The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Mariann Batchelder brings the above-captioned action pursuant to 42 U.S.C. § 405(g) seeking a review of the Commissioner of Social Security's decision to deny her application for disability insurance benefits ("DIB") and supplemental social security income ("SSI").
On March 27, 2007, plaintiff filed applications for DIB and SSI. (T. 92, 99)*fn1 . Plaintiff was 35 years old at the time of the applications with past work experience as a home healthcare aide. (T. 24). Plaintiff claims that she was disabled due to major depressive disorder, low back disorder and possible bilateral trochanteric bursitis. (T. 9).
On June 13, 2007, plaintiff's applications were denied and plaintiff requested a hearing by an ALJ which was held on June 3, 2009. (T. 19, 62). On July 10, 2009, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 7-14). The Appeals Council denied plaintiff's request for review on January 11, 2010, making the ALJ's decision the final determination of the Commissioner. (T. 1-3). 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).
Here, the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since December 8, 2006. (T. 9). At step two, the ALJ concluded that plaintiff suffered from major depressive disorder, lower back disorder and possible bilateral trochanteric bursitis which qualified as "severe impairments" within the meaning of the Social Security Regulations (the "Regulations"). (T. 9). At the third step of the analysis, the ALJ determined that plaintiff did not have an impairment or combination of impairments that meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. (T. 10). The ALJ found that plaintiff had the residual functional capacity ("RFC") to, "perform the full range of sedentary work". (T. 10). At step four, the ALJ concluded that plaintiff did not have the RFC to perform any of her past relevant work. (T. 13). At step five, relying on the medical-vocational guidelines ("the grids") set forth in the Regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ found that plaintiff had the RFC to perform jobs existing in significant numbers in the national economy. (T. 13). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 14).
In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:
(1) the ALJ erred in failing to find that plaintiff's depression met the criteria for Listing § 12.04A;
(2) the ALJ failed to consider plaintiff's combination of impairments; (3) the ALJ failed to properly apply the treating physician rule; (4) the ALJ ignored the applicable Regulations and improperly assessed plaintiff's credibility; (5) the ALJ failed to specify the functions plaintiff is capable of performing; and (6) the ALJ should have elicited testimony from a vocational expert. (Dkt. No. 10).
Plaintiff claims that her impairments meet or equal the requirements of Listing § 12.04.*fn2
"The Listing of Impairments describes, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity." 20 C.F.R. § 416 .925(a). If a claimant's impairment or combination of impairments meets or equals a listed impairment, the evaluation process is concluded and the claimant is considered disabled without considering the claimant's age, education, or work experience. Campbell v. Astrue, 2009 WL 2152314, at *4 (N.D.N.Y. 2009) (citing 20 C .F.R. § 416.920(a)(4)(iii)).
"When evaluating the severity of mental impairments, the regulations require the ALJ to apply a 'special technique' at the second and third steps of the review, in addition to the customary sequential analysis." Lint v. Astrue, 2009 WL 2045679, at *4 (N.D.N.Y. 2009) (citing Kohler v. Astrue, 546 F.3d 260, 265-66 (2d Cir.2008) (citing 20 C.F.R. § 404.1520a)). First, the ALJ must evaluate the claimant's symptoms, as well as other signs and laboratory findings, and determine whether the claimant has a "medically determinable mental impairment." 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1); see also Dudelson v. Barnhart, 2005 WL 2249771, at *12 (S.D.N.Y. 2005). If a medically determinable impairment exists, the ALJ must "rate the degree of functional limitation resulting from the impairment [ ]." 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). This process requires the ALJ to examine all relevant clinical and laboratory findings, as well as the effects of the symptoms on the claimant, the impact of medication and its side effects, and other evidence relevant to the impairment and its treatment. 20 C.F.R. §§ 404.1520a(c)(1), 416.920a(c)(1). The ALJ must rate the degree of the claimant's functional limitation in four specific areas, referred to as "Paragraph B" criteria: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ rates the first three areas on a five-point scale of "none," "mild," "moderate," "marked," and "extreme," and the fourth area on a four-point scale of "none," "one or two," "three," and "four or more." 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). If the first three areas are rated as "none" or "mild," and the fourth as "none," the ALJ will conclude that the mental impairment is not severe "unless the evidence otherwise indicates that there is more than a minimal limitation in [the claimant's] ability to do basic work activities." 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1).
A diagnosis of depression, without more, does not suggest that a plaintiff's depression severely impairs her performance of any major life activity. See Torres v. Astrue, 550 F.Supp.2d 404, 411 (W.D.N.Y. 2008). The medical evidence must show that depression precludes a plaintiff from performing basic mental work activities. See Snyder v. Astrue, 2009 WL 2157139, at *4 (W.D.N.Y. 2009). Moreover, evidence that medication provides relief from the severity of a mental condition can provide substantial evidence to support a finding that a plaintiff is not disabled. Pennay v. Astrue, 2008 WL 4069114, at *5 (N.D.N.Y. 2008).
In April 2006, plaintiff was examined by Susan Dorsey, M.D., one of her treating physicians. Dr. Dorsey noted that plaintiff exhibited "no depression or anxiety" and displayed a normal affect. (T. 237). According to the record, plaintiff made no complaints and received no treatment for any mental health impairment, including depression, between April 2006 and March 2008. On March 27, 2008, plaintiff was treated at ECS Psychological Services, P.C. and examined by Erin Christopher-Sisk, Ph.D. (T. 313). Dr. Christopher-Sisk diagnosed plaintiff with Major Depressive Disorder and counseled plaintiff on how to deal with her underlying stressors advising her to, "go to a safe place to vent feelings". (T. 315). Plaintiff had a total of six visits with Dr. Christopher-Sisk. On May 2, 2008, plaintiff treated with Kristen Martin, M.D. for complaints of depressive symptoms and feelings of hopelessness. Dr. Martin diagnosed plaintiff with depression and prescribed Cymbalta. (T. 298). Plaintiff had three subsequent visits with Dr. Martin for complaints/treatment unrelated to depression. Dr. Martin's treatment notes from those visits (June 3, 2008, January 2, 2009 and February 3, 2009), do not address or provide a course of treatment for depression. (T. 300-310). The record does not contain any opinion or evaluation from any of plaintiff's medical providers regarding whether plaintiff's depression impacts her ability to perform work related activities.
During the administrative hearing, plaintiff testified that she began treating for depression in Spring or Summer 2008 and treated for three to six months. (T. 37-38). Plaintiff intends to seek further treatment for depression when she is financially able. (T. 27, 29, 41). Plaintiff claims that she has mood swings when she does not take Cymbalta and that her depression causes forgetfulness and drowsiness. (T. 32). However, plaintiff's depression does not have any impact on her interpersonal relations. (T. 32)
In the decision, the ALJ discussed plaintiff's mental impairments:
In making an assessment regarding the severity of the claimant's mental condition, the Administrative Law Judge has given consideration to the psychiatric review technique and finds that the claimant has no limitations in activities of daily living, no limitations maintaining social functioning, and only mild limitations in concentration, persistence, and pace. The record does not provide any evidence that the claimant has had any episodes of deterioration or decompensation of extended duration. At hearing, the claimant testified that she has no problems with interpersonal relations.
Although only on a part-time basis, she works with the public providing home-health care which supports her testimony. Her minimal symptoms are controlled through prescribed psychotropic medications. She has not required any lasting mental health treatment.
However, because she is diagnosed as having a major depressive disorder, with reports of mood swings when not taking her medications, a finding is made in a light most favorable to the claimant. Despite her mental impairments being considered severe, the claimant remains fully capable of meeting the basic mental demands of work. (T. 9-10).
The ALJ cited to medical records from Erin Christopher-Sisk, Ph.D. and found, "[i]n this particular case, the pertinent Listings require specific ...