The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Wayne Schmelzle brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act seeking review of the Commissioner of Social Security's decision to deny his application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI").
On April 8, 2005, plaintiff filed an application for DIB and SSI alleging disability onset beginning January 1, 2003. Plaintiff was 41 years old at the time of the application with past work experience as a bartender, construction worker, laborer, and laundry department worker. Plaintiff claimed that he became disabled on January 1, 2003 due to medical issues resulting from a gun shot wound to the right shoulder in 1992 and lower back pain. Plaintiff's application was denied and he requested a hearing before an administrative law judge ("ALJ"). On September 13, 2006, a hearing was held and plaintiff attended with his attorney. On April 21, 2007, the ALJ issued a decision denying plaintiff's application for benefits. On July 13, 2007, the Appeals Council denied plaintiff's request for review making the ALJ's decision the Commissioner's final determination. 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).
In this case the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since his alleged onset date. (T. 14). At step two, the ALJ concluded that plaintiff suffered from "status post gun shot wound right shoulder" which qualified as a "severe impairment" within the meaning of the Social Security Regulations (the "Regulations"). (T. 14). At the third step of the analysis, the ALJ determined that plaintiff's impairment did not meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. (T. 16). The ALJ found that plaintiff had the residual functional capacity ("RFC") "during the course of an 8-hour workday to lift/carry up to 20 lbs. with the left upper extremity, sit for up to 6 hours and stand and/or walk up to 6 hours, with limitations in overhead right upper extremity reaching." (T. 16). At step four, the ALJ concluded that plaintiff "is unable to perform any past relevant work". (T. 19). At the final step, relying on the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, the ALJ concluded that "considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that claimant can perform". (T. 19). The ALJ therefore found that plaintiff was not under a disability as defined by the Social Security Act. (T. 20).
In seeking federal judicial review of the Commissioner's determination, plaintiff argues that: (1) the ALJ's determination of plaintiff's RFC is not supported by substantial evidence; (2) the ALJ erred as a matter of law by failing to properly develop the record; and (3) the ALJ improperly evaluated plaintiff's allegations of disabling pain.
A. Reliance on Medical Consultant as Support for RFC
Plaintiff argues that the ALJ erred when he used, as a foundation for his determination that plaintiff had the residual functional capacity to perform light work, the findings of a State Agency "medical consultant" Michael Saxby*fn1 The Commissioner argues that the opinions of Mr. Saxby and consultative examiner Kalyani Ganesh, M.D., constitute substantial evidence that plaintiff can perform light work. In this case, the ALJ found that, with exception of limited lifting with his right arm, plaintiff could meet the exertional demands of light work. (T. 20). In reaching this conclusion, the ALJ found the opinion of State Agency "medical consultant" Michael Saxby ...