of the Commissioner of Social Security ("the
Commissioner") that plaintiff was not disabled under the Social Security
Act, and therefore, was not entitled to disability benefits. Both
plaintiff and the Commissioner have moved for judgment on the pleadings
pursuant to FED. R. CIV. P. 12(c). For the reasons outlined below, the
Court grants the Commissioner's motion and denies plaintiff's motion.
Plaintiff James Jordan applied for disability benefits in October
1994. (T. 147-150).*fn1 The basis for the application was that Jordan
was unable to work because he suffered from back pain. (T. 154). The
Social Security Administration denied the application initially (T.
152-154) and on reconsideration (T. 167-169). At a hearing on January
24, 1996 before an administrative law judge ("ALJ"), Jordan further
alleged that he suffered from a heart murmur, asthma, and bronchitis.
(T. 34). In his decision dated April 26, 1996, the ALJ found that Jordan
was ineligible for benefits. (T. 13-23). The Appeals Council affirmed the
ALJ's decision on December 17, 1997 (T. 6-7), and Jordan filed a
complaint in this Court on February 11, 1998. Jordan v. Apfel,
98-CV-6048. By order entered September 15, 1998, the parties stipulated
to a reversal and remand to the Commissioner for further administrative
proceedings. (T. 401-403). On January 7, 1999, the same ALJ held a second
hearing (T. 404), and on February 17, 1999, he issued a second decision
again denying benefits (T. 389-399). The determination became the final
decision of the Commissioner on March 28, 2000 when the Appeals Council
denied plaintiff's request for review. (T. 381-382). The instant action
to review the Commissioner's final decision followed.
Jordan was born on February 28, 1947. (T. 147). He suffered a back
injury on October 16, 1991, while lifting a box at work. (T. 222,
261-262). He was subsequently treated at Highland Hospital, and referred
to Dr. Jeffery Harp, who the parties agree is Jordan's treating
physician. (T. 217-220). Jordan returned to work, while undergoing
physical therapy, but he ceased working in November 1992. (T. 43-44). From
April until October 1994, Jordan ran a small grocery store. (T. 177,
390). He has not engaged in substantial gainful activity since October
21, 1994. (T. 398).
Jordan has a high school education and has taken two years of business
classes. (T. 76-78, 468). He has experience working as a service
representative (T. 73), light industrial worker, office cleaner (T.
207), minister (T. 71-72, 446-447), and grocery store operator (T.
50-51, 448). Based upon the testimony of a vocational expert and the
medical records, the ALJ found that Jordan possessed skills in
communication, logical thinking, decision-making, writing, computers, and
the use of tools sufficient to enable him to perform substantial gainful
work notwithstanding the impairments he alleges. (T. 397; see also T.
A. Standard of Review
The first issue to be determined is whether the Commissioner applied
the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d. Cir.
1999); see also
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)
(holding that the court must first review the ALJ's decision for correct
legal principles before applying the substantial evidence standard to
uphold a finding of no disability); see also Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984) ("[f]ailure to apply the correct legal
standards is grounds for reversal").
The only other issue to be determined is whether the Commissioner's
conclusions are supported by substantial evidence. See Townley, 748 F.2d
at 112 ("It is not the function of a reviewing court to determine de novo
whether a claimant is disabled. The [Commissioner's] findings of fact, if
supported by substantial evidence, are binding"). Substantial evidence is
"`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) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
B. The Standard for Finding a Disability
A person is "disabled" under the Act and therefore entitled to
benefits, when he is unable "to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A). To qualify for benefits, the
disability must be the result of an anatomical, physiological or
psychological abnormality demonstrable by medically acceptable clinical
and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). Such a
disability will be found to exist only if an individual's impairment is
"of such severity 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 the national
economy." 42 U.S.C. § 423(d)(2)(A).
Plaintiff bears the initial burden of showing that his impairment
prevents him from returning to his previous type of employment. Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Once this burden has been
met, "the burden shifts to the [Commissioner] to prove the existence of
alternative substantial gainful work which exists in the national economy
and which the [plaintiff] could perform." Id.; see also Dumas v.
Schweiker, 712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris,
626 F.2d 225, 231 (2d Cir. 1980).
The Second Circuit has described the five-step process through which
the Commissioner makes a determination as follows:
First, the Commissioner considers whether the claimant
is currently engaged in substantial gainful activity.
Where the claimant is not, the Commissioner next
considers whether the claimant has a "severe
impairment" that significantly limits her 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 that is listed in
20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant has
a listed impairment, the Commissioner will consider
the claimant 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, she has the residual functional capacity
to perform her past work. Finally, if the claimant is
unable to perform her past work, the burden then
shifts to the Commissioner to determine whether there
is other work which the claimant could perform.
Tejada, 167 F.3d at 773.