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Carroll v. Secretary of Health and Human Services

decided: April 11, 1983.

HERBERT CARROLL, PLAINTIFF-APPELLANT,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Appeal from a judgment of the Southern District of New York, John M. Cannella, Judge, dismissing a complaint filed under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), alleging that the Secretary of Health and Human Services improperly denied plaintiff social security disability insurance benefits.

Mansfield, Meskill and Newman, Circuit Judges.

Author: Mansfield

MANSFIELD, Circuit Judge.

Herbert Carroll appeals from an order and judgment of the Southern District of New York entered by Judge John M. Cannella dismissing his complaint under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (the "Act"), alleging that the Secretary of Health and Human Services ("HHS") improperly denied him social security disability insurance benefits. The district court upheld the Secretary's denial as supported by substantial evidence. The Secretary found that Carroll's impairments were not of such severity as to render him disabled within the meaning of the Act, concluding that he was capable of performing "sedentary" work. The Secretary has moved for a stay of the appeal pending a decision by the Supreme Court in Campbell v. Secretary of Health & Human Services, 665 F.2d 48 (2d Cir. 1981), cert. granted, 457 U.S. 1131, 102 S. Ct. 2956, 73 L. Ed. 2d 1348 (1982).*fn1 We reverse and remand for calculation of benefits.

In April 1979 Carroll, then 43 years old with a 20-year work history, applied to the Secretary for disability benefits based on physical impairments (arthritis, pains in arms, back, knees and shoulders). For 11 1/2 years he had worked as a security guard, which required him to patrol the buildings to which he was assigned in order to protect persons and property, to issue summonses or arrest persons violating laws on the premises, to answer inquiries, to assist persons in the buildings, and to provide aid in the event of an accident. This job required him to be on his feet all day and involved extensive walking. Prior to working as a security guard he had completed schooling through the ninth grade, served three years in the Army, and had been employed for nine years as a piece goods man at a textile firm, which required lifting of heavy bolts of fabric, cutting fabrics to size, and packing.

In January 1978 Carroll stopped working after he was injured on the job as the result of an attack by a man armed with an icepick. Thereafter he suffered daily, recurrent pains in his legs, arms, back, and shoulders. Because of the pain he experienced difficulty in standing, lifting, sitting, and climbing stairs. He cannot walk for more than a few blocks, and can use public transportation for only limited periods of time before experiencing pain and dizziness.

Medical examination of Carroll by four doctors in connection with his application to the Workers' Compensation Board for disability benefits revealed that he suffers from severe arthritis, crepitus (grating of joint) in both knees, limited flexion of the lumbosacral spine, tenderness of the dorsal and lumbar spine, and high blood pressure, the latter controlled somewhat by medication. The doctors who examined Carroll found him to be partially disabled. The Board, after conducting a hearing on December 11, 1979, confirmed these findings in a report dated August 7, 1980, and concluded that he was entitled to Workers' Compensation benefits.

The physician who treated Carroll most frequently and over the longest period of time (once every three or four weeks, beginning in February 1979) was Dr. Howard Hertzberg, an orthopedic surgeon. In confirming the foregoing findings he testified as follows before the Workers' Compensation Board regarding Carroll's ability to function:

"Q. Doctor, what's your prognosis in this case?

A. Prognosis would be very guarded.

Q. Do you think the man will ever be able to go back to work?

A. I don't know if he'll ever be able to. It depends on the type of work we're talking about.

Q. He's a security guard, ...


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