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KELLER v. SECRETARY OF THE HHS OF THE UNITED STATE

November 30, 1984

Royce KELLER, Plaintiff,
v.
SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES OF the UNITED STATES, Defendant.



The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

MISHLER, District Judge.

 ACTION

 This is an action brought pursuant to § 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. 405(g), to review a final determination of the Secretary of the Department of Health and Human Services ("the Secretary"), which denied plaintiff's application for a period of disability insurance benefits. Both parties move the court for an order granting judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

 The plaintiff, Royce Keller, argues that the Secretary's decision denying plaintiff disability benefits is not supported by substantial evidence. Specifically, plaintiff argues that the Administrative Law Judge ("ALJ"), improperly applied the Medical-Vocational Guidelines ("the GRIDS"), provided in 20 C.F.R., Part 404, Subpart P, Appendix 2, Table No. 2 to plaintiff's case.

 FACTS

 The plaintiff was 49 years old at the time of the hearing. His application for disability benefits was denied initially and on reconsideration (Tr. 86, 89). A hearing was held on October 21, 1982 before an ALJ. The ALJ rendered a decision on March 9, 1982, denying plaintiff's application for benefits (Tr. 12-18). This decision became the final determination of the Secretary when the Appeals Council denied review (Tr. 3-4).

 For the last 30 years plaintiff has been a commercial painter. He is unable to read and has no formal schooling. Plaintiff claims he has been disabled since December 1, 1981 because of heart fibrillation, rapid heart beat and fatigue (Tr.77).

 Plaintiffs treating physician, Dr. Marc R. Kirschner, submitted a report dated April 27, 1982 detailing plaintiff's medical history (Tr. 116-135). He diagnosed plaintiff as suffering from "sick sinus syndrome refractory to medical therapy" (Tr. 134). The report documents plaintiff's treatment, limitations and symptoms. It notes the side-effects plaintiff experiences from changes and increases in his medication. These side-effects include excessive diarrhea, heartburn, arthritic type pain and severe pleuritic chest pain. Dr. Kirschner opined that plaintiff has a significant medical disability. He stated that the "attacks of tachycardia made it impossible for him to perform his job adequately." (Tr. 134). In a letter to plaintiff's attorney, Dr. Kirschner stated that long exposures to paint fumes made the plaintiff's condition worse (Tr. 144).

 Plaintiff was seen by the Social Security consulting physician, Dr. Gary Veith, on December 10, 1982 (Tr. 146-151).His examination revealed the presence of atrial ectopics and episodes of atrial fibrillations. Dr. Veith recommended that plaintiff stay away from strong fumes (Tr. 147). He placed no limitations upon plaintiff's ability to stand, sit, walk and bend. He opined that plaintiff could lift up to 40 pounds and carry up to 30 pounds. Moderate physical activities were recommended (Tr. 149). The doctor stated that plaintiff was on an "appropriate medical program" and that an increase in medication might control the atrial fibrillations (Tr. 148-149). A vocational expert, Dr. Bernard Rosenberg, testified at the hearing (Tr. 59-74). He stated that the skills required by plaintiff's former work were transferable to other sedentary skilled or semi-skilled jobs. The vocational expert testified that of such jobs, approximately 2,000 existed in the metropolitan New York area. He gave the following examples of such jobs: "a painter of jewelry parts, hand painter of dolls, watches and small items where someone uses a brush to paint." He further testified that given the plaintiff's age, experience, education and alleged condition, including the limitations and restrictions, plaintiff could not perform his former work (Tr. 62). Dr. Rosenberg also testified that the plaintiff could not even perform the jobs suggested if he had to avoid exposure to paint fumes (Tr. 74). The vocational expert, however, did not testify as to whether the plaintiff could perform other types of light or sedentary work.

 Based upon Dr. Veith's report and the testimony of the vocational expert, the ALJ found plaintiff incapable of performing his past work. The ALJ also conceded that because of the plaintiff's inability to withstand exposure to strong fumes, he was not able to perform any of the semi-skilled jobs suggested by the vocational expert. The ALJ, nevertheless, concluded that the plaintiff retained the residual functional capacity to perform light work *fn1" (Tr. 17).The ALJ then applied the GRIDS under Rule 202.18 of theh Medical-Vocational Regulations (20 C.F.R., Subpart P, Appendix 2, Table 2) and concluded that theh plaintiff was not disabled given his age, education and work experience.

 DISCUSSION

 The sole issue for the court to decide is whether or not the Secretary's decision is supported by substantial evidence. A finding by the Secretary shall be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984); Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983).

 Substantial evidence constitutes "evidence more than a mere scintilla" which "a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)); Bell v. Secretary of Dep't of Health and Human Services, 732 F.2d 308, 310 (2d Cir.1984). The plaintiff has the initial burden of proving disability and entitlement to disability benefits. 20 C.F.R. § 404.1512(a); Bluvband v. Heckler, supra, at 891; Rivera v. Schweiker, 717 F.2d 719 (2d Cir.1983). A claimant seeking disability benefits is considered disabled for purposes of the Act if he is unable to "engage in any substantial activity by reason of ...


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