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June 11, 1998


The opinion of the court was delivered by: LARIMER



 This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner") that plaintiff was not disabled, and therefore, was not entitled to disability benefits. This Court finds that the Commissioner's decision was not supported by substantial evidence and accordingly remands the matter for further administrative proceedings.


 Plaintiff Nicholas Downs ("Downs") was born on July 17, 1952 and is presently forty-five years old. (T. 94). *fn1" On March 5, 1993, Downs applied for Social Security disability and Supplemental Security Income ("SSI") benefits. (T. 46-48). He claimed that he was unable to work since December 31, 1992 due to a "bad back" and "alcohol." (T. 137). The Social Security Administration ("SSA") denied his applications initially and upon reconsideration. Thereafter, on October 18, 1994, plaintiff reapplied only for disability benefits. (T. 94-97). Plaintiff again stated he was unable to work since December 31, 1992, but claimed disability due to a heart condition - noting a second heart attack on October 10, 1994, back pains, stress, seizures, tiredness and alcoholism. SSA again denied his application initially and upon reconsideration. (T.98-100, 127-30). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") and it was held on May 14, 1996.

 On July 1, 1996, the ALJ issued a decision in which he found that plaintiff was not entitled to disability benefits. (T. 10-20). On February 25, 1997, the Appeals Council notified plaintiff that it would not review the ALJ's decision. (T. 5-6). The ALJ's decision thus became the Commissioner's final decision, and plaintiff commenced this action. Presently before the Court is defendant's motion for judgment on the pleadings pursuant to FED.R.CIV.P. § 12(c). Although Downs appeared with a representative at both the hearing and before the Appeals Council, he appears pro se in this action.


 Downs has a history of treatment for heart conditions. He was hospitalized in 1986 for a "subendocardial anterior myocardial infarction." (T. 192). Downs recovered from that episode with angioplasty and returned to work. There are no records of further problems with his heart until October 1994. (T. 253). However, he was hospitalized on October 10, 1994 for an acute myocardial infarction. (Id.). About one month later, on November 22, 1994, Downs suffered from a second myocardial infarction. (T. 288). He remained hospitalized until at least December 2. (T. 346). Downs underwent cardiac catheterization and an angioplasty during that stay. (T. 337-38, 346).

 Downs also suffers from a seizure disorder that was originally diagnosed in 1972 and for which he took Dilantin. (T. 193, 198-99). He had a seizure within the three weeks prior to his 1994 hospital admission for the heart condition. (T. 271).

 Downs claimed that he suffered from alcohol abuse and dependence. The record shows that he attempted treatment at least three times but did not complete the programs. (T. 448). At the time of the SSA hearing Downs was in therapy at an Action for a Better Community program (Community Alcoholism Services - Clinic), and he also attended Alcoholics Anonymous meetings twice a week. (T. 38, 471-89).

 Downs underwent two consultative examinations in connection with his 1993 applications for benefits. (T. 458-66, 454-56). On June 25, 1993, Dr. Spallino performed a physical examination and concluded with findings of a "long history of alcohol abuse," a "myocardial infarction in 1986," "mild lumbosacral spine dysfunction with pain in the low back," and a "history of seizures" but "at present he has spells that appear as panic attacks occurring when upset or anxious or when drinking." (T. 460).

 On May 20, 1993, Samuel Seltzer, a licensed psychologist, evaluated Downs and concluded that he suffered from alcohol abuse and alcohol dependence and had a "guarded" prognosis.. (T. 454-56). Seltzer also noted that Downs had poor insight and judgment, and appeared to be of low average intelligence. (T. 455).

 On December 1, 1994, Dr. John Wolfe, at Genesee Health Services prepared a letter on Downs' behalf. (T. 363). Dr. Wolfe, who treated Downs since the early 1970's, (T. 364), noted Downs' heart condition, seizure disorder and history of chemical dependency and wrote "I feel that Mr. Downs is disabled for the foreseeable future and has been for the last several months." (Id.). Dr. Wolfe wrote that Downs' seizure control was good with medication, and that Downs "periodically complains of lumbar pain." *fn2" (Id.). Dr. Wolfe also completed forms in 1996 regarding Downs' seizure disorder and his substance abuse. (T. 362). Dr. Wolfe concluded the form with the statement that "his unresolved alcoholism medical problems render him unemployable." (Id.).

 In a report dated February 1, 1995, Dr. Ong, a cardiologist, gave a diagnosis of "coronary artery disease, myocardial infarction 1985, 1986, 1994." He recorded the following limitations on Downs' ability to work: walking, climbing, standing, stooping, bending, and sitting "may be performed to a limited extent." (T. 377). Dr. Ong also reported that lifting, carrying, pushing, pulling and "high rate of speed" "should not be performed." (Id.).

 Downs worked between 1982-91 at a book bindery, where he was employed as a custodian, truck driver, and a machine operator. Between 1972-82, Downs worked in shipping at a chemical plant. (T. 185). He stopped working as a laborer for ...

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