The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Mason Hamilton brought this action pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), appealing a final decision of the Social Security Administration denying his claim for Social Security benefits. Presently before the Court is Defendant'smotion for judgment on the pleadings pursuant to Fed. R. Civ. P. Rule 12(c).
The Court's review of the Commissioner's determination is limited to two inquiries. First, the Court must determine whether the Commissioner applied the correct legal standard. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). Second, the Court reviews whether the Commissioner's findings are supported by substantial evidence within the administrative record. Id. at 773. The Commissioner's finding will be deemed conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). In the context of Social Security cases, substantial evidence consists of "more than a mere scintilla" and is measured by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Where the record supports disparate findings and provides adequate support for both the plaintiff's and the Commissioner's positions, a reviewing court must accept the Administrative Law Judge's factual determinations. Quinones v. Chater, 117 F.3d 29, 36 (2d Cir. 1997).
II. DISABILITY DETERMINATION-THE FIVE STEP EVALUATION PROCESS
To receive federal disability benefits, an applicant must be "disabled" within the meaning of the Social Security Act. See 42 U.S.C. § 423(a),(d). A claimant must establish "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." Id. § 423(d)(1)(A). The impairment must be of "such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 423(d)(2)(A). Agency rules promulgated under the Act outline a five-step analysis to determine disability. 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows:
(1) The Commissioner considers whether the claimant is currently engaged in substantial gainful activity; (2) If not, the Commissioner considers whether the claimant has a "severe impairment" which limits his or her mental or physical ability to do basic work activities; (3) If the claimant has a "severe impairment," the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience; (4) If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work; (5) If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform. The Commissioner bears the burden of proof on this last step, while the claimant has the burden on the first four steps.
Plaintiff seeks judicial review of the final decision of the Social Security Administration denying his claim for Social Security benefits. Plaintiff alleges that he has been disabled since 2006 because of cyclic vomiting, an impulse control disorder and arthritis of the right knee. On appeal, Plaintiff argues that the Administrative Law Judge (ALJ) failed to properly evaluate the medical evidence, the determined Residual Functional Capacity (RFC) is not supported by substantial evidence, and the Commissioner failed to present vocational or testimonial evidence.
Plaintiff argues that the ALJ erred in determining that Plaintiff's severe medical impairment of degenerative joint disease of the right knee did not meet one of the listed impairments in Appendix 1 and that Plaintiff has the residual functional capacity (RFC) to perform sedentary work. See 20 C.F.R. §§ 404.1520(d), 404.1567(a) and 416.967(a). Plaintiff contends that these were incorrect determinations because the ALJ did not properly weigh the opinions of Plaintiff's treating and non-treating physicians. The ALJ may rely on the following factors when declining to afford controlling weight to a treating physician: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treating relationship; (3) the supportability of the treating source opinion; (4) the consistency of the opinion with the rest of the record; (5) the specialization of the treating physician, and (6) any other relevant factors. 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d) (2)-(6); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). Under 20 C.F.R. § 404.1527, not only may the reports of consultative or non-examining physicians constitute as substantial evidence of disability, they may override the opinions of treating physicians. Pease v. Astrue, 06-CV-0264, 2008 WL 4371779, at *9 (N.D.N.Y. 2008); Snell, 177 F.3d at 132-33.
First, Plaintiff contends that the ALJ should have afforded greater weight to the assessments by treating orthopedist Dr. Brosnan. In 2009 Dr. Brosnan opined that Plaintiff could occasionally lift and carry up to 10 pounds; could sit for two hours without interruption and for a total of eight hours per day; could stand and walk for two hours per day; could frequently reach, handle, feel, push, and pull with both hands; could operate foot controls frequently with his left foot and occasionally with his right; and could occasionally balance and stoop. Dr. Brosnan recognized limitations with regard to climbing, kneeling, crouching, and crawling related activities. Dr. Brosnan also noted that Plaintiff was able to shop, use public transportation, travel without a companion for assistance, climb a few steps at a reasonable pace using a single hand rail, prepare a simple meal and feed himself, care for his personal hygiene, and sort, handle, use paper or file. The ALJ afforded great weight to this opinion. The ALJ afforded less weight to a part of the opinion where Dr. Brosnan checked a box indicating that Plaintiff could not walk a block at a reasonable pace on rough or uneven surfaces. Dr. Brosnan's assessment did not align with his other opinions regarding Plaintiff's ability to walk and was not otherwise supported by the record.
Second, Plaintiff argues that the ALJ disregarded the 2006 opinion of orthopedist Dr. James Naughten, who consultatively examined Plaintiff. Dr. Naughten opined that Plaintiff's prognosis, although "[s]table currently," "[m]ay progress to guarded in the near future." Dr. Naughten's additional findings were inconsistent with this determination. For instance, he stated that Plaintiff had no limitation in his ability to sit or stand and that Plaintiff had only "[m]oderate" limitation in his ability to lift, carry and handle, as well as "[m]ild-to-moderate" limitation in his ability to walk, climb stairs, push, pull and reach.
Plaintiff's treatment records support the ALJ's evaluation of Dr. Brosnan and Dr. Naughten's opinions. For instance, Plaintiff was examined by treating physician Dr. Werner in April 2005 where he denied difficulty with ambulation and reported only mild pain in his right knee. Physical examination was unremarkable and Plaintiff's knees had full range of motion and no acute inflammation. In October 2006, only one month prior to Plaintiff's amended date of onset, Dr. Werner reported that Plaintiff had asked him to complete two long disability forms regarding his knee pain and anger management disorder, although Dr. Werner stated that he was "not the primary treating physician for either of these issues." Despite this, Dr. Werner opined that Plaintiff could lift up to fifty pounds for up to one-third of a work day, and could stand and/or walk for two hours per day. Dr. Werner opined that Plaintiff had no limitation in his ability to push, pull or sit. Dr. Werner also reported that Plaintiff lived alone and could perform activities of daily living. Plaintiff saw Dr. Werner again in December 2006 with complaints of a cough and sore throat. Plaintiff reported taking Oxycontin as needed for pain, but his gait was normal and he had no complaints regarding his knee. Plaintiff sought treatment again in March 2007 after he sprained his ankle, but he still had no knee complaints. Plaintiff did not seek treatment for orthopedic problems again until December 2007, when he was involved in a car accident while driving and complained of ...