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April 25, 1966

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

Frankel, District Judge.

The opinion of the court was delivered by: FRANKEL

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, *fn1" 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." *fn2"


 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 ...

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