The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Marvin Guynup ("Guynup") brought this suit under sections 205(g) and 1631(c)(3) of the Social Security Act ("Act"), as amended, 42 U.S.C. sections 405(g) and 1383(c)(3), to review a final determination of the Commissioner of Social Security ("Commissioner") denying Claimant's application for disability insurance benefits and Supplemental Security Income ("SSI") benefits. Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Guynup applied for SSI benefits on December 10, 2004. Pl.'s Br. at 1. The application was initially denied on March 3, 2005. Tr. at 18. On May 2, 2005, Claimant requested a hearing before an Administrative Law Judge ("ALJ"). Tr. at 23. The hearing occurred on August 23, 2006, before ALJ Carl E. Stephan. Tr. at 140. During the hearing, Claimant was represented by counsel. Id. In a decision dated November 17, 2006, ALJ Stephan found that Guynup was not disabled under sections 216(I) and 223(d) of the Act. Tr. at 16. The ALJ's decision became the final determination of the Commissioner when the Appeals Council denied Plaintiff's request for review of the ALJ's decision on January 5, 2007. Tr. at 4. Plaintiff then commenced the present action seeking review of the Commissioner's decision.
Plaintiff was born on November 5, 1948. Tr. at 143. He is currently a janitor for Green Thumb where he makes $6.75 per hour and works 56 hours every two weeks with special accommodations. Tr. at 145. Plaintiff was diagnosed with liver disease due to a Hepatitis C infection in April, 2004. Tr. at 110. It is due to fatigue brought on by the liver disease that Guynup claims disability. Tr. at 147.
On March 4, 2004, Guynup complained of abdominal pain and was seen by John W. Homer, M.D., a gastroenterologist. Tr. at 131. Dr. Homer noted abdominal distention and constipation. Id. On April 13, 2004, Glenn Shroyer, M.D., noted that Guynup had visited the Emergency Room at the Plattsburgh Health Center complaining of constipation and was referred to Dr. Homer. Tr. at 109. On April 21, 2004, Dr. Homer diagnosed Guynup with Hepatitis C. Tr. at 127. On May 25, 2004, Guynup underwent a liver biopsy. Tr. at 100. On June 1, 2004, after analyzing the results of the liver biopsy, Deonarayan P. Saha, M.D. determined that Guynup had Chronic Hepatitis, grade 3, stage III. Tr. at 101. The record contains a chart, presumably from Dr. Homer's office, showing Guynup's levels of Albumin, Creatinine, and Bilirubin total, among other things, on April 14, May 11, and June 11, 2004, and on September 29, October 29, November 5, November 11, and December 3, 2005. Tr. at 129.
On December 13, 2004, Guynup completed a Form SSA-3368 Disability Report. Tr. at 62. On the third page of that report, Guynup answered questions in connection with his previous work as a security guard. Tr. at 64. In his responses, Guynup stated that while performing that job he spent eight total hours each day walking or standing and one total hour sitting. Id.
On November 29, 2004, a note signed illegibly, but resembling Dr. Shroyer's signature, states that Guynup cannot work more than 28 hours per week for 30 days. Tr. at 102. On January 27, 2005, Nader Wassef, M.D. performed a consultative exam in connection with Guynup's disability claim. Tr. at 111. Dr. Wassef did not find any physical limitations or acute distress but expressed concern that Guynup had not been taking the medication prescribed by Dr. Homer. Tr. at 111-114. On February 28, 2005, Dr. J. Bodnar, a state agency medical consultant, reviewed the evidence and found that Guynup had the residual functional capacity ("RFC") to sit, stand, and walk for 6 hours in every 8 hour work day and to carry 20 pounds. Tr. at 115. Guynup began taking the Hepatitis treatment as noted by Dr. Homer on November 1, 2005. Tr. at 124. During his hearing, Guynup reported that he had completed the full course of treatment. Tr. at 162.
Guynup additionally presents new evidence which he asks to be considered on appeal. The first is a June 15, 2007 letter from Dr. Homer. Pl.'s Br. Addendum A at 164. The letter explains the meaning of Guynup's diagnosis of Grade 3, Stage III chronic liver disease and describes profound fatigue as a normal symptom associated with Grade 3, Stage III chronic liver disease. Id. Dr. Homer opines that Guynup's medical record has not been sufficiently developed to conclusively indicate whether he does or does not meet the criteria for disability under § 5.05. Id. Dr. Homer writes that it is "quite possible" that Guynup does meet the criteria for disability under § 5.05. Id.
Guynup also presents a February 1, 2007 "Medical Report for Determination of Disability" by Dr. Shroyer. Pl.'s Br. Addendum A at 165. Dr. Shroyer is Guynup's primary care physician. Pl.'s Br. at 5. Dr. Shroyer's report states that Guynup can work at his present job only. Pl.'s Br. at "Addendum B" at 165. The report also indicates that Guynup can stand or walk for less than two hours per 8 hour work day. Id, at 166.
Finally, Guynup presents a list of side effects associated with Hepatitis C treatment and a description of the Green Thumb employment program. Pl.'s Br. Addendum B, Addendum C.
The Act defines "disability" as the "inability 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. § 423(d)(1)(A). The administrative regulations established by the Commissioner require the ALJ to apply a five-step evaluation to determine whether an individual qualifies for disability insurance benefits. See20 C.F.R. §§ 404.1520, 416.920; see alsoWilliams v. Apfel, 204 F.3d 48, 48--49 (2d Cir. 1999); Bush v. Shalala, 94 F.2d 40, 44--45 (2d Cir. 1996).
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 do basic work activities. If the claimant suffers such an impairment which is listed in Appendix 1 of the regulations, [t]he [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 ...