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August 3, 1988

OTIS R. BOWEN, M.D., Secretary of Health and Human Services

McGlynn, United States District Judge.

The opinion of the court was delivered by: MCGLYNN


 Plaintiff, Valerie Johnson, initiated this action for review of the decision of the Secretary of Health and Human Services ("Secretary") denying the former's claims for a period of disability, disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. ยงยง 401 et seq. and 1381 et seq. On October 14, 1985, plaintiff filed applications for a period of disability, disability insurance benefits and supplemental security income, claiming that she had been disabled since April 24, 1985. The applications were initially denied by the Secretary on January 2, 1986, and upon reconsideration on February 19, 1986 and March 31, 1986. Thereafter, on August 4, 1986, a hearing was conducted by an Administrative Law Judge ("ALJ"). Plaintiff appeared in person and with counsel. In a decision dated November 24, 1986, the ALJ found the plaintiff to be not disabled and, accordingly, found that she is not entitled to a period of disability, disability insurance benefits or supplemental security income. The ALJ's ruling was based on his determination that the plaintiff retains the residual functional capacity to perform a wide range of sedentary work activity which exists in significant numbers in the national economy. On June 10, 1987, the Appeals Council denied plaintiff's request for review; and as a result, the ALJ's ruling became the final decision of the Secretary. This appeal was filed by the plaintiff on July 24, 1987.


 The plaintiff claims disability based on her inability to perform substantial gainful activity due to injuries to her left knee and lower back, depression, and resulting symptoms. Prior to her alleged onset of disability in April of 1985, the plaintiff had been primarily employed as a packer/sorter in a garment manufacturing plant; and she had also worked as a barmaid. Both of these jobs require long periods of standing, walking, reaching and bending. The plaintiff is currently a 39 year old single, female with an eleventh grade education.

 On October 31, 1983, plaintiff injured her left knee when she slipped and fell on the steps of a subway station. Plaintiff was treated by Dr. Seymour Kaufman, an orthopedic surgeon, who diagnosed substantial knee damage. As a result, Dr. Kaufman performed surgery on the plaintiff's left knee during a four day hospitalization (December 7-11, 1983). After undergoing physical therapy, plaintiff returned to work as a garment sorter on a part-time basis; but she continued to experience persistent left knee pain.

 On June 18, 1985, plaintiff started seeing Dr. William Simon, another orthopedic surgeon. Dr. Simon's diagnosis included internal derangement of the left knee and possible nerve root irritation of the lumbar spine. Accordingly, plaintiff was hospitalized on June 30, 1985, at which point Dr. Simon performed surgery on her left knee. Thereafter, Dr. Simon continued to treat the plaintiff on a regular basis. On January 9, 1986, Dr. Simon stated that plaintiff had been disabled for over two years, was still disabled, and would need to embark on a physical rehabilitation program for at least a year before he could determine whether her left knee would require further surgery. Thereafter, in a final report dated March 21, 1986, Dr. Simon concluded that plaintiff has a discogenic injury at L5-S1 of the lower back and remains permanently disabled from returning to her former job.

 On December 19, 1985, Dr. M. Jaffari performed an orthopedic evaluation on the plaintiff, observing a noticeable limp and reduced range of motion in the left knee.

 The plaintiff apparently had difficulty in dealing with her physical impairments. As a result, plaintiff underwent a psychological evaluation, on April 28, 1986, at the Mental Health Associates, Inc. A course of treatment was begun immediately under the supervision of Dr. Brian Raditz, a clinical psychologist. Dr. Raditz's initial evaluation reflected that plaintiff had feelings of confusion, depression, anxiety and helplessness and that she displayed suicidal ideations. Plaintiff was given a full scale intelligence test based on the Shipley-Hartford I.Q. Scale, on which she received a verbal score of 69, an abstraction score of 70 and a full score of 67. These results placed plaintiff within the mild mental retardation range of intellectual functioning. The plaintiff's vocational skills were classified as "rather limited" and her response to the pressures of reality was marked by "withdrawal . . . and fantasies." Plaintiff was also reported to relate poorly to others, to be obsessed by her physical problems, and to be extremely uncomfortable in unfamiliar situations. Dr. Raditz diagnosed an adjustment disorder with depression, noting that a "major depressive episode" with suicidal actions could not be ruled out. Accordingly, plaintiff underwent a course of treatment which included psychotherapy and systematic desensitization/relaxation training. When the plaintiff's mental condition did not improve, Dr. Raditz recommended intensive follow-up psychotherapy for persisting symptomatology.

 At the administrative hearing on August 4, 1986, plaintiff testified with regard to her impairments. She stated that she still suffers from swelling in her foot and a tingling sensation in her left knee, forcing her to use a cane for ambulation. Plaintiff also testified that she still experiences a tremendous amount of pain in her lower back and extremities, which limits the amount of time that she can sit to ten minutes, and takes Motrin four times per day to help alleviate the pain. Plaintiff related that her impairments make it very difficult for her to stand up and climb stairs. Moreover, she claimed to need assistance in bathing and putting on her clothes. Plaintiff also testified that she cannot perform household chores, prepare meals or shop for groceries. Plaintiff stated that she has no social life and is forced to spend at least three days per week in bed. Plaintiff also said that her lack of money has forced her to give up the therapy she was receiving for her back and lower extremities. With regard to her psychological problems, plaintiff claimed to be very depressed about her inability to do anything for herself.

 Near the close of the hearing, counsel for plaintiff requested the assistance of a vocational expert in order to analyze the plaintiff's non-exertional impairment. The ALJ, however, neither granted nor denied counsel's request. Instead, the ALJ stated that he would keep the request in mind and seek vocational input later if it was necessary to reach a conclusion in the case. The ALJ also stated that he was going to leave the case record open so that he could make further evaluations and would apprise plaintiff's counsel of any future developments regarding the case.

 As it turned out, the ALJ never sought the assistance of a vocational expert; but he did obtain and rely upon the report of another psychologist. At the Secretary's request, on September 29, 1986, some 56 days after the administrative hearing, a psychological evaluation was performed upon the plaintiff by Martin Gelman, Ph.D. In making his final decision, the ALJ relied heavily upon Dr. Gelman's report, yet he never forwarded a copy of the report to plaintiff's counsel for comment, as had been promised. In fact, counsel for the plaintiff never had an opportunity to review Dr. Gelman's report until the Appeals Council provided a copy upon counsel's demand.

 Dr. Gelman's report discloses that plaintiff took the Wechsler Adult Intelligence Scale-Revised test. The results show that plaintiff's full scale I.Q. was 74, verbal I.Q. was 72 and performance I.Q. was 77, consistent with borderline mental retardation. Dr. Gelman also administered a Wide Range Achievement Test, which suggested that plaintiff could read at a sixth grade level, spell at almost a fifth grade level, and perform arithmetic tasks at a third grade level. In addition, a Bender Gestalt Test was given, and plaintiff's performance reflected the presence of a possible Central Nervous System impairment. According to Dr. Gelman, plaintiff appeared to be "suffering from an Adjustment Disorder with Mixed Emotional Features;" however, she still seemed "capable of handling her benefits in her own behalf."

 On November 24, 1986, after considering all of the evidence, including Dr. Gelman's report, the ALJ rendered his decision. First, the ALJ found that since April 24, 1985, the plaintiff has met the disability insured status requirements of the Act and has not engaged in any substantial gainful activity. Based on his reading of the medical evidence, the ALJ also concluded that the plaintiff has internal derangement of the left knee, nerve root irritation of the lumbar spine, adjustment disorder with depressed mood, and borderline intellectual functioning. These factors notwithstanding, the ALJ determined that the plaintiff does not have an impairment or combination of impairments listed in, or medically equal to one listed in, Appendix 1, Subpart P, Regulation 4 of ...

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