The opinion of the court was delivered by: VICTOR Marrero, United States District Judge
Rebull filed his Application at the age of 58.*fn1 He is a Cuban
immigrant who came to the United States in 1956 at the age of 18. Rebull
worked steadily from 1956 through 1985, generally as a bartender or
waiter, and, in these years, he married and had a child. He continued to
work with some irregularity through 1990 but has not worker since then.
Rebull has been diagnosed with panic disorder with agoraphobia by Dr.
Fiona Graham of the Metropolitan Center for Mental Health in New York,
New York ("MCMH"). He enrolled at MCMH on October 11, 1996 for treatment
for anxiety associated with conditions including distanced travel and
crowded busses, subways, and elevators, that he believed impaired his
ability to commute sufficiently for purposes of employment. He also filed
his Application on this basis on October 15, 1996.
Rebull received counseling and drug therapy at MCMH consisting of
Anafranil, and his condition improved as a result. His panic attack ended
and his anxiety became less intense. By April 1998, he no longer took
Anafranil regularly and experiences no relapse in his condition. In
September 1998, Rebull discontinued treatment and was officially
discharged the following month. MCMH records, including Dr. Graham's
treatment notes, were submitted to the SSA for consideration as it
reviewed Rebull's Application.
Rebull filed his Application on October 15, 1996 with the SSA. On
December 27, 1996, the SSA denied Rebull's Application. Rebull requested
a reconsideration, which was denied on June 23, 1997. Rebull then
requested an administrative hearing, which was conducted before
Administrative Law Judge Mark Sochaczewsky (the "ALJ") on May 19, 1998.
An attorney was appointed to represent Rebull at this hearing. After
considering the evidence, including Rebull's testimony, MCMH records that
included Dr. Graham's treatment notes, and reports from SSA consulting
physicians Alain DelaChapelle and Ellis Charles, the ALJ concluded in a
Decision dated July 29, 1998 (the "SSA Decision")*fn2 that Rebull
suffered from a psychiatric condition but nonetheless possessed the
residual functional capacity to perform past relevant work. Accordingly,
the ALJ concluded that Rebull was not entitled to supplemental social
security income. This disposition became final when the SSA Appeals
Council denied Rebull's request for further administrative review on
October 19, 2000. Rebull seeks from this Court judicial review of the
Commissioner's determination, alleging errors entitling him to a new
administrative hearing. The Commissioner disputes the existence of any
such errors. For the reasons discussed below, Rebull's motion for
judgment pursuant to Rule 12(c) is DENIED and that of the Commissioner is
This Court reviews the finding and decision of the ALJ under the
evidence" standard. see 42 U.S.C. § 405(g); Richardson
v. Peralez, 402 U.S. 389, 401 (1971). Substantial evidence is "more than
a scintilla. It means such relevant evidence as a reasoable mind might
accept as adequate to support a conclusion." Richardson, 402 U.S. AT 401
(citation omitted). If the Court finds that there is substantial evidence
to support the Commissioner's decision, that decision must be upheld,
even if there also is substantial evidence for the plaintiff's position.
See DeChirico b. Callahan, 134 F.3d 1177, 1182 2nd Cir. 1998); Alston v.
Sullivan, 904 F.2d 122, 126 (2nd Cir. 1990).
The Act defines "disability" as an
inability 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). The Second Circuit has explained that when
assessing an applicant's claim, the ALJ must consider the following
information: (1) objective medical facts and clinical findings; (2)
diagnoses and medical opinions of examining physician; (3) subjective
evidence of pain and disability to which the claimant or other testify;
and (4) the claimant's age, educational background, and work experience.
See Bluvband v. Heckler, 730 F.2d 886, 891 (2nd Cir. 1984); Monquer v.
Heckler, 722 F.2d 1033, 1037 (2nd Cir 1983); see also Morillo v. Apfel,
150 F. Supp.2d 540, 545 (S.D.N.Y. 2001).
The ALJ assesses an applicant's claim for supplemental security income
according to a five-step process dictated by 20 C.F.R. § 404.1520.
First, the ALJ must determine whether the claimant is engaged an
substantial gainful activity. If not, at step two, the ALJ asks whether
the claimant has a severe impairment" which significantly limits his
physical or mental ability to perform basic work activities. Third, if the
ALJ finds a "severe impairment" that is listed in Appendix 1 of the SSA
regulations, there is a presumption of disability. If the "severe
impairment" is not contained in Appendix 1, the ALJ must determine
whether the claimant has the residual functional capacity to perform past
work. Finally, at step five, if the claimant is unable to perform past
work, the ALJ determines whether there is other work that be is capable
of performing. The claimant has the burden of proving the requirements of
the first four steps and, if satisfied, the burden shifts to the
Commissioner at step five. See Perez v. Chater, 77 F.3d 41, 46 (2nd Cir.
Additionally, this case involes and issue of doctor credibility. The
"treating physician" rule, applicable in such cases, requires the ALJ to
accord more weight to the opinions of treating physicians if: (1) the
treating source's opinion on the issue of the nature and severity of the
plaintiff's impairment is well-supported by medically acceptable clinical
and laboratory diagnostic techniques, and (2) is not inconsistent with
the other substantial evidence in the record. If the ALJ does not give
controlling weight to a treating source's opinion, the degree of weight
will be determined based on factors that include: (1) the length of the
treatment relationship and the frequency of examination; (2) the nature
and extent of the treatment relationship; (3) the degree to which the
medical source supported his opinion; (4) the degree of consistency
between the opinion and the record as a whole; (5) whether the opinion is
given by a specialist; and (6) other ...