The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff Jeanette R. Weakland challenges an Administrative Law Judge's ("ALJ") determination that she is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that she has been disabled due to discogenic lumbar/cervical spine pain, right shoulder bursitis, adjustment disorder with mixed anxiety and depression, and headaches since January 1, 2004. Plaintiff contends that her impairments render her unable to work. She therefore asserts that she is entitled to supplemental security income ("SSI") under the Act.
2. Plaintiff filed an application for SSI on September 8, 2007, alleging disability since January 1, 2004. The Commissioner of Social Security ("Commissioner") denied Plaintiff's initial application, and Plaintiff requested a hearing. An administrative hearing was then held on August 13, 2009 before ALJ Robert T. Harvey, at which Plaintiff appeared and testified. The ALJ considered the case de novo, and on September 25, 2009, issued a decision denying Plaintiff's application for benefits. Plaintiff filed a request for review with the Appeals Council, which, on May 27, 2010, denied Plaintiff's request for review. Plaintiff filed the current civil action on June 22, 2010, challenging Defendant's final decision.*fn1
3. On December 13, 2010, the Commissioner filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Briefing on that motion concluded January 28, 2011, at which time this Court took the motion 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 substantial gainful activity since September 4, 2007 (R. at
10);*fn2 (2) Plaintiff's discogenic lumbar/cervical
spine pain, right shoulder bursitis, and adjustment disorder with
mixed anxiety and depression are "severe" impairments within the
meaning of the regulations (Id.); (3) Plaintiff does not have an
impairment or combination of impairments that meets or medically
equals the criteria necessary for finding a disabling impairment under
the regulations (Id.); (4) Plaintiff retained the residual functional
capacity ("RFC") to lift/carry 20 pounds occasionally and 10 pounds
frequently, sit 2 hours in an 8 hour day, and stand/walk 6 hours in an
8 hour day, subject to various limitations (R. at 11);*fn3
and (5) Plaintiff could perform her past
relevant work as a restaurant hostess (R. at 15). Ultimately, the ALJ
concluded that Plaintiff was not under a disability as defined by the
Act from September 4, 2007, through September 25, 2009, the date of
the ALJ's decision. (Id.)*fn4
10. Plaintiff advances three challenges to the ALJ's decision. First, Plaintiff argues that the ALJ erred in not finding that her headaches constituted a severe impairment. Second, she advances two related arguments to the effect that the ALJ's RFC assessment is not supported by substantial evidence. Third, she argues that the ALJ erred in finding her capable of performing her past relevant work without consulting a vocational expert ("VE").
11. Plaintiff first argues that the ALJ incorrectly determined that her headaches did not constitute a severe impairment. She asserts that the opinion of neurologist Dr. Marc S. Frost does not support that determination. Further, Plaintiff draws attention to her own substantial testimony on how her headaches interfered with her daily functioning.
12. At step two of the five-step analysis, an ALJ faces two distinct questions. First, an ALJ must determine whether an impairment satisfies the durational requirement. Unless an impairment is expected to result in death, an impairment must "last or  be expected to last for a continuous period of at least 12 months" before it can be considered potentially disabling. 20 C.F.R. § 416.909. Second, an ALJ must determine whether an impairment "limits a claimant's ability to do 'basic work activities.'" Gray v. Astrue, No. 04 Civ. 3736(KMW)(JCF), 2009 WL 1598798, at *5 (S.D.N.Y. June 8, 2009) (quoting 20 C.F.R. § 416.921). "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 perform 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). In making this determination, an ALJ may "rely on what the [medical] record says, but also on what it does not say." Johnson v. Astrue, No. 09 Civ. 6017(RMB)(JCF), 2010 WL 5573632, at *11 (S.D.N.Y. Dec. 3, 2010) (quoting Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983)).
13. Here, the ALJ found that Plaintiff had several severe impairments. (R. at 10.) He explicitly stated, however, that her headaches were a "non-severe impairment," and cited Exhibit 10F in support. (Id.) Exhibit 10F, in turn, references a series of medical records from the Dent Neurological Institute covering the period from September 29, 2004 to August 22, 2007. (R. at 298-307.) Those pages include a summary by Dr. Frost, including his impression that Plaintiff suffered from chronic headaches, which worsen when she lies down. (R. at 300.) The same summary also includes a pair of discrepancies in Plaintiff's statements and behavior. First, Plaintiff stated that she has been experiencing headaches for many years, although treatment notes show her stating that the headaches only went back to the middle of 2004. (R. at 299.) Second, and of greater significance, was the fact that Plaintiff saw Dr. Lixin Zhang on November 18, 2004 for headache-related problems. (Id.) During that visit, Plaintiff reported having a headache that was "located all over the brain everyday," along with frequent visual hallucinations twice a day, as well as blackouts. (R. at 301-302.) Dr. Zhang concluded that her symptoms were primarily the result of excessive stress caused by a pending divorce, sleep deprivation, and narcotic overuse. (R. at 302.) Dr. Zhang recommended that she "desperately" needed psychiatric evaluation due to her frequent visual and auditory hallucinations and set up an ...