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SHAW v. SCHWEIKER

February 4, 1982

Craig E. SHAW
v.
Richard SCHWEIKER



The opinion of the court was delivered by: VANARTSDALEN

MEMORANDUM OPINION AND ORDER

On December 28, 1980, Administrative Law Judge (ALJ) Jack H. Roseman awarded claimant Craig E. Shaw disability benefits under the Social Security Act. ALJ Roseman determined that Mr. Shaw had become disabled on September 12, 1977, when he was assaulted at his place of employment, sustaining facial and cervical injuries. In his decision awarding benefits, ALJ Roseman explained that, while he was convalescing from these initial injuries, Mr. Shaw fell on ice and injured his lower back. In May 1978, Mr. Shaw fell again, this time fracturing his foot. ALJ Roseman reviewed the claimant's medical history in his decision, including hospitalizations and physiotherapy. He also explained that Mr. Shaw had been undergoing psychiatric treatment, including psychotherapy and treatment with psychotropic medications by psychiatrist Armand J. Lupo, D.O., for "acute depression."

 ALJ Roseman concluded that Mr. Shaw was disabled and explained in support of his conclusion:

 
The complaints of difficulty with walking, standing and lifting are substantiated by the medical record along with depression in this case. His appearance and mode of testimony at the hearing indicate to us that he is sincere in his expressions of pain, cervical (shoulders) and lower lumbar areas radiating now to the hips; his depressive testimony as to home activities or seclusiveness are credible. While it is true that he is on long term disability pay status from R.C.A. Corporation, we do not believe claimant to be malingering.

 Decision of ALJ Roseman of December 28, 1978, record at 135.

 On April 18, 1980, Mr. Shaw was notified that his disability benefits were terminated, subsequent to a determination made in the normal course of review of his records. At Mr. Shaw's request, a hearing on the termination was held before ALJ John W. Ennis, Jr., on April 16, 1981. *fn1" Mr. Shaw was represented by counsel. In a decision dated May 16, 1981, ALJ Ennis concluded that benefits had been properly terminated at the end of April 1980. He made the following findings:

 
1. The claimant has low back and cervical strain and a normal reactive depression thereto.
 
2. The claimant's credibility as to his subjective complaints as to pain and any emotional problem(s) and it's affect, if any, on claimant's residual functional capacity, is found to be not credible.
 
3. The claimant has the residual functional capacity to perform work related functions except for work involving heavy lifting.
 
4. The claimant's past relevant work as a supervisor of a security unit, as a counselor and as a long term substitute teacher in mathematics and biology on the secondary school level did not require heavy lifting.
 
5. The claimant's impairments do not prevent the performance of this past relevant work.
 
6. The claimant was not under a disability as defined in the Social Security Act at any time commencing at least far back as February 1980 and through the date of this decision.

 Decision of ALJ Ennis of May 6, 1981, record at 11.

 Mr. Shaw now appeals from the decision of the Appeals Council which affirmed the decision of ALJ Ennis in a letter to Mr. Shaw dated August 21, 1981. Both claimant Shaw and the Secretary of Health and Human Services (Secretary) have filed motions for summary judgment supported by memoranda of law and a hearing on the motions was ...


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