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Rivera v. Harris

decided: April 14, 1980.


Appeal from a final decision of the United States District Court for the Southern District of New York, Charles H. Tenney, Judge, affirming a decision of the Secretary of Health, Education and Welfare denying appellant's application for disability benefits. Affirmed.

Before Friendly, Mansfield and Kearse, Circuit Judges.

Author: Kearse

Appellant Angelica Rivera brought this action in the district court under 42 U.S.C. ยงยง 405(g) and 1383(c)(3) seeking review of a final determination of the Secretary of Health, Education, and Welfare denying her application for Supplemental Security Income ("SSI") benefits. The district court upheld the Secretary's decision, and Mrs. Rivera has appealed. We affirm.

Appellant was born in Puerto Rico in 1925. She was educated through the eighth grade, has had no vocational training and does not speak English.*fn1 In Puerto Rico, she helped her father with farmwork and for several years lived with another family and helped them with housework. Appellant came to New York in 1950 and, until her marriage in 1952, lived with her brother and helped him care for his house and children. These are appellant's only work experiences; she first acquired a social security card when she separated from her husband in 1969 and sought welfare benefits for herself and her children. Since her separation from her husband, Mrs. Rivera has been supported by public assistance and has sought no work.

On November 17, 1975, appellant filed an application for SSI benefits claiming disability due to asthma, heart trouble and hypertension. The application was denied initially and on reconsideration. At appellant's request, a hearing de novo was held before an Administrative Law Judge ("ALJ") in February 1977. At the hearing, Mrs. Rivera, two of her daughters,*fn2 and a vocational expert were questioned by the ALJ and by Mrs. Rivera's counsel.

The testimony related solely to appellant's asthma; there appears to have been no evidence tending to show any disability on account of heart trouble or hypertension. Mrs. Rivera testified that she had suffered from asthma for fifteen years, that attacks were generally brought on by housecleaning, walking and allergies but sometimes occurred when she was sitting still, and that her symptoms included shortness of breath, chest pain and wheezing. The attacks last one to two hours and, according to one of her daughters, occur once or twice a week. Appellant also stated that she suffered from headaches and dizziness, and that she had undergone treatment for allergies to mice, greases, dust, mold and foam rubber. When questioned as to her daily activities appellant stated that she "can do only very easy, light work" at home, which includes fixing meals for her children, making beds, washing clothes in her washing machine, going to the supermarket and doing small mending jobs by hand. However, appellant tires easily; she must perform all tasks slowly, must rest for one-half hour to one hour every afternoon, and generally takes taxicabs rather than public transportation because the two-block walk to the closest bus stop is too long.

The medical evidence consisted of hospital reports, diagnoses by physicians who treated appellant and reports of physicians who had examined appellant on behalf of the Secretary. Records of the Metropolitan Hospital revealed that appellant had visited the emergency room numerous times for treatment for asthma attacks in 1974 and 1975. Appellant had been treated by three physicians. Dr. Espejo, who had treated her for some 12 years, stated on June 5, 1976 that her asthma attacks had become more frequent and more severe in the past three years, sometimes occurring daily. He did not opine as to disability. Dr. Nedeljkovic, who had seen appellant some two dozen times since March 1974, reported that appellant had a long history of asthma and that although she had once had hypertension, her blood pressure had returned to normal on her most recent visit. He stated that he could not estimate the extent of appellant's disability without "detailed pulmonary function studies performed in a special laboratory." Dr. Chander Gupta, who began treating appellant within weeks after her application for SSI benefits, reported that appellant was severely asthmatic. He suggested, however, that she was not diligent about her treatments. His December 7, 1976 report stated in part as follows:

She has been very erratic in her follow up & medications.

Hyposensitisation to Dust & Molds was started on 4/28/76. Proper dosage could not be built as Patient did not keep the appointments in the dose building phase.

Dr. Chander Gupta's January 16, 1977 letter to the ALJ repeated that appellant was a "severe asthmatic" and described his treatment, in part, as follows:

to prevent her asthma Hyposensitisation to Dust & Molds was started. As she was erratic in her follow up visits proper doses of allergens could not be built up. In 7/76 with new Inhaled corticosteroid spray Beclomethosone & round the clock bronchodilators she was under good control. But again she was lost to follow up & ran out of medications to have a severe attack.

Each of the two medical witnesses for the Secretary*fn3 had examined appellant once. Dr. Marasigan, based on pulmonary function tests, stated that appellant "has the breathing capacity to do light medium & heavy activity." Dr. Salomon made findings that were "consistent with broncho-obstructive disease of mild to moderate intensity" and concluded that appellant's "ability to lift, push, pull and even walk is diminished while sitting, standing, fine and gross manipulations is unhindered."

The vocational expert, Dr. Max Dubrow, was questioned by the ALJ as to the types of work available for appellant on the basis of various assumptions. Dr. Dubrow classified appellant's past farmwork and housecleaning experiences as "light" to "medium" work and testified that if appellant suffered from all "the limitations, restrictions, and pains that she allege(d) in her testimony," she would be unable to return to her former type of work activity. When asked to assume that the ALJ would find appellant capable of performing light or sedentary work, Dr. Dubrow stated that there were unskilled factory jobs existing in the economy that appellant would be vocationally qualified to perform in light of her age, education, training and background. Deliberately excluding jobs where there "might be a dust factor," Dr. Dubrow mentioned

assembly of small parts, as in light manufacturing of small electrical, or electronic parts; packaging of small items, and assembly of small items such as, assembly of ball point pens; plastic toys; novelties; optical goods. All seated, not requiring any of the physical demands of lifting, bending, stooping, kneeling; these are jobs where the work is usually presented to ...

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