REPORT AND RECOMMENDATION
In 2005, Plaintiff Brandy Brayton Wheeler filed an application for Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") benefits under the Social Security Act. Plaintiff alleges that she has been unable to work since June 26, 2004, primarily due to diabetes, obesity, depression and personality disorder. The Commissioner of Social Security denied Plaintiff's application.
Plaintiff, through her attorney, Stephen J. Mastaitis, Jr., Esq., commenced this action on February 28, 2008, by filing a Complaint in the United States District Court for the Northern District of New York. (Docket No. 1). Plaintiff seeks judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405 (g).
On March 19, 2009, the Honorable Norman A. Mordue, Chief United States District Judge, referred this case to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 18).
Plaintiff applied for SSDI and SSI on January 3, 2005, alleging that she had been unable to work since June 26, 2004. (T*fn1 at 17). The claims were denied on August 1, 2005. (T at 17, 30-32). Plaintiff filed a request for a hearing on September 26, 2005. (T at 17, 37). On January 11, 2007, a hearing was held in Glens Falls, New York before Administrative Law Judge ("ALJ") Carl Stephan. (T at 334). Plaintiff, represented by counsel, appeared and testified. (T at 17, 334).
On February 12, 2007, ALJ Stephan issued a written decision denying Plaintiff's application for benefits. (T at 17-27). The ALJ's decision became the Commissioner's final decision on February 1, 2008, when the Social Security Administration's Appeals Council denied Plaintiff's request for review. (T at 3-6).
Plaintiff commenced this action on February 28, 2008. (Docket No. 1). Plaintiff, through counsel, filed a supporting Brief on December 11, 2008. (Docket No.15). The Commissioner filed a Brief in opposition on January 26, 2009. (Docket No. 16).
Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern District of New York on September 12, 2003, this Court will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings.*fn2
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 & Human Servs., 906 F.2d 856, 860 (2d Cir.1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); 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). "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 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 position 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 & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984).
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. §§ 416.920, 404.1520. 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, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.*fn3
While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof with respect to 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 the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her 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. §§ 416.920(g); 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).
1. Commissioner's Decision
The ALJ concluded that Plaintiff had not engaged in substantial gainful activity since June 26, 2004, the alleged disability onset date. (T at 19). The ALJ found that Plaintiff has the following "severe" impairments: diabetes, obesity, depression and personality disorder. (T at 19). However, the ALJ concluded that Plaintiff's impairments did not meet or equal the level of severity of any disabling condition set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Commissioner's regulations. (T at 22).
After reviewing the medical evidence, the ALJ concluded that Plaintiff had the residual functional capacity to perform light work activity, provided that it is "simple and unskilled, involves a minimal amount of stress, takes in to account occasional difficulties with maintaining attention and concentration and does not require the completion of detailed or complex tasks." (T at 22). The ALJ found that Plaintiff retained the residual functional capacity to sit, stand and walk for six (6) hours in an eight (8) hour workday and lift ten (10) pounds frequently and twenty (20) pounds occasionally. (T at 22-23).
The ALJ found that Plaintiff is a "younger individual" as a result of the fact that she was born on August 21, 1985 and was eighteen (18) years old at the time of the alleged onset of her disability. (T at 26). The ALJ found that transferability of job skills was irrelevant because Plaintiff has no past relevant work. (T at 26). The ALJ determined that, given Plaintiff's residual functional capacity, age, and educational background (high school education), she can perform jobs that exist in significant numbers in the national economy. (T at 26). Therefore, the ALJ determined that Plaintiff was not under a "disability," as defined under the Act. (T at 27). As noted above, the ALJ's decision became the Commissioner's final decision on February 1, 2008, when the Appeals Council denied Plaintiff's request for review. (T at 3-6).
Plaintiff contends that the Commissioner's decision should be reversed. Plaintiff offers three (3) principal arguments in support of her position. First, she argues that she meets or equals or has a combination of disabling listed impairments. Second, Plaintiff contends that the ALJ failed to properly determine her residual functional capacity. Third and finally, she asserts that the Appeals Council failed to properly consider new medical evidence. This Court will address each argument in turn.
"The Listing of Impairments describes, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity." 20 C.F.R. § 416.925(a). If a claimant's impairment or combination of impairments meets or equals a listed impairment, the evaluation process is concluded and the claimant is considered disabled without considering the claimant's age, education, or work experience. 20 C.F.R. § 416.920(a)(4)(iii).
Plaintiff contends that her impairments meet or medically equal the criteria of Listings §§ 9.08 (Diabetes mellitus) ...