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April 17, 1986

MARGARET M. HECKLER, Secretary of Health and Human Services

The opinion of the court was delivered by: MCGLYNN


 Presently before me are the objections to the Report and Recommendation filed by the United States Magistrate in the above-captioned matter regarding the parties' cross motions for summary judgment in an action brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The cross motions were brought to review the final decision of the Secretary of Health and Human Services ("Secretary") which denied plaintiff's concurrent claims for disability insurance benefits and supplemental security income provided under Title II and Title XVI of the Social Security Act. The Magistrate to whom this was referred recommended that plaintiff's motion for summary judgment be denied and that defendant's motion be granted. Pursuant to the provisions of 28 U.S.C. § 636, I must now make a de novo determination.


 The facts in this case are as follows. Plaintiff, Irene Hammerstone, is a 50 year old woman with a high school education. She has past experience as a metal presser and a breader in a restaurant.

 Plaintiff's medical record contains a history of hospital treatment, both in-patient and out-patient, covering the period between 1980 and 1983. From February to October of 1980, plaintiff was treated for a urinary tract infection, hemorrhoids, pleurisy, and upper gastro-intestinal bleeding caused by a duodenal ulcer. (Tr. 148, 155, 157). While in the hospital for treatment of the ulcer, in October of 1980, plaintiff collapsed and fell to the floor and experienced immediate left side weakness. A brain scan of the plaintiff was negative. (Tr. 160). At first plaintiff was diagnosed as having a mild internal carotid artery disease. Final diagnosis was a cerebral infarction. (Tr. 161, 199). Plaintiff improved her left side weakness with physical therapy and was discharged from the hospital in late October. (Tr. 199).

 On December 1, 1980, plaintiff complained of headaches and was examined by Dr. H. L. Kettler. Dr. Kettler stated that after two CAT scans it was evident that plaintiff had suffered a stroke in October of 1980. Plaintiff was given medication for her headaches. A repeat neurological examination was unremarkable. (Tr. 207).

 From the period of November 17, 1982 until February 28, 1983, the plaintiff was an out-patient at the hospital. (Tr. 217). During that time she complained of headaches and pain in the back of the neck, as well as weakness in the left arm and left leg. The plaintiff was told to continue with her medication and to return periodically. (Tr. 217).

 In a report dated December 23, 1982, Dr. Sidney Samet, acting as a consulting physician, stated that it was his impression that the plaintiff's left side weakness is caused by functional not organic reasons. (Tr. 190). Dr. Samet further stated that plaintiff was able to walk unaided and that the left side weakness was seen only on testing. (Tr. 191).

 In a report dated December 19, 1983, Dr. Milton Tarlau, acting as a consulting physician, stated that he believes the plaintiff to be suffering from conversion hysteria. (Tr. 212). Dr. Tarlau concluded by saying that if the plaintiff had actually suffered a small infarct, the condition had largely resolved and that persistent symptoms are hysterical in character. (Tr. 212).

 Plaintiff filed an application for disability benefits in November of 1982. Her claim was initially denied in January of 1983 and upon reconsideration in February. In November of 1983, a hearing was held before the Administrative Law Judge ("ALJ"). The ALJ denied plaintiff's claim in a decision dated February 10, 1984. On July 30, 1984, the Appeals Council denied plaintiff's request for review, thereby making the decision of the ALJ the final decision of the Secretary.

 At the hearing before the ALJ, plaintiff testified that she has headaches on a daily basis and that she has severe ones four times a week. (Tr. 68, 74, 75). She further testified that she has blurred vision, that her left eye droops, that her left leg goes out, and that she cannot bend or stoop. (Tr. 63, 69). The plaintiff stated that she does no lifting around the house, that she can not hold anything in her left hand and does little if any cooking. (Tr. 70, 72). Most of her time is spent watching television. The plaintiff's husband appeared at the hearing, and his testimony supported that of plaintiff. Based upon the evidence of record and in consideration thereof, the ALJ made the following findings:

1. The claimant met the disability insured status requirements of the Act on October, 1980, the date the claimant stated she became unable to work, and ...

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