Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rivera v. Schweicker

September 7, 1983

JOSE RIVERA, PLAINTIFF-APPELLANT,
v.
RICHARD SCHWEICKER, SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE.



Appeal from an order of the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, denying plaintiff's Fed. R. Civ. P. 12(c) motion for judgment on the pleadings and dismissing the complaint. Reversed and remanded.

Author: Pierce

Before: LUMBARD, OAKES and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

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.

BACKGROUND

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 opthalmologist, 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. Jam 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 at 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 Aadministration 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.