The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Sharon Serianni brings the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny her application for disability benefits.
On October 23, 2003, plaintiff protectively filed an application for Disability Insurance Benefits ("DIB"). (Administrative Transcript at p.75).*fn1 Plaintiff was 52 years old at the time of her application and alleged an inability to work due to an injury to her right hand, tendinitis, de Quervain syndrome and trigger thumb.*fn2 (T. 93). Plaintiff previously worked as a card dealer in a casino and a factory worker in a distribution center. (T. 93).
On February 24, 2004, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on November 18, 2004. (T. 32, 41). On March 4, 2005, the ALJ issued a decision denying plaintiff's claim for disability benefits. (T. 41-50). On June 22, 2005, the Appeals Council remanded the matter.*fn3 (T. 61). A second hearing was held on January 4, 2006. (T. 13). On June 30, 2006, the ALJ issued a decision denying plaintiff's claim for disability benefits. (T. 13-21). The Appeals Council denied plaintiff's request for review on February 16, 2007, making the ALJ's decision the final determination of the Commissioner. (T. 4-9). 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 June 30, 2006, the ALJ found at step one that plaintiff had not worked since November 15, 2001. (T. 14). At step two, the ALJ concluded that plaintiff suffered from de Quervain syndrome, right trigger thumb, epicondylitis of the right elbow and calcific tendinitis/bursitis of the right shoulder which qualified as a "severe impairments" within the meaning of the Social Security Regulations (the "Regulations").*fn4 (T. 15). 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. 15). The ALJ found that plaintiff had the residual functional capacity ("RFC") to, "lift/carry up to 20 pounds occasionally and ten pounds frequently provided her left upper extremity supports the bulk of the weight and her right upper extremity is used only as a guide or aide, can sit, stand, walk, climb, stoop, squat, balance, or crouch without limitation, can grasp, handle, or finger with her right upper extremity only occasionally, and can grasp, handle or finger with her left upper extremity without restriction".
(T. 18). At step four, the ALJ concluded that plaintiff did not have the residual functional capacity to perform any of her past relevant work. (T. 20). The ALJ obtained the testimony of a vocational expert to determine whether there were jobs plaintiff could perform. Based upon the vocational expert's testimony and the Medical-Vocational Rules (the "Grids"), the ALJ concluded at step five, that there were jobs existing in significant numbers in the national economy that plaintiff could perform such as work as counter clerk and tanning salon attendant. (T. 18). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 21).
In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:
(1) the ALJ erred when he found plaintiff's depression and anxiety non-severe without ordering a consultative psychiatric examination; (2) the ALJ failed to properly apply the treating physician rule; (3) the RFC determination by the ALJ is not supported by substantial evidence; (4) the ALJ relied upon the vocational expert's response to a defective hypothetical; and (5) the ALJ's reliance upon the Medical-Vocational Rules as "additional support" to the vocational expert testimony was improper. (Dkt. No. 14).
A. ALJ's Assessment at Step 2
Plaintiff argues that the ALJ erred when he determined that plaintiff's depression and anxiety were not severe impairments. Plaintiff also contends that the ALJ neglected his duty to fully develop the record when he failed to order a consultative psychiatric examination. (Dkt. No. 14, p. 1). The Commissioner disagrees noting that none of plaintiff's treating or examining sources observed any psychiatric limitations. (Dkt. No. 15, p. 10).
1. Severity of Depression and Anxiety
Plaintiff has the burden at step two in the sequential evaluation process to demonstrate the severity of her impairment. See 20 C.F.R. § 404.1520(c). An impairment is severe if it significantly limits physical or mental abilities to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ must evaluate the claimant's symptoms, as well as other signs and laboratory findings, and determine whether the claimant has a "medically determinable mental impairment." 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1); see also Dudelson v. Barnhart, 2005 WL 2249771, at *12 (S.D.N.Y. 2005). "[A]n impairment is considered 'not severe' if it is a slight abnormality that causes no more than minimal limitation in the individual's ability to function independently, appropriately, and effectively in an age-appropriate manner." Matejka v. Barnhart, 386 F.Supp.2d 198, 208-09 (W.D.N.Y. 2005) ("an impairment is not severe if it has no more than a minimal effect on an individual's physical or mental ability(ies) to do basic work activities"). Evidence must demonstrate that the condition prevented plaintiff from pursuing gainful activity. See Iannopollo v. Barnhart, 280 F.Supp.2d 41, 47 (W.D.N.Y. 2003).
A condition that improves and is repairable may not be considered a disability for purposes of disability benefits. See Pennay v. Astrue, 2008 WL 4069114, at *4 (N.D.N.Y. 2008).
A diagnosis of depression, without more, does not suggest that a plaintiff's depression severely impairs her performance of any major life activity. See Torres v. Astrue, 550 F.Supp.2d 404, 411 (W.D.N.Y. 2008). The medical evidence must show that depression and anxiety preclude a plaintiff from performing basic mental work activities. See Snyder v. Astrue, 2009 WL 2157139, at *4 (W.D.N.Y. 2009). Moreover, evidence that medication provides relief from the severity of a mental condition can provide substantial evidence to support a finding that a plaintiff is not disabled. Pennay, 2008 WL 4069114, at *5.
In this matter, plaintiff alleges that the medical evidence supports a finding that the impairments are severe as she was diagnosed with depression and has been prescribed medication for depression and anxiety since 1999. Moreover, plaintiff claims that she provided testimony as to the debilitating effects of her anxiety. In November 1999, four years prior to the onset of plaintiff's disability, plaintiff was treated at St. Elizabeth Community Health Center by Jasmine Sulaiman, M.D.*fn5 Plaintiff complained of "stress and anxiety". Dr. Sulaiman stated, "[t]he patient should needs [sic] a break from work, which she has reluctantly agreed to for one day. Papers were given for this. The ideal medicine for the patient is to start on Paxil, sometime later, after one or two weeks, once this problem settles down".*fn6 (T. 181). In December 1999, plaintiff returned to Dr. Sulaiman and claimed that she had been taking "samples of Paxil" and felt better on the medication. (T. 182). Dr. Sulaiman recommended that plaintiff continue with the medication and provided plaintiff with a prescription and more samples. (T. 182). In August 2001, Dr. Sulaiman noted that plaintiff was "doing good on Paxil". (T. 184).
For nearly four years, between August 2001 and May 2005, plaintiff did not receive any treatment for depression or anxiety. Plaintiff alleges that she became disabled on November 15, 2001. On May 23, 2005, plaintiff returned to Dr. Sulaiman. (T. 176). Plaintiff complained of being depressed and advised that she was taking Paxil from her friend. (T. 176). Dr. Sulaiman diagnosed plaintiff with depression and gave her a ...