The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff, Donald C. Szarowicz, challenges an Administrative Law Judge's ("ALJ") determination that he is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that he has been disabled since April 20, 2007, due to left shoulder and neck pain, headaches, and radiculopathy.*fn1 Plaintiff contends that his impairment has rendered him unable to work. He therefore asserts that he is entitled to payment of disability benefits under the Act.
2. Plaintiff applied for disability insurance benefits on July 30, 2008. The Social Security Administration ("SSA") initially denied his application. Pursuant to Plaintiff's request, ALJ Robert T. Harvey held an administrative hearing on August 19, 2010, at which Plaintiff appeared with counsel and testified. The ALJ considered the case de novo, and on September 8, 2010, issued a decision denying Plaintiff's application for benefits. On January 28, 2011, the Appeals Council denied Plaintiff's request for review. Plaintiff filed the current civil action on March 29, 2011, challenging Defendant's final decision.*fn2
3. On October 21 and 24, 2011, the Defendant ("Commissioner") and Plaintiff, respectively, filed Motions for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket Nos. 9, 10.) The Commissioner amended his motion on October 24, 2011. (Docket No. 11.) After full briefing, this Court took the motions under advisement without oral argument.
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); Molina v. Barnhart, No. 04 Civ. 3201(GEL), 2005 WL 2035959, at *5 (S.D.N.Y. Aug. 17, 2005) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); see also 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 ex rel. 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 & 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) (quotations in original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.
8. 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, 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 alleged onset of his disability (R. at 20);*fn3 (2) Plaintiff has the following "severe" impairments, within the meaning of the Act: left shoulder arthroscopy with extensive debridement of glenohumeral joint; subacromial decompression; excision of subacromial bursa and coracoacromial ligament; anterior acromioplasty; rotator cuff debridement; discogenic cervicval spine and headaches (R. at 20); (3) Plaintiff's impairments do not meet the criteria necessary for finding a disabling impairment under the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. at 20); (4) Plaintiff has the residual functional capacity ("RFC") to lift/carry/push/pull 20 pounds occasionally and ten pounds frequently, sit for two hours in an eight-hour day and stand/walk for six hours in an eight-hour day, subject to various limitations (R. at 21);*fn4 and (5) Plaintiff is able to perform his past relevant work as actually performed as a supervisor at Qual-Effic Services and DEK Global Solutions because it does not require the aforementioned activities precluded by his residual functional capacity (R. at 26). Ultimately, the ALJ determined that Plaintiff was not under a disability, as defined by the Act, at any time through the date of his decision, September 8, 2010. (R. at 26.)
10. Plaintiff advances three challenges to the ALJ's decision. First, he argues that the ALJ erred at step three of the five-step analysis by failing to consider whether his impairment met Listing 1.04A. Second, Plaintiff argues that the ALJ's credibility assessment was improper. Third, Plaintiff argues that the ALJ erred in finding him capable of performing his past relevant work.
11. Plaintiff's first challenge is that the ALJ failed to consider whether his cervical impairment met or medically equaled Listing 1.04A. Plaintiff contends that the five-step sequential analysis should have ended at step three, with a determination that his condition meets the criteria in Listing 1.04A.
12. From this Court's review, it appears that evidence in the record supports Plaintiff's claim that he meets the Listing requirements in 1.04A. But this Court cannot determine whether the ALJ considered this Listing because it is not referenced in his decision. If he did not, the case must be remanded for further consideration. If he did, the case must still be remanded because the ALJ's decision lacks any discussion of 1.04A, leaving this Court unable to assess whether the ALJ's decision is supported by substantial evidence. Accordingly, this Court will remand this case for consideration and determination of whether Plaintiff meets the Listing at 1.04A. See Kovacevic v. Chater, No. 94-CV-600S, 1995 WL 866425, at *8-*9 (W.D.N.Y. Sept. 29, ...