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GRAY v. CHATER

October 6, 1995

MARK GRAY, Plaintiff, against SHIRLEY S. CHATER, Commissioner of Social Security, 1 Defendant.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge *fn2" :

 The plaintiff Mark Gray ("Gray") filed this action on January 24, 1994 pursuant to Section 205(g) of the Social Security Act ("Act"), 42 U.S.C. 405(g), and Section 1631(c)(3) of the Act, 42 U.S.C. § 1383(c)(3), to review a final determination by the Commissioner of Social Security ("Commissioner") denying him a period of disability, Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI") benefits. On August 18, 1994, the plaintiff submitted his brief, and on September 29, 1994, the Commissioner submitted her brief; pursuant to the Standing Order of the Northern District of New York, the briefs are construed as cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).

 The issue in this case is whether substantial evidence supports the finding by the Commissioner that the plaintiff is not entitled to a period of disability, SSDI benefits or SSI benefits.

 I.

 The plaintiff, who was born on November 29, 1966, (R. at 38), claims that since May 1992, he has suffered from problems with his knees that render him disabled. (R. at 112.) Gray's left knee has a "tendency to sublux out of place." (R. at 43.) When his knee subluxes, or gives out, it causes Gray "stabbing" pain. (R. at 45-46.) At the time of the hearing before the Administrative Law Judge ("ALJ") on May 21, 1993, Gray's knee problems had necessitated seven surgeries, (R. at 43), had resulted in numerous emergency visits to the hospital, (R. at 8, 148, 207, 230, 237, 240), and had continued to cause Gray constant pain. (R. at 45.) The ALJ who conducted the hearing concluded that Gray has a "severe musculoskeletal impairment." (R. at 20.) In detailing Gray's "long history of disorders of his left knee," the ALJ noted that Gray had undergone, among other surgeries, a partial meniscectomy to the left knee in 1982, a transarthroscopic synovectomy in 1983, a left tibia tubricle elevation with left iliac graft in 1988, and exploration of the left patellar tendon with reefing of the patellar tendon mechanism in September 1992. (Id.) The ALJ also observed that Gray has chronic instability of the left patella with patellofemoral arthritis and a disruption of the left quadriceps patellar mechanism, that Gray has been diagnosed as having patellofemoral chondromalacia of the right knee, and that an MRI revealed inflammation of the patellar tendon at the distal aspect of the patella. (Id.)

 After completing high school, Gray served in the Navy until he was discharged because of his knee problems. (R. at 39-40.) Following his discharge, Gray was employed continuously at various jobs from 1984 until May 1992. (R. at 103.) Most recently, Gray owned a pet store. (R. at 40.) Prior to that, he had been, among other things, a retail manager in various stores and a laborer. (R. at 41, 104-07.) As with his prior jobs, Gray was forced to stop working at the pet store because of problems with his knees. (R. at 42, 110.)

 Gray filed an application for SSDI benefits on June 17, 1992. (R. at 112-19.) Gray's application was denied both initially, (R. at 66-69), and upon reconsideration. (R. at 80-83.) Gray also filed an application for SSI benefits on May 14, 1992, (R. at 84-88), which also was denied initially, (R. at 90-93), and upon reconsideration. (R. at 95-98). Gray then requested a hearing, which was held on May 21, 1993. (R. at 33-50.) At the hearing the ALJ found that Gray was not disabled and, therefore, that he was not entitled to a period of disability or to SSDI benefits under Sections 216(i) and 223 of the Act, 42 U.S.C. §§ 416(i), 423, and that he was not eligible for SSI benefits under Sections 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. §§ 1381a, 1382c(a)(3)(A). (R. at 25.) When the Appeals Council denied Gray's request for review on November 23, 1993, (R. at 11-12), the ALJ's decision became the final decision of the Commissioner. *fn3" Gray now appeals to this Court from this decision.

 II.

 Gray contends that the Commissioner's decision that he is not disabled because he has the Residual Functional Capacity ("RFC") *fn4" to perform a full range of sedentary work activity is not supported by substantial evidence. He argues that: (1) his impairment, as described by a physician examining him for purposes of determining his entitlement to Workers' Compensation benefits, renders him unable to perform a full range of sedentary work according to the Commissioner's own definition of sedentary work; (2) the Commissioner did not properly consider the effect of pain on his RFC; (3) the Commissioner improperly considered his attempts to find work as an indication that he could perform a full range of sedentary work; and (4) the testimony of a vocational expert was necessary for the Commissioner to sustain her burden of proof.

 A.

 The analytical framework for evaluating claims of disability is defined by regulations of the Commissioner, which set forth a five-step inquiry. See 20 C.F.R. §§ 404.1520, 416.920. As the Court of Appeals has explained:

 
The first step in the sequential process is a decision whether the claimant is engaged in 'substantial gainful activity.' If so, benefits are denied. If not, the second step is a decision whether the claimant's medical condition or impairment is 'severe.' If not, benefits are denied. If the impairment is 'severe,' the third step is a decision whether the claimant's impairments meet or equal the 'Listing of Impairments' set forth in subpart P, app. 1, of the social security regulations. These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits. If the claimant's impairments do not satisfy the 'Listing of Impairments,' the fourth step is assessment of the individual's 'residual functional capacity,' i.e., his capacity to engage in basic work activities, and a decision whether the claimant's residual functional capacity permits him to engage in his prior work. If the residual functional capacity is consistent with prior employment, benefits are denied. If not, the fifth and final step is a decision whether a claimant, in light of his residual functional capacity, age, education, and work experience, has the capacity to perform 'alternative occupations available in the national economy.'

 Dixon v. Heckler, 785 F.2d 1102, 1103 (2d Cir. 1986) (citations omitted), vacated on other grounds sub nom. Bowen v. Dixon, 482 U.S. 922, 96 L. Ed. 2d 690, 107 S. Ct. 3203 (1987); see also Diaz v. Shalala, 59 F.3d 307, 312 n.2 (2d Cir. 1995); Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).

 The initial burden is on the claimant to prove that he is disabled within the meaning of the Act. 42 U.S.C. § 423(d)(5); see also Reyes v. Secretary of Health and Human Servs., 807 F. Supp. 293, 298 (S.D.N.Y. 1992) (Motley, J.). This burden encompasses the first four steps described above. Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983). Once the claimant carries the burden of proving disability by showing that his impairment prevents his return to his prior employment, he has established a prima facie case and the burden shifts to the Commissioner to prove the fifth step--that there exists alternative substantial gainful employment in the national economy that the claimant can perform considering not only his physical capacity but also his age, education, experience, and training. Id. 717 F.2d at 722-23; see also Reyes, 807 F. Supp. at 298; Crean v. Sullivan, 1992 U.S. Dist. LEXIS 10734, No. 91 Civ. 7038, 1992 WL 183421, at *4 (S.D.N.Y. July 22, 1992) (Leisure, J.).

 In determining whether a claimant is disabled, the Commissioner must consider: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physicians; (3) the claimant's subjective evidence of pain and physical incapacity as testified to by himself and others who observed him; and (4) the claimant's age, educational background, and work history. Carroll v. Secretary of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Moreover, the opinion of a treating physician is entitled to considerable weight and is, in the absence of contradictory evidence, binding on the Commissioner. Id.

 In meeting her burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as "the Grid". *fn5" The Grid takes into account the claimant's RFC in conjunction with the claimant's age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability. Crean, 1992 U.S. Dist. LEXIS 10734, 1992 WL 183421, at *4.

 Exclusive reliance on the Grid, however, is inappropriate where the medical-vocational guidelines fail to accurately describe a claimant's particular limitations. See 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(e); Crean, 1992 U.S. Dist. LEXIS 10734, 1992 WL 183421, at *4. Where there are discrepancies between the claimant's profile and the Grid factors, all relevant facts are to be considered in light of the vocational considerations outlined in 20 C.F.R. §§ 404.1560-404.1569a; see Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986). For example, sole reliance on the Grid may be precluded where the claimant's exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform. See 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Bapp, 802 F.2d at 605; Crean, 1992 U.S. Dist. LEXIS 10734, 1992 WL 183421, at *4-*5. *fn6" This is also the case where there is not ...


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