Mark Davis v. Kenneth S. Apfel, Commissioner of Social Security

145 F.3d 572

Mark DAVIS, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee.

Docket No. 97-6243

United States Court of Appeals, Second Circuit.

Argued May 12, 1998. Decided July 16, 1998.

Christopher James Bowes, Center for Disability Advocacy Rights, Inc., New York City, for Plaintiff-Appellant.

Linda A. Riffkin, Assistant United States Attorney for the Southern District of New York, New York City, for Defendant-Appellee.

Before: WINTER, Chief Judge, McLAUGHLIN, Circuit Judge, and SHADUR, * District Judge.

PER CURIAM:

1

Mark Davis appeals from Judge Scheindlin's grant of judgment on the pleadings for the Commissioner of Social Security ("Commissioner") and denial, on the ground that he had not established his asthma was a disability, of Davis's claim for disability insurance benefits. On appeal, Davis restates his arguments to the district court, namely that the proposed regulation that changed the Commissioner's definition of a disability due to asthma was not properly noticed and was otherwise arbitrary, that the Administrative Law Judge's ("ALJ's") decision erroneously relied on a report authored by a doctor now subject to disciplinary proceedings, and that the ALJ erred, for a number of reasons, when she determined that Davis was not disabled. We affirm for substantially the reasons stated in Judge Scheindlin's opinion, Davis v. Callahan, 96 Civ. 9367(SAS), 1997 WL 438772 (S.D.N.Y. Aug. 4, 1997).

* The Honorable Milton I. Shadur, of the United States District Court for the Northern District of Illinois, sitting by designation