REPORT AND RECOMMENDATION
Plaintiff Bruce Petrie filed several applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits under the Social Security Act. Plaintiff alleges that he is unable to work due to various psychiatric impairments. The Commissioner of Social Security denied Plaintiff's applications. Plaintiff, through his attorneys, Olinsky & Shurtliff, commenced this action on December 1, 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 SSI benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
On September 16, 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. 16).
The relevant procedural history may be summarized as follows. Plaintiff filed applications for DIB and SSI benefits on September 15, 2001, alleging disability since December 6, 2000. (T at 62-64).*fn1 These applications were denied on October 27, 2003, after a hearing before an Administrative Law Judge ("ALJ"). (T at 272-82). Plaintiff did not appeal this denial. (Plaintiff's Brief, Docket No. 12, at p. 2). On August 24, 2004, Plaintiff filed applications for DIB and SSI benefits, alleging disability since October 28, 2003. These applications were denied initially by the Commissioner and Plaintiff did not request a hearing or otherwise pursue an appeal. (Plaintiff's Brief, Docket No. 12, at p. 2).
Plaintiff once again applied for DIB and SSI benefits on July 19, 2005, claiming that he had been disabled since December 27, 2000. (T at 305-07). The applications were denied initially (T at 284-88) and Plaintiff requested a hearing before an ALJ. (T at 289). On September 18, 2007, Plaintiff appeared, along with his attorney, at a hearing conducted in Syracuse, New York, before ALJ Joseph G. Medicis, Jr. (T at 448-65). On October 25, 2007, ALJ Medicis issued a written decision denying the applications for DIB and SSI benefits. (T at 19-32). The ALJ's decision became the Commissioner's final decision on September 26, 2008, when the Appeals Council denied Plaintiff's request for review. (T at 9-11).
Plaintiff, through counsel, commenced this action on December 1, 2008. (Docket No. 1). The Commissioner interposed an Answer on April 15, 2009. (Docket No. 10). Plaintiff filed a supporting Brief on July 2, 2009. (Docket No. 12). The Commissioner filed a Brief in opposition on September 14, 2009. (Docket No. 15).
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
For the reasons that follow, it is respectfully recommended that Defendant's Motion for Judgment on the Pleadings be GRANTED.
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).
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 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 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 initially considered whether the 2003 decision and 2005 determination denying Plaintiff's earlier applications for DIB and SSI benefits could be reconsidered. The ALJ concluded that reconsideration of the 2003 decision denying Plaintiff's September 2001 applications was barred by res judicata. (T at 20). However, the ALJ found that the 2005 initial determination denying Plaintiff's August 2004 applications could be reopened because less than a year had passed between the date of the notice of initial determination and the date the current applications were filed. (T at 20)(citing 20 CFR §§ 404.988 (a) & 416.1488 (a)). Accordingly, the ALJ ruled that he could properly determine the issue of whether Plaintiff had been disabled since October 28, 2003, i.e. the onset date set forth in the second set of applications, which were filed in August 2004. (T at 20).
The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2003. (T at 23). The ALJ also found that Plaintiff had not engaged in substantial gainful activity since the applicable alleged onset date of October 28, 2003. (T at 23). The ALJ determined that Plaintiff had the following impairments considered "severe" under the Act: dysthymic disorder, depressive disorder, and anxiety disorder without agoraphobia. (T at 23).
However, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments found in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). (T at 24). The ALJ found that Plaintiff retained the residual functional capacity ("RFC") to perform a full range of work at all exertional levels and that he was capable of performing his past relevant work as a cook. (T at 25, 30). Thus, considering Plaintiff's age, education, work experience, and RFC, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform and, as such, Plaintiff has not been under a disability, as defined under the Act from October 28, 2003, to the date of the ALJ's decision. (T at 31-32).
As noted above, the ALJ's decision became the Commissioner's final decision on September 26, 2008, when the Appeals Council denied Plaintiff's request for review. (T at 9-11).
Plaintiff contends that the Commissioner's decision should be reversed. Plaintiff offers two (2) principal arguments in support of his position. First, Plaintiff asserts that the ALJ failed to properly apply the "treating physician rule" when determining his RFC. Second, Plaintiff argues that the ALJ erred by determining that he could perform his past relevant work and by concluding that he retained the RFC to ...