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SCOTT v. SHALALA

February 23, 1995

CLEOPATRIC K. SCOTT, 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, Cleopatric Scott, 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 her 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 her claims for SSI and DIB on March 12, 1991, alleging that she had been disabled since February 6, 1985 with injuries to her back, left shoulder and left hand (R. 26-28, 30). In a decision dated November 20, 1992, the Administrative Law Judge ("ALJ") found that plaintiff had the residual functional capacity to perform a full range of light work and denied her claim for disability benefits. (R. 20). The Appeals Council declined to review the ALJ's decision pursuant to the request for such review dated June 16, 1993. As such, the decision of the ALJ became the final decision of the Secretary. 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)

 The Act and its implementing regulations are very specific regarding the evaluative process to be applied by the Secretary in determining entitlement to disability benefits. A five step process is to be employed to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. If it is determined at any step that the claimant is not disabled, then further review is not necessary. The first step of five in the sequential evaluative process is to determine whether the claimant is engaged in "substantial gainful employment." The next four steps in the evaluative process are to determine whether plaintiff has a severe impairment, whether the impairment meets or equals the requirements of a listed impairment, whether the plaintiff can return to her past relevant work and if not, whether she can perform other work.

 In this case, the Secretary's inquiry terminated at Step 5 with the finding that in light of plaintiff's impairments she is not precluded from doing light work. During the first four steps, the claimant bears the burden of proof. The burden, however, shifts to the Secretary at the fifth stage to show that the individual, based upon her age, education, work experience, and residual functional capacity, is capable of performing gainful employment and that such jobs exist in the national economy. Brown v. Bowen, 253 U.S. App. D.C. 409, 794 F.2d 703, 706 (D.C. Cir. 1986); Grant v. Schweiker, 699 F.2d 189, 191 (3rd Cir. 1985).

 Step five specifically provides:

 
Your impairment(s) must prevent you from doing any other work.
 
(1) If you cannot do any work you have done in the past because you have a severe impairment(s), we will consider your residual functional capacity and your age, education, and past work experience to see if you can do other work. If you cannot, we will find you disabled.
 
(2) If you have only a marginal education, and long work experience (i.e., 35 years or more) where you only did arduous unskilled physical labor, and you can no longer do this kind of work, we use a different rule (see § 404.1562).

 20 C.F.R. §§ 404.1520(f), 416.920(f). *fn1" ...


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