Soto v. Secretary of Health, Education and Welfare, Civ. 617-68.

• Decision Date: 11 February 1970
• Docket Number: No. Civ. 617-68.,Civ. 617-68.
• Citation: 308 F. Supp. 603
• Parties: Israel Sein SOTO v. SECRETARY OF HEALTH, EDUCATION AND WELFARE.
• Court: U.S. District Court — District of Puerto Rico

308 F. Supp. 603

Israel Sein SOTO v. SECRETARY OF HEALTH, EDUCATION AND WELFARE.

No. Civ. 617-68.

United States District Court, D. Puerto Rico.

February 11, 1970.

Miguel M. Cancio, Aguadilla, P. R., for plaintiff.

Candita R. Orlandi, Asst. U. S. Atty., San Juan, P. R., for defendant.

ORDER AND MEMORANDUM OPINION

FERNANDEZ-BADILLO, District Judge.

This civil action filed by Social Security claimant Israel Sein Soto seeks judicial review of the final decision of the Secretary of Health, Education and Welfare by which a period of disability and disability insurance benefits under 42 U.S.C. §§ 416(i) and 423 were denied. In his request of November 16, 1967 for a hearing before an examiner plaintiff gave the following as reasons for disagreeing with the initial determination made by the agency on his claim: "I cannot work because my condition have been aggravated by bronchial asthma, ulcers, a pulmonary condition and abscessed left foot. I can't work because of my frequent hospitalizations" (Tr. p. 20). In the earlier application for benefits he had briefly described his disabling impairment as bronchial asthma with no further accompanying conditions. This man meets the special earnings requirement through June 30, 1970 and the date of onset has been fixed as September 1966. The Court is bound to examine the whole record to conclude whether the Secretary's denial of benefits is supported by substantial evidence. If the administrative findings are based on substantial evidence I am compelled to affirm without further inquiry.

Claimant is a young man 34 years old who has the equivalent of a high school education. He lives with his wife and four children in a seven room, one story house of their own. He served ten months in the Armed Forces and was discharged "because of sickness * * * ulcer and the asthma" (Tr. p. 43). At the time of the hearing he was receiving monthly payments for disability compensation from the Veterans Administration which awarded him approximately $380, monthly for service-connected conditions of asthma and duodenal ulcer, considered by their standards to be 100% disabling when combined.

Although feeling that his sleep wasn't steady Mr. Seín indicated that he usually went to bed around ten at night and slept during the day until lunch time taking an additional hour off for an afternoon siesta (Tr. p. 69). He spends his day playing dominoes and cards, watching television, listening to the radio, goes fishing occasionally and attends church meetings twice a week. He takes care of all his personal needs without help except for shaving which is done at the barber shop or by his wife and daughter.

Plaintiff has admittedly made no efforts to seek employment with the exception of an attempt to work at a bank in his hometown,¹ allegedly because he has been hospitalized most of the time (Tr. p. 62). After much speculation as to his inability to hold a job, Mr. Seín expressed his hope that Vocational Rehabilitation might find employment for him but immediately went on to say that: "If I go to work for Vocational Rehabilitation, the Veterans Administration might not—might cut off the compensation" (Tr. p. 103). This claimant has an extensive and varied work history both in the mainland and in Puerto Rico which ranges from eyelet machine operator to construction foreman and guard supervisor.

At the hearing he spoke of his lesser infirmities admitting that a duodenal ulcer was under control and simply treated by taking Gelusil. No claim of disability was made on account of the loss of two fingertips in 1953 for which he received $6,000 in compensation. Both the medical evidence and the testimony reveal that Mr. Seín's major impairment is bronchial asthma which set on as episodes of wheezing several months before applying for benefits. Dr. Porrata, specialist in pulmonary diseases, described it as "recent asthma, probably due to dust allergy." The only witness for claimant, Mr. César A. Quiñones, field investigator for the Social Security Administration and a personal friend of plaintiff, told of asthma attacks characterized by wheezing spells and shortness of breath once or twice a month. He stated that three or four days before the hearing claimant was wheezing terribly and commented: "I don't know why he's looking so fine today" (Tr. p. 78). In a report of contact made on October 6, 1967 Quiñones indicated that: "His work experience is limited to hard strenuous labor exposed to dust and climate changes. He obviously can no longer perform in this kind of work and, most probably, in no other work." Despite this statement when asked if he was aware of Mr. Sein's extensive and varied work history, the witness answered that he didn't have a thorough idea of plaintiff's work (Tr. p. 84).

There are two medical reports of his personal physician, Dr. Alberto L. Folch, a general practitioner who made a recommendation of 100% disability in his March 22, 1967 report. Said report briefly recites the patient's complaints and a diagnosis of pneumoconiosis without mentioning any further data or laboratory studies. A second examination by Dr. Folch on June 14, 1967 indicates that an X-ray of the chest revealed a diagnosis of pneumoconiosis "most probably due to dust" (Tr. p. 157).

The hospital records of Susoni Clinic...