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MASSIMINO v. SHALALA

June 10, 1996

JILLIAN MASSIMINO, Plaintiff, against DONNA SHALALA, Secretary of Health and Human Services, Defendant.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 Jillian Massimino ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), for judicial review of a final decision of the Secretary of Health and Human Services ("Secretary") denying her application for disability insurance benefits under Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. § 401, et seq. Both parties have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the reasons set forth below, the Government's motion is granted, and Plaintiff's motion is denied.

 I. BACKGROUND

 A. Procedural History

 Plaintiff filed an action for Social Security Disability benefits on June 22, 1992. (Tr. at 49-52.) *fn1" Plaintiff's application was denied both initially, (Tr. at 62-65), and upon reconsideration. (Tr. at 66.) A hearing, at which Plaintiff appeared pro se, was held before Administrative Law Judge Linda E. Kupersmith ("ALJ") on April 14, 1993. (Tr. at 29-48.) In a decision dated May 21, 1993, the ALJ found that Plaintiff was not disabled within the meaning of the Act. (Tr. at 17-26.) On November 19, 1993, the Appeals Council denied Plaintiff's request to review the ALJ's decision. (Tr. at 2-3.) This was the final decision of the Secretary. (Id.) Plaintiff now seeks review of the Secretary's determination.

 B. Facts

 Plaintiff was born on June 20, 1952. (Tr. at 34.) She has either twelve or fourteen years of education. *fn2" (Tr. at 35.)

 From May 1978 to December 1987, Plaintiff was employed as a secretary to a publisher. (Tr. at 36.) This job required her to use a computer, typewriter, and dictating machine. (Tr. at 37.) On January 15, 1988, an accident caused complete blindness in Plaintiff's right eye. (Tr. at 37, 44, 49.) Plaintiff alleges that this injury is so severe that she is unable to work at all, qualifying her for disability benefits.

 Plaintiff's treating physician from July 10, 1992 through the hearing was Doctor Michael Starr, an ophthalmologist. (Tr. at 38, 101.) On August 12, 1992, Dr. Starr determined that Plaintiff "is currently disabled by her inability to perform her usual work at a computer terminal and reading." (Tr. at 106.) He had last examined Plaintiff on July 24, 1992, indicating that she had the following conditions: headaches and dizziness, (Tr. at 101); no light perception in her right eye, (Tr. at 102); 20/30 uncorrected and 20/15 corrected vision in her left eye, (Id.); no limitation on lifting, carrying, standing, walking, sitting, pushing, or pulling, (Tr. at 104); and a limitation on performing any activities for which full peripheral vision is required, (Tr. at 105).

 During the hearing, the ALJ indicated that she had sent Plaintiff papers for her doctor to complete. (Tr. at 32.) Plaintiff, however, did not bring these papers to her doctor. (Tr. at 32-33.) The ALJ proceeded with the hearing without the papers after the following exchange:

 
CLMT: Is this -- I don't know, is this it? Please include suf-ficient (sic) details of history, physical. No, I, I didn't go to a doctor with this because you have everything. I guess I figured you have everything.
 
ALJ: Okay. You have nothing else for me to consider. Is that correct?
 
CLMT: (No audible response)
 
ALJ: Everything's in the file. Is that what you're saying you want me to consider in this case? Is that yes or no?
 
ALJ: Well, I'm asking you, why didn't you have the papers filled out I asked you to take to the doctor? You just, you just contradicted yourself. One minute you said I didn't take the papers that you gave me to take to ...

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