The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff, Angelia Marie Jeffords, challenges an Administrative Law Judge's ("ALJ") determination that she is not disabled within the meaning of the Social Security Act ("the Act"). Jeffords alleges that she has been disabled since January of 2007 due to headaches, dizziness, diabetes mellitus, and obesity and that these impairments render her unable to work. She therefore asserts that she is entitled to disability insurance benefits and supplemental security income (collectively "benefits") under the Act.
2. Jeffords filed an application for benefits under Titles II and XVI of the Act on July 23, 2007, alleging an inability to work since January 26, 2007*fn1 because of a stomach problem and Meniere's disease. The Commissioner of Social Security ("Commissioner") denied Jeffords' initial application and, as a result, she requested an administrative hearing. A hearing was held on July 22, 2009 before Administrative Law Judge ("ALJ") Robert T. Harvey, at which Jeffords appeared with counsel and testified. The ALJ considered the case de novo, and on September 28, 2009, he issued a decision denying Jefford's application for benefits. Jeffords filed a request for review with the Appeals Council, but the Council denied her request on May 23, 2011. Jeffords filed the current civil action on July 21, 2011, challenging Defendant's final decision.*fn2
3. On December 22, 2011, the Commissioner filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Jeffords followed suit by filing her own motion for judgment on the pleadings on January 25, 2012. Briefing on the motions concluded on March 26, 2012, at which time this Court took the motions under advisement without oral argument. For the reasons set forth below, the Commissioner's motion is denied, Jeffords' motion is granted, and this case is remanded.
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 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 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 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) although Jeffords' earnings were close to the substantial gainful level in 2007, she would be given the benefit of the doubt and the ALJ would proceed to the next step (R. 15);*fn3 (2) Jeffords has four severe impairments: headaches, dizziness, diabetes mellitus, and obesity (id.); (3) Jeffords 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. 16); (4) Jeffords has the residual functional capacity ("RFC") to lift/carry/push/pull 20 pounds occasionally and 10 pounds frequently, sit 2 hours in an 8 hour day and stand/walk 6 hours in an 8 hour day, cannot work in areas with unprotected heights, around heavy, moving or dangerous machinery, climb ropes, ladders or scaffolds, or work in areas where she would be exposed to excessive bright lights or loud noises, and has occasional limitations in the ability to bend, climb, stoop, squat, kneel and balance (id. 16-20); and (5) considering Jeffords' age, education, work experience, and RFC, there are jobs in significant numbers in the national economy that she can perform (id. 20-21). Ultimately, the ALJ concluded that Jeffords was not under a disability as defined by the Act from January 1, 2007 through September 28, 2009, the date of the ALJ's decision. (R. 21.)
10. Jeffords contends the ALJ's decision is not supported by substantial evidence, and raises five challenges in this regard. She argues, first, that the ALJ should have included her depression and anxiety among her severe impairments; second, the ALJ failed to perform a function by function assessment of her RFC; third, the ALJ erred in failing to solicit vocational expert testimony; fourth, the ALJ did not properly assess her subjective complaints; and fifth, the ALJ erred in failing to consider a closed period of benefits.
11. According to Jeffords, the ALJ incorrectly determined that her depression did not constitute a severe impairment. She urges that the record confirms she was being treated for depression, and her neurologist, Dr. Smith, noted that her depression could contribute to the severity of the headaches for which he was treating her. She further suggests that a consultative psychological assessment was required under 20 CFR § 404.1519a. And, finally, Jeffords argues that the ALJ erred in reaching his step two determination because no functional assessments support his conclusion.
12. At step two of the evaluative process, an ALJ must determine whether an impairment significantly "limits a claimant's ability to do 'basic work activities.'" Gray v. Astrue, No. 04 Civ. 3736, 2009 U.S. Dist. LEXIS 47584, 2009 WL 1598798, at *5 (S.D.N.Y. June 8, 2009) (quoting 20 C.F.R. § 416.921). "An impairment or combination of impairments is 'not severe' when medical and other evidence establishes only a slight abnormality or a combination of slight abnormalities that would have at most a minimal effect on an individual's ability to perform basic work activities." Ahern v. Astrue, No. 09-CV-5543 (JFB), 2011 U.S. Dist. LEXIS 30745, 2011 WL 1113534, at *8 (E.D.N.Y. Mar. 24, 2011) (citing 20 C.F.R. § 404.1521). In making this determination, an ALJ may "rely on what the [medical] record says, but also on ...