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Messina v. Califano
March 29, 1979
CHARLES A. MESSINA, PLAINTIFF - APPELLANT,
JOSEPH A. CALIFANO, JR., SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, DEFENDANT - APPELLEE .
Present: HONORABLE LEONARD P. MOORE, HONORABLE HENRY J. FRIENDLY, HONORABLE THOMAS J. MESKILL, Circuit Judges.
This is an appeal from an order entered in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, granting HEW's motion to dismiss appellant's action seeking review of a final determination of HEW denying appellant's application for disability insurance and benefits.
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York, and was argued by counsel.
Appellant filed an application for social security disability benefits in 1974; this application was denied. After the application administrative law judge determined that appellant had not established that he was "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment... which meets the statutory standard of disability." The Appeals Council subsequently upheld this determination. It was from this final determination by the Secretary that appellant appealed to the district court. He now seeks reversal of the judgment of the district court and a remand for a full trial and an award of benefits.
A vocational expert witness testified that taking into account appellant's medical condition and work experience, there were a variety of sedentary jobs in dust free environments which plaintiff could perform, and that such jobs existed in substantial numbers in the New York City area. In addition the evidence showed that the doctors consulted by appellant did not disagree with the assessment of the vocational expert that, despite the presence of the admitted medical conditions, appellant was capable of light work in a dust free environment.
Appellant asks in the alternative for a remand to the Secretary for the consideration of new evidence concerning appellant's application for veteran's benefits and the findings of a Veterans Administration hospital lung clinic. At most this evidence merely supports the uncontested proposition that appellant has respiratory problems. The Secretary's determination that the appellant's impairment does not prevent him from obtaining substantial gainful employment is supported by substantial evidence.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed.
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