REPORT AND RECOMMENDATION (GLS/VEB)
In November of 2004, Plaintiff Daniel C. Stoesser applied for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under the Social Security Act. Plaintiff alleges that he has been unable to work since September 15, 2001, due to physical impairments. The Commissioner of Social Security denied Plaintiff's applications.
Plaintiff, by and through his attorney, Charles E. Binder, Esq., commenced this action on June 19, 2008, 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 March 13, 2009, 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. 9).
The procedural history may be summarized as follows: Plaintiff applied for SSI benefits and DIB on November 30, 2004, alleging disability beginning on September 15, 2001. (T at 24, 56-58).*fn1 The applications were denied initially and Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held in Albany, New York on July 14, 2006, before ALJ Carl Stephan. (T at 200). Plaintiff, accompanied by an attorney, Angela Yeboah, Esq., appeared and testified. (T at 202-214). On August 11, 2006, ALJ Stephan issued a decision denying Plaintiff's applications. (T at 24-33). The ALJ's decision became the Commissioner's final decision on May 1, 2008, when the Appeals Council denied Plaintiff's request for review. (T at 3-6).
Plaintiff timely commenced this action on June 19, 2008. (Docket No. 1). The Commissioner interposed an Answer on September 29, 2008. (Docket No. 5). Plaintiff filed a Brief in support of the action on November 13, 2008. (Docket No. 7). The Commissioner filed a Brief in opposition on November 26, 2008. (Docket No. 8).
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.
For the reasons that follow, it is respectfully recommended that the Commissioner's motion be denied, Plaintiff's motion be granted, and that this case be remanded for calculation of benefits.
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.*fn2
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 met the insured status requirements of the Social Security Act through June 30, 2008. The ALJ determined that Plaintiff had not engaged in substantial gainful activity since September 15, 2001, the alleged onset date. The ALJ concluded that Plaintiff had the following impairment considered "severe" under the Act: degenerative disc disease of the lumbar spine. (T at 26).
However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments set forth in 20 CFR Part 404, Subpart P, Appendix I (the "Listings"). (T at 27). The ALJ determined that Plaintiff had the residual functional capacity to perform sedentary work activity that requires only occasional bending, squatting, and kneeling. (T at 28).
The ALJ concluded that Plaintiff was not able to perform his past relevant work. (T at 32). Considering Plaintiff's age (40 as of the alleged onset date, 45 as of the date of the ALJ's decision), education (high school), work experience, and residual functional capacity, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff can perform. (T at 32). Accordingly, the ALJ determined that Plaintiff had not been under a disability and was not entitled to benefits from the date of alleged onset to the date of the ALJ's decision. (T at 33). As noted above, the ALJ's decision became the Commissioner's final decision on May 1, 2008, when the Appeals Council denied Plaintiff's request for review. (T at 3-6).
Plaintiff contends that the Commissioner's decision should be reversed. Plaintiff offers two (2) principal arguments in support of his position. First, he contends that the ALJ did not properly apply the treating physician's rule. Second, Plaintiff argues that the ALJ erred when evaluating his credibility. This Court will address each argument in turn.
a. Treating Physician's Rule
Under the "treating physician's rule," the ALJ must give controlling weight to the treating physician's opinion when the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000).*fn3 Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. In this regard, the ALJ should consider the following factors when determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. C.F.R. § 404.1527(d)(1)-(6); see also de Roman, 2003 WL 21511160, at *9; Shaw, 221 F.3d at 134; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir. 1998).
In this case, Dr. Amy Grace, Plaintiff's treating physician, noted that Plaintiff suffered from "pretty significant degenerative disc disease at three levels." (T at 171). In June of 2005, Dr. Grace opined that Plaintiff was "completely and ...