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.
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 ...