The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff Runee D. Prince challenges an Administrative Law Judge's ("ALJ") determination that he is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that he has been disabled since March 1, 2007, due to post traumatic stress disorder ("PTSD"), agent orange, a heart condition, sleep disorder, and osteoarthrosis. Plaintiff contends that his impairments have rendered him unable to work. He therefore asserts that he is entitled to disability benefits under the Act.
2. On March 31, 2006, Plaintiff filed a Title II application for disability insurance benefits. His application was initially denied on June 28, 2006. Pursuant to Plaintiff's request, an administrative hearing was held before ALJ Robert T. Harvey on October 6, 2008, at which Plaintiff appeared by video conference with counsel and testified. The ALJ considered the case de novo, and on November 4, 2008, denied Plaintiff's application for benefits. Plaintiff filed the current civil action on February 8, 2010, challenging Defendant's final decision.*fn1
3. On July 12, 2010, the Government and Plaintiff filed motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Government filed a response on July 29, 2010, and Plaintiff followed suit on August 2, 2010. Plaintiff then filed a reply on August 16, 2010. This Court took the motions under advisement without oral argument.
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 & 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 & 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 his 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 the alleged onset of his disability (R. at 15);*fn2 (2) Plaintiff's PTSD is a "severe" impairment within the meaning of the Act (id.); (3) Plaintiff's impairments do not meet the criteria necessary for finding a disabling impairment under the regulations (id. at 16); (4) Plaintiff has retained the residual functional capacity to work in a job with moderate amounts of stress and to lift/carry/push/pull 100 pounds occasionally and 50 pounds frequently, sit 2 hours in an 8 hour day and stand/walk 6 hours in an 8 hour day, but cannot work in areas where he would be exposed to cold (id. at 17); and (5) Plaintiff is able to perform past relevant work as a manufacturing foreman, electronics manager, and title researcher. (Id. at 17-18). Ultimately, the ALJ determined that Plaintiff was not disabled, as defined by the Act, at any time through the date of his decision November 4, 2008. (Id. at 18.)
10. Plaintiff raises three challenges to the ALJ's decision. First, Plaintiff argues that the ALJ erred in failing to find Plaintiff's impairment of the right elbow and shoulder to be severe. Second, Plaintiff argues that the ALJ's decision regarding Plaintiff's residual functional capacity was not supported by substantial evidence. Third, Plaintiff argues that the ALJ did not consider Plaintiff's subjective complaints in light of his work history.
11. Plaintiff's first challenge is that the ALJ erred in not finding plaintiff's right elbow and shoulder impairment severe. Plaintiff argues that the ALJ did not even consider this impairment, despite Plaintiff's testimony that the pain was constant and had been present over the last couple of years. Plaintiff supports his subject symptoms by reference to a March 11, 2008 x-ray, which showed shrapnel fragments were present in Plaintiff's shoulder.
12. "An impairment or combination of impairments is 'not severe' when medical and other evidence establishes only a slight abnormality or a combination of slight abnormalities that would have at most a minimal effect on an individual's ability to basic work activities." Ahern v. Astrue, No, 09-CV-5543 (JFB), 2011 WL 1113534, at *8 (E.D.N.Y. Mar. 24, 2011) (citing 20 C.F.R. § 404.1521). Here, the ALJ "carefully considered all the medical evidence of record." (R. at 15) (emphasis added). The ALJ also specifically noted that "claimant . . . only takes Excedrin for right upper extremity pain" and concluded "the claimant's pain is not as severe as alleged." (Id.) The hearing transcript further reveals that the ALJ carefully considered Plaintiff's right elbow and shoulder pain. The ALJ and Plaintiff discussed the shrapnel in Plaintiff's arms, hip, right hip, face, and jaw, and Plaintiff discussed residual symptoms as a result of that injury. (Id. at 255.) Plaintiff was asked how often he experienced pain in the right arm, and responded that it only occurred approximately once a week. (Id. at 261.) This makes it clear that the ALJ did consider this particular impairment. See Wavercak v. Astrue, 420 Fed. Appx. 91, 93 (2d Cir. 2011) (finding impairment was considered where ALJ considered combined effects of all impairments and asked about impairment at hearing). At the very least, the ALJ considered the effects of ...