United States District Court, Northern District of Illinois, E. D
October 29, 1981
DANIEL A. NOVAK, PLAINTIFF,
RICHARD SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Daniel Novak ("Novak") seeks review of a decision of the
Secretary of Health and Human Services (the "Secretary")
denying Novak disability insurance benefits under the Social
Security Act, 42 U.S.C. § 416(i) and 423. As is typical in
this class of cases, the parties have filed cross-motions for
summary judgment. For the reasons stated in this memorandum
opinion and order:
(1) Both motions are denied.
(2) This court reverses the Secretary's
decision and remands the cause to the Secretary
for a rehearing in light of the new evidence
offered by Novak at the Appeals Council level and
therefore not considered by the Administrative
Law Judge ("ALJ").
Novak was employed as a pipefitter and welder until February
1978, when he injured his back at work. Novak worked
sporadically from February to October 1978 while receiving
treatments for his injury. When on vacation in October 1978
Novak became totally crippled and had to be flown back home
and hospitalized. During his hospitalization from November 14,
1978 through December 26, 1978 Novak underwent a lumbar
laminectomy and excision of a ruptured disc. Since then Novak
has been unemployed.
On May 7, 1979 Novak filed an application for disability
insurance benefits. After his application was denied by the
Bureau of Disability Insurance, Novak requested and received
a hearing (held April 9, 1980) before ALJ Robert Camenisch. On
June 13, 1980 Judge Camenisch, having considered the testimony
of Mr. Novak (then not represented by counsel) and a large
number of medical records, denied Novak's claim.
Novak later obtained counsel and sought review of Judge
Camenisch's decision before the Appeals Council. In addition
Novak's counsel sent the Appeals Council seven items of
medical evidence not presented to Judge Camenisch.*fn1 Upon
of the entire record, including the additional medical
evidence, the Appeals Council concluded that there was no
basis for granting review of Judge Camenisch's decision. Novak
then filed this action under 42 U.S.C. § 405(g).
Evidence Before Judge Camenisch
Novak is unquestionably unable to return to his employment
as a pipefitter and welder. All the medical evidence confirms
that he can no longer undertake heavy physical labor. But an
individual can qualify for disability insurance only if,
42 U.S.C. § 423(d)(2)(A):
his physical or mental impairment or impairments
are of such severity that he is not only unable
to do his previous work but cannot, considering
his age, education, and work experience, engage
in any other kind of substantial gainful work
which exists in the national economy, regardless
of whether such work exists in the immediate area
in which he lives, or whether a specific job
vacancy exists for him, or whether he would be
hired if he applied for work.
Judge Camenisch held that although Novak suffered from lower
back syndrome, diabetes mellitus, mild hypertension and
obesity, he was still able to perform sedentary work. Thus the
question before this Court is whether Judge Camenisch's
finding that Novak is able to do sedentary work is "supported
by substantial evidence." 42 U.S.C. § 405(g).
Judge Camenisch questioned Novak at some length as to his
perception of his disability and his ability to perform
various day-to-day functions. Though Novak testified that he
was severely restricted in the performance of many actions, it
was not unreasonable for Judge Camenisch to read Novak's
testimony as indicating he was still able to perform sedentary
work. In addition Judge Camenisch found that "claimant's
representation as to the limiting effect of chronic pain are
exaggerated and the pain is not so severe, persistent or
pervasive as to prevent the performance of sedentary
employment." That finding was also supportable, for the ALJ is
permitted to consider the claimant's credibility on that
score. Candelaria v. Weinberger, 389 F. Supp. 613, 617 (E.D.Pa.
Judge Camenisch also considered a number of medical
(1) In a May 25, 1979 report to the Federal
Disability Program, Novak's attending physician
Dr. Heilbronn stated that his stance, gait and
coordination of extremities were normal. That
report also said that Novak is restricted in
bending and stooping and that he cannot walk or
stand for periods as long as six to eight hours.
(2) Dr. White's May 30, 1979 physical
capacities evaluation found Novak capable of
performing light work. Light work is defined as
"an ability to stand and walk at least six hours
in an eight hour work day, lift and carry up to
ten pounds about two-thirds of the work day, and
occasionally lift 20 pounds maximum. Light work
may require sitting most of the time, but has a
significant degree of pushing and pulling of arm
and/or leg controls." That evaluation was based
on a review of the medical records, not an actual
examination of Novak.
(3) Another doctor's September 13, 1979
physical capacities evaluation (the name on the
document is illegible) again stated Novak was
capable of performing light work. Again the
evaluation was based on a review of the medical
evidence on file, not an actual physical
(4) On February 28, 1980 Dr. Heilbronn sent a
letter to the Federal Disability Program stating:
(a) "He continued to complain of persistent low
back and right leg pain. His pain medications
gave him only partial relief. Bed rest and
transcutaneous nerve stimulator had been of
(b) "His operative wound was well healed. He
dressed promptly. He walked well without a limp
and well on his toes and heels. He bent forward
to 50 cms. from the floor with his outstretched
(c) "It is my impression that Mr. Novak is
unable to engage in any further physical work
requiring bending, lifting, stooping or
prolonged period of sitting."
(5) Dr. Kranzler's brief document dated March
13, 1980 states "Daniel Novak is 100 percent
disabled from engaging in gainful employment."
Nothing in the record reveals whether that
statement was made from personal examination or
from a review of medical records.
Based solely on that evidence this Court could likely find
a substantial basis for Judge Camenisch's decision, though the
decision for the trier of fact would be an extremely close
call. Novak's own testimony is inconclusive and the core of
the case rests in the medical evidence. While the two doctors
who reviewed the medical files found Novak able to perform
light work, the only physician actually to examine Novak (Dr.
Heilbronn) had a very different viewpoint. In direct
contradiction to the other doctors, he specifically found
Novak unable to sit for six hours out of an eight-hour working
day. In a case much like this one, Allen v. Weinberger,
552 F.2d 781
, 785-86 (7th Cir. 1977), our Court of Appeals taught
that the opinion of a physician who actually examines a patient
must be accorded considerably greater weight than those of
physicians who merely examine the files.
Judge Camenisch resolved the differences in this way:
While straight leg raising has been reported by
Dr. Heilbronn to be positive bilaterally, the
report from the Rehabilitation Institute of
Chicago January 1980 reported the straight leg
raising to be negative. In May 1979 the attending
physician reported the claimant's stance, gait,
and coordination were normal. There is no
evidence of significant limitation of motion. The
medical evidence as a whole does not reflect
conditions which would prevent the performance of
sedentary employment as defined in Regulation
404.1510. The attending physician reported in
February 1980 that the claimant could not work in
a job which would require bending, lifting, or
prolonged sitting, but the clinical evidence does
not reflect a limitation on sitting to the degree
which would prevent sedentary employment.
Essentially the ALJ held that the evidence "as a whole"
indicated Novak could sit for long enough periods of time to
hold down a sedentary job. But as the next section of this
opinion demonstrates, that evidence was very different from
the evidence "as a whole" presented to the Appeals Council.
Evidence Before the Appeals Council
After obtaining counsel, Novak presented seven additional
pieces of evidence to the Appeals Council. Four are of
material significance, though they do not all point in the
(1) Undoubtedly the most significant piece of
evidence was the report submitted by Dr.
Heilbronn to the CUNA Mutual Insurance Society.
There Dr. Heilbronn said Novak was totally
disabled and would be unable to perform any sort
of work, and that condition was not expected to
change in the future.
(2) As to the degree of pain experienced by
Novak, Dr. Molloy's November 1979 report states
that the "patient's pain intensity is 4 to 5 on a
scale of 10 generally."
(3) In a report written after a physical
examination, Dr. Makarabiromya stated:
It was my impression Mr. Novak was doing quite
well following his lumbar laminectomy. He had
been advised regarding back strengthening
exercises and increased activity. He had been
advised to return to see us in four weeks. It
is unknown at this time how long he will be
(4) Dr. Addison's February 1980 report after
examining Novak states the possibility that while
Novak could not return to his prior employment he
might be able to handle other employment.
Clearly that evidence is highly significant to the total
evidentiary picture. One document contains a statement that
Novak is completely disabled, made by the person with the best
knowledge of his condition, his attending physician Dr.
Heilbronn. Another reflects current disability and an
uncertain future. All four documents are based on actual
examinations of Novak rather than an examination of his
Given its potential significance, that evidence should have
been considered by the ALJ who heard the case. Its
consideration by the Appeals Council is not a suitable
equivalent. Judge Camenisch based his decision (as the Appeals
Council could not) on a combination of live testimony and
Nor does that difference in the level of consideration
bespeak only a semantic distinction. For example, while pain
alone is not sufficient to render Novak disabled, a certain
level of pain plus a certain level of disability might render
him unable to perform sedentary work. As already stated, part
of Judge Camenisch's determination included a finding that
Novak exaggerated the level of pain he suffered from. That
finding could have been made only by the initial fact finder.
But such a judgment must be made in light of all available
medical evidence. For the Appeals Council to consider the
additional medical evidence is simply not the same as having
it considered by the ALL.
It must be remembered that by regulation the ALL and the
Appeals Council operate on different standards of proof. As
the fact finder the ALL resolves conflicting evidence. His or
her decision can be overturned by the Appeals Council "if not
supported by substantial evidence." That distinction could
well change the impact of the new evidence Novak
42 U.S.C. § 405(g) provides that a District Court:
may at any time order additional evidence to be
taken before the Secretary, but only upon a
showing that there is new evidence which is
material and that there is good cause for failure
to incorporate such evidence into the record in a
proper proceeding. . . .
That section does not in terms apply here. Both the ALL and
Appeals Council proceedings are precursors to the Secretary's
decision, so that the new medical evidence was "taken before
the Secretary" in the statutory sense.
Nonetheless the criteria expressed in Section 405(g) may be
profitably employed for purposes of analysis. Materiality of
the new medical evidence is obvious. This Court further finds
there was good cause for Novak's failure to provide that
evidence initially. Novak has but a tenth-grade education and
did not have an attorney at the ALL hearing. That alone can
account for Novak's failure to provide some of the documents.
But the most important of the new documents, the insurance
out by Dr. Heilbronn, was not even in existence at the time of
the hearing. It was dated April 30, 1980, shortly
after the hearing before Judge Camenisch. By definition there
is "good cause" for that evidence's omission from the record
before the ALL.
This opinion should not however be misunderstood as
invalidating Regulation 404.970 (see n. 1) generally. It would
be needlessly restrictive, especially in the context in which
the administrative proceedings are often carried out, to
require that any submission of new evidence at the Appeals
Council must perforce cause the case to be returned to the
ALL. Review of the total record by the Appeals Council under
the standards described in n. 1 may most often protect the
rights of both parties without imposing another procedural
layer at the administrative level. But the delicate balance in
this case, coupled with the comparative importance of the
newly-proffered evidence and the other factors described in
the text, require the decision that the Regulation may not
dictate the ultimate result here. What the Appeals Council
should have done in conformity with the Regulations (Section
404.967) was to grant the request for review and remand the
case to the ALJ to consider all the evidence.
This Court finds that material evidence was, with reasonable
justification, not presented to the ALJ. Consideration of that
evidence by the Appeals Council alone is not sufficient under
the circumstances. Accordingly the Secretary's decision is
reversed and this action is remanded to the Secretary for a