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LYONS v. HECKLER

January 30, 1986

JULIE LYONS
v.
MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES


James McGirr Kelly, United States District Judge. Edwin E. Naythons, United States Magistrate.


The opinion of the court was delivered by: KELLY, U.S.D.J.; NAYTHONS, MAGISTRATE

JAMES McGIRR KELLY, UNITED STATES DISTRICT JUDGE

 AND NOW, this 12th day of June, 1986, after careful and independent consideration of the cross-motions for summary judgment, and after review of the Report and Recommendation of the United States Magistrate, and the objections filed thereto (which were conclusionary in nature and unsupported by argument), it is ORDERED that:

 1. The Report and Recommendation is APPROVED and ADOPTED.

 2. The plaintiff's motion for summary judgment is DENIED.

 3. The defendant Secretary's motion for summary judgment is GRANTED.

 4. The final decision of the defendant Secretary denying the plaintiff's claim for disability insurance benefits under Title II of the Act is AFFIRMED.

 REPORT - RECOMMENDATION

 EDWIN E. NAYTHONS, UNITED STATES MAGISTRATE

 Plaintiff, Julie Lyons, has brought this action under 42 U.S.C. § 405(g) to review the Secretary's final decision denying her claim for disability insurance benefits under Title II of the Social Security Act ("Act").

 Plaintiff filed an application for disability insurance benefits on April 13, 1981 (Tr. 63). The application was denied initially and on reconsideration by the Office of Disability Operations of the Social Security Administration. (Tr. 67-70). The case was considered de novo by an Administrative Law Judge ("ALJ") before whom plaintiff appeared represented by counsel. In a decision dated July 7, 1982, the ALJ determined that plaintiff's impairments were not severe as defined by the Act and was therefore not disabled for purposes of the Act (Tr. 20). Thereafter, the Appeals Council, after considering additional evidence, denied plaintiff's request for review so that the ALJ's decision denying benefits became final on December 7, 1982 (Tr. 4-5).

 The plaintiff then requested judicial review in this Court and the matter was referred to this United States Magistrate. In a Report and Recommendation filed November 30, 1983, I agreed with the ALJ that the record did not demonstrate the existence of a severe back impairment for purposes of the Act. I also indicated that the record failed to indicate the existence of an orthopedic impairment which satisfies the requirements of section 1.03 of the Listing of Impairments of Appendix 1 of the Secretary's regulations. However, I found that the evidence concerning plaintiff's allegations of pain had not been properly weighed and that the Secretary had the burden of making specific findings, and otherwise proving a factual basis, concerning the credibility of plaintiff's complaints. Accordingly, I recommended that the case be remanded to the Secretary for reconsideration of plaintiff's subjective complaints of pain and for consideration of the effect of pain combined with degenerative joint disease and obesity. By Order dated December 15, 1983 Judge Kelly approved and adopted the Report and Recommendation, thereby remanding the matter to the Secretary. The Appeals Council, in turn, vacated the prior hearing decision and remanded the case to the hearing level for appropriate action.

 In accordance with the Appeals Council's remand, the ALJ received additional medical evidence into the record. A supplemental hearing was also held on November 28, 1984, where plaintiff personally appeared and testified, accompanied by an attorney. (Tr. 181-235). In a decision dated February 26, 1985 the ALJ determined that the plaintiff was not entitled to disability insurance benefits as she retained the ability to perform substantial gainful activity during all relevant times (Tr. 165). The Appeals Council affirmed and modified the decision of the ALJ in a decision dated July 15, 1985, thereby making the ALJ's decision the final decision of the Secretary (Tr. 133-134).

 The Court presently has before it the parties' cross-motions for summary judgment. After careful consideration of the issues raised by plaintiff, and after review of the administrative record in this matter, it is the conclusion of this United States Magistrate that the ALJ's decision denying benefits is supported by substantial evidence. It is therefore recommended that the Secretary's motion for summary judgment be granted and that the final decision of the Secretary denying plaintiff's claims for disability insurance benefits be affirmed.

 FACTUAL BACKGROUND

 Plaintiff was born on March 1, 1925 (Tr. 37). She received a high school education, and has work experience as a saleswoman in clothing stores (Tr. 90)1. This work involved constant standing and walking with frequent lifting of coats and boxes of merchandise (Tr. 90). Plaintiff fell at work in 1979, and since that time has complained of excruciating pain throughout her body (Tr. 43, 45, 51). In her application for disability insurance benefits, plaintiff alleges that her ...


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