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KENNY v. WEINBERGER

July 30, 1976

PATRICK KENNY, Plaintiff,
v.
CASPAR W. WEINBERGER, Secretary of Health, Education & Welfare, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND DECISION

 NEAHER, District Judge

 This is an action under section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), to review the decision of the Secretary of Health, Education and Welfare (the Secretary) denying plaintiff's disability insurance benefits under sections 216(i) and 223 of the Act, 42 U.S.C. §§ 416, 423. Defendant has moved for judgment on the pleadings. *fn1"

 The transcript of the administrative record and the briefs filed in this court reveal the following operative facts. Plaintiff is 51 years old and has an eighth-grade education, received in Ireland, and the equivalent, he believes, of a sixth to seventh-grade education here (Tr. 41-42). He was employed from age 14 on, first as an ordinary and then an able-bodied seaman. He came to the United States in 1945.

 Plaintiff traces the onset of his disability to an accident on board ship in April 1967 in which he injured his back and tore a ligament in his leg (Tr. 47). He did not work at all for two months, and thereafter worked intermittently, due to his physical condition, until September 1968 when he resumed steady employment (Tr. 51). In September 1970 he received a complete physical examination and was found in satisfactory health (Tr. 53).

 Plaintiff continued in his employment as a seaman, apparently as chief boatswain, until January 14, 1971 (Tr. 44-45, 90). At that time his ship was decommissioned and he was laid off (Tr. 45). After waiting to be reassigned for some months, he registered with the union hall for a job as an able-bodied seaman (Tr. 45). He testified that he would not have been able to accept such a job, if offered, due to severe pain in his back and legs (Tr. 57). He has not been employed since January 14, 1971.

 The Medical Evidence

 It is unclear whether plaintiff first sought medical attention for his "disabling" back condition in March or April 1971 (Tr. 54) or not until sometime in 1972 (Tr. 58, 107-08). He was then and continues to be treated by the United States Public Health Service on an out-patient basis, not only for his back but for long-standing sinus and skin conditions as well. Although he completed State vocational rehabilitation training in air conditioning and heating in 1972, plaintiff has not attempted to seek employment in that line (Tr. 66).

 The medical evidence before the administrative law judge consisted of the medical reports of two orthopedic surgeons and the medical records of the United States Public Health Service.

 Dr. Holman, an orthopedic surgeon with the United States Public Health Service, after a consultation on May 8, 1973, in which he was aware that Mr. Kenny was "anxious for some type of retirement" (Tr. 141), reported a history of low back pain made evident by activity and diagnosed chronic lumbosacral sprain. He related, apparently accepting plaintiff's statement, that Mr. Kenny had difficulty doing anything around his house without lower back pain and in bending and twisting, and could not sit for any period of time. He recommended a lower back support. It was Dr. Holman's opinion that Mr. Kenny "should be considered as permanently not fit for duty at sea" (Tr. 141).

 Dr. Felicetti, an orthopedic surgeon who examined plaintiff on July 18, 1973 in connection with plaintiff's initial application for disability benefits with the State agency, on the basis of X-rays and that examination, diagnosed his condition as a mild spondylitis of the lumbosacral spine and minimal arthritis of the knee. His opinion was that Mr. Kenny could lift about 30 pounds, walk 1/2 mile, stand for 20-30 minutes and sit for 30-45 minutes. He concluded,

 
"I feel he has high earning capacity and should be rehabilitated in some type of work which may not be as hazardous as working on the ships." (Tr. 127)

 Dr. Matles, an orthopedic surgeon, submitted an evaluation subsequent to the administrative law judge's decision, which was incorporated in the record at plaintiff's counsel's request and reviewed by the Appeals Council. The physical examination, conducted June 10, 1974, revealed some tenderness in the back and knee areas, lack of flexion and decreased range of motion (7-10 degrees) of the lower thorical lumbar spine. Based on Mr. Kenny's history, Dr. Matles concurred in the diagnosis of chronic lumbosacral sprain and gave the following opinion:

 
"Assuming the history and findings as well as the medical reports from the USPH Service it is the opinion of this examiner that the patient is not able to perform his full and regular occupation. He has ...

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