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April 25, 1974

Peter BADICHEK, Plaintiff,

Dooling, District Judge.

The opinion of the court was delivered by: DOOLING

DOOLING, District Judge.

Both parties have moved for judgment in plaintiff's suit to review the determination of the Secretary denying plaintiff's application for a period of disability and disability insurance benefits. 42 U.S.C. § 405(g).

 Plaintiff, born in 1923 and a World War II veteran, was regularly employed for twenty-three years until December 8, 1969, as a maintenance mechanic for a chemical company (Nopco Chemical Company) in New Jersey. He has not worked since that date. His employment was terminated because he had become a chronic alcoholic. He had several times been warned that his drinking would cause his discharge, and rehiring has been refused.

 The record is clear that plaintiff's discharge was not protested by his Union. No other employment has been sought, and plaintiff's wife, in effect, has him on a maintenance program under which he is allowed a pint of whisky a day, all of which he consumes. He has not sought or received specialized medical treatment for alcoholism, nor psychiatric assistance, nor has he sought to participate in Alcoholics Anonymous. He lives in a City Project, and family support is drawn from his working wife's salary and a Veteran's Administration disability benefit (not service-connected) of $140 or $145 monthly. The family consists of plaintiff, his wife, and a son who is attending Brooklyn College. Plaintiff evidently lives a completely torpid existence, rarely leaving his apartment, living without any socialization except for his contact with his wife and son.

 The Hearing Examiner (now Administrative Law Judge) and Appeals Council reviewed the medical evidence and both concluded, with substantial support in the evidence, that, while plaintiff's health has been damaged and there is demonstrable organic damage and functional impairment, the physical and mental deficiencies are not severe enough to authorize a finding that their severity precludes plaintiff from engaging in substantial gainful activity. Rejection of the finding on the ground of physical disablement and lost job-competency (from the point of view of loss of physical strength and dexterities) is not possible. The question really raised is whether the Secretary erred in that he took the approach epitomized in the following language of the Administrative Law Judge (R. 24-25)

"In view of the minimal findings so far as significant medical pathology is concerned, it is difficult to see why this claimant cannot continue with his prior gainful activity. If his last employer could have given him another chance he might still be working there. He has not made any serious attempts to find other work, nor has he made any serious attempts to fight his addictive dependence on alcohol.
"The claimant can't just sit back and say, 'I am addicted to alcohol and therefore I am disabled. ' He has to take some positive steps to halt the addictive process and to try to rehabilitate himself to become a productive member of society.
"Section 404.1507 of the Regulations of the Secretary provide that a person who fails to follow prescribed treatment cannot be found under a disability. *fn2" The claimant does not bother to take medications. He is not following the prescribed treatment. He doesn't see a physician to try to overcome his problem. This may not be a willful failure to follow prescribed treatment but only a thin line separates wilfulness from failure to follow medical treatment."

 The different language of the Appeals Council is clear in these excerpts:

"The administrative law judge's statements in his decision, as to the pertinent provisions of the Social Security Act, the issues in the case and the evidentiary facts which were before him, are incorporated herein by reference.
* * *
"The claimant's main problem is his addictive dependence on alcohol which has caused chronic encephalopathy with some memory deficit. However, he has sufficient ability to think, reason, and communicate, make usual and customary judgments, and demonstrate a capacity for self-sufficiency. The claimant maintains the residual functional capacity to perform substantial gainful activity on a sustained basis.
"For the above reasons, it is the opinion of the Appeals Council that the claimant does not have a physical or mental impairment of such severity that he would be precluded from engaging in work activity consistent with his age, education and past work experience."

 The Appeals Council had before it medical data not before the Administrative Law Judge, including an opinion of Theodore Meltzer, M. D., a diplomate of the American Board of Psychiatry and Neurology specialising in neurology and psychiatry. The Council noted (R. ...

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