The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff challenges an Administrative Law Judge's ("ALJ") decision, dated September 25, 2009, wherein the ALJ determined that Plaintiff was not disabled under sections 216(i), 223(d), and 1614 (a)(3)(A) of the Social Security Act. Plaintiff alleges that he became disabled on July 1, 2007.*fn1 He contends that the ALJ's determination is not based upon substantial evidence, and reversal is warranted.
2. On August 27, 2009, the ALJ held a hearing at which Plaintiff testified. After consideration of the evidence, including Plaintiff's hearing testimony and his medical records, the ALJ denied Plaintiff's application for disability benefits and supplemental security income. On December 13, 2010, the Appeals Council denied Plaintiff's request for review, and adhered to that denial on January 21, 2011 following a request for review based upon additional information. Plaintiff filed the current civil action challenging Defendant's final decision in this Court on February 11, 2011.
3. Defendant filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on September 14, 2011, and Plaintiff responded with a Cross-Motion for the same relief on September 30, 2011. This Court finds the matter fully briefed and oral argument unnecessary. Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988).
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 and 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), cert denied 459 U.S. 1212 (1983).
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 will 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 and 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 [s]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) (quotations in original); see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
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 the onset date of his alleged disability (R.*fn2 14); (2) Plaintiff's severe impairments are heart disease, back disorder, liver problems, shortness of breath, carpal tunnel syndrome, seizures, depression, and drug and alcohol issues (R. 14); (3) Plaintiff nonetheless did not have an impairment or combinations of impairments that met or medically equaled a disabling impairment under the regulations (R. 15); (4) Plaintiff retained the residual functional capacity to perform light work with certain specifications*fn3 (R. 16); (5) Plaintiff is unable to perform his past relevant work, he was able to perform unskilled light work, of which there were a significant number of jobs in the national economy (R. 22-23).
10. Plaintiff argues that ALJ failed to properly evaluate Plaintiff's residual functional capacity by (1) not properly evaluating the opinion evidence or Plaintiff's non-exertional limitaitons; (2) not properly evaluating Plaintiff's credibility; and (3) failing to obtain the opinion of a vocational expert in light of the non-exertional limitations. Initially, although Plaintiff's severe impairments included heart disease, back disorder, liver problems, shortness of breath, carpal tunnel syndrome, seizures, depression, and drug and alcohol issues, Plaintiff testified that the only impairments that prevented his performing a simple, non-stressful job was back pain, depression, and seizures. (R. 32, 40-41; see 38 (Plaintiff testified that his atrial fibulation had resolved)).
The first non-exertional limitation that Plaintiff argues was not properly considered is Plaintiff's history of seizures. Plaintiff testified that he had nine in the year prior to the hearing, and they were frightening because he could not "tell when they're going to happen." (R. 32-34). He initially testified that he could not drive because of the seizures, subsequently clarified that his license had not been taken away, but Dr. Pilcher requested that he not drive, and finally testified that he had driven three weeks prior to the hearing.
(R. 32-33, 38). Despite Plaintiff's testimony that of nine seizures in the year prior to the hearing in August 2009, the medical records reflect approximately seven reported instances between the onset of seizures in October 2007 and April 2009, two of which were only spells of mild confusion and not full seizures. (R. 446, 448, 475, 557, 584, 586, 588, 592, 646). Plaintiff highlights that a consultative physician opined that Plaintiff "should not work from heights or operate heavy machinery because of the seizure which occurred two months ago." (R. 477). This opinion was rendered in December 2007, and that physician specifically stated that this "should be re-evaluated in several months time." (R. 477). Further, Plaintiff testified that his current seizure medication "seems to be helpful" in preventing a full seizure. (33; see 678 (Plaintiff reported in July 2009 that he had no grand mal seizures in the two months since he started on Kempra)). In light of the evidence from both Plaintiff's treating physician and Plaintiff ...