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VARNER v. SHALALA

May 23, 1995

GARY VARNER, PLAINTIFF,
v.
DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Mihm, Chief Judge.

ORDER

Before the Court are Gary Varner's Motion for Summary Judgment [12] and Defendant's Motion to Affirm [14]. For the reasons set forth herein, the Motion for Summary Judgment is DENIED and the Motion to Affirm is GRANTED.

Background

Varner applied for Disability Insurance Benefits on November 4, 1991, alleging that he was impaired by manic depression and a chemical imbalance from November 15, 1989. (Tr. 13, 147). Varner's application was denied on February 21, 1992. Id. at 102. Varner's request for reconsideration was denied on July 9, 1992. Id. at 110. Varner requested a hearing before an Administrative Law Judge ("ALJ") on August 28, 1992. Id. at 30, 94. Such hearing was held before ALJ Gary L. Vanderhoof on May 3 1993. Id. at 13-23. ALJ Vanderhoof denied Plaintiff's request for benefits. Id. Varner timely appealed the ALJ's decision. Id. at 8. The Appeals Council denied Varner's request for review on December 14, 1993. Id. at 5-6. When the Appeals Council declines to hear a case, the ALJ's decision is that of the Secretary. 20 C.F.R. § 404.981 (1994). Pursuant to 42 U.S.C. § 405(g), Varner has brought the matter before this Court for review of the Secretary's decision.

ALJ Vanderhoof's findings are set forth below, in relevant part:

  1. The claimant met the special earnings requirements of the
     Social Security Act from June 27, 1986 through September 30,
     1991.
  2. The claimant engaged in substantial gainful activity from
     June 27, 1986 to November 15, 1989 as a truck driver, school
     bus driver, and landscaper. On average, the claimant earned
     more than $300.00 per month during this time. This work
     activity constituted substantial gainful activity under the
     Regulations. (20 C.F.R. 404.1572 and 416.972) The claimant
     was not under a disability as defined by the Act from June
     27, 1986 through November 15, 1989. The claimant has not
     been engaged in substantial gainful activity since November
     16, 1989.
  3. While the medical evidence indicates that the claimant
     has a severe depressive disorder, it does not rise to the
     level of an impairment or combination of impairments listed
     in or medically equal to one listed in Appendix 1, Subpart
     P, Regulations No. 4.
  4. The testimony of claimant and claimant's wife are not
     found to be fully credible.
  5. Since November 16, 1989, the claimant has had the
     residual functioning capacity to perform the following
     physical exertional and nonexertional requirements of work:
     no physical limitations, a moderately limited ability to
     perform complex cognitive activities, can perform simple,
     routine, repetitive work, no high-stress or fast-paced work,
     and should work more with things than people.
  6. The claimant's past relevant work as a truck driver did
     not require the performance of work-related activities
     precluded by the above limitations. The claimant can perform
     his past relevant work as a truck driver.
  7. The claimant has not been under a "disability," as
     defined in the Social Security Act, at any time through the
     date of this decision. (20 C.F.R. 404.1520(b) and (e) and
     416.920(b) and (e)).

(Tr. at 21-22). As will be discussed below, Varner has not made a claim that the ALJ's decision is not supported by substantial evidence and, thus, it is not necessary to set forth a ...


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