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April 21, 1980

RAMONA VEGA, Plaintiff, against JOSEPH A. CALIFANO, JR., Secretary of Health, Education and Welfare, Defendant.

The opinion of the court was delivered by: GAGLIARDI


Plaintiff seeks judicial review, pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), of a final decision of the Secretary of Health, Education and Welfare ("Secretary") denying her application for Disability Insurance and Supplemental Security Income benefits. Both parties have moved for judgment on the pleadings, pursuant to Rule 12(c), Fed.R.Civ.P. For the reasons set forth below, the court grants defendant's motion.


 Plaintiff was born in Puerto Rico in 1932 and completed four years of schooling there. During the approximately thirty years that she has lived in the United States, she has been employed for ten years; as a packager in a paper factory for three years and, most recently, as a hotel chambermaid for seven years. She stopped working in 1974, and three years later, in May 1977, she filed an application to establish a period of disability *fn1" , Disability Insurance Benefits and Supplemental Security Income *fn2" , pursuant to 42 U.S.C. §§ 416(c), 423 and 1382c, alleging that she was unable to continue working due to an asthmatic condition. The Secretary rejected her claims, and the decision was approved on reconsideration. Plaintiff thereafter requested and was granted a hearing before an Administrative Law Judge ("A.L.J."), who upheld the Secretary's decision. After the Appeals Council affirmed, the decision of the A.L.J. became the final decision of the administrative agency. The question now before this court is whether the Secretary's determination that plaintiff is not disabled within the meaning of the Social Security Act is supported by "substantial evidence." See Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Following is a summary of the medical evidence submitted to the Secretary.

 Dr. Kirk Dizon, whom plaintiff identified on her application as one of her treating physicians, submitted a report in response to the Secretary's request. He stated that he had been treating the plaintiff since 1974 for complaints of "angina pectoris, hypertension, bronchial asthma and chronic dyspepsia." The report concluded "as far as I am concerned, these clinical findings do not indicate the need for any drastic limitation on this patient's physical activity, but since her complaints are more or less subjective in nature, she has to be given the benefit of the doubt."

 Dr. Sergio Pena, also named by plaintiff as her treating physician, submitted two letters. The first, dated July 26, 1977, accompanied plaintiff's application to the Secretary for reconsideration and read as follows:

To whom it may concern:
This is to state that I am Treating Mrs. Ramona Vega since October 18, 1974.
She is suffering from Chronic Bronchial Astma (sic) and arthritis.
Also she hs (sic) to take care of her husband who is follow up from cancer of lung and kidney.
Mrs. Vega is not able to work in a gainful job for her living.

 In the second report dated November 1977, Dr. Pena stated that her chronic asthmatic condition was worsening; that she originally had attacks once every two to three months and that the attacks recently occurred once a month and were "quite severe." He also stated that she had no cardiac problem to his knowledge, and that although she had degenerative arthritis affecting her lower spine, knees and hips, causing swelling and stiffness, the range of motion was not severely restricted.

 A consultative examination was performed by Dr. Edmond Balinberg on June 13, 1977. At that time, according to the report of the same date, plaintiff complained of asthma, chest pain, usually at night, hay fever, lower abdominal pain, gas, and pain in her left knee. Plaintiff stated that she had five to six asthma attacks per week, each lasting an hour. Physical examination of extremities and neurological examination were normal, as was extension in both knees, with slight variation in flexion between right and left knees. EKG showed no significant changes after an incomplete exercise test. Pulmonary function studies were reported within normal limits. The physician's impressions were that plaintiff had bronchial asthma, respiratory insufficiency by history, hay fever, plantar calluses, arthritis by history in left knee and left foot, chest pain etiology unclear and hypertension by history.

 A report from Dr. M. Reriberg, dated October 19, 1977, stated that plaintiff had been under treatment for osteoarthritis, anemia, bronchial asthma and gastritis, and added that plaintiff was responsible for the care of her husband who had cancer. Dr. Reriberg issued a second report dated April 6, 1978, submitted to the A.L.J. at the hearing on May 4, 1978, stating that he had been treating the plaintiff for back pain, chronic bronchial asthma and hypertension since 1977. He added that patient was developing "calluses on foot which unable her to walk at present (sic)." His diagnosis at the time of the ...

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