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August 13, 1984

ROSINA SELLERS, Plaintiff, against MARGARET M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.

The opinion of the court was delivered by: EDELSTEIN


EDELSTEIN, District Judge:

 Plaintiff brought this action under sections 205(g) and 1631(c) (3) of the Social Security Act, as amended ("Act"), 42 U.S.C. §§ 405(g) and 1383(c) (3), appealing a final decision of the Secretary of Health and Human Services ("Secretary"), which denied plaintiff's applications for disability insurance benefits and Supplemental Security Income ("SSI") benefits. Plaintiff has moved, and defendant has cross moved, for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).


 Plaintiff, who was born January 21, 1925 (tr.34), alleges she has been disabled and unable to work since September 12, 1981 due to a "heart condition" (tr.73-76, 77-86), specifically, atrial fibrillation with congestive heart failure.Plaintiff's Memorandum of Law at 21, 22, 24-25.Plaintiff also alleges disability due to mental impairment (tr.7-9).

 In support of her claim, plaintiff notes she was steadily employed as a machine operator from 1944 through September 11, 1981. On September 11, 1981 she suffered a "sudden ischemic episode" for which she was hospitalized. Tests done at that time revealed severe mitral stenosis and plaintiff was referred for surgery (tr.115).

 Plaintiff cites records of Columbia Presbyterian Hospital covering the period October 13, 1981 through October 27, 1981 indicating she underwent a mitral valve replacement on October 15, 1981 (tr.115-127).In addition, plaintiff relies on reports of her treating physician, Dr. Joseph Tenenbaum, dated February 17, 1982 (tr.128-129), April 19, 1982 (tr.138), June 11, 1982 (tr.139) and September 22, 1982 (tr.145-148). Dr. Tenenbaum stated that the post operative course was uncomplicated, but plaintiff continued to suffer chronic atrial fibrillation (tr.139,145). In the April 29, 1982 report, Dr. Tenenbaum opined that plaintiff was not physically capable of undertaking regular work (tr.138). In the report dated September 22, 1982, he categorized plaintiff as being then in New York Heart Association Functional Class II-III. *fn1"

 Plaintiff also cites the consultative report of Dr. Edmond B. Balinberg dated March 9, 1982k (tr.130-136) wherein Dr. Balinberg stated plaintiff had an irregular heart rate (tr.130) and that an electrocardiogram revealed "atrial fibrillation with a ventricular response . . . and non-specific ST-T changes" (tr.131). Dr. Balinberg also indicated that due to her heart condition plaintiff should "avoid dust, fumes and changes in temperature and humidity" (tr.134). But Dr. Balinberg's description of plaintiff's symptoms and his avoidance instructions do not rise to the level of an opinion stating that plaintiff has a severe disability.

 Plaintiff contends that the Secretary's decision is not supported by substantial evidence and that Dr. Tenenbaum's opinion that she is disabled is binding on the Secretary since there is no substantial contradictory evidence in the record. Plaintiff asserts that the reliance of the Administrative Law Judge ("ALJ") on the testimony of Dr. Edward Sang, who indicated at the hearing that plaintiff does not suffer a disabling impairment (tr.58-60), is misplaced because his testimony was "equivocal." Id. Plaintiff also asserts that the ALJ erroneously failed to accord plaintiff's allegations of severe disabling pain sufficient credibility.

 Plaintiff further contends that her conditioin meets the Listing of Impairments found in 20 C.F.R. 404.1520(d) Subpart P, Appendix 1.

 Plaintiff finally contends the results of psychiatric and psychological consultative examinations performed subsequent to the hearing (tr.149-152,153-154) by Dr. Raymond and Dr. Earley support the conclusion she suffers from a disabling mental impairment.

 Defendant maintains that the Secretary's determination is supported by substantial evidence.

 As to the plaintiff's allegation of disability due to physical impairment, defendant contends that plaintiff's mitral valve replacement in October, 1981 was successful and that her physical condition thereafter steadily improved. Defendant's Memorandum of Law at 15. The government also asserts that Dr. Tenenbaum's conclusion that plaintiff is disabled is not binding because it is contradicted by the opinions of Dr. Balinberg *fn2" and Dr. Sang and that Dr. Tenebaum's opinion is not supported by clinical findings. It also asserts that the ALJ's finding that plaintiff's allegations of disabling pain were not entitled to great weight should be given great deference. Defendant's Memorandum of Law at 20.

 As to plaintiff's allegation of disability due to mental impairment, defendant points out that Dr. Earley's assessment of a mental impairment is contradicted by the findings of Dr. Raymond and that, while Dr. Earley did include clinical findings in her report, "none are of the severity that would support a determination that plaintiff is ...

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