The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff Frank Terreri initiated this action pursuant to section 405(g) 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 application for Social Security Disability Insurance ("SSDI") benefits. Both parties have filed motions 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 on June 11, 1965 (Tr. 31).*fn1 He filed an application for SSDI benefits on September 18, 2003 (Tr. 71-73), alleging disability as of October 30, 2002, due to back problems (see Tr. 89). Plaintiff's application was denied initially on March 19, 2004 (Tr. 31-37). He then requested a hearing, which was held by video teleconference on January 5, 2006 before Administrative Law Judge ("ALJ") Owen B. Katzman (Tr. 323-40).
Plaintiff testified at the hearing and was represented by counsel. In addition, Timothy P. Janikowski, a vocational expert ("VE"), testified at the hearing.
By decision dated February 22, 2006, the ALJ found that plaintiff was not under a disability, as defined in the Social Security Act (Tr. 23-30). Following the sequential process for evaluating disability claims outlined in the Social Security Administration Regulations (see 20 C.F.R. § 404.1520), the ALJ reviewed the medical evidence and determined that plaintiff's impairments, while severe, did not meet or equal the criteria listed in the Regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings") (Tr. 25-26). The ALJ then found that plaintiff had the residual functional capacity ("RFC") for a range of light work, which precluded him from performing his past job as a construction worker (Tr. 26-29). Finally, considering plaintiff's age, educational background, RFC, and crediting the testimony of the vocational expert, the ALJ found that plaintiff could perform other jobs that exist in significant numbers in the national economy, directing a finding of not disabled (Tr. 29-30).
The ALJ's decision became the Commissioner's final determination on March 16, 2007, when the Appeals Council denied plaintiff's request for review (Tr. 6-9). Plaintiff then filed this action for judicial review pursuant to 42 U.S.C. § 405(g), seeking reversal of the Commissioner's determination.
In support of his motion for judgment on the pleadings, plaintiff contends that the Commissioner's final determination should be reversed because the ALJ failed to properly assess the opinion of plaintiff's treating physician, and failed to present a representative hypothetical to Mr. Janikowski, which rendered his vocational expert testimony unreliable. Each of these contentions is discussed in turn below.
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, 773-74 (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 disability insurance 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).
The Social Security 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. 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). 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 ...