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NOVAK v. SCHWEIKER

October 29, 1981

DANIEL A. NOVAK, PLAINTIFF,
v.
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").

Facts

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 ...


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