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HARRIS v. SCHWEIKER

April 4, 1983

EDDILEE HARRIS, Plaintiff,
v.
RICHARD SCHWEIKER, Secretary of the Department of Health and Human Services, Defendant


Edelstein, District Judge.


The opinion of the court was delivered by: EDELSTEIN

MEMORANDUM OPINION AND ORDER

EDELSTEIN, District Judge,

 This is an action brought under §§ 205(g) and 1631(c)(3) of the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g) and 1383 (c)(3), to review a final determination of the Secretary of Health and Human Services which denied plaintiff's application for Disability Insurance Benefits under Title II of the Act and Supplementary Security Income ("SSI") benefits under Title XVI of the Act based upon disability.

 PRIOR PROCEEDINGS

 Plaintiff Eddilee Harris ("Harris") filed applications for disability benefits on May 23, 1980 and for SSI benefits on May 6, 1980. Plaintiff requested a hearing to review both applications, and a hearing was held on May 13, 1981. On July 10, 1981, the Administrative Law Judge ("ALJ") found that the plaintiff did not have a severe impairment and was capable of performing sedentary work and therefore was not disabled under the Social Security Act. The decision of the ALJ became the final decision of the Secretary when it was adopted by the Appeals Council on August 27, 1981. On December 29, 1982 defendant filed a motion for a judgment on the pleadings, Fed. R. Civ. P. 12(c), and on January 31, 1983 plaintiff cross-moved for a judgment on the pleadings.

 DISCUSSION

 The issue before this court is whether the Secretary's decision was based upon substantial evidence, Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982), and if so, does the government then have the burden of providing the claimant with adequate notice of the nature and demands of the types of jobs allegedly available to the claimant by specifying a few suitable alternative available types of jobs. See Campbell v. Secretary of Health and Human Services, 665 F.2d 48, 53-54 (2d Cir. 1981), cert. granted, 457 U.S. 1131, 102 S. Ct. 2956, 73 L. Ed. 2d 1348 (1982).

 Plaintiff is a forty-eight year-old woman. She completed two years of high school education and her work history consists of unskilled labor. Record on Review ("Tr.") at 63-65. Harris last worked from July to December, 1979 as a kitchen aide in a day care center. Tr. at 65. Between July, 1979 and 1974 she worked part-time as a health aide for elderly people. Tr. at 69-70. From 1952 to 1974 she was employed indexing books. Tr. at 67-68.

 Plaintiff claims that she has been unable to work since January 2, 1978 because she suffers from "arteriosclerotic heart disease with acute coronary insufficiency, angina pectoris, hypertension, an irregular heartbeat, degenerative arthritis and obesity." Memorandum in Opposition to Defendant's Motion for Judgment on the Pleadings and Defendant's Cross-Motion for Judgment on the Pleadings at 2. Plaintiff testified at the hearing that she is unable to work due to sharp chest pains radiating to her left arm which occur after slight exertion as well as at rest. Tr. at 70-76. This condition is aggravated by arthritic pain and swelling involving her right knee, foot and ankle and hypertension. From October, 1979 to December, 1980 Harris was hospitalized six times, each time for approximately 8-10 days, for her heart condition and hypertension. Tr. at 180, 196, 210, 229, 242, 275.

 Harris' claim is supported by medical records and subjective evidence of pain and disability as described by the claimant. Medical records of examinations performed by the claimant's treating physician indicate that plaintiff is able to sit for four hours at one time and for a total of six hours during an eight hour day; stand for two hours at a time and for a total of three hours during an eight hour day; she could not walk for even one hour at one time and could walk for a total of one hour during an eight hour day. In addition, the claimant can occasionally lift and carry up to five pounds. Tr. at 276.

 Dr. George Branche, Harris' treating physician, observed Harris during the period December 20, 1980 through April 29, 1981 and diagnosed her condition as arteriosclerotic heart disease with coronary insufficiency, hypertensive cardiovascular disease, and osteoarthritis-generalized. Tr. at 272-75. On May 8, 1981 Dr. Branche evaluated plaintiff's residual functional capacities, and indicated that she is able to lift only five pounds and is not able to bend, squat, crawl or climb at all, can only occasionally reach, can use her hands but not her feet for repetitive movements. Tr. at 276. He also reported that plaintiff has total restrictions involving unprotected heights, moving machinery, driving automotive equipment, exposure to dust, fumes and gases, and that she is able to sit for as many as six hours per day and walk for one hour per day. Id. Thus, according to her treating physician, she is completely unable to perform even sedentary work insofar as the regulation defining sedentary work states that such work "entails lifting 10 pounds maximum." 20 C.F.R.§ 404.1510(b) (1982).

 The record also contains reports of examinations performed by two consulting physicians. Tr. at 262-71. Tests conducted by one of the consulting physicians, Dr. Murray J. Pokress, who examined the plaintiff on September 8, 1980, demonstrated that the claimant had an "inappropriate increase in heart rate due to a low tolerance to exercise," and that after only one minute of exercise at 2 M.P.H. the claimant developed extreme weakness and fatigue and was not able to continue. Tr. at 269. On September 23, 1980 Dr. Pokress diagnosed hypertensive arteriosclerotic heart disease and obesity. Tr. at 265.

 The other consulting physician, Dr. Sures Chaudhary, examined Harris on July 13, 1980 and determined that the "claimant's ability to walk is limited to ten blocks, ability to stand and sit are within normal limits, ability to lift weight is to 20 pounds, and bending ability is within normal limits. She can grasp and manipulate within normal limits for fine and gross movements." Tr. at 264.

 To qualify for disability benefits a claimant must be found to be under a disability, which is defined as an "inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment . . . Which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). The Act further provides that to recover, the claimant's impairments must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, ...


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