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March 9, 1970

Arthur STEWART, Plaintiff,
Wilbur COHEN, Secretary of Health, Education and Welfare, Defendant

Judd, District Judge.

The opinion of the court was delivered by: JUDD


JUDD, District Judge.

 Plaintiff brings this action to challenge a decision of the Secretary of Health, Education and Welfare terminating plaintiff's disability benefits under the Social Security Act. The defendant has moved for summary judgment and for an order amending the caption to reflect the appointment of Robert Finch as Secretary of the Department of Health, Education and Welfare in place of the defendant originally named.

 The plaintiff, who appeared without counsel, made an oral motion for summary judgment in his favor.

 Plaintiff admittedly suffered a disability of more than twelve months duration and was paid disability benefits under the Act from February, 1965 to August, 1967. The questions in the case relate to the date of termination of his disability, the effect of his having been referred for vocational rehabilitation, and the procedures adopted by the hearing examiner. The case is remanded for further consideration, for the reasons set forth below.

 1. Facts

 The facts are all taken from the transcript of two hearings before a hearing examiner of the Department, and the exhibits and documents contained in the record, except as noted.

 Plaintiff, prior to his disability, was employed as a waiter on ocean-going vessels. On February 23, 1965 plaintiff, while aboard ship, collided with a large boiling kettle and suffered an injury to his left knee. He was treated by the ship's physician but was unable to continue working. Subsequently he received continued treatment at a United States Public Health Service Hospital. His condition did not improve and surgery was performed on the knee on January 20, 1966.

 On January 27, 1966, plaintiff filed a claim for disability benefits with the Social Security Administration. This claim was approved by the Administration on June 2, 1966.

 Plaintiff was re-examined on April 20, 1967 by a doctor designated by the Bureau of Disability Determinations, and his knee was found to be improved to the extent that he could resume gainful employment. His benefits were accordingly terminated as of June 30, 1967. Plaintiff applied for reconsideration of this decision, relying on a Medical Report of Duty Status from the Public Health Service Hospital, which said that he had just become able to resume his usual occupation on June 19, 1967. The Division of Reconsideration found that his disability continued until June, 1967. Accordingly, he received benefits through August, 1967.

 In June, 1967 plaintiff attempted to resume his former occupation, and signed up for a 45-day Mediterranean cruise, but the strain on his knee was too great for him to continue. The hearing examiner did not accept plaintiff's testimony concerning the daily medical care which he required during the voyage, but it is clear that his career as a sea-going waiter was ended. A medical officer at the United States Public Health Service Hospital on Staten Island reported on August 31, 1967 that plaintiff was "permanently unfit for duty at sea" because of his left knee, and recommended that he be referred to Social Services for vocational rehabilitation.

 The clinical social worker at the Staten Island hospital wrote to the Intake Supervisor of the Division of Vocational Rehabilitation of the New York State Education Department on September 19, 1967 that:

"I am referring the above named 48-year old, married, forced disability retired, American Seaman for vocational advisement and other appropriate and feasible rehabilitation services."

 On December 27, 1967, over three months later, the Rehabilitation Counselor wrote him that his case had been passed to her. She fixed an appointment to discuss training plans on January 11, 1968. On May 13, 1968, plaintiff was sent to Madison School of Business for vocational training.

 Meanwhile, plaintiff sought a hearing to review the discontinuance of his disability benefits. A hearing was held on October 5, 1967 and the hearing examiner found that plaintiff's disability had ended on June 19, 1967 (almost three months before he was declared "permanently unfit for duty at sea") and that he was no longer disabled under the provisions of the Social Security Act, 42 U.S.C. ยง 423.

 Plaintiff appealed this decision to the Appeals Council of the Social Security Administration on October 13, 1967 and the Appeals Council, in a letter dated December 22, 1967, granted plaintiff a re-hearing.

 The Appeals Council directed the hearing examiner to call a vocational expert to testify with respect to the types of work activity for which claimant was qualified and also stated that "the hearing examiner will obtain such additional evidence as is relevant to the issues involved herein."

 The re-hearing was held on June 17, 1968. The hearing examiner did not call the vocational counselor to whom the United States Public Health Service had referred the plaintiff, nor obtain any statement from her. Instead, the examiner sent the previous hearing record and documents to a Ph. D. who had not seen the plaintiff before, and asked him to testify as a vocational expert.

 Plaintiff appeared without an attorney, and was offered an adjournment in order to obtain counsel, but elected to proceed alone at the hearing. The Department was not represented by counsel, and all questioning was conducted by the hearing examiner.

 The hearing examiner posed a three-page hypothetical question to the vocational expert. The hypothetical question omitted the following facts, among others:

(a) That plaintiff had tried to resume his occupation in June of 1967, but claimed to have been forced to go to the ship's hospital on every day of the voyage because of the pain which he suffered.
(b) That he was found permanently unfit for sea duty on August 31, 1967 by a doctor of the United States Public Health Service.
(c) That he had been referred by the United States Public Health Service to the Division of Vocational Rehabilitation.
(d) That the Vocational Counselor of the Division of Vocational Rehabilitation had recommended that he take instruction in the operation of business machines at the Madison School of Business.
(e) That his Continuing Disability Contact Sheet on September 6, 1967 recited that "he wanted to go back to work but the 45 days he was at sea, June-Aug. was a terrific strain. He is planning to go to the Marine Hospital in Staten Island on 9/19/67 to be trained for some other type of work." and that "He * * * appeared to be interested in working."

 The vocational expert testified that plaintiff could perform the following jobs based upon the current condition of plaintiff's knee: general office clerk, mail clerk, cashier, telephone clerk, sales clerk, ticket seller, ticket taker, and various bench assembly jobs.

 Claimant did not cross-examine the vocational expert, but told the examiner that when he applied for such jobs as the expert described he was given excuses why he was not qualified, that his counselor had sent him to computer school, that he and his counselor had tried every place to find work and that he expected to be placed at the end of the training period for which he had been recommended. The hearing examiner then questioned the vocational expert about these comments, and he responded:

"* * * As I understand it, Mr. Stewart and his counselor have been trying to find the highest level occupation possible for him, and quite correctly so, so that for the remaining years that he has to work he can have the benefit of the best possible income and the best possible salary and the best possible opportunities for advancement. * * * if however, you lower your sights and look for jobs ...

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