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MCKENNA v. CHATER

July 7, 1995

ANDREW McKENNA, Plaintiff, against SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.

Eugene H. Nickerson, U.S.D.J.


The opinion of the court was delivered by: EUGENE H. NICKERSON

NICKERSON, District Judge:

 Plaintiff brought this action challenging the final decision of the Commissioner of Social Services (the Commissioner) denying his application for disability insurance benefits under the Social Security Act (the Act).

 Both parties move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).

 I

 Plaintiff, born on April 23, 1959, has had, despite his relatively young age, a lengthy employment history. As soon as he completed high school he started to work. He was employed first as a supermarket clerk from 1976 to 1982, then as a police officer from 1982 to 1984, and finally as a firefighter from 1984 to 1991. He also worked a second job from 1988 to 1991, as a self-employed butcher.

 Plaintiff says he has been disabled since October 3, 1991. Various physicians have diagnosed him as having several physically and mentally disabling conditions, including a herniated disc, degenerative disc disease, shoulder impingement, and depression.

 The Social Security Administration (the Administration) denied plaintiff's December 15, 1992 application for benefits both initially and upon reconsideration. After a hearing on November 22, 1993 an Administrative Law Judge (the ALJ), Jonathan Jacobs, found him not disabled in what may, charitably, be described as a cursory decision.

 Upon plaintiff's request for review the Appeals Council (the Council) on March 24, 1994 vacated the ALJ's decision and remanded the case to "an" Administrative Law Judge. The Council's order provided as follows.

 
The Appeals Council grants the request for review under the substantial evidence provision of the Social Security Administration regulations (20 CFR 404.970). Under the authority of 20 CFR 404.977, the Appeals Council vacates the hearing decision and remands this case to an Administrative Law Judge for resolution of the following issue:
 
Upon remand, the Administrative Law Judge will:
 
Further evaluate the claimant's subjective complaints and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms (20 CFR 404.1529) and Social Security Ruling 88-13.

 After a hearing on March 17, 1994 the ALJ made the following findings on June 20, 1994.

 
1. The claimant met the disability insured status requirements of the Act on October 3, 1991.
 
2. The claimant has not engaged in substantial gainful activity since October 3, 1991.
 
3. The medical evidence establishes that the claimant has severe cervical herniation with impingement, mild depression, post-traumatic stress disorder and pain, 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 subjective complaints of pain were considered exaggerated and not supported by the medical evidence or his description of his daily activities.
 
5. The claimant has the residual functional capacity to perform the physical exertion requirements except for prolonged standing and walking or lifting and carrying over ten pounds.
 
6. The claimant is unable to perform his past relevant work as a firefighter.
 
7. The claimant has the full residual functional capacity to perform the full range of sedentary work.
 
8. The claimant in 36 years old, which is defined as a younger individual.
 
9. The claimant has a high school education.
 
10. In view of the claimant's age and residual functional capacity, the issue of transferability of work skills is not material.
 
11. Section 404.1569 of Regulations No. 4 and Rules 201.28, Table No. 1 of Appendix 2, Subpart P, Regulations No. 4, direct a conclusion that, considering the claimant's residual functional capacity, age, education, and work experience, he is not disabled.
 
12. The claimant was not under a "disability" as defined in the Social Security Act, at any time through the date of this decision.

 The Council declined plaintiff's request for review on September 14, 1994. This action followed.

 II

 The relevant medical evidence may be summarized ...


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