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United States District Court, S.D. New York

May 5, 2004.


The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


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.


 A. Facts

  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. at 40.)

  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 pain. (Id.)

  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. (Id.)

  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 124)

  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.) (1985).

  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.


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