Parker v. Harris

• Decision Date: 18 June 1980
• Docket Number: No. 830,830
• Citation: 626 F.2d 225
• Parties: Walter E. PARKER, Appellant, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Appellee. ; Docket 79-6240.
• Court: U.S. Court of Appeals — Second Circuit

Page 225

626 F.2d 225

Walter E. PARKER, Appellant, v. Patricia Roberts HARRIS, Secretary of Health, Education and Welfare, Appellee.

No. 830; Docket 79-6240.

United States Court of Appeals, Second Circuit.

Argued March 5, 1980.

Decided June 18, 1980.

Dan Jerman, Vermont Legal Aid, Inc., Rutland, Vt., for appellant.

George Eng, Asst. Regional Atty., HEW, Boston Mass. (Donna McCarthy, Asst. Regional Atty., HEW, Boston, Mass., William B. Gray, U. S. Atty., and Peter W. Hall, Asst. U. S. Atty., Rutland, Vt., on the brief), for appellee.

Before FEINBERG, NEWMAN and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Appellant Walter E. Parker brought this action in the district court under 42 U.S.C. § 405(g) seeking review of a final decision of the Secretary of Health, Education, and Welfare denying his application for social security disability benefits. The district court affirmed the Secretary's determination that on June 30, 1976, the last date on which appellant met the special earnings requirements for disability insurance coverage, he was not disabled within the meaning of 42 U.S.C. § 423. We conclude that the decision of the Secretary that appellant's physical condition did not prevent his resuming his prior work or performing other work was not supported by substantial evidence. We reverse and remand to the Secretary for the computation and payment of benefits.

I

Parker was born in 1921 and attended school until he was sixteen years old, advancing through the sixth grade. After leaving school he worked for the WPA for one year and then did road construction work until he entered the Army in 1942. He received no vocational training while in the Army. In 1946 Parker left the service, and from that time until 1974 his work experience consisted primarily as a carpenter's helper and a mason's helper in the building and road construction industries. In these jobs, he mixed, poured and carried cement, carried lumber and bricks and put up scaffolding. He did no actual sawing, nailing or building of his own. In addition, Parker held several factory jobs which, like the construction jobs, appear to have required unskilled physical labor. One such job involved baking paint, and required him to place large formica-type sheets, approximately four feet by eight feet, in an oven. In another factory job, his assignment was to cut paper off large rolls. From 1973 to 1974, appellant worked in a slate quarry, moving slate through a machine. He ceased working in July 1974, allegedly because of emphysema.

On August 23, 1977, appellant filed an application for social security disability benefits claiming total and permanent disability due to emphysema. ¹ The application was denied initially and on reconsideration. In September 1978, a hearing de novo was held before an Administrative Law Judge ("ALJ"). Parker appeared personally, as did his wife who also gave evidence. Parker testified about the nature of his work experience as set forth above, about his reasons for stopping work in 1974, and about his health since 1974. The record also included a variety of medical evidence including hospital records, reports of four physicians, emergency rescue squad reports, and reports of other federal and state agencies as to Parker's disability.

Parker testified that he ceased work in the slate quarry in July 1974 because he was having trouble breathing, had become dizzy and had fallen. ² The record reveals that Parker had first been seen by one of his treating physicians, whose reports are described below, in March 1974 and that his history of emphysema had begun some two years earlier. After July 1974, Parker suffered repeatedly from shortness of breath and dizziness, chest pains four or five times a week, and episodes of falling as a result of his dyspnea and dizziness. He was hospitalized on at least six occasions, three of which occurred prior to June 30, 1976, the date on which his social security insured status expired. ³ Mrs. Parker testified that during some of Parker's attacks he had fallen to the floor gasping for breath, unable to talk, and she had had to summon the Granville Rescue Squad. ⁴ A letter from a captain of the Rescue Squad indicates that the Rescue Squad came to Parker's aid three times, each occasion being classed as "Emergency!" On at least two of these occasions Parker was admitted to Emma Laing Stevens Hospital once with breathing problems, and once with chest pains that were later diagnosed as congestive heart failure. ⁵ Since approximately 1975, Parker has been taking prescribed medications, including quibron before meals and at bedtime, tetracycline at bedtime, and valium three times a day. In addition, he has used a "breathing machine" at home up to three or four times a week.

Parker testified that his impairment had limited his daily activities and had eliminated all former hobbies. He has no social life and no activities other than walking his dog three times a day for short distances. He cannot walk long distances and has difficulty walking uphill or up stairs. He can no longer do such things as shovel snow or play ball with his daughter. He used to hunt and fish regularly; he has not engaged in these activities since he stopped work. Parker stated that he is "sleepy all the time" and that in addition to eight hours at night, he sleeps three to four hours during each day. He indicated that he had reduced his cigarette smoking from three-to-four packs a day to about one-half pack a day.

At and after the hearing, records of Emma Laing Stevens Hospital were submitted, showing that on at least five occasions between December 1974 and January 1978, Parker was admitted for treatment and remained hospitalized for periods of five to eight days. ⁶ On December 10, 1974, he was admitted because of "increased dyspnea with lightheadedness and unsteadiness upon walking, numbness and tingling of the hands and feet and a 'funny feeling' in his chest." The diagnosis on this occasion included "chronic pulmonary emphysema" and "hyperventilation syndrome." He was released on December 16 as "fully ambulatory without distress" but was admitted again on December 25, 1974 with similar symptoms and diagnosis. He remained in the hospital until December 29. Parker was admitted again on March 20, 1975, with a diagnosis of "Hyperventilation with a chronic Emphysema"; he was discharged as improved on March 24, 1975. On May 27, 1977, appellant was brought to the Emergency Room and then admitted to the hospital. The records state that "(t)he hyperventilation was of such severity that outpatient control was impossible and he is known to have a longstanding history of chronic obstructive lung disease." Parker was discharged on June 1, 1977, but was brought into the Emergency Room on June 9, 1977 for breathing difficulty. He was next admitted for treatment on January 2, 1978, due to "acute respiratory difficulty and early stages of congestive heart failure." On January 9, 1978, he was discharged with a "final diagnosis" of "acute respiratory distress" and "congestive heart failure."

The record includes reports by two doctors, Dr. Foote and Dr. Edison, who are identified in all of the Emma Laing Stevens Hospital records as Parker's treating physicians. In a report dated May 17, 1977, Dr. Foote stated that appellant "has had emphysema for a long period" and "hasn't been able to work for the last three years." Concluding that the "patient is chronically incapacitated by his advanced pulmonary disease," the report stated as follows:

Any exertion, (climbing stairs or lifting or walking) he has to stop (every 100 ft. when walking). If he tries to push himself any further he becomes dyspnic (sic ) even turning blue. . . . (T)he patient is on Quibron, Valium & Dalmane. These have given him some response but still does (sic ) not allow him to go to any physical activity what so ever (sic ). With his past history as a construction worker it is felt he will never work at his job again. He has never had any training which would lead him to a very light duty job which he might handle such as bookkeeping. At 55 yrs. of age, it is not felt he (sic ) would be a profitable situation to try educating this individual. Therefore it is felt he will be permanently disabled. (Emphasis added.)

In a letter dated May 10, 1978, Dr. Foote stated:

In regard to Walter E. Parker, this patient has been under our treatment for lung disease, dating back at least through March, 1974. His condition has worsened since then. His emphysemia (sic ) has advanced, and he is prone to lung infections, and needs to avoid strenuous labor. He tires easily and with minimal exertion, my feeling is that this should preclude his working. His lung tissue will not regenerate and his disabilities are permanent.

Dr. Edison, who began treating Parker on March 20, 1974, similarly stated in a letter dated June 15, 1978, that Parker "has been continuously disabled because of obstructive lung disease" since 1974.

In addition to his two treating physicians, Parker was examined by two other physicians. Dr. Brislin who examined Parker on May 20, 1977, at the instance of the Vermont Department of Social and Rehabilitation Services, diagnosed Parker as suffering from emphysema, and "(r)ecommend(ed) that he apply for Disability under Social Security." Based partly on this report, the Vermont agency concluded that "Mr. Parker is (not) feasible for vocational rehabilitation services due to his age 56; health emphysema; and work history mainly heavy labor."

In October 1977, Parker was examined by Dr. Gunaratnam, apparently at the instance of Vermont's Disability Determination Agency in cooperation with the Social Security Administration. Dr. Gunaratnam's report of October 25, 1977 described appellant's symptoms and included the results of a chest x-ray, an electrocardiogram, a blood test, a urine examination and pulmonary function tests. Although some of the physical and laboratory...