Plaintiff Janea L. Grant ("Plaintiff") filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on July 1, 2003. Administrative Transcript ("AT") 52-54, 206-08. The applications were denied initially. AT 40-46. A request was made for a hearing. AT 47. A hearing was held before an Administrative Law Judge ("ALJ") on June 14, 2004. AT 223-76. In a decision dated November 5, 2004, the ALJ found that Plaintiff is not disabled. AT 19-30. The Appeals Council denied Plaintiff's request for review on August 12, 2005. AT 5-8. Plaintiff commenced this action on September 9, 2005 pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision. Dkt. No. 1.
Plaintiff makes the following claims:
(1) Plaintiff failed to make a knowing and voluntary waiver of her right to representation and consequently suffered prejudice. Dkt. No. 7 at 11-15.
(2) The residual functional capacity ("RFC") assessment is not supported by substantial evidence and does not comply with Social Security Ruling ("SSR") 96-8p. Dkt. No. 7 at 15-17.
(3) The vocational expert's testimony does not constitute substantial evidence. Dkt. No. 7 at 18-20.
(4) The ALJ failed to fulfill his duty under SSR 00-4p to ensure that the vocational expert's testimony was consistent with the Dictionary of Occupational Titles ("DOT"). Dkt. No. 7 at 20-21.
Defendant argues that the Commissioner's determination is supported by substantial evidence in the record, and must be affirmed. Dkt. No. 13.
Plaintiff was twenty-six years old at the time of the hearing. AT 229. Plaintiff has her high school degree and completed one semester of college. AT 71, 268. Plaintiff's past work experience includes working as, inter alia, a toll collector and a retail store customer service worker. AT 66. Plaintiff alleges that she became unable to work on October 23, 2002. AT 65. She alleges disability due to back problems, depression, a vitamin deficiency, foot problems, and a "body infection." Id.
From January 27, 2003 to May 18, 2004, Plaintiff was treated on several occasions by various physicians at Upstate Medical Center. AT 149-62, 199-204. She was treated for abdominal pain, vitamin B12 deficiency, neuropathy, plantar fascitis, and depression. Id. Plaintiff was prescribed various medications and stretching exercises, and received Vitamin B12 shots and heel inserts. Id.
While treating at Upstate Medical Center, Plaintiff saw Ambreen Qureshi, M.D. on several occasions. AT 149-52, 199-200. In a "Physician's Statement for Determination of Employability" form, which was completed by Dr. Qureshi on October 7, 2003, Dr. Qureshi indicated that Plaintiff is unable to participate in "employment participation activities" due to depression and "back problems." AT 197-98. Dr. Qureshi also indicated that Plaintiff's impairment lasted or is expected to last for one year or more. AT 198. However, on May 18, 2004, Dr. Qureshi noted that Plaintiff "does not seem clinically depressed." AT 200.
From April 8, 2004 to May 11, 2004, Plaintiff saw Dr. James P. Walzer, a chiropractor,*fn2 with complaints of pain in the neck and back. AT 188-94. Dr. Walzer noted that Plaintiff showed decreased range of motion and subluxation. AT 188-91. Plaintiff's treatment consisted of "hydrocollator and adjustment." Id.
The record contains a note from Companion Chiropractic Health Center dated May 5, 2004. AT 195. The note states that Plaintiff was totally incapacitated from April 8, 2004 to May 12, 2005. Id. The note is signed by "JPW/LF." Id.
On October 3, 2003, Plaintiff underwent a consultative psychiatric examination by Jeanne Shapiro, Ph.D. AT 139-43. Dr. Shapiro diagnosed Plaintiff as suffering from depressive disorder not otherwise specified. AT 142. Dr. Shapiro noted that Plaintiff may have "some difficulty regularly attending to a routine and maintaining a schedule due to fatigue, lack of motivation, and lethargy." Id.
Also on October 3, 2003, Plaintiff underwent a consultative orthopedic examination by Amado Santos, M.D. AT 144-47. Dr. Santos found "no restrictions with physical activities except probably [a] mild restriction with prolonged sitting because of the low back pain or prolonged standing and walking because of her still[-]active plantar fascitis." AT 147. An x-ray of Plaintiff's lumbar sacral spine showed that the disc space at L5-S1 is narrowed. AT 146; see AT 148.
The record contains a Physical RFC Assessment Form completed by M. McNaughton, a disability analyst, on October 29, 2003. AT 163-69; see AT 40. The form indicates that Plaintiff is able to lift and carry fifty pounds occasionally; lift and carry twenty-five pounds frequently; stand and/or walk about six hours in an eight-hour workday; and sit about six hours in an eight-hour workday. AT 164.
The record also contains a Psychiatric Review Technique form, which was completed by Carlos Gieseken, M.D., a review physician, on November 5, 2003. AT 170-83. Dr. Gieseken indicated that Plaintiff has a mild restriction of activities of daily living; moderate difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no repeated episodes of deterioration. AT 180.
Dr. Gieseken and M. McNaughton also completed a Mental RFC Assessment Form. AT 184-86. The form indicates that Plaintiff is limited moderately in several mental abilities. AT 184-85.
The record also contains an undated statement from Suzanne Skibinski, P.T., indicating that Plaintiff has been undergoing aquatic therapy for her "injuries" and chronic back pain. AT 196. Ms. Skibinski noted that Plaintiff's treatment "is going to last more than a year, due to the severity of her knee and back pain." Id.
To be considered disabled, a plaintiff seeking DIB or SSI benefits must establish that 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's physical or mental impairment or impairments [must be] 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. §§ 404.1520 and 416.920 to evaluate claims.
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to 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 which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; . . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520, 416.920.
The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that his impairment prevents him from performing his past work, the burden then shifts to the Commissioner to prove the final step. Berry, 675 F.2d at 467 (citations omitted).
In this case, the ALJ found at step one that Plaintiff has not engaged in substantial gainful activity since the alleged onset date. AT 23. At the second step, the ALJ determined that Plaintiff's back pain and depression are severe impairments. AT 26. At the third step, the ALJ concluded that those impairments ...