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MARQUEZ v. SHALALA

September 28, 1995

SHEILA MARQUEZ o/b/o JOSE E. INFANTE, Plaintiff, against DONNA SHALALA, Secretary of Health and Human Services, Defendant.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Plaintiff Jose E. Infante, by his mother Sheila Marquez, brings this action under Sections 1383(c)(3) and 205(g) of the Social Security Act (the "Act"), 42 U.S.C. §§ 1383(c)(3) and 405(g) (1988), challenging a final determination of the Secretary of Health and Human Services (the "Secretary") that Infante is not entitled to Supplemental Security Income ("SSI"). The Secretary moves for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, the motion is granted and the Secretary's determination is affirmed.

 I. BACKGROUND

 A. Procedural History

 On August 11, 1992, Marquez filed an application on behalf of Infante for SSI benefits under Title XVI of the Act, 42 U.S.C. §§ 1381-1383 (1988). (Tr. 39-42). *fn1" The initial application and a request for reconsideration were denied. (Tr. 46-53). Marquez later requested and received a hearing before Administrative Law Judge Thomas P. Dorsey (the "ALJ"), who conducted a hearing on July 12, 1993 to decide, de novo, whether Jose Infante was eligible for SSI benefits. *fn2" The ALJ determined on October 4, 1993 that Jose was not entitled to SSI benefits, and four days later, Marquez filed a request for review of the ALJ's decision. Upon the denial of her request, the ALJ's findings and determination became the final decision of the Secretary. Marquez appeals to this Court from that final decision.

 B. Facts

 Jose Infante is an eleven year old boy who has suffered from chronic asthma since the age of two months. (Tr. 64) Medical evidence documents a history of asthma, though the condition does not restrict his daily activities. (Tr. 48). The plaintiff currently takes several different medications that relieve his sporadic breathing difficulties. (Tr. 61, 91, 94, 99). He was twice admitted to the hospital, once in 1991 and again in 1993. (Tr. 113).

 Jose, a bilingual student, testified at the administrative hearing that he played baseball in the schoolyard *fn3" and watched children's television programs at home. (Tr. 25, 27). Although he did not play with children in his apartment building, he did play with his younger brother. (Tr. 26). Indeed, Jose also played with other children in his class, and got along well with his teachers. (Tr. 25).

 Jose testified at the hearing that he had recently suffered an asthma attack. (Tr. 27). His last visit to the hospital had been in May 1993 (id.), when the hospital admitted him because he was feeling "bad" and having trouble breathing. (Tr. 32). Doctors at the hospital determined that Jose did not require admission into the intensive care unit, and instead administered Prednisone, Proventil and nebulizer therapy, three medications used to relieve his condition. (Tr. 113). The hospital released Jose after three days. (Id.).

 Marquez, Jose's mother, also testified regarding Jose's asthmatic condition. At one time, Marquez rushed Jose to the hospital after playing with his brother. (Tr. 36). Marquez also stated that Jose tired easily and often, especially when playing and while climbing four flights up to their apartment. (Tr. 36, 76). Consequently, his school placed him in a first floor classroom. (Tr. 32). In particular, Jose complained of breathing difficulties and pains near his heart (Tr. 74), and Marquez explained that the plaintiff's condition is exacerbated because his medications make him hyperactive. (Id.). Marquez further testified that the boy suffers from convulsions (id.), mood swings and substantial weight gain. (Tr. 36-37).

 Dr. Thanjan, Jose's pediatrician from 1986 to 1993, enumerated the different medical conditions encountered by Jose, including episodes of asthma, allergic edema, and rhinitis. (Tr. 93-94). The doctor's report did not indicate that the asthma had any effect on the child's activities. (Tr. 94). Importantly, the doctor noted that the child's behavior and functions were age appropriate. (Id.).

 In 1993, Marquez changed doctors and Dr. Faye Kokotos became Jose's principal provider of routine pediatric health care. (Tr. 111). She indicated that Jose experienced coughs and shortness of breath when exercising. (Id.). Jose's symptoms worsened in cold weather. (Id.). Dr. Kokotos placed Jose on nebulizer therapy and prescribed Prednisone. (Tr. 112). Like Dr. Thanjan, Dr. Kokotos determined that the asthma condition did not affect Jose's daily activities and that his function and behavior were age-appropriate. (Id.).

 Jose's teacher, Mrs. N. Pallens, similarly reported no behavioral or functional problems with Jose. In her responses to a questionnaire submitted to the ALJ, she stated that the plaintiff performs well in class and participates often in answering questions." (Tr. 70-71). Mrs. Pallens did not notice any difficulty moving or ...


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