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CHEVALIER v. SHALALA

December 2, 1994

CARL CHEVALIER, Plaintiff,
v.
DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: STANLEY SPORKIN

 This matter comes before the Court on cross-motions for summary judgment. Plaintiff, Carl Chevalier, seeks judicial review pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3), of the decision of the Secretary of Health and Human Services denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383c. In the alternative, Plaintiff seeks to have the case remanded for further proceedings. Defendant moves the Court pursuant to Rule 7(b)(1) of the Federal Rules of Civil Procedure to affirm the decision of the Secretary.

 PROCEDURAL BACKGROUND

 Plaintiff filed his claim for SSI and DIB on June 8, 1992, alleging that he had been disabled since November, 1990 with back and sinus problems, hypertension and gout. (R. 22, 28). The Secretary denied Plaintiff's claims at all levels of administrative review. (R. 32-33, 36-37.) The Appeals Council declined to review the Administrative Law Judge's ("ALJ") decision denying the Plaintiff benefits and the ALJ's decision became the final decision of the Secretary. (R. 3-4). This action followed.

 SCOPE OF REVIEW

 Judicial review of the Secretary's decisions is not de novo, but rather is limited to determining whether the Secretary's findings are supported by substantial evidence and whether the Secretary applied the correct legal standards. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938). The Court's role is not to reweigh the evidence and "replace the Secretary's judgment concerning the weight and validity of the evidence with its own." Davis v. Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1983).

 LEGAL STANDARDS (RULES AND REGULATIONS)

 In this case, the Secretary's inquiry terminated at Step 2 with the finding that the Plaintiff was not severely impaired. Step two specifically provides:

 
You must have a severe impairment. If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.

 20 CFR §§ 416.920, 404.1520. The regulations further provide what is meant by a "not severe impairment" -

 
(a) Non-severe impairment(s). An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities. (b) Basic work activities. When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs. Examples of these include --
 
(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, ...

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