United States District Court, S.D. New York
May 5, 2004.
WARREN COSGROVE, Plaintiff
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge
MEMORANDUM OPINION AND ORDER
Claimant, Warren Cosgrove, brings this action seeking review of the
final determination of the Commissioner of Social Security
("Commissioner") pursuant to § 205(g) of the Social Security Act (the
"Act"), 42 U.S.C.A. § 205(g) (West 2003), denying Cosgrove's
application for disability benefits. Cosgrove has moved for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure reversing the determination of the Commissioner and awarding
him benefits, or, in the alternative, remanding the matter for a new
hearing and decision. Defendant has cross-moved for judgment on the
pleadings affirming the Commisioner's final decision denying benefits
under the Act.
For the following reasons, Cosgrove's motion is denied in its entirety,
the Commissioner's cross-motion is granted and the Commissioner's final
decision is affirmed.
Mr. Cosgrove was born in 1936. (Tr. at 35-36.) At the time of the ALJ's
final decision, Cosgrove was sixty-three years old. (Tr. at 17.) He
possesses a Bachelor's Degree and credits toward a Master's Degree and
was employed by IBM for twenty-five years, until 1994. (Tr. at 37-39.)
From January 1997 through September 10, 1998, Cosgrove was self-employed
as a consultant performing publishing work. (Tr. at 37-38.) Both jobs
involved technical editing, publishing, and graphical presentation. (Tr.
Cosgrove alleges that he has been disabled since September 10, 1998,
when he sustained an injury to his left eye that caused a retinal
detachment. (Tr. at 62; Tr. at 74.) Dr. Howard Kaplan performed surgery
on Cosgrove on September 25, 1998, to repair the eye. (Tr. at 122-230)
in a post-operative examination, on October 13, 1998, Cosgrove's
visual acuity was found to be 20/200. (Tr. at 143.) Despite the successful
reattachment of his retina, Cosgrove complained of light sensitivity and
On November 3, 1998, Dr. Kaplan reported that Cosgrove's post-operative
vision in the left eye had returned to pin hole vision of 20/50. (Tr. at
121.) A dilated fundus examination revealed a completely attached retina
in the left eye. (Id.) Dr. Kaplan also reported that Cosgrove
complained of vertical oblique diplopia, a condition in which the patient
experiences double vision with one image appearing above the other.
Dr. Harold Schneider, another treating physician, reported on
Cosgrove's condition on February 19, 1999. (Tr. at 125-26.) Dr. Schneider
stated that, since the retinal attachment surgery, Cosgrove's best
corrected visual acuity in his left eye "has not been better than 20/60."
(Tr. at 125.) Dr. Schneider noted that, in February 1998, Cosgrove had a
nuclear sclerotic cataract removed from his left eye with an intraocular
lens implantation. (Tr. at 125-26.) The day after the cataract removal,
Cosgrove's vision in his left eye was correctable to 20/30, while his
diplopia was improving. (Tr. at 126.) In April 1999, Dr. Schneider again
saw Cosgrove and stated that his vision with correction was 20/25 in his
left eye and that his problem with double vision was improving. (Tr. at
Dr. James Kelly examined Cosgrove on September 27, 1999. (Tr. at
148-49.) Cosgrove's visual acuity in his left eye was 20/50. (Tr. at
148.) Dr. Kelly diagnosed a cataract in the left eye as well as diplopia.
(Tr. at 150.) At that time he recommended glasses with prisms built in
and/or strabismus surgery to realign Cosgrove's eyes. (Id.) Dr.
Kelly also indicated that "[a]ny detailed close up work will be extremely
difficult with a vertical misalignment of the eyes." (Id.) Dr. Kelly concluded that, with proper strabismus therapy, prisms,
and possible surgery, Cosgrove might be able to return to his previous
employment, but it "won't be a trivial task." (Tr. at 151)
Cosgrove asserts that he has been disabled since September 10, 1998,
the date of the retinal detachment, by virtue of his visual problems as
detailed above. (Tr. at 62; PL br. at 5.) Although a consulting
psychiatrist who examined him in June 1999 suggested that Cosgrove
suffered from adjustment disorder and could have difficulty handling the
stress of a competitive workplace, (Tr. 129-30), Cosgrove does not assert
that he has any psychiatric condition that limits his ability to work.
B. Procedural History
Cosgrove filed an application for Social Security Disability Insurance
Benefits in December of 1998, claiming that he was unable to work due to
an injury sustained to his left eye. (Tr. at 48, 60-62.) The application
was denied initially and on reconsideration. (Tr. at 48-55.) Pursuant to
Cosgrove's request, a hearing on was held October 14, 1999 before an
administrative law judge (the "ALJ") at which time Cosgrove appeared with
counsel and presented testimony. (Tr. at 32-47.) On December 16, 1999,
the ALJ issued a decision finding that Cosgrove was not disabled as
defined in the Act and thus not eligible to receive disability benefits.
(Tr. at 1-21.)
The ALJ determined that Cosgrove suffered from a severe visual
impairment since September 10, 1998 and that Cosgrove had not performed
substantial gainful activity since that time (Tr. at 14, 15, 17.) Second,
the ALJ found that Cosgrove's impairment did not rise to meet or equal
the requirements of any impairments listed in Appendix 1 of 20 C.F.R.
Part 404, Subpart P of the Regulations. (Tr. at 15)
Moreover, the impairment precluded Cosgrove from performing his past relevant work as a technical editor, which
required "prolonged periods of detailed work." (Tr. at 15.) Cosgrove
suffered from no physical malady that would have an adverse impact on his
ability to perform physical work, so that he remains able to perform a
wide range of work activity at any exertional level. (Id.) The
ALJ observed that "[w]hile it is reasonable to conclude that the
claimant's ability to engage in consistently detailed work activity would
be somewhat limited, there is no evidence that the claimant's ability to
perform a wide range of activities at any other exertional level has been
precluded," and found that "the claimant retains the ability to perform
work activity at any exertional level, not requiring sustained fine
visual acuity." (Tr. 15-16.)
The ALJ noted from Cosgrove's medical records that the diplopia was
reportedly improving and that his multiple operations were deemed
successful. (Id.) Although Cosgrove complained of seeing
multiple images, persistent diplopia, and continuing to experience some
fatigue, he was able to perform normal daily activities such as driving,
reading, managing his finances and attending cultural events. (Tr. at
16.) The ALJ concluded from this evidence that "[o]n the whole, the [ALJ]
finds no evidence that the claimant suffers from symptoms of such
frequency, intensity or duration as to render him incapable of performing
substantial gainful activity on a sustained basis." (Id.)
The ALJ further found that Cosgrove was 63 at time of the decision,
holds a college degree and has skilled relevant past work experience.
(Tr. at 17.) The ALJ concluded in his formal findings that, "[g]iven the
claimant's residual functional capacity and vocational background.
Rule 204.00 of Appendix 2, Subpart P of Social Security Regulations No. 4
requires a finding of not disabled," and found that Cosgrove was not
entitled to disability benefits. (Id.) The ALJ's decision became the final decision of the Commissioner
when the Appeals Council denied Cosgrove's request for review on February
2, 2001. (Tr. at 4-5.)
A. Standard of Review
The Court's review of the Commissioner's decision under the Act is
limited to whether such determination is supported by "substantial
evidence". 42 U.S.C.A, § 405(g) (West 2003). In reviewing the
Commissioner's decision, this Court will set aside the "decision only
where it is based upon legal error or is not supported by substantial
evidence." Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
The Supreme Court has defined "substantial evidence" as "more than a mere
scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and
citation omitted); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.
1998). Any finding of the Commissioner that is supported by substantial
evidence is conclusive. 42 U.S.C.A. § 405(g) (West 2003). Thus, if
the Court finds that there is substantial evidences supporting the
Commissioner"s determination, the Commissioner's decision must be upheld,
even if there is also substantial evidence for Cosgrove's position.
Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. Cir. 1990).
The substantial evidence test applies to not only to findings of fact,
but also to inferences and conclusions drawn from such facts. Levine
v. Gardner, 360 F.2d 727, 730 (2d Cir. 1968); Murphy v.
Secretary of Health and Human Serv., 62 F. Supp.2d 1104, 1006
(S.D.N.Y. 1999). Thus, even where a reviewing court's analysis differs
from the analysis of the Commissioner, the Commissioner's findings of fact as well as the
inferences and conclusions drawn from those facts are controlling.
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
Because it is the role of the Commissioner, and not of the courts, to
resolve evidentiary conflicts and determine credibility of witnesses,
this Court is not to decide the merits of Cosgrove's claim de novo.
Schaal, 134 F.3d at 501; Jones v. Sullivan, 949 F.2d 57,
59 (2d Cir. 1991).
B. Regulatory Framework For Determining Disability Under The
Social Security Act
In order to establish a disability under the Act, a claimant bears the
burden of demonstrating that he is unable to engage in any substantially
gainful activity by reason of a medically determinable physical or mental
impairment which can be expected to result in death or which has lasted
for a continuous period of at least twelve months. 42 U.S.C.A. §
423(d)(1)(A) (West 2003). The claimant must show that the effect of the
impairment is so severe that he is "not only unable to do his previous
work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in
national economy. . . ." 42 U.S.C.A. § 423(d)(2)(A) (West 2003).
The Commissioners regulations ("Regulations") set forth a five-step
sequential evaluation process to determine disability claims.
20 C.F.R. § 404.1520, 416.920 (2004). At any step, if the determination of
disabled or not disabled can be made, the Commissioner will make the
determination. If a determination cannot be made, the process moves to
the next step. Id.
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial
gainful activity. If he is not, the [Commissioner]
next considers whether the claimant has a "severe
impairment" which significantly limits his
physical or mental ability to do basic work
activities. If the claimant suffers such an
impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of
the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him
disabled without considering vocational factors
such as age, education, and work experience; the
[Commissioner] presumes that a claimant who is
afflicted with a `listed' impairment is unable to
perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
[Commissioner] then determines whether there is
other work which the claimant could perform.
DeChirico. v. Callahan, 134 F.3d 1177, 1179-1180 (2d Cir.
1998). The claimant bears the burden of proof as to the first four steps.
Id. Once the claimant meets his burden of demonstrating that he
has a severe impairment that precludes him from performing his past
relevant work, the burden shifts to the Commissioner to prove that the
claimant nonetheless still is capable of working. Perez. v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996). The Commissioner must
"produce evidence to show the existence of alternative substantial
gainful work which exists in the national economy and which the claimant
could perform, considering not only his physical capability, but as well
his age, his education, his experience and his training." Mongeur v.
Heckler, 722 F.2d 1033
, 1037 (2d Cir. 1983) (citing Parker v.
Harris, 626 F.2d 225
, 231 (2d Cir. 1980)); Carroll v. Secretary
of Health and Human Services, 705 F.2d 638
, 642 (2d Cir. 1983). To
meet this burden, the Commissioner typically resorts to the
Medical-Vocational Guidelines contained in Appendix 2 of 20 C.F.R. Part
404, Subpart P, commonly known as "the Grid." Bapp v. Bowen,
802 F.2d 601
(2d Cir. 1986).
The Grid takes into account the claimant's
residual function capacity 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 . . . The Grid classifies work into five
categories based on the exertional requirements of
different jobs. Pickering v. Chater, 951 F. Supp. 418, 425 (S.D.N.Y. 2002).
The Grid focuses on exertional, or strength, limitations, the
claimant's age, educational level and skilled or unskilled work
experience, directing conclusions as to whether a claimant is to be found
disabled or not disabled "[w]here the findings of fact made with respect
to a particular individual's vocational factors and residual functional
capacity coincide with all of the criteria of a particular rule."
20 C.F.R. § 404.1569, Subpt. P, App. 2, 200.00(a); see also
id., 200.00(e). For situations in which a rule does not apply,
the Regulations direct that "full consideration must be given to all of
the relevant facts of the case in accordance with the definitions and
discussions of each factor in the appropriate sections of the
regulations." Id. The Regulations specifically direct that,
"where the individual has solely a nonexertional type of impairment,
determination as to whether disability exists shall be based on the
principles in the appropriate sections of the regulations," and instruct
that "[t]he [Grid] rules do not direct factual conclusions of disabled or
not disabled for individuals with solely nonexertional types of
impairments." Id., 200.00(e)(1). Vision impairments are
considered nonexertional limitations. See Social Security
Ruling 85-15, Titles II and XVI Capability to do Other Work
The Medical-Vocational Rules as a Framework for Evaluating Solely
Nonexertional Impairments ("SSR 85-15"), 1985 WL 56857, *2 (S.S.A.)
The Second Circuit has provided further guidance with respect to
determinations as to the impact of nonexertional limitations on the
application of the Grid and the evidence required to support
determinations as to the ability of claimants with such limitations to
work. In such cases, the agency's factfinder must determine whether the
"claimant's nonexertional impairments `significantly limit the range of
work permitted by his exertional limitations.'" Bapp, 802 F.2d at 605 (quoting Blacknall v.
Heckler, 721 F.2d 721, 725 (4th Cir. 1984)). Where a claimant's work
capacity is significantly diminished beyond any exertional limitation,
application of the Grid is inappropriate because the Grid does not take
nonexertional limitations into account. Id. at 605-06. However,
where a nonexertional impairment does not have a significant effect on
the claimant's range of possible work, `"still leaving a wide range of
work capability within the functional level,"' the "reductions in work
capacity caused by the nonexertional impairments will not invalidate the
presumptions created by the grids." Id. at 606 n.1 (quoting
Federal Old-Age, Survivors, and Disability Insurance Benefits, 43 Fed.
Reg. 55, 349, 55, 358 (1978)). The initial determination as to whether
the nonexertional limitations significantly diminish the claimant's
ability to perform the range of work within the applicable category can
be made without the input of a vocational expert. If a significant
limitation is found, vocational expert testimony or similar evidence is
required to support a further determination as to "the existence of jobs
in the national economy for an individual with claimant's limitations."
Id. at 606.
C. The ALJ's Findings
Neither party to this proceeding disputes the propriety of the ALJ's
findings at stages one through four of the disability analysis under the
Regulations. Thus, it is uncontested that Cosgrove suffers from a severe
visual impairment that precludes him from performing his past relevant
work. Cosgrove argues, however, that the ALJ's conclusion in his formal
findings that a finding of "not disabled" was "required" by
Rule 204.00 of the Grid is legally incorrect, that Cosgrove is in fact
disabled, and that the ALJ's finding thus is not supported by substantial
evidence. Rule 204.00, governing disability determinations with respect to
claimants whose residual functional capacity permits them to perform work
at any exertional level, reads as follows:
The residual functional capacity to perform heavy
work or very heavy work includes the functional
capability for work at the lesser functional
levels as well, and represents substantial work
capability for jobs in the national economy at all
skill and physical demand levels. Individuals who
retain the functional capacity to perform heavy
work (or very heavy work) ordinarily will not have
a severe impairment or will be able to do their
past work either of which would have
already provided a basis for a decision of "not
disabled". Environmental restrictions ordinarily
would not significantly affect the range of work
existing in the national economy for individuals
with the physical capability for heavy work (or
very heavy work). Thus an impairment which does
not preclude heavy work (or very heavy work) would
not ordinarily be the primary reason for
unemployment, and generally is sufficient for a
finding of not disabled, even though age,
education, and skill level of prior work
experience may be considered adverse.
20 C.F.R. § 404.1569, Subpt. P, App. 2, 204.00.
Unlike the sections of the Grid that deal with limitations to sustained
work at sedentary, light and medium capabilities, Rule 204 does not
specifically direct a decision of disabled or non-disabled with respect
to a particular confluence of relevant factors. Rather, it sets forth
factual propositions regarding the availability of work in the economy
and an evaluative framework for the assessment of the impact of an
impairment that permits the claimant to perform heavy work. The ALJ thus
properly referred to Rule 204.00 as a "framework" in the concluding
paragraph of the narrative portion of his decision. (Tr. 17.)
While the ALJ's reference to Rule 204.00 as "requir[ing]" a finding of
non-disability is incorrect to the extent it can be read to suggest that
the Rule precluded the ALJ from exercising independent judgment in
reaching his ultimate conclusion, and might warrant a remand for further
findings if the ALJ had not considered the impact of Cosgrove's nonexertional limitations in reaching his determination on the
ultimate issue, the ALJ's written decision as a whole makes it clear that
the ALJ made specific determinations based on the facts of record. The
decision shows that the ALJ carefully and thoroughly considered
Cosgrove's visual impairments and the degree to which they affected
adversely his ability to perform the range of work normally corresponding
to his exertional capabilities. The ALJ considered the medical evidence,
Cosgrove's testimony and prior statements regarding his ability to drive,
take care of tasks incident to self care and normal daily activities, and
Cosgrove's testimony regarding his symptoms. (Tr. 13-16.) The evidence
before the ALJ fairly supported his conclusions that Cosgrove's visual
impairments only limited Cosgrove's ability to perform work requiring
sustained fine visual acuity and that there was no evidence "that the
claimant has been subject to further restrictions." (Tr. 16) The ALJ also
clearly considered potentially adverse factors that could further
restrict Cosgrove's practical ability to adjust to other work, noting his
age, educational achievements, and skilled work history focused on a
particular field of endeavor. (Tr. 17)*fn1
Although the ALJ did not speak explicitly in the language of the
Regulations as elucidated by the Second Circuit's Bapp
decision, his written decision makes it clear that he determined, in a
manner consistent with the policy framework set forth in the Regulation
and in SSR 85-15, that Cosgrove's nonexertional visual limitations did not
diminish significantly the range of work (sedentary to heavy) that
Cosgrove could perform. The decision also confirms that the ALJ
considered Cosgrove's individual characteristics and determined that the
potentially adverse elements of Cosgrove's vocational profile (advanced
age and narrowly focused work history) did not warrant departure from the
general presumption, reflected in the Grid, of a sufficient range of
available work consistent with Cosgrove's residual capabilities. These
determinations are supported by substantial evidence.
Accordingly, Cosgrove's motion for judgment on the pleadings is denied
in all respects, the Commissioner's cross-motion is granted, and the
Commissioner's final determination of non-disability is hereby affirmed.
The Clerk of Court shall close this case.