Lugo v. Gardner, 65 Civ. 1859.

• Decision Date: 25 April 1966
• Docket Number: No. 65 Civ. 1859.,65 Civ. 1859.
• Citation: 253 F. Supp. 721
• Parties: Jose LUGO, Plaintiff, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant.
• Court: U.S. District Court — Southern District of New York

253 F. Supp. 721

Jose LUGO, Plaintiff, v. John W. GARDNER, Secretary of Health, Education and Welfare, Defendant.

No. 65 Civ. 1859.

United States District Court S. D. New York.

April 25, 1966.

Rolnick, Ezratty & Huttner, New York City, for plaintiff, Richard D. Huttner, New York City, of counsel.

Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, New York City, for defendant, Judith N. Stein, Asst. U. S. Atty., of counsel.

FRANKEL, District Judge.

Plaintiff sues under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), for review of an administrative decision denying his claim under Sections 216(i) and 223, 42 U.S.C. §§ 416(i) and 423,¹ for disability insurance benefits. The Secretary, having filed the administrative record in accordance with the statute, has moved for judgment on the pleadings. Plaintiff, while he makes no cross-motion, attacks the agency's ruling as arbitrary, capricious, and unsupported by the requisite substantial evidence. The opposing submissions are sufficient to mobilize the court's power under 42 U.S. C. § 405(g) "to enter * * * a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing."²

I.

Plaintiff is now in his fiftieth year. He was born in Puerto Rico, where he had his only formal schooling lasting slightly over two years. He went to sea when he was about fifteen, serving as a messman. His career as a seaman lasted for about thirty years, both as a messman and then as a cook, until in 1961 he was declared unfit for sea duty by the United States Public Health Service and was granted a disability pension by the National Maritime Union.

Whatever his ultimate rights may be under the Social Security Act, plaintiff has not enjoyed good health for a long time. He was hospitalized by the Public Health Service in 1958 for pruritus, an intense itching, and found then to be suffering from diabetes mellitus and Laennec's cirrhosis. From December 9, 1960, to January 6, 1961, he was once again in a Public Health Service hospital because his diabetes was out of control. In his summary at the time of discharge, the treating physician reported that the diabetes had been manageable while plaintiff was in the hospital, but had flared up again when he was allowed to go out on pass. The physician concluded:

"* * * We had gotten no where sic in teaching this man about the importance of his diet. Consultations with the dieticians to help out on this problem were performed but to no avail. I do not honestly believe that this man will ever control his diabetes adequately."

Plaintiff was then declared unfit for sea duty, but the recommendation added: "If he has been running negative urines during the week, he will then be made fit for duty."

From that time until May of 1961, plaintiff passed four more sojourns in the Public Health Service hospital. At the end of May, the Service physicians concluded that his cirrhosis and diabetes rendered him permanently not fit for duty. He has never gone to sea since.

In addition to diabetes and cirrhosis, plaintiff suffers from prostatitis, general weakness, nausea, occasional seizures, and fatigue after mild exertion. Following an examination ordered by the agency in August 1963, an internist also reported arteriosclerotic heart disease. Another medical report mentions chronic bronchitis. Since 1963 his records show diabetes "with neuropathy" and a diagnosis of "anxiety."

For the view we take of the problem before us, it seems unnecessary to extend the account of plaintiff's physical afflictions and constant needs for medical attention. The central issue we find, as will appear presently, relates to the agency's views as to whether plaintiff can or should control his diseases, and whether his condition in this respect bars his claim for benefits. Accordingly, it becomes pertinent to note what the record shows on this subject.

As mentioned earlier, a Public Health Service physician in May 1961 despaired of ever teaching plaintiff to manage his diabetes on his own. Other physicians made relevant observations on this subject. He was described by a doctor in August 1961 as being "not physically fit and out of contact." A 1963 report— evidently reflecting awareness of plaintiff's meager education, limited literacy, and bleak economic circumstances—said in sketchy notes that plaintiff's diabetes was "not under control as should due to poor cooperation due to social and economic problems do not follow diet * * * as ordered. * * *" In July of 1964, another internist retained by the agency wrote that plaintiff's diabetes was

"poorly controlled, probably due to lack of patient cooperation. * * * With proper education and cooperation of the patient, the diabetes should offer no difficulties. * * * I believe the above conditions are amenable to medical management, given patient cooperation, and that this patient could be rehabilitated within a matter of a few months."

Similar questions are touched by the record in connection with plaintiff's cirrhosis. It appears that this malady was caused years ago, or at least nourished, by his use of alcohol. The matter is left somewhat uncertain in the agency's final decision, but the great weight of evidence supports plaintiff's claim of teetotalism for some years.

II.

Plaintiff applied for disability benefits on May 29, 1961, after the Public Health Service had declared him unfit to go to sea. The application was denied on January 20, 1962, and plaintiff sought no hearing at that time.

The new application which has led to the present litigation was filed on July 10, 1963.³ When this was denied in September 1964, plaintiff exercised his right to demand a hearing. The hearing was granted and plaintiff—without counsel or other assistance, and coping somewhat feebly with the English language⁴—appeared before a Hearing Examiner on September 25, 1964. In the transcribed proceedings that followed, lasting about an hour and a half, the Examiner courteously but pointedly inquired about plaintiff's own efforts to cope with his illnesses. Plaintiff swore he had avoided liquor for three or four years. Though his testimony is less clear on the subject, he appears also to have satisfied the Examiner that he paid attention to the dietetic restrictions indicated by his diabetes.⁵

In his report of January 25, 1965, which he described as "wholly favorable to the claimant," the Examiner decided that plaintiff was "entitled to disability insurance benefits and to a period of disability" dating from September 1, 1961.

In a letter dated February 25, 1965, the Administration's Appeals Council notified plaintiff that it had decided on its own motion to review the Hearing Examiner's decision. Explaining this action, the letter said:

"It is believed that further study should be made regarding the extent to which your health can be improved by the following of a proper medical program."

Plaintiff was given an opportunity, which he appears not to have seized, to present further evidence or appear in person or by representative in Washington, D. C., for an oral presentation of his case.

Except for a two-page summary of plaintiff's medical history it ordered from the Public Health Service, the Appeals Council considered plaintiff's case on the exhibits that had been before the Examiner and the transcript of the hearing conducted by him. It reversed the Examiner and entered the final decision of rejection against which the present action is brought.

Having been concerned from the outset with whether plaintiff's health could be "improved by the following of a proper medical program", the Council made this a central subject in reaching its conclusions. It noted that plaintiff "has been instructed about the necessity for following an appropriate diet for the purpose of controlling the diabetes." It reviewed the observations we have mentioned by physicians opining that plaintiff would be better off if he were more careful. It quoted, and undertook to apply, the agency's regulation, 20 C.F.R. § 404.1502(g), providing:

"An individual will be deemed not under a disability if, with reasonable effort and safety to himself, the impairment can be diminished to the extent that the individual will not be prevented by the impairment from engaging in any substantial gainful activity."

Concluding that plaintiff was not attending properly to his diabetes, the Council also expressed some doubt about his claim of strict temperance. It said:

"The Appeals Council recognizes that the claimant had repeatedly denied the continued use of alcohol and notes that lack of evidence of a progressing liver disease as well as the possibility of other gastrointestinal causes for these symptoms militates against a conclusion that the claimant has been as non-cooperative with the physicians who treated his liver disease as he has been with those who were treating his diabetes. Nevertheless, such an inference cannot be dismissed completely."

The Council made explicit its judgment that plaintiff was disabled, but that it was his own fault:

"There can be no doubt that the claimant's diabetes and cirrhosis are amenable to treatment, have not resulted in significant complications, and that with better cooperation with his doctors, he could reasonably be expected to improve to the point where he could engage in substantial gainful activity in a variety of jobs." (Emphasis added.)

Similarly, in the first two of its five formal "Findings," the Appeals Council stated that plaintiff's diseases are (1) "amenable to medical management" and (2) subject to substantial disappearance "with adherence to medical advice, particularly as to diet and appropriate medication. * * *"

III.

Proceeding on a paper record, and reversing the Hearing Examiner who saw and heard the plaintiff, the Appeals Council found that plaintiff's sicknesses would become far less disabling if he took...