                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2008

Cosmas v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1546




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                                                NOT PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT




                     No. 07-1546




               NICHOLAS COSMAS,
                           Appellant

                          v.

    COMMISSIONER OF SOCIAL SECURITY


   On Appeal from the United States District Court
             for the District of New Jersey
             (D.C. Civil No. 06-cv-01300)
District Judge: Hon. Garrett E. Brown, Jr., Chief Judge




     Submitted Under Third Circuit LAR 34.1(a)
                  June 24, 2008

Before: SLOVITER, BARRY and ROTH, Circuit Judges

                 (Filed: July 2, 2008)




                      OPINION
SLOVITER, Circuit Judge.

       Appellant Nicholas Cosmas appeals from the decision of the District Court

affirming the denial of his claim for Disability Insurance Benefits (“DIB”). Cosmas

argues that the Administrative Law Judge’s (“ALJ”) determination that he was able to

resume his past work was not supported by substantial evidence.

                                             I.

       Because we write principally for the parties, we recite only those facts necessary to

our disposition. Cosmas was employed as a comptroller for much of his life, working in

this capacity at London Records and then at Tri-State Environmental Contracting, a

company partially owned by Cosmas’ wife. Cosmas’ duties at Tri-State included hiring

and firing employees, supervising staff members, and reviewing financial reports. He

was paid $1,800 per week for his work at Tri-State, earning $121,900 in 2001. Cosmas

alleged that his job required him to walk for two hours per day, stand for two hours per

day, and sit for four hours per day. When he became ill, his wife took over his duties.

       Cosmas’ medical history appears in the District Court’s well-reasoned opinion,

which sets forth that Cosmas underwent a series of medical procedures and surgeries to

treat his history of sarcoma of the groin beginning in 2000 and ending in 2001. Cosmas

subsequently filed an application for DIB, which was denied.

       Following a hearing, the ALJ denied his application and the Appeals Council

declined his request for further review. Cosmas then filed suit in the United States



                                             2
District Court for the District of New Jersey, seeking review of the Commissioner’s

decision. The District Court affirmed the Commissioner’s denial of benefits. This timely

appeal followed.

                                              II.

       We review the Commissioner’s decision to deny DIB for substantial evidence.

Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). We are bound by the factual

findings of the Commissioner if they are supported by substantial evidence. Id.

                                              III.

       Claimants seeking DIB under the Social Security Act must satisfy the five-step

sequential analysis provided by the regulations. 20 C.F.R. § 404.1520. The ALJ

performed this required analysis and determined that: (1) Cosmas had not engaged in any

substantial gainful activity; (2) Cosmas’ impairments were severe; (3) his impairments

did not meet or equal the impairments lists in appendix 1 of the regulations; (4) Cosmas’

allegations regarding his limitations were not totally credible; (5) Cosmas had the residual

functional capacity (“RFC”) to fulfill the full range of sedentary work; and (6) could

return to his “past relevant work as controller-treasurer . . . as the job is performed in the

national economy.” A.R. at 23. Thus, the ALJ determined that Cosmas was not

“disabled” within the meaning of the Social Security Act. According to Cosmas, this

determination was reached in contravention of the record evidence. We disagree.

        Our review of the record reveals that substantial evidence supports the ALJ’s



                                               3
finding that, despite the effects of Cosmas’ surgeries, he retained the RFC for a full range

of sedentary work. For example, both Dr. Goydos and Dr. Salvati (Cosmas’ surgeons)

reported that there was no evidence of reoccurrence of Cosmas’ sarcoma. Dr. Goydos

further noted that Cosmas’ wound-site was well-healed, and that Cosmas’ gait was

normal. Dr. Liarena, the State agency medical consultant, opined that Cosmas could

occasionally lift twenty pounds, stand/and or walk two hours in an eight-hour workday,

and sit approximately six hours in an eight-hour work day. Finally, Dr. Wieliczko noted

that although Cosmas suffered from depression he was not severely medically impaired.

Considered as a whole, this evidence supports the conclusion that Cosmas retained RFC

to perform sedentary work.

       Cosmas’ assertion that the shared conclusions of Drs. Gordon, Bhokari, and

Murray — all of whom noted that Cosmas suffered from depression — contradict the

finding of RFC is unavailing. The ALJ considered this evidence, but concluded that

Cosmas’ mental condition was benign. Moreover, the ALJ referred to Dr. Gordon’s

report, which noted that although Cosmas had been diagnosed with a depressive disorder,

“the balance of the mental status examination was normal, since the claimant was

oriented in three spheres, his speech was intact, he had good judgment and he was not

suicidal.” A.R. at 21. In addition, the ALJ relied on record evidence demonstrating that

Cosmas was able to complete serial seven subtractions and basic memory exercises, and

that he lacked decompensation episodes in his medical history, thereby showing that



                                             4
Cosmas did not have an impairment with any greater than a slight effect on his mental

ability to perform his work. Given this evidence, we cannot say that the ALJ’s denial was

not based on substantial evidence.

       Nor can we say that the ALJ’s rejection of Dr. Murray’s medical opinion was

improper. Dr. Simon D. Murray, Cosmas’ treating physician, opined by letter dated

October 10, 2002, that Cosmas “ha[d] suffered greatly during the past year because of

severe stresses in his life”; that Cosmas was “unable to work and it [was] unlikely that he

[would] ever be able to work”; and that in his “opinion, [Cosmas] should be on permanent

disability.” A.R. at 51. Although the opinion of a claimant’s treating physician is usually

entitled to deference, it only receives controlling weight when it is “well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent

with the other substantial evidence [in the claimant’s] record . . . .” 20 C.F.R. §

404.1527(d)(2). Here, there is no such support. As noted by the ALJ, Dr. Murray’s

evaluation was based only on Cosmas’ self-reported symptoms of fatigue. Beyond the

fact that Dr. Murray’s assessment was based on Cosmas’ subjective complaints, the

record as a whole contradicts Dr. Murray’s opinion that Cosmas could sit for four hours

and never stand, walk, push or pull for any length of time.

       In addition to the medical evidence discussed above, the non-medical evidence of

record also contradicts Dr. Murray’s conclusion. For example, Cosmas noted that he

watched television, read, operated a vehicle, gardened, and helped with household chores.



                                              5
As the record as a whole does not support Dr. Murray’s opinion, we cannot say that the

ALJ failed to consider it properly.

       Cosmas’ final argument is that the ALJ failed to follow the Social Security

Administration’s regulatory protocol by not comparing the physical and mental

requirements of past relevant work with Cosmas’ physical and mental RFC on a task by

task basis. The ALJ, however, made specific reference to the U.S. Department of Labor’s

Dictionary of Occupation Titles (4th ed. 1991), available at

http://www.oalj.dol.gov/libdot.htm, which stated that Cosmas’ prior position is performed

at a sedentary level and requires significant educational development. See 20 C.F.R. §

404.1566(d)(1) (providing that the Commissioner may take administrative notice of job

descriptions and their attendant demands). As discussed above, the ALJ properly

determined that Cosmas lacked a mental impairment and that Cosmas could perform

sedentary work. Accordingly, given the demands of his previous occupation, we cannot

say that the ALJ’s finding that Cosmas could resume his work as a controller-treasurer is

unsupported by substantial evidence.

                                            IV.

       For the above-stated reasons, we will affirm the judgment of the District Court.




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