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CRUZ v. SHALALA

March 22, 1993

RAMONITA CRUZ
v.
DONNA E. SHALALA, Secretary of Health and Human Services



The opinion of the court was delivered by: BY THE COURT; MARVIN KATZ

 KATZ, J.

 MARCH 22, 1993

 Plaintiff, Ramonita Cruz ("Cruz"), brings this action under 42 U.S.C. § 405(g), seeking a review of the final decision of the Secretary of Health and Human Services (the "Secretary"), who concluded that Cruz was not disabled under the Social Security regulations and therefore, not entitled to receive supplemental security income ("SSI"). For the following reasons, this court finds that Plaintiff should be granted benefits. Therefore, her motion for summary judgment shall be granted and the decision of the Secretary reversed. The matter will be remanded to the Secretary for the calculation and payment of benefits.

 Cruz filed her application for SSI on June 20, 1990, alleging that her impairment ("diabetes, etc.") began June 1, 1990. See Record at p. 45-57. On June 20, 1990, Cruz also filed a disability report which indicated that her condition (an abdominal cyst, diabetes, and back trouble) made her stop working in January 1990. See Record at p. 69-82. Her application was denied at both the initial and reconsideration levels and she requested an administrative hearing. See Record at p. 58-60, 63-68. Cruz, represented by counsel, attended a hearing on February 11, 1991, at which she testified through an interpreter. See Record at p. 24-44.

 On May 31, 1991, an administrative law judge issued a decision finding that Cruz suffered from severe residuals of surgery for a herniated disc and diabetes mellitus. See Record at p. 15, Finding of Fact 2. The administrative law judge found that since December 18, 1990, Cruz had the residual functional capacity to perform light work. See Record at p. 15, Finding of Fact 4. The administrative law judge also found that Cruz could not perform her past relevant work but used the medical-vocational guidelines (the "grid") of 20 C.F.R. pt. 404, subpt. P, app. 2, §§ 200.00- 204.00 to find that there are a significant number of light jobs in existence that Cruz could perform despite her limitations. See Record at p. 15, Findings of Fact 5, 9. The administrative law judge found that Cruz failed to establish that her impairments prevented her from performing substantial gainful activity for twelve consecutive months. See Record at p. 16, Finding of Fact 10. Therefore, the administrative law judge determined that Cruz was not under a disability as defined by the Social Security Act. See Record at p. 11-16.

 Cruz requested that the Appeals Council review the administrative law judge's decision and submitted medical reports reflecting treatment Cruz received after September 1991, i.e., medical treatment rendered more than three months after the administrative law judge's decision. See Record at p. 7-9. The Appeals Council subsequently denied Cruz's request for review, see Record at pp. 2-3, making the administrative law judge's May 31, 1991, decision the final decision of the Secretary in this case. It is this decision that is before this court for review.

 I. FACTS

 Cruz was born on April 16, 1953, in Puerto Rico. See Record at p. 45-46. She is a Spanish-speaking individual, who can read and write in Spanish but not in English. See Record at p. 24, 26, 29. She completed the ninth grade in Puerto Rico and then came to the United States in 1970. See Record at p. 28-29. Cruz last worked as a housekeeper, cleaning rooms at a hotel in Atlantic City in 1989. *fn1" See Record at p. 31-33, 73-74. Cruz left her housekeeping job because she moved from Atlantic City to Bethlehem, Pennsylvania. See Record at p. 36.

 Cruz alleges disability since January 1990 or June 1, 1990 as a result of a back problem, non-insulin dependent diabetes and a cyst. See Record at p. 46, 69. There is some discrepancy over this date as she indicated on her SSI application form that her impairment began June 1, 1990 and Cruz indicated on her disability report that she stopped working because of her impairment in January 1990. See Record at p. 46, 69.

 Cruz received the bulk of her medical care at St. Luke's Hospital's clinics where Mezena Bienier, M.D., was her treating physician. See Record at p. 105-35. Cruz complained of low back pain during her June and July 1990 visits to St. Luke's. See Record at p. 109, 124-25, 148. At her July 1990 examination, Dr. Bienier noted that Cruz still had lower back pain and was not attending her physical therapy and that she had an appointment to see Susan R. Hemley, M.D., a neurological surgeon. See Record at p. 125.

 Dr. Hemley examined Cruz for the first time on August 8, 1990. See Record at p. 136-37. Dr. Hemley noted that Cruz was walking with a limp favoring the left and complaining of pain on the slightest flexion and extension of her back. See Record at p. 136. Cruz could heel-toe walk and there was no numbness or tingling in her extremities but there was considerable tenderness in her spine. See Record at p. 136. A CT scan revealed a herniated lumbosacral disc. See Record at p. 136. Dr. Hemley recommended that Cruz participate in physical therapy and take muscle relaxant and anti-inflammatory medications. See Record at p. 136.

 On August 17, 1990, Dr. Bienier completed a certification for Cruz. See Record at p. 184. Dr. Bienier reported that Cruz was being treated for low back pain with a central disc herniation. See Record at p. 184. She indicated that treatment began at St. Luke's on March 23, 1990. See Record at p. 184. She suggested that Cruz's condition would prevent her from working at least as of July 8, 1990 because she could not lift heavy objects. See Record at p. 184. Dr. Bienier reported that Cruz's prognosis for return to work depended upon the neurosurgeon's assessment of her condition. See Record at p. 184.

 When Cruz was examined at St. Luke's medical clinic on August 31, 1990, she reported that she was feeling better with physical therapy, but Dr. Bienier acknowledged that if Cruz did not continue to improve surgery had been proposed. See Record at p. 148. Dr. Bienier diagnosed Cruz as having a herniated disc ...


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