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January 12, 2005.

JO ANNE BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Defendant Jo Anne Barnhart, Commissioner of Social Security (the "Commissioner") has moved under Rule 12(c), Fed.R.Civ.P., to dismiss the complaint of plaintiff Ralph Alvarez ("Alvarez" or the "Plaintiff") seeking disability benefits. For the reasons set forth below, the motion is granted.

Prior Proceedings

  On October 12, 2001, Alvarez filed concurrent applications for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act"), and SSI benefits under Title XVI of the Act. Tr. 84-86, 97, 184-86.*fn1 His applications were denied initially and upon reconsideration. Tr. 51-56, 187-92. Plaintiff then requested a hearing which was held on December 16, 2002. Tr. 27-50, 57. The administrative law judge ("ALJ"), before whom Plaintiff appeared, considered the case de novo and, on January 26, 2003, found that Plaintiff was not disabled. Tr. 8-13. The ALJ's decision became the final decision of the Commissioner on August 16, 2003, when the Appeals Council denied Plaintiff's request for review. Tr. 4-5. Alvarez filed his complaint pro se on October 28, 2003 seeking disability benefits resulting from diabetes, heart problems, a mental condition, and visual impairment.

  The instant motion to dismiss, which was unopposed, was marked fully submitted on September 8, 2004.

  The Record

  The Commissioner's memorandum of law is unchallenged in its characterization of the administrative record, the medical record, the evidence presented by treating sources, and by consulting and non-examining physicians. The presentation of the Commissioner accurately reflects the record.

  The Standard of Review

  This Court reviews the Commissioner's decision that plaintiff was not "disabled" as that term is defined in the Act for the period for which he seeks benefits, see 42 U.S.C. § 423(d), 1382c(a)(3) (defining disability), in order to determine whether it is based upon correct legal standards and is supported by substantial evidence in the record as a whole.*fn2 Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997) (citation omitted). If there is substantial evidence in the record to support the Commissioner's factual findings, they are conclusive and must be upheld. 42 U.S.C. § 405(g); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). In deciding whether substantial evidence exists, the Court should defer to the Commissioner's resolution of conflicting evidence. Clark v. Commissioner of Social Sec., 143 F.3d 115, 118 (2d Cir. 1998).

  The Court is mindful that Alvarez is proceeding pro se. It is well established that any papers submitted by a pro se litigant should be held to a less stringent standard than those drafted by attorneys, that they should be read liberally, and that they should be interpreted to raise the strongest argument that they suggest. See Olle v. Columbia Univ., 332 F. Supp. 2d 599, 607 (S.D.N.Y. 2004) (collecting cases).

  Standard For SSI And Disability Insurance Benefits And The Burden Of Proof

  In order to establish disability under the Act, Alvarez has the burden of establishing: (1) that he was unable to engage in substantial gainful activity by reason of a physical or mental impairment that could have been expected to last for a continuous period of at least twelve months, and (2) that the existence of such impairment was demonstrated by evidence supported by data obtained by medically acceptable clinical and laboratory techniques. 42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A), 1382c(3)(B); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). It is the inability to engage in substantial gainful activity, not merely the medical condition, that must last for a continuous period of at least twelve months for the individual to be found disabled. See Barnhart v. Walton, 535 U.S. 212, 214 (2002); see also 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

  For a person to be found disabled within the meaning of the Act, it is not sufficient that he establish the presence of a disease or impairment. The claimant bears the burden of persuasion to show that the disease or impairment has caused functional limitations that preclude him from engaging in any substantial gainful activity and thus that he is entitled to benefits. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 641-42 (2d Cir. 1983).

  Further, a plaintiff's medically determinable impairments must have been "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), 1382c(a)(3)(B). The Commissioner uses a five-step sequential analysis in making this determination. 20 C.F.R. §§ 404.1520(4), ...

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