The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Randall Crump brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny his application for disability benefits.
On May 7, 2003, plaintiff protectively filed an application for Social Security Income ("SSI"). (T. 62)*fn2 . Plaintiff was 46 years old at the time of his application and alleged an inability to work due to pain in his back, shoulders, legs, feet and left elbow. (T. 68). Plaintiff completed the 12th grade and his past work consisted of employment as a janitor, construction worker, furniture mover, sheet rock worker and machine operator. (T. 17, 228).
On November 26, 2003, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on November 4, 2004. (T. 44; 225-58). On February 24, 2006, the ALJ issued a decision denying plaintiff's claim for disability benefits. (T. 16-28). The Appeals Council denied plaintiff's request for review on July 7, 2006, making the ALJ's decision the final determination of the Commissioner. (T. 5). This action followed.
The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." 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 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). There is a five-step analysis for evaluating disability claims:
"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted).
A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw, 221 F.3d at 131. Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
On February 24, 2006, the ALJ issued a decision and found at step one that plaintiff has not engaged in substantial gainful activity since he protectively filed his application for benefits.
(T. 18). At step two, the ALJ concluded that plaintiff suffered from degenerative disc disease at L4/5 and L5/S1 with radiculopathy which qualified as a "severe impairments" within the meaning of the Social Security Regulations (the "Regulations"). (T. 28). At the third step of the analysis, the ALJ determined that plaintiff's impairments did not meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. (T. 28). The ALJ found that plaintiff had the residual functional capacity ("RFC") to "lift and carry up to 10 lbs. occasionally; sit for up to 6 hours and stand and/or walk for up to 2 hours during the course of an 8-hour workday, with restrictions in pushing/pulling with his lower extremities." (T. 28). Therefore, at step four, the ALJ concluded that plaintiff was unable to perform all of his past relevant work. (T. 28). Relying on the medical-vocational guidelines ("the grids") set forth in the Social Security Regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ found that plaintiff has the exertional capacity to perform a significant range of sedentary work. (T. 28). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 28).
In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:
(1) plaintiff is disabled as plaintiff's back impairment meets the requirements of Listing § 1.04A;
(2) the ALJ failed to follow the treating physician rule;
(3) the RFC determination by the ALJ is not supported by substantial evidence; and
(4) plaintiff presents non-exertional impairments which require the use of a vocational rehabilitation expert rather than reliance upon the grids and thus, the Commissioner did not sustain his burden of proof at the fifth ...