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ZAYAS v. HECKLER

August 8, 1983

Jose R. ZAYAS, Plaintiff,
v.
Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant



The opinion of the court was delivered by: DUFFY

MEMORANDUM & ORDER

 KEVIN THOMAS DUFFY, District Judge:

 Plaintiff, Jose R. Zayas, filed applications for disability insurance and Supplemental Security Income ("SSI") benefits in February and April, 1979, respectively. Both applications were denied initially and on reconsideration. Record at 76-78. Plaintiff requested a hearing to review both applications. On January 1, 1980, Administrative Law Judge ("ALJ") Robert Schwartz found that plaintiff was not under a disability as defined in the Social Security Act. Record at 5-10. The ALJ's decision became the final decision of the Secretary of Health and Human Services ("the Secretary") when it was approved by the Appeals Council ("the Council") on April 10, 1980. Record at 3. Plaintiff then brought an action in this court to review the Secretary's decision. The case was remanded for further proceedings. Zayas v. Harris, No. 80-3403 (S.D.N.Y. September 1, 1981). Following a supplemental hearing held on March 31, 1982, ALJ Schwartz issued a decision to the Council that plaintiff was disabled. Record at 157-62. The Council, however, did not adopt the ALJ's recommendation, and denied plaintiff's claim. Record at 151-56.

 Plaintiff brought the present action under sections 205(g) and 1631(c)(3) of the Social Security Act, as amended 42 U.S.C. § 405(g) and section 1383(c)(3), for review of the Secretary's final decision. Plaintiff moves for summary judgment pursuant to Fed.R.Civ.P. 56(a). Defendant moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

 FACTS

 Plaintiff Jose R. Zayas is a 49 year old native Puerto Rican, who is married and has three children. He came to the United States in 1959, having completed high school and 14 months of business school in Puerto Rico. Plaintiff is fluent and literate in Spanish, but cannot read or write English, and has never had vocational training. In the 1950's plaintiff noticed that he had difficulty breathing when running up a hill. When he came to this country in 1959, he worked first for the Hercules-Carnation Company delivering sweaters. Plaintiff left Hercules-Carnation in 1965 because of his allergy to wool. Between 1965 and 1978, plaintiff was employed by Mount Sinai Hospital ("Mount Sinai") and held various unskilled positions over the years in the laboratory, laundry, kitchen, custodial, and messenger services. Plaintiff maintained a good work record at the hospital. During his thirteen years at Mount Sinai, however, plaintiff had to take three sick leave periods because of his asthma. Plaintiff's bronchial asthma and allergies caused him to be sensitive to animal hair, strong odors, dust and cold temperatures, and limited his physical exertion. After working on the laboratory, kitchen and custodial staffs, plaintiff was eventually limited by his asthma to carrying test tubes between the hospital's laboratory and maternity areas. Finally, when a supervisor observed plaintiff using an asthma inhaler, plaintiff was suspended and placed on a medical leave of absence.

 Plaintiff made several efforts to be rehired, but Mount Sinai repeatedly denied his requests, due to plaintiff's medical history. Record at 50-51; 212-16. Plaintiff has not worked at all since he left Mount Sinai on November 20, 1978, the date on which plaintiff states he became disabled.

 SUPPLEMENTAL HEARING

 The record of this case was greatly enhanced by the inclusion of Mount Sinai medical and personnel records, which were not available at the first hearing. The report of plaintiff's consultative exam and the deposition and affidavit of plaintiff's treating physician at Mount Sinai also supplement the original record.

 Dr. Allen R. Gribetz, a board certified specialist in chest medicine and the author of several medical journal articles *fn1" stated in his affidavit that he treated plaintiff at Mount Sinai from 1979 through 1981. During the two year period, Dr. Gribetz treated plaintiff 25 times. Record at 314. The doctor stated several times that of the hundreds of asthmatics he has treated, plaintiff has the most severe bronchial asthma he had ever seen. Record at 160, 302, 315-17. Dr. Gribetz said that plaintiff's wheezing could not be controlled on a daily basis despite "maximum doses of medication, including steroids." Record at 301, 316. The doctor pointed out that at all but one of the twenty-five examinations between 1979 and 1981, plaintiff exhibited severe wheezing and shortness of breath, which were beyond medicinal control. Record at 301. Furthermore, according to Dr. Gribetz, plaintiff would have had extreme difficulty on those occasions doing any work that involved "any significant exertion." Record at 317. Dr. Gribetz did concede, however, that plaintiff could probably do sedentary tasks. Record at 303. The doctor was certain, however, that plaintiff's work capability would be limited to clear, temperate work environments and that he would have tremendous difficulty walking and climbing subway steps to commute to any job however sedentary. Record at 303, 317, 319. These statements support plaintiff's testimony that he could not walk more than half-a-block without stopping to catch his breath. Record at 192. Further, although plaintiff is particularly sensitive to dust and cold temperatures, Dr. Gribetz pointed out that plaintiff's condition never improved even when the weather was mild and the air pollution level was low. Record at 320. Further, the doctor stated that although plaintiff was never hospitalized because of his asthma, it was only plaintiff's stoicism and non-complaining nature that kept him out of the hospital. Record at 312-13, 322-24.

 Two other medical opinions were submitted at the Secretary's request, by Dr. Norman Cagin and Dr. Bobrosav Matiasevic. Dr. Matiasevic examined plaintiff on November 10, 1981. Record at 260. Dr. Cagin examined plaintiff on January 4 and 26, 1982, and observed that plaintiff was a "chronically ill appearing man." Record at 264-65. Both doctors diagnosed bronchial asthma, observed that plaintiff wheezed despite heavy medication, and stated that plaintiff's lungs did not clear after bronchodilation. The two reports also cite spirometric values which reflect severe pulmonary dysfunction, manifested as well by Dr. Cagin's exercise tolerance (treadmill) test which had to be stopped after only one minute due to plaintiff's shortness of breath. Record at 260-74. Despite these findings, Dr. Matiasevic stated on the "Physical Capacities Evaluation" form that plaintiff could continuously bend, squat and reach above shoulder level, frequently crawl and occasionally climb. Record at 262. The doctor also stated that plaintiff could occasionally carry 11-20 pounds, and continuously carry up to 10 pounds. The doctor noted that plaintiff's activities were only mildly restricted by marked changes in temperature and humidity, and not restricted at all by exposure to dust, fumes and gases.

 Dr. Gribetz agreed with the findings of the two reports but not with the conclusions drawn therefrom. Record at 301. The doctor stated that asthma is an episodic illness which could not be evaluated properly on the basis of one or two spirometric examinations. Record at 302. Therefore, Dr. Gribetz contended, the objective findings of Drs. Cagin and Matiasevic could have understated plaintiff's condition. Id. Dr. Gribetz considered Dr. Matiasevic's evaluation of plaintiff's physical capacity "absurd" and inconsistent with the objective findings of the three doctors. Record at 303-304. Further when Dr. Gribetz re-examined plaintiff on March 30, 1982, plaintiff exhibited a similar degree of wheezing and shortness of breath as the doctor had observed during the period of treatment between 1979 and 1981. Record at 301. Dr. Gribetz found plaintiff's asthmatic condition remained severe. Id.

 ALJ's Findings

 The ALJ afforded great weight to Dr. Gribetz's deposition and affidavit, and to hospital records which revealed that allergies placed environmental restrictions upon plaintiff. Record at 161. The ALJ also observed plaintiff's asthma attack, which occurred near the end of the hearing. Record at 221. The ALJ found plaintiff's subjective complaints of discomfort credible in light of all the evidence, and determined that plaintiff could not perform his past work. The ALJ determined that ability to perform basic work-related functions was limited by his severe impairment. Finding Nos. 2 & 4, Record at 161. The ALJ stated that plaintiff had been under a "disability" as defined in the Social Security Act, since November 20, 1978, the day plaintiff left Mount Sinai. Finding No. 5, ...


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