The opinion of the court was delivered by: Thomas J. McAVOY United States District Judge
This matter brought pursuant to 42 U.S.C. § 405(g) was referred to the Hon. Victor E. Bianchini, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
The Report-Recommendation, filed on September 30, 2009, recommends that the Commissioner's decision denying Social Security benefits be affirmed and finds that: (1) the ALJ's conclusions were supported by substantial evidence; and (2) a sentence six remand is neither necessary nor appropriate. Presently before the Court are Plaintiff's objections to the Report and Recommendation.
Neither party had objected to the Procedural Background articulated in the Report-Recommendation. Accordingly, the Court adopts the portion of the Report-Recommendation entitled "Background" in its entirety.It has been summarized here:
The Social Security Administration first denied Plaintiff's claim on November 30, 2005. Admin. Transcript [hereinafter Tr.] at 19. On December 28, 2005, Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ). Tr. at 40. The hearing occurred using teleconferencing on June 18, 2007 before ALJ J. Michael Brounoff. Tr. at 19. ALJ Brounoff rendered a decision on September 28, 2007, concluding that Plaintiff suffers from depressive disorder, generalized anxiety disorder, attention deficit hyperactivity disorder, and learning disabilities. Tr. at 21. The ALJ concluded that, although Plaintiff did not have the residual functional capacity to perform any past relevant work, which included jobs as a security guard and as a cook, he did have a residual functional capacity (RFN) to perform work at all exertional levels, and he "maintains the ability (on a sustained) basis to understand, carry out, and remember simple instructions; respond appropriately to supervision, co-workers, and usual work situations; and deal with changes in a routine work setting." Tr. at 25 and 23. Plaintiff's time to request review from the Social Security Administration's Appeal Council expired and he requested an extension of time to gather additional documentation. Tr. at 14. The Appeals Council granted the request for additional time to present new evidence and allowed Plaintiff until February 2008 to submit the documentation. Tr at 12. Plaintiff failed to submit any new evidence. The Appeals Council denied Plaintiffs's request for review on June 9, 2008. Plaintiff filed this action seeking review on June 19, 2008. Tr. at 7; Docket No. 1.
"To be eligible for disability insurance benefits, a claimant must establish an '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.'" Dixie v. Commissioner of Social Sec., 2008 WL 2433705 at *7 (N.D.N.Y. June 12, 2008) (citing 42 U.S.C. § 423(d)(1(A)). In his decision, ALJ Brounoff applied the five-step sequential evaluation process for determining whether an individual is disabled. Tr. at 20.
In the first step, the ALJ determines whether the claimant has engaged in "substantial gainful activity" since the alleged onset of the disability. 20 C.F.R. § 404.1520(a)(4)(i). If not, the next inquiry is whether the claimant suffers from a medically determinable "severe" impairment established by medical evidence including signs, symptoms and laboratory findings. Id. at § 404.1520(a)(4)(ii); § 404.1528. Symptoms alone, however, are not sufficient. Id. at § 404.1528. Severity is defined as significantly limiting an individual's physical or mental ability to do basic work activities. Id. at § 404.1521(a). Should the claimant be suffering from a medically determinable severe impairment, the third step is to determine whether the impairment is listed, or is equal to any listing, in Appendix I, which specifies over 100 medical conditions that would prevent an individual from performing "substantial gainful activity." Id. at § 404.1520(a)(4)(iii); § 404.1525(a). If so, the individual is considered "disabled" under the Act and the inquiry ends. Id. If not, the inquiry continues to the last two steps to determine whether the claimant has the RFC to perform any past relevant work or other jobs that exist in the national economy, considering the claimant's age, education and work experience. Id . at § 404.1520(a)(4)(iv)-(v); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
McConnell v. Astrueu, 2008 WL 833968, at *1 (N.D.N.Y., March 27, 2008).
In this case, ALJ Brounoff determined that Plaintiff had not engaged in substantial gainful activity since May 15, 2004, the alleged onset date of disability. Tr. at 21. The ALJ determined that Plaintiff suffered from severe impairments including:
depressive disorder; generalized anxiety disorder, attention deficit hyperactivity disorder, and learning disabilities, but that these impairments did not meet or equal one of the limited impairments in Appendix 1. Tr. at 21, 23. Finally the ALJ determined that claimant had the residual functional capacity (RFN) to perform work at all exertional levels, and he "maintains the ability (on a sustained) basis to understand, carry out, and remember simple instructions; respond appropriately to supervision, co-workers, and usual work situations; and deal with changes in a routine work setting." Tr. at 23. Therefore, the ALJ determined that ...