHS

June 2, 1994

JUANA DIAZ, S.S.# 322-46-8438, Plaintiff,
v.
SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.


Nickerson


The opinion of the court was delivered by: EUGENE H. NICKERSON

NICKERSON, District Judge:

 I

 The following facts are not disputed.

 Plaintiff, born in the Dominican Republic in 1946, received a college education there and took some college courses in the United States. She has difficulty reading and writing English and used an interpreter at the administrative hearing. She has performed a variety of jobs, including operating sewing machines, button machines, eyeglass lenscutting machines, and computers. She also has worked for the U.S. Bureau of the Census as an interviewer and in a day care center as an assistant teacher.

 At the time of her accident, plaintiff was an electrical outlet assembler at a factory. While at work on September 24, 1990 she fell headfirst down a flight of escalator stairs and suffered injury to her head, neck, and back.

 Her June 24, 1991 application for benefits was denied. In a decision dated October 28, 1992 an Administrative Law Judge (ALJ) found plaintiff not disabled, and on May 28, 1993 the Appeals Council affirmed. On June 17, 1993 plaintiff brought this action.

 II

 Plaintiff says that the ALJ failed to (1) give sufficient weight to the opinion of plaintiff's treating chiropractor, (2) afford plaintiff an opportunity to cross-examine the author of a medical report, and (3) set forth the plaintiff's limitations with specificity. The court may overturn the Secretary's determination only when it is unsupported by substantial evidence. 42 U.S.C. § 405(g).

 A

 Plaintiff says that this court should overturn the Secretary's determination because the ALJ failed to give sufficient weight to the opinion of plaintiff's treating chiropractor.

 Under the Secretary's regulations, the opinion of a treating physician is entitled to controlling weight if it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d). Moreover, the longer a doctor treats a claimant, the more weight his opinion should be granted. 20 C.f.R. § 404.1527(d)(2)(i) and (ii).

 This court has held previously that "a treating chiropractor's opinion as to the diagnosis and nature of impairment arising from a condition within the chiropractor's field of expertise should ordinarily have a binding effect under the treating physician rule in the absence of substantial evidence to the contrary." Gaymon v. Sullivan, 759 F. Supp. 106, 108 (E.D.N.Y. 1991) (citing Santiago v. Bowen, 715 F. Supp. 614, 615 (S.D.N.Y. 1989)); see also Poole v. Railroad Retirement Board, 905 F.2d 654, 662 (2d Cir. 1990) (declining to ...


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