REPORT AND RECOMMENDATION
In August and September of 2006, Plaintiff John Hood filed applications for Supplemental Security Income ("SSI") benefits and disability insurance benefits ("DIB") under the Social Security Act. Plaintiff alleges that he had been unable to work since August of 2006 due to a respiratory impairment. The Commissioner of Social Security denied Plaintiff's applications.
Plaintiff commenced this action by and through his attorney, Peter M. Margolius, Esq., seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
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 DIB on August 24, 2006, and for SSI benefits on September 7, 2006, alleging disability beginning on August 18, 2006. (T at 15, 43-44).*fn1 The applications were denied initially and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held in Albany, New York on February 12, 2008, before ALJ Carl Stephan. (T at 23). Plaintiff, represented by counsel, appeared and testified. (T at 25-38). Plaintiff's wife also appeared and testified. (T at 39-41). On February 26, 2008, ALJ Stephan issued a written decision denying Plaintiff's applications for benefits. (T at 15-22). The ALJ's decision became the Commissioner's final decision on March 27, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 1-6).
Plaintiff, by and through his attorney, timely commenced this action on May 26, 2009. (Docket No. 1). The Commissioner interposed an Answer on October 28, 2009. (Docket No. 9). Plaintiff filed a Brief in support of his action on December 28, 2009. (Docket No. 12). Defendant filed a Brief in opposition on January 11, 2010. (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 that this case be remanded for further administrative 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 determined that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2010. The ALJ found that Plaintiff had not engaged in substantial gainful activity since August 18, 2006, the alleged onset date. The ALJ concluded that Plaintiff had a respiratory impairment, which the ALJ considered a severe impairment, as defined under the Act. (T at 17). 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 the Listings. (T at 18).
The ALJ concluded that Plaintiff retained the residual functional capacity to perform light work, as defined in 20 CFR §§ 404.1567 (b) and 416.967 (b), except that Plaintiff needed to avoid highly concentrated irritants such as dust, concentrated chemical fumes, and extremes of temperature or humidity. (T at 19). Plaintiff was found to be unable to perform his past relevant work as a heavy equipment operator. (T at 21).
Considering Plaintiff's age (42 years old on the alleged onset date), education (limited), work experience, and residual functional capacity, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 21). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Act, from August 18, 2006 (the alleged onset date) through February 26, 2008 (the date of the ALJ's decision). (T at 22). As noted above, the ALJ's decision became the Commissioner's final decision on March 27, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 1-6).
Plaintiff argues that the Commissioner's decision should be reversed. Plaintiff offers three (3) principal arguments in support of this position. First, Plaintiff contends that the ALJ did not properly assess his residual functional capacity. Second, Plaintiff argues that the ALJ's credibility determination was flawed. Third, Plaintiff asserts that the Appeals Council improperly discounted new medical ...