United States District Court, N.D. New York
February 11, 2004.
DENNIS F. WHITTAKER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2
DECISION AND ORDER
Dennis Whittaker brings this action to contest the denial of benefits
by the Commissioner of Social Security. He has been disabled since April
21, 1995, due to glaucoma and diplopia*fn1. He met the special insured
status earnings requirements of the Act for purposes of establishing
entitlement to disability insurance benefits on the alleged date of onset
and continued to meet those requirements through December 2001. Having
reviewed the entire record, this court finds that the Commissioner's
decision must be affirmed since it was based on substantial evidence.
II. PROCEDURAL HISTORY
Whittaker initially applied for disability insurance benefits on
November 9, 1995, alleging disability as of August 21, 1995. His
application was denied initially and on reconsideration. Whittaker did
not appeal the reconsideration decision. Subsequently, on September 25,
1996, Whittaker reapplied for disability insurance benefits alleging
disability as of April 25, 1995. The application was denied initially,
again on reconsideration. Whittaker then requested a hearing before
an Administrative Law Judge which was subsequently held on April 1, 1998,
before Thomas Zolezzi. In a decision dated June 25, 1998, the ALJ found
that Whittaker did not have a disability which precluded him from
working. The decision of the ALJ became the final decision of the
Commissioner when the Appeals Council denied his request for review.
On January 10, 2000, Whittaker brought this action pursuant to
42 U.S.C. § 405(g) seeking review of the Commissioner's final
determination. On April 18, 2000, the Commissioner filed an answer and a
certified administrative transcript. On June 1, 2000, Whittaker filed a
brief and on July 18, 2000, the Commissioner filed a response.
Whittaker contends that the Commissioner failed to: (1) introduce
sufficient evidence to satisfy its Step 5 burden of proof; and, (2)
incorrectly denied his request to reopen his prior application. The
Commissioner argues that substantial evidence in the record supports the
finding of the ALJ and his decision should be affirmed
Whittaker was born on May 25, 1942. He received a Master's Degree in
civil engineering in 1964. He was last employed as an environmental
engineer for IBM. His previous job required him to sit for five hours per
day, walk for one hour per day, bend occasionally and lift twenty pounds
occasionally. His job also required "a lot of" reading and computer work.
Whittaker complained of poor near vision in his right eye and difficulty
fusing or stabilizing images.
Whittaker claimed that the ALJ who sat ten to twelve feet from him at
the hearing, was a blur to him in his right eye. He could not read with
his right eye. He usually rested his eyes for 30 minutes per day around
noontime. He testified that he got headaches if he did not pace himself.
Whittaker indicated that the intraocular pressure*fn3 ("IOP") in his
right eye was 5. The IOP in his left eye was 12 or 13. The pressure in
his left eye fluctuated, rising to 20 or 25 every six months, which
required him to change medication. The medication allegedly made him
tired. His corrected vision varied from 20/60 to 20/80 in his right eye,
and was 20/40 in his left eye.
Whittaker performed "normal" activities of daily living, but had
difficulty reading labels at the grocery store. His daily activities
included cutting and splitting wood, restoring cemeteries, household
chores, training his dog to herd sheep and ducks, and visiting relatives.
He lived by himself and cooked his own meals. He balanced his checkbook
on a computer for 20 to 30 minutes continuously, and then needed a
one-hour break. He testified that he could read for ten minutes, but then
needed a thirty minute break because he would lose focus and his eyes
would hurt. Whittaker used a magnifying glass to read newspaper articles.
He testified that he could work with a jigsaw puzzle, but he could not
thread a needle. He did not have any difficulty watching television,
except for reading subtitles.
Whittaker drove locally and limited his night time driving. He
testified that he had no difficulty standing or walking. However,
Whittaker claimed that he could not sit for "too long" due to a bad back.
He testified that he could lift fifty pounds occasionally and twenty
pounds frequently. He had no difficulty bending, kneeling or stooping
A. Medical Evidence Prior to his Onset Date of
April 21, 1995
In 1989, Gary Williams, Whittaker's optometrist since 1974,
observed that his IOP began to fluctuate. In January of 1992, his
IOP increased to 31 in his left eye and 32 in his right eye. He was
referred to Dr. Steven Hudock, who commenced treatment for glaucoma. By
February of 1993, Whittaker's IOP had dropped to 11 and 13 in his left
and right eye, respectively. However, Whittaker then developed allergic
reactions to the glaucoma medication. In September of 1993, his glaucoma
care was transferred to Dr. Maura Santangelo, an ophthalmologist. Since
Whittaker's IOP could no longer be controlled with medical therapy, Dr.
Santangelo performed a trabeculectomy*fn4 on his right eye on October
19, 1993. This produced a dramatic reduction in pressure, a decrease of
approximately three diopters in myopia,*fn5 and a hypotensive
maculopathy.*fn6 On February 28, 1994, Dr. Santangelo surgically revised
the filtering bleb in his right eye. The increased IOP partially resolved
maculopathy, but he had three diopters less myopia in his right eye
than his left. This produced significant aniseikonia*fn7. In June of
1994, Whittaker developed hyperphoria*fn8 in his right eye.
B. Summary of Medical Evidence During the Relevant
On April 27, 1995, a magnetic resonance scan of Whittaker's brain,
orbits, and visual pathway was unremarkable. On May 26, 1995, Dr. J.
Louis Pecora, an ophthalmologist, examined him. Whittaker indicated that
he had vision difficulty since the trabeculectomy. On examination, his
best vision was 20/20 in the right eye, and 20/15 in the left eye. The
pupils responded normally to light. The IOP was 8 in the right eye and 24
in the left eye. Dr. Pecora's impression was retinal fold in his right
eye, primary open angle glaucoma in both eyes, and status post right eye
On June 2, 1995, Whittaker saw Dr. William Delaney for an evaluation of
the retinal fold. Whittaker complained of double vision and headaches.
His chief complaint was that he could not maintain focus. He
related that he could get single vision with considerable effort,
but it was very tiring. He used ocupress and lopidine twice per day,
respectively, in his left eye.
On examination, Dr. Delaney found that Whittaker's best corrected
vision was 20/30 in the right eye and 20/20 in the left eye. An external
exam revealed right over left hypertropia, worse in left gaze and on
right head tilt. Whittaker's visual field was full in the right eye with
central distortion, and full in the left eye with no defect noted. Dr.
Delaney's impression was anisometropia*fn9 chloral folds in the right
eye, open angle glaucoma, status post filtering surgery in the right eye,
spurious hyperphoria and/or superior oblique palsy in the right eye, and
segmental optic atrophy of the right eye. He did not recommend any
therapy to treat the retinal fold. Dr. Delaney recommended consultation
with an ocular muscle specialist for his difficulty fusing images.
Finally, Dr. Delaney concluded that Whittaker was seeing "well" with both
eyes and had difficulty fusing the images.
On August 24, 1995, Dr. Walter Merriam conducted an evaluation.
Whittaker complained of double vision in his right eye. Whittaker's vison
was 20/40 in his right eye and 20/20 in his left. He had right
hyperphoria of 2 diopters. He had very poor fusion movements. Dr.
Merriam's impression was metamorphopsia*fn10 of the right eye. He
recommended blurring the right eye so that he would begin to use his left
On November 28, 1995, Dr. Williams re-evaluated Whittaker. His best
corrected distant vision was 20/30 in his right eye and 20/20 in his
left. The IOP was 8 in the right eye and 19 in the left. Dr. Williams
diagnosed glaucoma/metamorphopsia in the right eye, and glaucoma in the
On January 8, 1996, Dr. Santangelo completed a report regarding
Whittatker's condition. His symptoms during his last visit included
distortion of central vison of the right eye. His corrected distant
vision was 20/60 in his right eye and 20/20 in the left. Dr. Santangelo
diagnosed chronic open angle glaucoma. Dr. Santangelo opined that he had
no limitation in his ability to lift, carry, stand, walk, sit, push, or
pull. She noted that his visual distortion in the right eye was due to
low pressure following glaucoma surgery. The nature of the distortion
his ability to do close work, such as reading.
On February 6, 1996, Whittaker was evaluated by Optometrist Jerome
Sherman at the request of Dr. Williams. Whittaker was concerned about
images in his right eye which moved up and down, and blurred vision by
the presence of a wave-like heat mirage. Dr. Sherman found that his
corrected visual acuity was 20/40 in his right eye and 20/20 in his left.
The IOP was 7.5 in his right eye and 18 in his left. Visual field testing
of his right eye revealed only minor abnormalities. Corneal topography of
the right eye was unremarkable. Dr. Sherman concluded that his
examination yielded little of substance to the management of his case and
suggested that Whittaker totally or partially occlude his right eye.
On February 14, 1996, Dr. Williams provided an assessment of
Whittaker's functional limitations. He indicated that Whittaker should
avoid concentrated visual attention. He stated that he could not
determine whether Whittaker had limitations in any other areas of
functioning. On March 4, 1996, Dr. Santangelo completed a disability
report on Whittaker's functional limitations. She opined that Whittaker
should avoid concentrated visual attention. She clarified that Whittaker
could perform work requiring concentrated visual attention for short
periods of less than
On October 11, 1996, Dr. Williams re-elevated Whittaker. He observed
that his distant vision was 20/70 in his right eye with distortion and
movement, and 20/20 in his left eye. Tension was 11 in his right eye and
16 in his left. He diagnosed glaucoma, reduced vision secondary to
glaucoma filtering surgery with distorted image and oscillopsia.*fn11
Dr. Willaims indicated that the surgery caused refractive change and
aniseikenia. He stated that non-comitant eye deviation cause most of
Whittaker's visual and ocular symptoms of blur, diplopia in different
fields, headache, photophobia,*fn12 and inability to read. He left blank
a physical capacity assessment form.
On October 15, 1996, in a letter to an insurance company, Dr.
Santangelo stated that Whittaker's best corrected vision in his right eye
was 20/80. She opined that his vison loss was caused by distortion of his
central visual acuity, which created blurring even in his good eye.
Patching one eye, which he attempted in the past, did not seem to help.
Dr. Santatngelo expected that his condition was permanent. He was not
taking medication in his right eye since the pressure was
well-controlled following surgery. He took Xalatan and Trusopt in his
left eye. On Februarys, 1997, Dr. Santangelo re-evaluated Whittaker. His
corrected distant vision was 20/60 in his right eye and 20/30 in his left
eye. Tension was 4 in his right eye, and 11 in his left eye. She
diagnosed him with glaucoma in the left eye, and maculopathy in the
On March 25, 1997, Whittaker was examined consultatively by Dr. Charles
Rubin. Whittaker related that he took Trusopt, Alphagan, and Xalatan in
his left eye. His best corrected distant vision was 20/60 in his right
eye, and 20/60 in his left eye. His IOP was 7 in his right eye and 20 in
his left eye. Visual field testing was normal. Dr. Rubin opined that he
had early cataracts degeneration in both eyes, and glaucoma by history.
On April 4, 1997, a state agency medical consultant reviewed the
medical record and concluded that he had limited near acuity, limited
depth perception, and limited field of vision. The doctor also opined
that he should avoid hazards, such as machinery and driving a car. No
exertional or non-exertional limitations were noted.
On October 23, 1997, Michael Lange, an optometrist, evaluated
Whittkaer and found five diopters of vertical phoria.*fn13 The IOP
was 8 in his right eye and 11 in his left eye. Dr. Lange prescribed new
glasses. On November 21, 1997, Whittaker told Dr. Lange that the new
glasses helped his double vision initially but then the symptoms
worsened. When Dr. Lange examined Whittaker, he observed that his
vertical phoria had improved to 2.25 and recommended that Whittaker patch
his right eye.
On December 11, 1997, Dr. Lange re-evaluated him. Whittaker complained
that he could not tolerate wearing the patch because it made him
hysterical and claustrophobic. Thereafter, Dr. Lange suggested various
ways to partially patch his right eye to decrease his reaction and raised
the idea of psychological counseling. On February 12, 1998, a follow-up
examination revealed that his condition was unchanged. He noted that
symptoms seemed much greater than the test findings indicated.
C. Medical Evidence Presented to the Appeals Council
Dr. Charles Teitelbaum provided a letter of his examination findings.
He observed open angle glaucoma with good IOP control in his right eye
but with hypotony maculopathy. He recommended laser surgery on the
left eye to correct its narrow angle.
A. Standard of Review
1. Scope of Review
A court's review of the Commissioner's final decision is limited to
determining whether the correct legal standards were applied and whether
substantial evidence supports the decision. Urtz v. Callahan,
965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v. Bowen,
817 F.2d 983, 985 (2d Cir. 1987)). Although the Commissioner is
ultimately responsible for determining a claimant's eligibility, the
actual disability determination is made by an ALJ. The ALJ's decision is
reviewed by a court after an appeal is filed. A court may not affirm an
ALJ's decision if it reasonably doubts whether the proper legal standards
were applied, even if it appears to be supported by substantial evidence.
Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the
crucial factors justifying his findings with sufficient specificity to
allow a court to determine whether substantial evidence supports the
decision. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
A court's factual review of the Commissioner's final decision is
limited to the determination of whether there is substantial evidence in
the record to support the decision. 42 U.S.C. § 405(g); see
Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial
evidence has been defined as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Williams ex rel
Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations
omitted). It must be "more than a mere scintilla" of evidence scattered
throughout the administrative record. Richardson v. Perales,
402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)); Alston v. Sullivan, 904 F.2d 122, 126
(2d Cir. 1990). "To determine on appeal whether an ALJ's findings are
supported by substantial evidence, a reviewing court considers the whole
record, examining the evidence from both sides because an analysis of the
substantiality of the evidence must also include that which detracts from
its weight." Williams, 859 F.2d at 258. However, a reviewing
court cannot substitute its interpretation of the administrative record
for that of the Commissioner if the record contains substantial support
for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775
(4th Cir. 1972); see also, Rutherford v. Schweiker, 685 F.2d 60,
The court has authority to reverse with or without remand.
42 U.S.C. § 405(g). Remand is appropriate where there are gaps in the record
or further development of the evidence is needed. See Parker v.
Harris, 626 F.2d 225, 235 (2d Cir. 1980); Cutler v.
Weinberger, 516 F.2d 1282, 1287 (2d Cir. 1975) (remand to permit
claimant to produce further evidence). Reversal is appropriate, however,
when there is "persuasive proof of disability" in the record and remand
for further evidentiary development would not serve any purpose.
Parker, 626 F.2d at 235; Simmons v. United States R.R.
Retirement Bd., 982 F.2d 49, 57 (2d Cir. 1992); Carroll v.
Secretary of HHS, 705 F.2d 638, 644 (2d Cir. 1983) (reversal without
remand for additional evidence particularly appropriate where payment of
benefits already delayed for four years and remand would likely result in
further lengthening the "painfully slow process" of determining
B. Five-Step Disability Determination
The definition of "disabled" is the same for purposes of receiving
Social Security Disability Insurance ("SSDI") and Supplement Security
Income benefits (SSI). To be considered disabled, a plaintiff seeking
SSDI or SSI disability benefits must establish that he is "unable
to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months. . . ."
42 U.S.C. § 423(d)(1)(A) and 1382c(a)(3)(A).*fn14 The Commissioner uses a
five-step process to evaluate disability insurance and SSI disability
claims. 20 C.F.R. § 404.1520, 416.920. Step One requires the ALJ to
determine whether the claimant is presently engaging in substantial gainful
activity. 20 C.F.R. § 404.1520(b), 416.920(b). If a claimant is
engaged in SGA, he will not be considered disabled. If the claimant is
not engaged in SGA, Step Two requires the ALJ to determine whether the
claimant has a severe impairment. 20 C.F.R. § 404.1520(c),
416.920(c). If the claimant is
found to suffer from a severe impairment, Step Three requires the
ALJ to determine whether the claimant's impairment meets or equals an
impairment listed in 20 C.F.R. Part 404, Subpart P., Appendix 1 §§
404.1520(d), 416.920(d). If the impairment meets or equals a listed
impairment, the claimant is presumptively disabled. Ferraris,
728 F.2d at 584. If the claimant is not presumptively disabled, Step Four
requires the ALJ to consider whether the claimant's Residual Functional
Capacity ("RFC") precludes the performance of his past relevant work.
20 C.F.R. § 404.1520(e), 416.920(e). At Step Five, the ALJ determines
whether the claimant can do any other work. 20 C.F.R. § 404.1520(f),
The claimant has the burden of showing that he cannot perform past
relevant work. Ferraris, 728 F.2d at 584. However, once the
claimant meets that burden, benefits can only be denied by showing, with
specific reference to medical evidence, that the claimant can perform
some less demanding work. See White v. Secretary of HHS,
910 F.2d 64, 65 (2d Cir. 1990); Ferraris, 728 F.2d at 584. In making
this showing, the ALJ must consider the claimant's RFC, age, education,
past work experience, and transferability of skills, to determine if the
claimant can perform other work existing in the national economy. §§
404.1520(f), 416.920(f); see New York v. Sullivan, 906 F.2d 910,
913 (2d Cir. 1990).
In this case, the ALJ found that Whittaker applied for SSDI and
satisfied Step One because he had not worked since April 21, 1995.*fn15
In Step Two, the ALJ determined that Whittaker suffered from glaucoma and
diplopia, severe impairments. In Step Three the ALJ determined that
Whittaker's impairment failed to meet or equal a combination of
impairments listed in, or medically equal to one listed in Appendix 1,
Subpart P., Regulations No. 4. In Step Four, the ALJ determined that
Whittaker did not have the RFC to perform his past relevant work as an
environmental engineer. In Step Five, the ALJ found that Whitaker had the
RFC to perform the physical exertion and non-exertional requirements of
all levels of work except for working with heights, reading material with
fine print, and driving.
C. Residual Functional Capacity
1. Standard of Review
Residual Functional Capacity relates to what a claimant is capable of
doing despite his impairments. 20 C.F.R. § 404.1545(a), 416.945(a). A
claimant's RFC is determined by considering all of the relevant evidence
consisting, inter alia, of physical abilities, symptoms
including pain,*fn16 and descriptions, including that of the claimant,
of limitations which go beyond symptoms. 20 C.F.R. § 404.1545,
416.945. Physical abilities are determined by evaluation of exertional
and non-exertional limitations in performing a certain category of work
activity on a regular and continuing basis. Id.; see also,
20 C.F.R. § 404.1569(a), 416.969(a).
Thus, to determine whether a claimant can do a certain category of
work, the ALJ must determine the plaintiff's strength limitations, or
exertional capacity, which include the ability to sit, stand, walk, lift,
carry, push and pull. 20 C.F.R. § 404.1569a(a), 416.969a(a). The ALJ
must also evaluate a claimant's non-exertional limitations.
Non-exertional activities include difficulty in functioning due to
stress, poor concentration, poor visual acuity, or an inability to
remember detailed instructions. 20 C.F.R. § 404.1569a(c),
Moreover, when a claimant's impairment and related symptoms such as
pain only impose exertional limitations and the claimant's vocational
profile is listed in an Appendix 2 rule, the rule is applied directly to
determine whether the claimant is disabled.
20 C.F.R. § 404.1569a(b), 416.969a(b). Age, education, past work experience,
and transferability of skills are vocational factors to be considered in
assessing the RFC. Age, as a vocational factor, is separated into
categories of "younger person", "person approaching advanced age", and
"person of advanced age." 20 C.F.R. § 404.1563, 416.963.
As a vocational factor, education indicates the ability to meet job
requirements such as reasoning, communication and arithmetic.
20 C.F.R. § 404.1564(a), 416.964(a). A person with an education above high
school is generally considered capable of semi-skilled work through
skilled work. 20 C.F.R. § 404.1564(b)(4), 416.964(b)(4). Similarly,
recent work experience may indicate an ability to do a similar kind of
work. 20 C.F.R. § 404.1565(a), 416.965(a). Furthermore, jobs are
classified as unskilled, semi-skilled and skilled.
20 C.F.R. § 404.1568, 416.968. The degree of transferability of job skills may
indicate the type of job a claimant can do which helps to determine if a
job the claimant can do exists in the national economy. Id.
However, if the impairment and related symptoms, such as pain, only
affect the claimant's ability to perform the non-exertional aspects of
work-related activities, the rules in Appendix 2 do not direct a
conclusion of disabled or not disabled. 20 C.F.R. § 404.1569a(c)(2),
The determination as to whether disability exists will be based on the
principles in the appropriate sections of the regulations, giving
consideration to the rules of specific case situation in Appendix 2.
Id. Furthermore, when the limitations and restrictions imposed
by the claimant's impairment and related symptoms, such as pain, affect
their ability to meet both the strength and demands of jobs, other than
the strength demands, the claimant will be considered to have a
combination of exceptional and non-exertional limitations and the rules
in Appendix 2 will not directly be applied but will provide a framework
for disability determination. 20 C.F.R. § 404.1569a(d), 416.969a(d).
Generally, the RFC can only be established when there is substantial
evidence of each physical requirement listed in the regulations.
LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990). In
assessing the RFC, the ALJ's findings must specify the functions that the
plaintiff is capable of performing, and not simply rely on conclusory
statements regarding the plaintiffs capacities. Id. (citing
Sullivan v. Secretary of Health & Human Serv., 666 F. Supp. 456,
460 (W.D.N.Y. 1987). RFC is then used to determine the particular
types of work a claimant may be able to perform.
20 C.F.R. § 404.1545(a), 416.945(a).
In this case, Whittaker agrues that the Commissioner failed to prove
that there was other gainful work in the national economy that he
could perform. He argues that since his work as an engineer was sedentary
and the ALJ found that he could no longer perform his past relevant work,
there has been an erosion of his ability to perform the entire range of
sedentary work. Whittaker maintains that the ALJ failed to cite examples
of occupations or jobs that he could do. Moreover, Whittaker argues that
the ALJ failed to consider his age, education, and work experience when
he found him capable of working.
The Commissioner argues that the ALJ properly relied on the Grids as a
framework. The ALJ noted that Whittaker was of advanced age with eighteen
years of education and a RFC for all work except working with heights,
reading material with fine print, and driving. The ALJ then applied these
factors to Rule 204.00 of the Grids which directed a conclusion of not
The Commissioner argues that the ALJ's finding that Whittaker could
perform all levels of physical work is supported by substantial evidence.
As the ALJ pointed out, no medical source found that he could not perform
at all levels of work. However, the record makes clear that he had some
limitations. For instance, Dr. Santangelo opined that his visual
distortion precluded close work, such as reading. However, she opined
that he had
no limitations to lift, carry, sit, stand, walk, push, or pull.
In addition, Dr. Williams found that he had limitations with commuting
and the need to avoid concentrated visual attention. Dr. Lange observed
that his symptoms appeared to be greater than the test results. The State
Agency program physician made findings that he suffered no exertional
limitations. He did find limitations in near acuity, depth perception,
and field of vison and suggested that he should avoid environmental
hazards such as working with machinery. The ALJ gave credit to the state
agency physician's findings but specifically rejected the limitation on
his field of vision because it was not supported by other medical
evidence in the record.
The Commissioner disputes that Whittaker's previous job was sedentary
in nature and points out that the record shows that he could perform all
levels of exertional activity. Furthermore, the Commissioner points out
that the weight he was required to lift in his job exceeded the weight
limitation for sedentary work. Whittaker's contention that his previous
job was sedentary was erronenous. The ALJ did not find that he had any
exertional limitations. However, the ALJ noted that his inability to read
fine print caused him not to be able to return to his previous job as an
engineer. As such, Whittaker's limitations did not preclude him from all
Moreover, Appendix 2 rules state that environmental restrictions
ordinarily "would not significantly affect" the range of work existing in
the national economy for individuals who, like Whittaker, have the
physical capability for heavy or very heavy work. 20 C.F.R. Part 404,
Subpart P., Appendix 2, § 204.00. The Commissioner argues that the
ALJ's finding that Whittaker had to avoid heights did not significantly
diminish his ability to perform a significant number of jobs. Thus, he
would be able to perform a significant number of jobs even if he had to
avoid dangerous machinery.
Lastly, the Commissioner argues that Whittaker indicated that he had no
difficulty walking, standing, or bending. He also stated that he chopped
wood, shopped for groceries, cooked, and drove a car, although his night
vision was limited. He also stated that he used the computer for thirty
minutes at a time and watched television without difficulty. The ALJ
noted that all of these activities required his vision and belied his
claims that he was unable to work.
This court finds that the ALJ's decision was supported by substantial
evidence and must be affirmed. As the ALJ noted, no medical source found
Whittaker unable to work. The record did not show that he had any
exertional limitations. It is undisputed that Whittaker cannot work
with heights, reading material which requires the use of fine print, or
work a job which requires driving. However, as the ALJ properly noted,
his limitations did not significantly impact his ability to do all work.
Although Whittaker cannot return to his previous jobs, the medical
evidence shows that he is capable of doing other work. Moreover, his
daily activities show that he is capable of working. He cut and split
wood, trained his dog to herd sheep and ducks, shopped, cooked, cleaned,
watched televison and worked on his computer for thirty minutes at a
time. Accordingly, the ALJ's determination is affirmed since the
determination is supported by substantial evidence.
D. Request to Reopen Prior Claims
Whittaker contends that the ALJ incorrectly denied his request to
reopen his disability application dated November 9, 1995, which he did
not appeal beyond the reconsideration level. The Second Circuit has held
that in the absence of a colorable constitutional claim, the district
court lacks subject matter jurisdiction over review of the Commissioner's
refusal to reopen a prior final decision. See Latona v.
Schweiker, 707 F.2d 79, 81 (2d Cir. 1983). A final determination or
decision may be reopened by a request from the claimant within four years
of the date of the notice of the
initial determination if "good cause" is shown.
20 C.F.R. § 404.988(b). The Commissioner's regulations provide that such a
determination may be reopened more than four years later only if, among
other grounds, fraud or similar fault exists, or to correct an error on
the face of the evidence that was considered when the determination was
made. 20 C.F.R. § 404.988(a)-(c). Lastly, judicial review is
permitted only if there has been a final decision of the Commissioner
made after a hearing. Califano v. Sanders, 430 U.S. 99, 107-08
In this case, Whittaker requested that his prior application be
reopened. However, since he did not appeal beyond the reconsideration
level and a final decision of the Commissioner made after a hearing did
not occur, this court does not have subject matter jurisdiction to review
the determination of the ALJ in this instance. Furthermore, Whittaker
does not point to a colorable constitutional claim to show that his
application should have been reopened. Since the court lacks subject
matter jurisdiction, the ALJ's decision not to reopen his prior
application is not subject to judicial review.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED, that the decision denying disability benefits is
AFFIRMED, and the case against the Commissioner is dismissed;
and it is further
ORDERED that the Clerk of the Court serve a copy of this
Order upon the parties by regular mail.