The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff Carletta Ferguson challenges an Administrative Law Judge's ("ALJ") determination that she is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that she has been disabled since April 2, 2005, due to cognitive impairments, in combination with depression, anxiety, and asthma. Plaintiff contends that her impairments meet the Commissioner's "listing" for mental retardation, found at 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.05C, and that they have rendered her unable to work. She therefore asserts that she is entitled to payment of disability benefits under the Act.
2. Plaintiff filed an application for disability insurance benefits on December 13, 2005, with a protective filing date of November 8, 2005. Her application was initially denied on May 22, 2006, and she did not seek reconsideration. Instead, Plaintiff requested an administrative hearing, which was held before ALJ William Pietz on July 30, 2008. Plaintiff appeared at the hearing with counsel and testified. The ALJ considered the case de novo, and on August 15, 2008, issued a decision denying Plaintiff's application for benefits. On June 15, 2009, the Appeals Council denied Plaintiff's request for review. Plaintiff filed the current civil action on August 5, 2009, challenging Defendant's final decision.*fn1
3. On April 13 and May 11, 2010, the Government and Plaintiff filed Cross Motions for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. After full briefing, this Court deemed oral argument unnecessary and took the motions under advisement.
4. 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 and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. 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 that which amounts to "more than a mere scintilla" and 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).
5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of 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 will 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 and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled under the Social Security Act. See 20 C.F.R. § § 404.1520, 416.920. 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, 2291, 96 L.Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.
7. This five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8. 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, 584 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering 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. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed. 2d 66 (1983).
9. In this case, the ALJ made the following findings with regard to the five-step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity since her November 8, 2005 filing date (R. at 19);*fn2 (2) Plaintiff's affective disorder, anxiety disorder, questionable mild mental retardation, questionable learning disorder, asthma and polysubstance abuse constitute a severe combination of impairments within the meaning of the Act (R. at 19); (3) Plaintiff's impairments, however, do not meet the criteria necessary for finding a disabling impairment under the regulations (R. at 19); (4) Plaintiff retains the residual functional capacity to perform a full range of work at all exertional levels, with some non-exertional limitations (R. at 19, 20); and (5) Plaintiff has no past relevant work (R. at 19, 22). Considering Plaintiff's age, education, work experience, and residual functional capacity, the ALJ determined that Plaintiff could perform a full range of work at all exertional levels and that there are a number of jobs in the national economy that Plaintiff could perform. The ALJ determined that Section 204.00 of the Medical-Vocational Guidelines required this finding because Plaintiff had only non-exertional limitations, and a vocational expert testified about job availability for a person with such limitations (R. at 22-23, 391-396). Ultimately, the ALJ determined that Plaintiff was not disabled, as defined by the Act, at any time since her application was filed. (R. at 24).
10. Plaintiff's first challenge to the ALJ's decision is that he erroneously failed to find that Plaintiff met the Section 12.05C standard for mental retardation, a "per se disabling" impairment. 20 C.F.R. Pt. 404, Subpt. P, App. I, § 12.05. Plaintiff contends that the ALJ failed to properly consider substantial evidence of record demonstrating her listing-level condition. The ALJ found that Plaintiff did not establish all three of the elements required by Section 12.05C. Plaintiff cannot succeed at Step Three of the sequential disability analysis unless she meets all of the relevant listing's specified criteria. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed. 2d 967 (1990).
The introductory paragraph of Section 12.05 contains the diagnostic description for mental retardation. To meet the listing, Plaintiff must first show "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period" prior to age 22. 20 C.F.R. Pt. 404, Subpt. P, App. I, § 12.05. Once Plaintiff has made this showing, she must then satisfy one of the four sets of criteria listed in Paragraphs A through D, demonstrating a sufficiently severe impairment. Id. Paragraph C requires: "A valid verbal, performance, or ...