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MULLIN v. APFEL

January 7, 2000

PHILIP A. MULLIN,[FN1]
V.
KENNETH APFEL, COMMISSIONER OF SOCIAL SECURITY.



The opinion of the court was delivered by: Ludwig, District Judge.

MEMORANDUM

Petitioner Philip M. Mullin appeals the Commissioner's denial of disability insurance benefits. 42 U.S.C. § 401 433. Jurisdiction is 42 U.S.C. § 405(g). Both parties cross-moved for summary judgment. The Magistrate Judge submitted a Report and Recommendation and a supplemental Report and Recommendation that would deny summary judgment and remand for further proceedings. This recommendation will not be adopted, and instead defendant's motion will be granted. There appears to be substantial evidence to support the findings of the Administrative Law Judge.

On August 2, 1994, petitioner filed for disability insurance benefits, which, on November 2, 1994 and February 23, 1995, were denied, initially and on reconsideration. Rec. at 9. On December 19, 1996, at petitioner's request, the ALJ held a hearing, and thereafter wrote the report denying the claim: "The record was left open for the submission of additional medical evidence, but none has been offered or identified." Id.*fn2

On September 22, 1997, petitioner filed a timely appeal stating, "I don't feel the judge is taking into consideration that my condition is as serious as it is and that it probably is going to be permanent and get worse." Rec. at 4. On July 14, 1998, the Appeals Council denied petitioner's request for review.*fn3

Petitioner is a 46-year-old male, high school graduate with past relevant work experience as a carpet and furniture cleaner, among other unskilled occupations. Rec. at 54. In January 1992 or 1993, he was injured as a result of an automobile accident and experienced low back pain. Rec. at 10. Petitioner continued to work as a carpet and furniture cleaner until July 31, 1993. Id. His back problems are the basis of his claim for benefits.*fn4 Id.

The ALJ's Report

The ALJ made the following findings:

1. The claimant met the disability insured status requirements of the Act on July 31, 1993, the date the claimant stated he became unable to work, and continues to meet them through December 31, 1998.
2. The claimant has not engaged in substantial gainful activity since July 31, 1993.
3. The medical evidence establishes that the claimant has severe back problems and a nonsevere hypertension impairment, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's allegations of pain, tingling, swelling, and limitation of function are not substantiated to the degree alleged and are thus not fully credible.
5. The claimant has the residual functional capacity to preform work related activities except for work involving lifting and carrying more than 20 pounds at a time or more than ten pounds frequently (20 C.F.R. § 404.1545).
6. The claimant's past relevant work as a carpet cleaner did not require the performance of work related activities precluded by the above limitation(s) (20 C.F.R. § 404.1565).
7. The claimant's impairments do not prevent the claimant from performing his past relevant work.
8. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of the decision (20 C.F.R. § 404.1520(e)).

Rec. at 12-13.

The issue before the ALJ was whether the claimant was disabled since July 31, 1993. Rec. at 9. The ALJ's report contains an extensive discussion of the rationale for the decision, reviewing the entire record, including medical reports*fn5 and petitioner's testimony. According to the report, the medical evidence, giving petitioner "every benefit of the doubt," showed petitioner "has a severe back impairment which does not meet or equal in severity the requirements of Appendix 1." Rec. at 10. In evaluating the credibility of petitioner's testimony as to his condition against the ...


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