REPORT AND RECOMMENDATION
In August of 2005, Plaintiff Frankie C. James filed an application for supplemental security income ("SSI") benefits under the Social Security Act. Plaintiff alleges that she has been unable to work since January 15, 1990, due to Crohn's Disease and other ailments. The Commissioner of Social Security partially denied Plaintiff's application.
Plaintiff, through her attorneys, Olinsky & Shurtliff, Howard D. Olinsky, Esq. of counsel, commenced this action on April 10, 2009, 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 decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
On February 8, 2010, 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. 14).
The relevant procedural history may be summarized as follows:
Plaintiff applied for SSI benefits on August 23, 2005, alleging
disability beginning on January 15, 1990. (T at 48-50).*fn1
The application was denied initially. (T at 33, 34-37). On
January 18, 2006, Plaintiff requested a hearing before an
Administrative Law Judge ("ALJ"). (T at 38). Although the request was
untimely, the Commissioner found good cause to excuse the default. (T
at 40). A hearing was held on February 5, 2008, in Syracuse, New York
before ALJ Barry E. Ryan. (T at 461). Plaintiff appeared along with
Michael Ramieri, Esq. (T at 461). However, due to an apparent
technical error, the hearing was not recorded. (T at 24). As such, a
second hearing was held on April 15, 2008, before ALJ Ryan. (T at
441). Plaintiff was accompanied by Laura Weekly. Although the record
identified Ms. Weekly as an attorney (T at 441), Plaintiff describes
her as a non-attorney representative from the Legal Aid-Society of
Mid-New York. (Docket No. 11, at p. 2).
On April 24, 2008, the ALJ issued a decision denying Plaintiff's application. (T at 10-22). Plaintiff filed a timely request for review by the Appeals Council. (T at 432-440). The ALJ's decision became the Commissioner's final decision on March 12, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 5-7).
Plaintiff, through counsel, timely commenced this action on April 10, 2009. (Docket No. 1). The Commissioner interposed an Answer on August 12, 2009. (Docket No. 9). Plaintiff filed a supporting Brief on October 2, 2009. (Docket No. 11). The Commissioner filed a Brief in opposition on December 31, 2009. (Docket No. 13).
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 the Commissioner's motion be denied, Plaintiff's motion be granted, and this case be remanded to the Commissioner for further proceedings.
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 found that Plaintiff had not engaged in substantial gainful activity since August 23, 2005, the application date. (T at 15). The ALJ determined that Plaintiff had the following impairment considered "severe" under the Act: Crohn's Disease. (T at 15). However, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments found in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). (T at 18). The ALJ found that Plaintiff retained the residual functional capacity ("RFC") to perform the full range of light work, including lifting 20 pounds occassionally, 10 pounds frequently, standing/walking/sitting for about 6 hours in an 8-hour workday. (T at 18).
The ALJ determined that Plaintiff is unable to perform any past relevant work. (T at 21). The ALJ concluded that, considering Plaintiff's age (52 years old as of the application date), education (high school), and RFC (light work), there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 21). Accordingly, the ALJ found that Plaintiff was not under a disability, as that term is defined under the Social Security Act, since the date the application was filed. (T at 22). As noted above, the ALJ's decision became the Commissioner's final decision on March 12, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 5-7).
Plaintiff contends that the Commissioner's decision should be reversed. She offers four principal arguments in support of her position. First, Plaintiff contends that the ALJ erred at step 2 of the sequential evaluation because he did not find that her arthritis, osteoporosis, and osteopenia were severe impairments. Second, Plaintiff argues that the ALJ's RFC determination was contrary to the applicable standard and is not supported by substantial evidence. Third, she asserts that the ALJ did not properly evaluate her ...