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GONZALEZ v. HARRIS

May 2, 1980

Luis GONZALEZ
v.
Patricia Roberts HARRIS, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: LORD, III POWERS, III

Now, this 2nd day of May, 1980, after careful and independent consideration of the cross-motions for summary judgment, and after review of the entire administrative record, and the Report and Recommendation of the United States Magistrate, IT IS ORDERED that:

 1. The Report and Recommendation is Approved and Adopted as the Opinion of the Court.

 2. The plaintiff's motion for summary judgment is GRANTED.

 3. The Secretary's motion for summary judgment is DENIED.

 4. The decision of the Secretary is REVERSED and the judgment is entered in favor of the plaintiff.

 5. This matter is REMANDED to the Secretary for an award and calculation of benefits to the plaintiff.

 REPORT-RECOMMENDATION

 April 21, 1980.

 This is an appeal from a denial of the plaintiff's claim for Social Security and Supplemental Income Disability payments. The plaintiff is a forty-five (45) year old male who attended school for only one (1) year, speaks only Spanish, and cannot read or write in either Spanish or English. His only work experience has been as an unskilled agricultural worker.

 Plaintiff filed a claim for disability on April 17, 1978, claiming that he had been disabled since March, 1978 because of diabetes, blackout spells, and numbness and pain in his arms and legs. On June 7, 1978, plaintiff was given notice that his claim had not been approved. On June 26, 1978, plaintiff requested reconsideration of his claim, but on September 7, 1978 the Social Security Administration found that the previous determination denying plaintiff's claim had been proper under the law. Plaintiff then filed a timely request for a hearing before an Administrative Law Judge (ALJ). The hearing was held on April 6, 1979 and May 30, 1979. On June 29, 1979 plaintiff was notified that his claim had again been denied. Plaintiff filed a timely request to the Appeals Council for review of the ALJ's decision. On August 2, 1979, the Appeals Council notified plaintiff that the ALJ's decision was correct and stood as the final decision of the Secretary of Health, Education and Welfare.

 At the hearing, plaintiff testified that he is seeing his doctor once or twice a week, and is taking medication. Tr. 32. Although he could lift ten (10) to fifteen (15) pounds, he stated that he could not carry it very far. Tr. 38. Plaintiff is basically restricted to his home. *fn1" He cannot walk very far (tr. 27), walking only to a church which is a block away twice a week. Tr. 36. He cannot drive (tr. 40), and cannot take public transportation due to his inability to walk very far and his inability to read any of the signs in English or Spanish. Tr. 27.

 The ALJ very mechanically applied Regulation 404.1513, Rule 201.23, table 1 of Appendix 2, Subpart P, Regulation No. 4 and Regulation 416.913, Rule 201.23, table 1 of Appendix 2, Subpart I, Regulation No. 16, Title 20 C.F.R. 404.1513 and 416.913 in finding that plaintiff was "not disabled." Both of these regulations provide, however, that a finding of "disabled" is not precluded in the plaintiff's category for an individual who does not meet all of the criteria of a specific rule, and who does not have the ability to perform a full range of sedentary work. In this case, due to the inability of the plaintiff to travel, he ...


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