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SNYDER v. BOWEN

June 17, 1988

JOHN A. SNYDER, Plaintiff,
v.
OTIS R. BOWEN, M.D., Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, Chief Judge.

 Currently before the court is a Report from Magistrate J. Andrew Smyser dated February 9, 1988 which recommends that defendant's motion for summary judgment be denied, and that this case be remanded to the Secretary. See document 22 of record. For the reasons that follow, the court will not adopt the Magistrate's Report and will grant summary judgment in favor of defendant.

 BACKGROUND

 Plaintiff filed his current application for disability benefits on November 16, 1982. *fn1" In his application, he states that he became disabled in "1970" as a result of a back injury and internal injuries from an industrial accident in the "1960's." See document 7 of record, at p. 159. Plaintiff's application was denied initially and upon reconsideration, and he then sought a hearing before an Administrative Law Judge (ALJ).

 On October 30, 1984, an ALJ issued a decision concluding that plaintiff had not been disabled prior to June 30, 1977, the date on which he last met the special earnings requirements of the Act. See id. at pp. 24-31. The Appeals Council subsequently denied plaintiff's request for a review of the ALJ's decision. See id. at pp. 5-6.

 Plaintiff filed the instant civil action on June 21, 1985 seeking review of the Secretary's decision denying benefits. See document 1 of record. Plaintiff submitted his motion for summary judgment on November 19, 1985, arguing that the Secretary's position was not supported by substantial evidence. He also argued that he might fall within the revised listing of impairments for psychiatric problems because of "very severe mental problems." See document 8 of record, at p. 13 and Attachments. *fn2" In response to plaintiff's motion for summary judgment, the Secretary argued that the case should be remanded to "readjudicate Plaintiff's claim in light of the new mental impairment criteria. . . ." See document 11 of record. Plaintiff did not oppose the motion to remand, and so the Magistrate recommended that the motion be granted. See document 12 of record. No exceptions were filed to the Magistrate's recommendation, and so the court remanded the matter to the Secretary for further consideration. See document 14 of record.

 At a subsequent supplemental hearing held before the ALJ, plaintiff's attorney stated as follows:

 See document 15 of record, at p. 348. Plaintiff's attorney then agreed that there was no evidence that plaintiff had any mental or emotional impairment prior to June 30, 1977, and that there was "nothing to apply the new evaluation standards to." See id. at pp. 357-358. The ALJ then called a board certified psychiatrist, who testified that, based on the evidence of record, he could not determine whether plaintiff had any depression as of, or prior to, June 30, 1977. See id. at pp. 363-365. The ALJ then concluded the supplemental hearing.

 On March 12, 1987, the ALJ issued a recommended decision in which he made, inter alia, the following findings:

 
2. The claimant met the special earnings requirements of the Act, for purposes of entitlement to a period of disability and disability insurance benefits as of "1970," and he continued to meet them through June 30, 1977.
 
3. The claimant engaged in sustained substantial gainful activity during the 15 month period between April, 1971 and June, 1972. He again engaged in sustained substantial gainful activity for more than 6 months in 1979.
 
4. The claimant has failed to establish that he became disabled as of, or prior to, June 30, 1977, and continued to be disabled through the effective date of his current application of November 16, 1982.
 
* * * *
 
6. The claimant's medically determinable impairments, as of June 30, 1977, were: Mild arthritis of the ...

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