The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff, Anthony D. Williams, challenges an Administrative Law
Judge's ("ALJ") determination that he is not disabled within the
meaning of the Social Security Act ("the Act"). Williams alleges that
he has been disabled due to pain from right and left rotator cuff
injuries, and back and neck ailments since July 1, 2008.*fn1
Williams contends that his impairments render him unable to
work. He therefore asserts that he is entitled to disability insurance
benefits and Social Security Income under the Act.
2. Williams protectively filed an application for benefits under Titles II and XVI of the Act on March 15, 2007. The Commissioner of Social Security ("Commissioner") denied that application, and as result, he requested and received an administrative hearing, which was held before ALJ Timothy M. McGuan on May 27, 2009. ALJ McGuan reviewed the record de novo and by written decision issued on July 27, 2009, found Williams not disabled. Thereafter, the Appeals Council denied his request for review, prompting Williams to file the current civil action on January 7, 2011, challenging Defendant's final decision.*fn2
3. On June 28, 2011, both the Commissioner and Williams filed motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket Nos. 9, 11.) Briefing on the motions concluded on July 25, 2011, at which time this Court took the motions under advisement without oral argument. For the reasons set forth below, Williams' motion is denied and the Commissioner's is granted.
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"; 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 Ruthisford 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) Williams has not engaged in
substantial gainful activity since August 23, 2006 (R. 14);*fn3
(2) Williams has three severe impairments: "status post
bilateral rotator cuff repairs, degenerative disc disease, and mild
cervical spine radiculopathy" (id.);
(3) Williams 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)
Williams retained the residual functional capacity ("RFC") to "lift up
to 20 pounds occasionally and 10 pounds frequently and has the
following non-exertional limitations: push/pull with the upper
extremities up to 20 pounds, can occasionally overhead reach
bilaterally and can frequently finger and handle bilaterally" (R. 15)
and; (5) considering Williams' age, education, work experience, and
RFC, there are jobs in significant numbers in the national economy
that he could perform (R. 20). Ultimately, the ALJ concluded that
Williams was not under a disability as defined by the Act from
26, 2003 through the date of his decision. (R. 21.)
10. Williams raises four challenges to the ALJ's decision. First, Williams argues that the ALJ violated Social Security Ruling ("SSR") 00-4p by relying on the vocational expert's testimony, which, he argues, was not consistent with the Dictionary of Occupational Titles ("DOT"). Second, Williams argues that the ALJ committed reversible error in deciding that 217 jobs regionally and 58,000 jobs nationally are "significant" under the Act. Third, that the ALJ erred in failing to find that his osteoarthritis is a severe impairment and in omitting symptoms of this disorder when assessing his RFC. Finally, he argues that the ALJ violated SSR 96-7p by failing to explain why his testimony was not credible.
11. Williams objects to ALJ McGuan's reliance on vocational expert James Phillips' testimony simply because he referred to DOT code 915.473-014 instead of code 915.473-010 during testimony at the administrative hearing. Phillips was discussing the job of a parking lot attendant and referred to a code -- ending in "014" instead of "010" -- that does not exist in the DOT. (R. 51.) Williams does not argue that such a mistake prejudiced him, but that this mistake calls into question the accuracy of Philips' entire testimony. But such a de minimis, inconsequential mistake hardly renders Phillips' testimony or ALJ McGuan's reliance thereon suspect. Williams did not object to Phillips serving as a vocational expert and he does not point to any other mistakes that could undermine his credibility or expertise.*fn4 This argument will therefore be dismissed without further consideration.
12. Equally without merit is Williams' contention that ALJ McGaun improperly found that Williams could perform jobs that ...