In January of 2006, Plaintiff Wendy Goff filed an application for disability and disability insurance benefits under the Social Security Act. Plaintiff alleges that she has been unable to work since January of 2005 due to physical and mental impairments. The Commissioner of Social Security denied Plaintiff's application.
Plaintiff, by and through her attorneys, Olinsky & Shurtliff, Jaya A. Shurtliff, Esq., of counsel,*fn1 commenced this action seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
The parties, by and through their respective counsel, consented to the jurisdiction of the undersigned on December 2, 2011. (Docket No. 22).
The relevant procedural history may be summarized as follows: Plaintiff applied for benefits on January 4, 2006, alleging disability beginning on January 5, 2005. (T at 93-95).*fn2 The application was denied initially and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held in Syracuse, New York, before ALJ Dennis O' Leary on August 7, 2008.*fn3 (T at 26). Plaintiff appeared with an attorney and testified. (T at 30-40).
On November 4, 2008, ALJ O'Leary issued a written decision finding that Plaintiff was not disabled and was therefore not entitled to benefits. (T at 19-25). The ALJ's decision became the Commissioner's final decision on June 16, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 12-15).
Plaintiff, through counsel, commenced this action on December 15, 2009.(Docket No. 1). On March 3, 2010, the Honorable Thomas J. McAvoy, Senior United States District Judge, issued a Consent Order remanding the case pursuant to sentence 6 of 42 U.S.C. § 405 (g). (T at 6-7, Docket No. 8). The remand was necessary because, at the time, the Commissioner was unable to locate the administrative transcript. (Docket No. 10). However, the transcript was thereafter located and the case was reopened by an Order entered on October 6, 2010. (Docket No. 12).
The Commissioner interposed an Answer on October 15, 2010. (Docket No. 13). Plaintiff filed a supporting Brief on December 29, 2010. (Docket No. 16). The Commissioner filed a Brief in opposition on February 14, 2011. (Docket No. 18).
Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern District of New York on September 12, 2003, this Court will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings.*fn4
For the reasons that follow, the Commissioner's motion is denied, Plaintiff's motion is granted, and this case is remanded for further administrative proceedings.
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 only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); 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 evidence that 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).
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).
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. §§ 416.920, 404.1520. 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, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.*fn5
While 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 (2d Cir.1984).
The final step of the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her 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. §§ 416.920(g); 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).
1. Commissioner's Decision
The ALJ found that Plaintiff had not engaged in substantial gainful activity since December 19, 2005, which the ALJ identified as the application date.*fn6 (T at 21). The ALJ concluded that Plaintiff had the following "severe" impairments: chronic obstructive pulmonary disease ("COPD") and depression. (T at 21).
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. §§ 416.920, 404.1520.
The ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments found in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). (T at 21-22). The ALJ concluded that Plaintiff retained the residual functional capacity to perform medium work, as defined in 20 CFR § 416.967 (c), but that she was limited to moderate walking and climbing, simple and repetitive tasks, and should not be exposed to chemical irritants. (T at 22-24).
The ALJ found that Plaintiff was unable to perform her past relevant work as a housekeeper, pet store laborer, or newspaper delivery person. (T at 24). However, considering Plaintiff's age (38 years old as of the application date), education (limited), and residual functional capacity, the ALJ concluded that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 24-25). In addition, the ALJ found that Plaintiff failed to follow prescribed treatment (namely, smoking cessation), which the ALJ determined would restore her ability to work, and offered no acceptable reason for such failure. (T at 25).
Accordingly, the ALJ determined that Plaintiff was not disabled under the Social Security Act and was therefore not entitled to benefits. (T at 25). As noted above, the ALJ's decision became the Commissioner's final decision on June 16, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 12-15).
Plaintiff contends that the Commissioner's decision should be reversed. She offers five (5) principal arguments in support of this position. First, Plaintiff contends that the ALJ should have found her headaches and right knee injury to be severe impairments. Second, Plaintiff argues that the ALJ did not properly apply the treating physician's rule. Third, Plaintiff asserts that the ALJ did not properly evaluate her credibility. Fourth, Plaintiff contends that the ALJ should have consulted a vocational expert. Fifth, Plaintiff argues that the ALJ erred with respect to his finding regarding Plaintiff's tobacco use. This Court will address each argument in turn.
a. Severity of Impairments
At step two of the sequential evaluation process, the ALJ must determine whether the claimant has a severe impairment that significantly limits his or her physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c). The following are examples of "basic work activities": "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling ... seeing, hearing, and speaking ... [u]nderstanding, carrying out, and remembering simple instructions ... [u]se of judgment ... [r]esponding appropriately to supervision, co-workers and usual work situations." Gibbs v. Astrue, No. 07-Civ-10563, 2008 WL 2627714, at *16 (S.D.N.Y. July 2, 2008); 20 C.F.R. § 404.1521(b)(l)-(5).
The claimant bears the burden of presenting evidence establishing severity. Miller v. Comm'r of Social Sec., No. 05-CV-1371, 2008 WL 2783418, at *6-7 (N.D.N.Y. July 16, 2008); see also 20 C.F.R. § 404.1512(a). Although the Second Circuit has held that this step is limited to "screen[ing] out de minimis claims," Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.1995), the "mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment" is not, by itself, sufficient to render a condition "severe." Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y.1995). Indeed, a "finding of 'not severe' should be made if the medical evidence establishes only a 'slight abnormality' which would have 'no more than ...