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COSGROVE v. BARNHART

May 5, 2004.

WARREN COSGROVE, Plaintiff
v.
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.

  BACKGROUND

 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 ...


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