Rivera v. Schweiker, 1141
| Citation | 717 F.2d 719 |
| Decision Date | 07 September 1983 |
| Docket Number | No. 1141,D,1141 |
| Parties | Jose RIVERA, Plaintiff-Appellant, v. Richard SCHWEIKER, Secretary of the United States Department of Health and Human Services, Defendant-Appellee. ocket 83-6017. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Richard Rivera, New York City (of counsel to Michael D. Hampden, New York City, Bronx Legal Services, New York City), for plaintiff-appellant.
R. Nicholas Gimbel, Asst. U.S. Atty. S.D.N.Y., New York City (John S. Martin, Jr., U.S. Atty., S.D.N.Y.), Peter C. Salerno, Asst. U.S. Atty., New York City, of counsel), for defendant-appellee.
Before LUMBARD, OAKES and PIERCE, Circuit Judges.
Plaintiff appeals from an order of the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, entered November 23, 1982, denying plaintiff's Fed.R.Civ.P. 12(c) motion for judgment on the pleadings and dismissing the complaint.
Plaintiff Rivera is a 56-year-old male who lives with his wife in an apartment in Bronx, New York. He possesses an eighth grade education, which he received in Puerto Rico. He is able to read and write Spanish and to speak and understand English to a limited extent.
Upon leaving school, Rivera worked on a farm planting fruits, and in 1947 came to New York. He first worked as a dishwasher and then, in September 1948, he began to work for Progress Frocks, Inc., which operated a dress factory in the garment industry in New York City. From that date until December 1977--except for the period from March 1951 to March 1953 when he served as an enlisted man in the United States Army, including service in Korea--Rivera generally worked six days weekly between 8:00 a.m. and 6:00 p.m. His duties consisted principally of packing and receiving merchandise, preparing dresses and suits for sewing machine operators, and delivering finished merchandise to shipment stations. This was generally heavy work; he often moved rolls of fabric which weighed over 100 pounds and pushed racks containing up to 300 suits through the city streets to destinations up to ten blocks from his place of employment.
In December 1977, Progress Frocks, Inc. closed, and Rivera obtained similar employment and worked similar long hours at a garment factory operated by Bill Levkoff, Inc.
On May 16, 1980, after 32 years in the garment industry and two and one half years at Levkoff's, Rivera awoke to prepare to go to work but suffered what was later diagnosed as a stroke. Although he managed to work that day, he has not since worked. On that date he went to see Dr. Rafael Beltran, an ophthalmologist, because he could not see from his left eye. Dr. Beltran determined that Rivera's loss of sight was not directly related to his eyes and advised him to go to a hospital. Rivera went to Albert Einstein Hospital where he remained an in-patient from May 27, 1980 until June 3, 1980.
Dr. Jay M. Coblentz, a neurologist at the hospital, determined that Rivera had suffered a "cerebral infarction, right occipital lobe, with left inferior quadrant field cut." In the hospital's discharge summary, Dr. Coblentz concluded that Rivera's nervous system was in an unstable state. Consequently, he ordered an echocardiagram. The echocardiagram, performed by Dr. S. Fein and Dr. J. Strom on June 2, 1980, revealed that Rivera's aortic valve had less than one half the normal adult valve opening, that his interventricular septum and left ventricular posterior wall were much thicker than normal, and that the volume of blood that Rivera's heart pumped into his system every minute was lower than normal. The doctors concluded their report by noting that Rivera's aortic valve had thickened and hardened by reason of calcium deposits and that the walls of his heart were thickening, thus causing an apparent diminution in its capacity.
By letter dated August 8, 1980, Dr. Coblentz concluded that Rivera's significant loss of vision in his left visual field was "with reasonable medical certainty ... permanent." He also wrote that Rivera had been seen in the office for further stroke prevention and that "[a]t this time, it is appropriate to state that this patient is unable to work at his job or any other job and he is permanently disabled." Also by letter dated February 24, 1981, Dr. Coblentz wrote that Rivera "continues to experience symptoms of ongoing, recurrent cerebrovascular insufficiency." He concluded that "there is no question in my mind that the instability of the patient's cerebrovascular system is such that if he were to return to work he would suffer a disabling stroke and/or succumb."
Rivera received out-patient treatment from the Veterans Administration Hospital from December 11, 1980 until February 23, 1981. A letter written by Dr. Messenger of the Veteran's Administration Hospital, who treated Rivera several times, stated that because of Rivera's loss of vision in his left visual field, it would be "impossible" for him to work.
On August 23, 1980 Rivera filed an application with the Secretary of Health and Human Services seeking social security disability benefits based on his inability to work because of the effects of the May 16, 1980 stroke. The application was denied by the Secretary initially and also upon reconsideration. Rivera filed an application for Supplemental Security Income (SSI) benefits on November 26, 1980. The application was also denied initially and upon reconsideration. Rivera requested and received a hearing before an Administrative Law Judge (ALJ) of the Social Security Administration's Office of Hearings and Appeals.
At the hearing, held on March 4, 1981, it was revealed that, before his stroke, Rivera was an active person who hardly ever missed a day of work, led an active social life, and was active in the affairs of his church. After his stroke, Rivera testified, he was afflicted by persistent headaches, dizziness and neck pains. He testified that he suffered from headaches which lasted twenty minutes to one hour and which occurred six to seven times each day. Following his stroke, according to Rivera and other witnesses, he was unable to return to work, found his social activities limited, and experienced considerable restrictions of his participation in church-related activities. Rivera's health continued to be so poor that on several occasions his friends had to assist him home before the church's services had ended.
During the hearing, the ALJ received reports from other physicians, in addition to those submitted from Dr. Coblentz and Dr. Messenger. Dr. Leon Weiss, an ophthalmologist, who had earlier examined Rivera's eyes on October 1, 1980, reported that Rivera "has no vision to the left side when looking ahead and has occasional dizziness and headaches." He also diagnosed that Rivera had had a "cerebrovascular accident" involving the "right parietal region of the brain with involvement of the right optic nerve tract."
Dr. Morton Finkel, a neurologist, who had examined Rivera on October 3, 1980, reported that Rivera suffered a
Near the conclusion of the hearing, the ALJ ordered that Rivera be examined by a neurologist. Dr. Sidney Elpern, a neurologist, conducted a consultative examination of Rivera on March 26, 1981. He confirmed that Rivera continued to have a "permanent left hemianopsia" and headaches since the May, 1980 stroke. Dr. Elpern noted that Rivera complained of poor sleep and shortness of breath after walking only two or three blocks. He also reported that Rivera "gives symptoms suggestive of shortness of breath or activity suggesting impaired cardiac function."
On June 19, 1981, the ALJ issued an opinion regarding Rivera's claim for disability insurance benefits and supplemental security income. He determined that Rivera was not entitled to disability insurance benefits or supplemental security income. This determination was based on the ALJ's findings that Rivera's allegations of pain were not credible, that Rivera's impairments (cerebral infarction, right occipital lobe, and left hemianopsia) were not such as to prevent him from performing his past duties as a shipping clerk (i.e., pushing racks of clothes, packing, heavy lifting, constant standing), and that Rivera was not under a disability as defined in the Social Security Act.
After the decision, Rivera requested a review before the Appeals Council of the Office of Hearings and Appeals. By letter dated August 11, 1982, the Appeals Council notified Rivera that there was no basis for granting his request for a review and that the hearing decision would stand as the final decision of the Secretary.
DISCUSSION
We are asked to determine whether the Secretary's decision that Rivera could engage in his prior employment and is not disabled is supported by substantial evidence on the record as a whole. We find that the Secretary's decision is not supported by substantial evidence. Therefore, we reverse and remand for proceedings consistent with this opinion.
An individual applying for social security disability benefits is considered to have a disability if he has an inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. Sec. 416(i)(1)(A) (Supp. V 1981); 42 U.S.C. Sec. 1382c(a)(3)(A) (1976). Further,
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