The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff James F. Barrett 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 November 12, 2002, due to impairments of the spine. Plaintiff contends that this impairment renders him unable to work, and therefore asserts that he is entitled to payment of Disability Insurance Benefits ("DIB") under the Act.
2. Plaintiff filed an application for DIB payments on January 13, 2003. His application was initially denied, after which he timely filed a request for a hearing. Pursuant to that request, an administrative hearing was held on September 21, 2005 before ALJ Bruce R. Mazzarella, at which Plaintiff appeared with counsel and testified. The ALJ considered the case de novo, and on October 11, 2005, issued a decision denying Plaintiff's application for benefits. Plaintiff filed a request for review with the Appeals Council, which, on October 24, 2006, vacated and remanded the case for further administrative hearings. ALJ Mazzarella held another administrative hearing on May 16, 2007. Plaintiff appeared with counsel and testified. ALJ Mazzarella considered the case de novo and issued another unfavorable decision on April 7, 2008. On May 27, 2010, the Appeals Council denied Plaintiff's request for review. Plaintiff filed the current civil action on July 26, 2010, challenging Defendant's final decision.*fn1
3. On February 10, 2011, the Commissioner filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff followed suit and filed his own Motion for Judgment on the Pleadings on March 1, 2011. Briefing of the motion concluded on April 8, 2011, at which time this Court took the motions under advisement without oral argument. For the reasons set forth below, the Commissioner's motion is denied and this case is remanded for further proceedings.
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 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).
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 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).
6. 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. §§ 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); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8. Although 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 any substantial gainful activity since the alleged onset of the disability (R. at 16);*fn2 (2) Plaintiff's chronic back discomfort is considered a "severe" impairment within the meaning of the Act (R. at 17); (3) Plaintiff's impairments or a combination of impairments do not meet the criteria necessary for finding a disabling impairment under the regulations (R. at 18); (4) Plaintiff has the residual functional capacity ("RFC") to sit for 30 minutes at one time and stand for 30 minutes at one time and the ability to alternate sitting, standing, and walking for an eight-hour workday, with certain limitations (R. at 19);*fn3 and (5) Plaintiff is capable of performing past relevant work as a construction project manager (R. at 25). Ultimately, the ALJ determined that Plaintiff was not under a disability, as defined by the Act, at any time through the date of his decision, April 7, 2008. (R. at 41.)
10. Plaintiff argues that the ALJ's decision must be reversed because he improperly disregarded a treating medical source's opinion, and was not based on substantial evidence. In his opposition to Defendant's Motion for Judgment on the Pleadings, Plaintiff also argues that the ALJ's determination that he could perform the job of a construction project manager is contrary to the Commissioner's regulations. Plaintiff further argues that the ALJ failed to consider evidence that the Veteran's Administration ("VA") found Plaintiff disabled, did not consider the factors set forth for analyzing whether a treating physician's opinion warrants controlling weight, and accorded undue weight to the opinion of a consulting physician without adequate reasoning. Plaintiff's many arguments partially overlap one another. Read carefully, they essentially allege the following defects: (1) the ALJ did not properly consider the opinion of Plaintiff's treating physicians; (2) the ALJ failed to consider the VA's finding of disability; (3) the ALJ's analysis of Plaintiff's past relevant work is erroneous; and (4) the ALJ's April 7, 2008 decision is not supported by substantial evidence. This Court will consider each of these arguments in turn.
11. Plaintiff's first challenge is that the ALJ failed to properly consider the opinion of his treating sources. Plaintiff contends that the ALJ failed to properly apply the treating physician rule, and disregarded his treating physicians on baseless grounds.
According to the "treating physician rule,"*fn4 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); see also Green-Younger v. Barnhart, No. 02-6133, ...