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December 5, 1997

ATIF SEDRAK, Plaintiff,
JOHN J. CALLAHAN, Acting Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: BOBRICK

 Plaintiff Atif Sedrak brings this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to review a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") under the Social Security Act ("Act").


 Plaintiff filed his application for SSI on June 16, 1993, alleging that he was disabled since May 1, 1991, due to asthma and a heart condition. (Administrative Record ("R.") at 36-37). His application was denied at the initial levels of administrative review (R. 49, 52-54), and he requested an administrative hearing. On February 3, 1995, an Administrative Law Judge ("ALJ") conducted a hearing at which plaintiff, represented by counsel, appeared and testified through an interpreter. (R. 203). A vocational expert, Myra Klein, also testified. (R. 203). On April 27, 1995, after considering all the evidence presented, the ALJ found that plaintiff was not disabled and, therefore, was not entitled to SSI under the Act. (R. 27-32). This became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review of the decision on June 12, 1996. (R. 5-6).

 A. Evidence of Record

 Plaintiff was born on January 1, 1934, making him sixty-one years old at the time of the ALJ's decision in this case. (R. 36). Plaintiff came to the United States from Egypt in 1981. In Egypt, he completed high school and two years of college, and worked as an accounting clerk. (R. 206, 211, 230). Since coming to the United States, plaintiff has worked as a store clerk, mail sorter, and janitor. (R. 208-11). As a mail sorter, plaintiff walked and stood five hours a day, had to carry 10 pounds, and lift up to 20 pounds. (R. 61).

 The medical evidence indicates that plaintiff has a history of tachycardia, or rapid heartbeat, and asthma. Plaintiff's treating physician, Dr. Guy Rowley, prescribed an inhaler for plaintiff in May of 1989. (R. 58, 100). After shoveling snow in February, 1993, plaintiff went to the hospital complaining of chest pain. (R. 102). His heart rate was rapid at 128 beats per minute. (R. 102). Dr. Rowley diagnosed paroxysmal supraventricular tachycardia, along with unstable angina, chronic airway obstruction, and elevated cholesterol level. (R. 103).

 On July 12, 1993, plaintiff underwent a pulmonary function study. Before administration of bronchodilators, he registered an FVC of 2.46 of 4.20 predicted, FEV1 of 1.82 of 3.01, FEF25-75 of 1.33 of 3.00, PEFR of 3.33 of 7.93, and MVV of 49 of 120. (R. 105). After bronchodilators, he registered his FVC was 2.60, FEV1 was 1.87, FEF25-75 was 1.25, PEFR was 4.28, and MVV was 53.8. *fn1" (R. 1050).

 On July 14, 1993, Dr. Mila Bacalla examined plaintiff at the Social Security Administration's request. (R. 112-116). Plaintiff did not exhibit acute respiratory distress; breath sounds were diminished but no rales or wheezing were noted. (R. 115). Dr. Bacalla referred to the above-cited pulmonary function study, but did not comment on it. (R. 115). Dr. Bacalla felt that plaintiff's description of his chest pain was not quite typical of angina pectoris. (R. 115). A treadmill test showed no significant changes after seven minutes. (R. 115). Plaintiff exhibited mild systolic hypertension, but no evidence of retinopathy, congestive heart failure, or arrhythmia. (R. 115). He had a full range of motion in his cervical and lumbosacral spine, and exhibited no tenderness or spasm. (R. 114).

 Plaintiff was hospitalized on August 7, 1993, with complaints of chest pains. (R. 118). A Holter monitor ruled out the possibility of myocardial infarction, and plaintiff's condition stabilized on medication. (R. 123-24). Staff thought he had probably been non-complaint with his treatment and that this had brought on his pain. (R. 125). Chest x-rays showed no active pulmonary infiltrate. (R. 132).

 In September, 1993, plaintiff saw Dr. Rowley and complained of back pain. (R. 156). He claimed to have had a problem with his back since his 40s. (R. 156). Straight leg raising, and reflexes were normal -- there was no radiation of pain. (R. 156). Dr. Rowley recommended that plaintiff bend from the knees rather than the waist, and started him on ibuprofen. (R. 157). Plaintiff returned in October, and stated that he occasionally used darvocet for his back pain. (R. 157). He also stated that he was "okay" if he avoided bending. (R. 157). Dr. Rowley also noted that plaintiff had quit work for reason unrelated to his physical problems. (R. 157).

 In November of 1993, Dr. Rowley stated that he felt plaintiff could sit for fours a day, stand for two, and walk for one. (R. 153). He felt plaintiff could lift ten pounds frequently and twenty pounds occasional, and carry five pounds frequently and carry 20 pounds occasionally. (R. 153). He added that plaintiff was unable to bend, squat, climb, or crawl, and could reach only occasional. (R. 154). Finally, Dr. Rowley stated that plaintiff was moderately restricted from unprotected heights, driving, and exposure to dust or fumes, and was mildly restricted from being around moving machinery and marked changes in temperature and humidity. (R. 154). This was based on plaintiff's major problems of back strain and shortness of breath. (R. 154).

 In October of 1994, plaintiff saw Dr. Charles Mercier for pain in his feet. (R. 202). Dr. Mercier diagnosed bilateral heel spurs and recommended hydrocortisone shots. (R. 200, 202). Plaintiff first refused the shots, preferring oral medication, then took the shots in January of 1995. (R. 200, 202). According to Dr. Mercier, "if plaintiff had a job, he could work." (R. 200). In addition, two agency physicians reviewed plaintiff's medical files; Dr. William Curtis in July, 1993 (R. 161-68), and Dr. George Kudirka in December, 1993. (R. 169-76). Both felt plaintiff could lift up to 50 pounds and stand or walk up to 6 hours a day, but that he should avoid fumes, dust, and gasses. (R. 162, 165, 170, 173).

 At his administrative hearing, plaintiff testified that his main problem was his asthma. (R. 212). He also stated he had pain in his lower back and could not bend for too long. (R. 213). Plaintiff said he could walk a block before he became short of breath. (R. 217). He also claimed he became short of breath after sitting or standing for an hour. (R. 217). He stated he could lift a gallon of milk, wash dishes, and make the bed. (R. 218). According to plaintiff, he quit his job as a janitor because his hours were being reduced. (R. 209). He testified that he quit his job as a mail clerk or sorter because he could not lift the heavy trays of mail. (R. 210). The vocational expert testified that plaintiff's job as a mail sorter was unskilled light work, requiring him to lift ten to fifteen pounds. (R. 229). The Commissioner's regulations define light work as involving:

lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting ...

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