The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff Thomas F. Lynch, Jr., initiated this action pursuant to the judicial review provision of the Social Security Act, 42 U.S.C. § 405(g), to review the final determination of the Commissioner of Social Security (the "Commissioner") denying plaintiff's applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") benefits. Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the following reasons, the Commissioner's motion is granted, and plaintiff's motion is denied.
Plaintiff was born in 1955 (Tr. 38).*fn1 He completed high school in a special education program (Tr. 74), and has past work experience from 1983 to 2003 as a restaurant cook and busboy (Tr. 69, 78).
Plaintiff filed applications for DIB and SSI on December 22, 2003, alleging disability due to seizure disorder and borderline intellectual functioning (Tr. 38-40; see also Tr. 305- 11, 317-20). Upon denial of his applications at the initial level of agency review, plaintiff requested a hearing, which was held by teleconference on March 6, 2006 before Administrative Law Judge ("ALJ") William Curtin (Tr. 322-347). Plaintiff testified at the hearing and was represented by counsel.
After considering the case de novo, ALJ Curtin issued a decision on April 6, 2006, finding that plaintiff was not disabled within the meaning of the Act (Tr. 17-22). Following the sequential evaluation process outlined in the Social Security Administration Regulations (see 20 C.F.R. §§ 404.1520, 416.920), the ALJ reviewed the medical evidence and determined that plaintiff's impairments, including seizure disorder and borderline intellectual functioning, did not meet or equal the level of severity of any impairment listed in the Regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings") (Tr. 19-20). More specifically, the ALJ found that plaintiff's seizures did not occur frequently enough to preclude him from performing work, and that plaintiff was "consistently non-compliant" with taking his prescribed medications (Tr. 20). The ALJ considered plaintiff's allegations and testimony regarding his symptoms, but found plaintiff to be "not entirely credible" in this regard (T. 20). The ALJ then found that, other than his seizure disorder, the medical evidence revealed no physical limitations. Accordingly, the ALJ determined that plaintiff retained the residual functional capacity ("RFC") for "heavy-exertion" work,*fn2 with certain limitations due to his seizure disorder (i.e., avoiding driving, working at heights, and working with heavy machinery) and borderline intellectual functioning (i.e., limited to performing simple one- and two-step tasks) which did not prevent him from returning to his past work as a cook (Tr. 21).
ALJ Curtin's decision became the final decision of the Commissioner on February 15, 2007, when the Appeals Council denied review (Tr. 5- 8). Plaintiff then filed this action for judicial review of the final agency determination, and both parties moved for judgment on the pleadings.
In support of his motion, plaintiff contends that the ALJ erred by failing to consider Social Security Ruling ("SSR") 96-8p, which sets forth the requirements for assessing a claimant's RFC, and by failing to elicit the testimony of a vocational expert to clarify whether plaintiff could perform his past relevant work or any other work in the economy. The Commissioner contends that the ALJ's determination is supported by substantial evidence and should be affirmed.
I. Scope of Judicial Review
The Social Security Act states that upon district court review of the Commissioner's decision, "[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is defined as evidence which "a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tejada v. Apfel, 167 F.3d 770, 773-72 (2d Cir. 1999). Under these standards, the scope of judicial review of the Commissioner's decision is limited, and the reviewing court may not try a case de novo or substitute its findings for those of the Commissioner. Richardson, 402 U.S. at 401. The court's inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982), quoted in Winkelsas v. Apfel, 2000 WL 575513, at *2 (W.D.N.Y. February 14, 2000).
However, "[b]efore the insulation of the substantial evidence test comes into play, it must first be determined that the facts of a particular case have been evaluated in light of correct legal standards." Klofta v. Mathews, 418 F. Supp. 1139, 1141 (E.D.Wis. 1976), quoted in Gartmann v. Secretary of Health and Human Services, 633 F. Supp. 671, 680 (E.D.N.Y. 1986). The Commissioner's determination cannot be upheld when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Tejada, 167 F.3d at 773.
II. Standard for Determining Eligibility for Disability Benefits
To be eligible for DIB or SSI benefits under the Social Security Act, plaintiff must show that he suffers from a 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), and 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); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). The Regulations set forth a five-step process to be followed when a disability claim comes before an ALJ for evaluation of the claimant's eligibility for benefits. See 20 C.F.R. §§ 404.1520, 416.920. First, the ALJ must determine whether the claimant is presently engaged in substantial gainful activity. If the claimant is not, the ALJ must decide if the claimant has a "severe" impairment, which is an impairment or combination of impairments that "significantly limits [the claimant's] physical or mental ability to do basic work activities . . . ." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant's impairment is severe, the ALJ then determines whether it meets or equals the criteria of an impairment found in the Listings. If the impairment meets or equals a listed impairment, the claimant will be found to be disabled. If the claimant does not have a listed impairment, the fourth step requires the ALJ to determine if, notwithstanding the impairment, the claimant is capable of performing his or her past relevant work. Finally, if the claimant is not capable of performing the past relevant work, the fifth step requires that the ALJ determine whether the claimant is capable of performing other work which exists in the national economy, considering the claimant's age, education, past work experience, and RFC. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Reyes v. Massanari, 2002 WL 856459, at *3 (S.D.N.Y. April 2, 2002).
The claimant bears the burden of proof with respect to the first four steps of the analysis. If the claimant demonstrates an inability to perform past work, the burden shifts to the Commissioner to show that there exists other work that the claimant ...