1. Plaintiff Kathy A. Comstock challenges an Administrative Law Judge's ("ALJ") determination that she is not entitled to disability insurance benefits ("DIB"), or supplemental security income benefits ("SSI"), under the Social Security Act ("the Act"). Plaintiff alleges she has been disabled since December 2, 2003, because of pain and limitations from a brain tumor, scoliosis of the thoracic spine, migraine headaches, and diminished vision in her right eye. Plaintiff met the disability insured status requirements of the Act at all times pertinent to this claim.
2. Plaintiff filed applications for DIB and SSI on November 19, 2004. Her applications were denied initially and, under the prototype model of handling claims without requiring a reconsideration step, Plaintiff was permitted to appeal directly to the ALJ. See 65 Fed. Reg. 81553 (Dec. 26, 2000). Pursuant to Plaintiff's request, an administrative hearing was held on November 1, 2005, before ALJ Joseph G. Medicis, Jr., at which time Plaintiff, her sister, her attorney and two legal interns appeared. The ALJ considered the case de novo, and on May 25, 2006, issued a decision finding that Plaintiff was not disabled. On July 24, 2007, the Appeals Council denied Plaintiff's request for review.
3. On September 21, 2007, Plaintiff filed a Civil Complaint challenging Defendant's final decision and requesting the Court review the decision of the ALJ pursuant to Section 205(g) and 1631(c) (3) of the Act, modify the decision of Defendant, and grant DIB or SSI benefits to Plaintiff.*fn1 The Defendant filed an answer to Plaintiff's complaint on January 17, 2008, requesting the Court todismiss Plaintiff's complaint. Plaintiff submitted a Memorandum of Law (hereinafter called "Plaintiff's Brief") on February 22, 2008. On April 7, 2008, Defendant filed a Memorandum Of Law In Support Of The Commissioner's Motion For Judgment On The Pleadings*fn2 pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. After full briefing, the Court deemed oral argument unnecessary and took the motions under advisement.
Legal Standard and Scope of Review:
4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. § 405(g), 1383 (c)(3); Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed. 2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. § 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 2291, 96 L.Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.
7. This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently engaged 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 do basic work active-ties. If the claimant has such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is 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; 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, 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 could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72,77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8. While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed. 2d 66 (1983).
9. In this case, the ALJ made the following findings with regard to factual information as well as the five-step process set forth above: (1) Plaintiff meets the insured status requirements of the Social Security Act through September 30, 2007 (R. at 21);*fn3 (2) Plaintiff has not engaged in substantial gainful activity at any time relevant to this decision (20 C.F.R. §§ 404.1520(b), 404.1571 et.seq., 416.920(b) and 416.971 et. seq.) (R. at 21); (3) Plaintiff has the following severe impairments: migraine headaches and scoliosis of the thoracic spine (20 C.F.R. §§ 404.1520(c) and 416.920(c)). However, her benign lipoma of the brain is not a severe impairment (R. at 22); (4) Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404. 1526, 416.920(d), 416.925, and 416.926) (R. at 23); (5) After careful consideration of the entire record, the ALJ found that Plaintiff has the residual functional capacity to lift and/or carry 50 pounds occasionally and 25 pounds frequently, stand and/or walk about six hours in an eight-hour workday, and sit about six hours in an eight-hour workday (R. at 24); (6) Plaintiff is capable of performing past relevant work as a cashier and hotel housekeeper. This work does not require the performance of work-related activities precluded by Plaintiff's residual functional capacity (20 CF.R. §§ 404.1565 and 416.965) (R. at 27); (7) Plaintiff has not been under a "disability," as defined in the Social Security Act, from December 2, 2003, through the date of the ALJ's decision (20 C.F.R. §§ 404.1520(f)and 416.920(f)) (R. at 27). Ultimately, the ALJ determined Plaintiff was not entitled to a period of disability and disability insurance benefits as set forth in sections 216(i) and 223(d) of the Social Security Act (R. at 27). Further, the ALJ found Plaintiff was not entitled to supplemental security income benefits based on disability under section 1614(a)(3)(A) of the Social Security Act (R. at 27).
10. Plaintiff challenges the decision of the ALJ on the basis that it is not supported by the substantial evidence of record. Specifically, Plaintiff alleges (1) the ALJ did not give adequate consideration to the medical opinion of Plaintiff's treating neurologist, and failed to provide specific reasons in his decision for the weight he assigned to this physician's opinion, (2) the ALJ erred by concluding that Plaintiff retained the residual functional capacity to return to her past relevant work, or to engage in any substantial gainful activity on a regular and continuing basis, and (3) absent the testimony of a vocational expert, the ALJ improperly concluded that there is work Plaintiff can perform in the national economy. Each of Plaintiff's allegations is discussed below.
Plaintiff's First Challenge: The ALJ Did Not Give Adequate Consideration to the Medical Opinion of Plaintiff's Treating Neurologist
11. Plaintiff's first challenge to the ALJ's decision is that he did not give adequate consideration to the medical evidence provided by her treating neurologist, Dr. Gaffney. Further, Plaintiff alleges that, in his decision, the ALJ failed to explain with sufficient specificity his reasons for disregarding the doctor's February 14, 2006 answers contained in a questionnaire that, in Plaintiff's opinion, might have led to a finding of disability. See Plaintiff's Brief, pp. 5-10. Thus, Plaintiff asserts the ALJ's determination that she is not disabled, and retains the residual functional capacity to return to her past relevant work on a regular and continuing basis, is not based on the substantial evidence of record and must be reversed. See Plaintiff's Brief, pp. 9-10.
According to the "treating physician's rule,"*fn4 the ALJ must give controlling weight to the treating physician's opinion when the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2); see also Green-Younger v. Barnhart, No. 02-6133, 2003 WL 21545097, at *6 (2d Cir. July 10, 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. Under C.F.R. § 404.1527(d)(1)-(6), the ALJ should consider the following factors when determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. ...