Brassard v. Heckler, Civ. A. No. 84-221.

• Court: U.S. District Court — District of Vermont
• Writing for the Court: COFFRIN
• Citation: Brassard v. Heckler, 646 F.Supp. 1152 (D. Vt. 1985)
• Decision Date: 02 August 1985
• Docket Number: Civ. A. No. 84-221.
• Parties: Claude G. BRASSARD v. Margaret HECKLER, Secretary of Health and Human Services.

646 F. Supp. 1152

Claude G. BRASSARD v. Margaret HECKLER, Secretary of Health and Human Services.

Civ. A. No. 84-221.

United States District Court, D. Vermont.

August 2, 1985.

Arthur P. Anderson, Saxer, Anderson & Wolinsky, Burlington, Vt., for the plaintiff.

Donald Moroz, Asst. U.S. Atty., Burlington, Vt., for the defendant.

OPINION AND ORDER

COFFRIN, Chief Judge.

Plaintiff seeks a review in this court, pursuant to 42 U.S.C. § 405(g), of the final decision of the Secretary of Health and Human Services (Secretary) denying Plaintiff's application for disability insurance benefits. Plaintiff moves for summary judgment; the Secretary moves for an order affirming her decision. For the reasons stated below, Plaintiff's motion is GRANTED and the Secretary's motion is DENIED. We reverse and remand to the Secretary for the calculation of benefits.

Background

Plaintiff Brassard, a forty-nine year old applicant for disability benefits with a high school education, has a long history of epilepsy and, in the recent past, has developed severe pulmonary emboli, which has resulted in his being hospitalized. In addition, Plaintiff claims that he has a visual impairment, manifested by blurred vision, double vision, restriction of visual field, and dysequilibrium in walking. Plaintiff claims that he became disabled in February, 1982. Until that time Plaintiff had been employed as a quality control supervisor at Reliance Universal Co., a Pennsylvania plant which manufactures concrete pipelines. Plaintiff's job description at Reliance included field work — crawling inside pipelines and repairing pressure leaks — operating a fork lift, and using tools.

Plaintiff's work history includes a position as clerk supervisor in a tobacco plant (1956-1963), a field person in quality control at another plant, later promoted to supervisor (1967-1981), and, finally, a quality control supervisor at Reliance Co. (July 1981-February 1982).

The Reliance plant closed on February 28, 1982, the same date on which Plaintiff claims he became disabled. Plaintiff received unemployment insurance for a one year period from the date of the plant closing until February, 1983.¹

Although the Plaintiff admits that he was not feeling well towards the end of his job at Reliance, he claims that he continued working at the plant because he was aware it was closing in February, 1982, and he thought that he could make it until then. Plaintiff claims that after the plant shutdown he tried to find work, but that there was no work available. Specifically, he mentioned that he applied for a job at a concrete plant (Tr. 34).

In April, 1982, he began experiencing shortness of breath and loss of vision. Having had prior episodes of pulmonary emboli, Plaintiff was sufficiently familiar with the above symptoms to recognize that he required hospitalization. On May 21, 1982, he entered the Medicial Center Hospital of Vermont (Tr. 32).

At the hospital he was diagnosed and treated for epilepsy, pulmonary emboli, and concomitant visual and equilibrium disturbances.

Immediately after his discharge from the hospital, on June 1, 1982, Plaintiff received a job offer, but declined to accept it because of his poor health (Tr. 30). Since then, however, Plaintiff claims that he has applied to the A & P and several other places for lighter work (Tr. 34).

Plaintiff is heavily medicated to control his epileptic seizures as well as his pulmonary emboli. Due to his failing eyesight, he claims that, upon the recommendation of doctors, he participates only in limited activity. He does not engage in recreational activities; has only a few social contacts; and does not drive. He walks around his property, and is able to walk 500 yards to a nearby river. However, he claims that he is unable to walk three miles to the village center. Moreover, he contends that he can neither read nor watch TV for more than ten to fifteen minutes. After that period his eyes sting and he blinks tears away. He claims that his visual problems eliminate his peripheral vision and depth perception, make him unable to focus on objects, cause him to miss steps, cause difficulty in walking and cause him to bump into people and objects. He also has difficulties performing simple tasks, such as putting keys in key holes and screwdrivers in screws.

He claims that, as a result of his pulmonary emboli, he has chronic shortness of breath and experiences similar symptoms as those who suffer from emphysema. Activities such as walking up a hill or stairway, or going outside in cold weather, cause breathing difficulties.

Plaintiff filed an application for disability benefits which was denied by the Social Security Administration initially and on reconsideration. An ALJ examined the claim de novo, considering plaintiff's testimony, the testimony of doctors and ophthalmologists, the results of objective medical tests, and hospital reports. The ALJ determined that Plaintiff was not entitled to disability benefits. The Appeals Council denied Plaintiff's request for a review, thus establishing the ALJ's opinion as the final decision of the Secretary. Plaintiff then brought this civil action.

Discussion

In a proceeding for review of the Secretary's final decision, the findings of the Secretary are conclusive where supported by substantial evidence. 42 U.S.C. § 405(g). It is not the function of a reviewing court to determine de novo whether the claimant is disabled, but to decide whether the Secretary's decision is supported by substantial evidence. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978); Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38 (2d Cir.1972). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as 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 quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). However, the district court is to consider the fact that the Social Security Act is a remedial statute to be broadly construed and liberally applied, Bastien, supra, at 912; Gold, supra, at 41; Gero v. Heckler, No. 83-486, slip. op. at 5 (D.Vt., Jan. 25, 1985).

The Secretary has promulgated a five-step sequence for evaluating disability claims. See 20 C.F.R. §§ 404.1520, 416.920.

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982).

Since the ALJ in the instant case found that Plaintiff was not currently employed, had a severe impairment, and could not perform his past work, tr. 11, this court must proceed to the fifth step in the sequence outlined in Berry, supra. At this step, the burden is upon the Secretary to produce evidence to show that Plaintiff retained a residual functional capacity for work. See 20 C.F.R. § 404.1520. To determine Plaintiff's capacity for work, the Secretary must assess the claimant's individual capabilities and also determine whether jobs exist in the national economy which a person with the claimant's limitations could perform. 20 C.F.R. §§ 416.966-69; Heckler v. Campbell, 461 U.S. 458, 467, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66 (1983); Decker v. Harris, 647 F.2d 291, 294 (2d Cir.1981).

Normally, once it is determined that a claimant cannot perform his past work, the Secretary's application of the Medical-Vocational Guidelines ("grid"), set forth at 20 C.F.R. pt. 404, subpt. P, app. 2, is sufficient to satisfy her burden of showing that there is work in the national economy that claimant can perform. Heckler v. Campbell, supra, at 470, 103 S.Ct. at 1959. The grid rules are predicated on the claimant's strength or physical exertion capabilities. These rules, however, are to be applied only when they accurately describe a claimant's abilities and limitations. If a claimant suffers from "nonexertional" impairments which further limit the types of work which he can perform, the rules in the grid are not controlling and cannot be used to direct a conclusion of disabled or not disabled. See Nicks v. Schweiker, 696 F.2d 633, 636 (8th Cir.1983); App. 2, § 200.00(e).

In order to satisfy the burden in cases where there is a nonexertional impairment — either singly, or in combination with an exertional impairment — which further limits Plaintiff's capacity to perform work, the Secretary must produce the testimony of a vocational expert. Haynes v. Heckler, 716 F.2d 483, 485 (8th Cir.1983). 20 C.F.R. pt. 4, subpt. P, app. 2 § 200.00(e).

Plaintiff's impairments are both exertional and nonexertional. Pulmonary emboli is an exertional impairment which limits a claimant's strength capacity. Epilepsy and visual impairments, however, are nonexertional impairments which limit a claimant's capacity to work in other ways. 20 C.F.R. pt. 404, subpt. P,...