Stewart v. Secretary of Health and Human Services

• Decision Date: 24 February 1992
• Docket Number: No. 91-1779,91-1779
• Citation: 957 F.2d 581
• Parties: , Unempl.Ins.Rep. (CCH) P 16507A, 2 NDLR P 255 James S. STEWART, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 581

957 F.2d 581

36 Soc.Sec.Rep.Ser. 403, Unempl.Ins.Rep. (CCH) P 16507A,

2 NDLR P 255

James S. STEWART, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Appellee.

No. 91-1779.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1991.

Decided Feb. 24, 1992.

Kenneth F. Laritz, Warren, Mich., argued, for appellant.

Eric T. Tolen, St. Louis, Mo., argued, for appellee.

Before ARNOLD, ^* Chief Judge, BRIGHT, Senior Circuit Judge, and FAGG, Circuit Judge.

BRIGHT, Senior Circuit Judge.

James S. Stewart appeals the district court's judgment affirming the decision of the Secretary of Health and Human Services (Secretary) to deny his claim for Social Security disability benefits under 42 U.S.C. § 423 (1988). On appeal, Stewart contends that the Secretary's decision was not supported by substantial evidence. We agree and, accordingly, we reverse.

I. BACKGROUND

Stewart filed an application for disability insurance benefits on April 1, 1986, alleging disability due to moderately severe obstructive airway disease beginning on August 11, 1980. He was fifty-four years old at the time of filing. After consideration and reconsideration, the Secretary denied the application on June 27, 1986. Stewart appealed the Secretary's decision. Following an administrative hearing on April 27, 1987, an administrative law judge (ALJ) determined that Stewart was not under a disability as of March 31, 1986--Stewart's last day of insured status for disability benefits. ¹ On July 31, 1987, the Appeals Council denied appellant's request for review and, on March 14, 1988 notified him that there was no basis to vacate the previous action.

Stewart filed suit in the district court for the District of Montana, which remanded the case on October 27, 1988. After a supplemental administrative hearing on April 11, 1989, an ALJ again recommended a finding of "not disabled." The Appeals Council denied appellant's request for review, leaving the ALJ's decision as the final decision of the Secretary.

The case was transferred to the Eastern District of Missouri, after appellant moved there. Each party filed a motion for summary judgment. Pursuant to a magistrate judge's recommendation, the district court granted summary judgment in favor of the Secretary on February 5, 1991. This appeal followed.

Stewart had been unemployed and receiving insurance benefits through his employer since 1980. The physician, who assessed Stewart's condition at the time of his first illness, stated that although he could not return to his former job as an auto assembly supervisor, he could perform sedentary work, but none was available with that particular employer. The benefits from his employer expired on March 31, 1986.

Stewart worked for thirteen years in the cotton industry. He then worked for sixteen years at the auto assembly plant. Both work environments aggravated his asthma condition and episodic bronchitis. He took ill and left work on August 11, 1980. Dr. R.K. Chambers, Stewart's family physician, examined Stewart. This examination revealed shortness of breath, wheezing and poor pulmonary function test results, resulting in a diagnosis of moderately severe obstructive airway disease. Dr. Chambers's report indicated that Stewart could never return to work and his condition would be aggravated by dust and fumes at work. One month later, Dr. Jack Cokrhame confirmed this diagnosis and prognosis.

Consulting physician, Dr. Anthony Dowell, reviewed Stewart's medical records and pulmonary function test data. Dowell confirmed the examining physicians' diagnosis, but suggested that Stewart would remain employable, provided that he obtained medical therapy and avoided polluted environments. In January of 1981, the medical director at the auto assembly plant, on the basis of Dr. Dowell's recommendation and some hospital tests, decided that Stewart could return to work under the following restrictions: 1) to spend one-half of his time sitting; 2) no walking over five to ten minutes consecutively; 3) engage in sitting work in well ventilated area; 4) may be offered filter mask when out in Plant 20-30 minutes at a time; 5) work in West end Plant 1 recommended. An interoffice memorandum noted the unavailability of a job with those restrictions, necessitating that Stewart continue to receive insurance benefits.

When Dr. Dowell examined Stewart in February of 1981, he diagnosed chronic asthmatic bronchitis and combined obstructive and restrictive pulmonary defects. Dowell prescribed five medications ² to help control Stewart's condition. The same month, Dr. Chambers examined Stewart and reported severe obstructive airway disease, asthma and emphysema with a fair to poor prognosis. Chambers indicated that Stewart would never be able to return to work. In April of 1981, Dr. Dowell noted an improvement in the pulmonary condition and reported a good prognosis, but repeated his earlier diagnosis. The same month, Dr. Chambers noted minimal response to treatment and an irreversible pulmonary condition.

In August of 1981, Stewart was hospitalized with acute pneumonia. Chest x-rays revealed congestion, scarring of the lung tissue and flattening of the diaphragm, consistent with chronic lung disease. In August of 1982, and January and August of 1983, Dr. Chambers reaffirmed his diagnosis of chronic obstructive pulmonary disease and noted Stewart's inability to return to any form of employment. In August of 1982, Dr. Chambers diagnosed Stewart as suffering from rheumatoid arthritis.

Dr. Marlou Davis examined Stewart at the request of his employer's insurance company in December of 1983. Davis noted that Stewart had difficulty walking across the room. The slightest exertion caused shortness of breath. Stewart used his neck muscles in order to breathe and required much inspiratory effort. Dr. Davis concluded that Stewart was totally disabled from his previous employment, but could perform a sedentary job with no type of ambulatory activity or work requiring the lifting of greater than five pounds.

In January of 1984, Stewart entered a Missouri hospital. Dr. Jack Cokrhame, attending physician, diagnosed acute bronchitis and bronchial asthma. In May of 1984, and January and November of 1985, Dr. Cokrhame diagnosed unimproved chronic obstructive pulmonary disease and bronchial asthma. Cokrhame noted Stewart's inability to return to any form of employment.

Between September of 1985 and May of 1986, Stewart was under the care of Dr. Timothy Adams, who diagnosed degenerative joint disease, chronic asthma and interstitial lung disease. Adams continued Stewart on all of his previously prescribed medications. Dr. Adams noted that Stewart suffered from a fairly significant disability and his long term prognosis remained stable. In June of 1986, a psychiatrist diagnosed Stewart as suffering from major depression with a guarded prognosis.

At the April 11, 1989 supplemental administrative hearing before the ALJ, Stewart testified that he had suffered from the following symptoms since prior to March of 1986: shortness of breath, pain in his left lung and back, coughing and wheezing spells, interrupted sleep, a limited ability to perform any activity on a sustained basis, depression and lack of concentration due to his prescription medication. He admitted to activities that included: reading, watching T.V., napping, driving for short periods, attending to his personal needs, and occasionally shopping and visiting friends. Stewart stated that he could sometimes walk a block, could stand for an hour (a total of two to three hours in an eight-hour period), sit for two to three hours and lift five or six pounds occasionally.

A vocational expert (VE) then testified as to the availability of jobs that Stewart would be capable of performing. The VE defined Stewart's past relevant work as "light work," ³ requiring an individual "to sit or to stand or walk for the better part of the day," or sitting and "lifting or carrying of up to twenty pounds occasionally or frequent lifting or carrying of up to ten pounds." In response to an inquiry from the ALJ, the VE conceded that Stewart could not return to his former occupation. The VE also defined "sedentary work" ⁴ as requiring "activities primarily in a seated position for the better part of the work day and if lifting and/or carrying is limited to small objects with a maximum weight of ten pounds," without "frequent or continuous use of the extremities for controlling purposes." Hearing transcript, April 11, 1989, at 33-34.

The VE went on to state that Stewart's skills could transfer to other light work activities, but no sedentary work activities. The ALJ posed various hypothetical questions to the VE concerning the availability of jobs that Stewart could perform. In response to three hypotheticals, the VE asserted that such jobs did exist in sufficient number to permit Stewart to be gainfully employed.

The first hypothetical indicated that Stewart "would have to spend one-half of his time sitting; that he could not walk over five to ten minutes consecutively; [and] that he would have to engage in sitting work in a well-ventilated area." The VE opined that Stewart could engage in certain occupations that "would be both sedentary and clean air." Id. at 37.

The second hypothetical indicated that he "would not be able to engage in any type of ambulatory activity or work which required lifting anything greater than approximately five pounds." The ALJ elaborated on this by stating that Stewart "would be available for any type of ambulatory activity or work--would not be available for any type of ambulatory activity or work which required lifting anything greater than approximately five pounds." The VE responded that Stewart could engage in certain "light" occupations ⁵ and other "sedentary" occupations that would "not require lifting over five pounds." Id. at 38. The VE later noted that he classified the former group of...