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SMITH v. CALIFANO

September 13, 1978

James P. SMITH, Plaintiff,
v.
Joseph A. CALIFANO, Jr., Secretary of Health, Education, and Welfare, Defendant



The opinion of the court was delivered by: GESELL

MEMORANDUM AND ORDER

Plaintiff claims that the Secretary acted arbitrarily and ignored the substantial weight of evidence disclosed at the administrative hearing when he denied plaintiff's claim for disability benefits under the Social Security Act, as amended, 42 U.S.C. § 301 Et seq. Both parties have moved for judgment on the administrative record which the Court has thoroughly examined after considering the briefs and arguments of counsel.

 The administrative record is inadequate to permit resolution of the issues and the matter must be remanded for further proceedings before the Secretary. As the papers indicate, a portion of the record on which the administrative law judge based certain findings has been lost. Plaintiff's counsel at the administrative level relied in part on portions of the lost transcript. In view of 42 U.S.C. § 405(g) (1976), the inability of the Secretary to produce a complete record of the proceedings before the agency frustrates judicial review. The problem is not, as the Secretary suggests, a mere matter of harmless error.

 There is also a further difficulty. The administrative law judge determined that plaintiff, in spite of his many medical difficulties and subjective experience, was capable of doing "light work." There is nothing in the record or findings, however, to indicate what this elusive term comprehends. No vocational expert was called to testify and there is substantial uncontroverted evidence that plaintiff was unable to perform certain types of work that would appear to fall within the common meaning of the term "light work." Thus the record remains in a state of uncertainty.

 On remand plaintiff's counsel should be afforded opportunity to present evidence from plaintiff to correct the absence of the missing transcript. In addition, and after hearing a vocational expert called by the Secretary, plaintiff should be allowed to present evidence from his own physician or other physicians bearing on his capacity to do work in the period under review.

 For the reasons above indicated, this matter is remanded to the Secretary promptly to hold supplemental hearings on the application to the extent stated.

 SO ORDERED.

19780913

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