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July 11, 1973

Abe ROBINSON, Plaintiff,
Elliot RICHARDSON, Individually and in his capacity as Secretary of Health, Education and Welfare, Defendant

Zavatt, Senior District Judge.

The opinion of the court was delivered by: ZAVATT

ZAVATT, Senior District Judge.

The plaintiff herein, Abe Robinson, has instituted this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review the final decision of the Secretary of Health, Education and Welfare (Secretary) denying his application for disability insurance payments. The plaintiff and the Government have moved for summary judgment pursuant to Rule 56 of Federal Rules of Civil Procedure. As required by 42 U.S.C. § 405(g), the Secretary has filed with this Court a certified copy of the transcript of the record of the proceeding before him, including the evidence upon which the findings and decision complained of by the plaintiff are based.

 Plaintiff first applied for disability benefits on October 22, 1970, alleging that, due to a disability caused by bronchial asthma as of October 6, 1970, he was no longer able to work. This application was denied on May 21, 1971 on the ground that, although he met the earnings requirements of 42 U.S.C. § 416(i)(3), he did not meet the disability requirements within § 223(d) of the Social Security Act, 42 U.S.C. § 423(d), which provides:

"§ 423. Disability insurance benefit payments -- Disability insurance benefits
(d) (1) The term 'disability' means --
(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . .
(2) For purposes of paragraph (1) (A) -- (A) an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work . . .
(3) For purposes of this subsection, a 'physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques."

 On July 8, 1971, plaintiff filed a request for reconsideration which was denied on September 8, 1971. The plaintiff requested and, on May 25, 1972, received a hearing before a hearing examiner. On June 26, 1972, the hearing examiner affirmed the prior denial of plaintiff's application. This became the final decision of the Secretary on August 2, 1972, when the Appeals Council affirmed the hearing examiner's decision. On September 27, 1972, within the sixty day period prescribed by 42 U.S.C. § 405, the plaintiff instituted the present action.

 The record before the hearing examiner indicates that plaintiff was born in South Carolina on July 27, 1924; completed six years of schooling and can read and write a little; that, for the past 27 to 28 years, he has been employed as a longshoreman in New York City and that he was last employed on October 5, 1970, by International Terminal Operating Co. Plaintiff is presently receiving $70.00 per week compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. He has had no training in any other vocation. He lives in the downstairs apartment of a two family house which he owns, renting out the top floor apartment for $150.00 per month. He is married, has four children and drives an air-conditioned car about 3 or 4 days a week, averaging about 5,000 miles per year. Plaintiff testified that he has been wheezing and has had difficulty breathing for the past 18 years, with his condition worsening. He takes assorted medicines several times a day and uses suppositories when necessary. On October 5, 1970, plaintiff suffered an asthmatic attack and has not worked since. Plaintiff's condition is particularly acute in cold and hot weather.

 Medical Evidence

 Plaintiff first received treatment for his asthma on November 12, 1952, when he visited Dr. Edward Rafkin. Dr. Rafkin has treated him monthly from that date until June 8, 1971. On March 22, 1971, Dr. Rafkin submitted a medical report in which he diagnosed plaintiff's condition as bronchial asthma and pulmonary emphysema. Although Dr. Rafkin has prescribed various medications for the plaintiff, no benefit has been derived from any of the treatments or the prescribed medicines. Dr. Rafkin noted, in his report, that plaintiff's chest showed inspiratory and expiratory ronchi, and that there was wheezing throughout both lungs, with crepitant rales and noises on every examination; that plaintiff suffers from coughing, shortness of breath, with pain in the chest. It was Dr. Rafkin's opinion that, on October 6, 1970, "he [the plaintiff] is too ill to perform any gainful occupation!"

 Plaintiff was admitted at the Jewish Hospital emergency room on October 31, 1970, at which time he was having an asthmatic attack. Medication was prescribed for him and he was released. Plaintiff has received emergency treatment for acute asthmatic attacks on a number of occasions. Plaintiff had been treated at the I.L.A. Medical Center of New York regularly since November of 1968 to the date of the hearing. The reports from that Center indicate that plaintiff has asthma and that, on a number of occasions, he was wheezing badly. Medication was prescribed for him and it was determined that he was allergic to several substances.

 Dr. Albert Sternbach, an internist, examined the plaintiff once, on April 21, 1971. His diagnosis indicated that plaintiff suffered from chronic bronchial asthma, hypertension and that there was a slight prominence of the left ventricle. At the time of this examination, plaintiff was in no acute distress. A spirogram, testing his pulmonary functions, was enclosed in Dr. Sternbach's report which indicated that the plaintiff, before bronchodilators were administered, had an 86% of predicted total vital capacity; 45% of one second forced expiratory volume; approximately 27% of maximum voluntary ventilation or maximum breathing capacity (43.2 liters/minute). See, 4 Gray's Attorneys' Textbook of Medicine para. 181.11, Table 6 at 181-97. After bronchodilators were administered, the plaintiff was found to have 95% of the predicted total vital capacity; 44% of the one second forced expiratory volume; about 32% of maximum voluntary ventilation or maximum breathing capacity (50.4 liters/minute). Id. It should be noted that the total vital capacity test is "not recommended for rating ...

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