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United States District Court, Northern District of Illinois, E. D

October 29, 1981


The opinion of the court was delivered by: Shadur, District Judge.


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 consideration 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. 1975).

Judge Camenisch also considered a number of medical evaluations:

    (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
    little help."

    (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 same direction:

    (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 medical files.

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 documentary evidence.

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 submitted.*fn2

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 form filled 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 rehearing.*fn3

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