The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff, Yvonne Thompson, challenges an Administrative Law Judge's ("ALJ") determination that she was not disabled within the meaning of the Social Security Act ("the Act"). Thompson alleges that she was disabled from December 1, 2006 to July 15, 2009 due to: right elbow pain from a motor vehicle accident in 1996 which required four subsequent surgeries, and bipolar disorder. She maintains that these impairments rendered her unable to work, and asserts that she is entitled to disability insurance benefits under the Act for that closed period of disability.
2. Thompson filed an application for benefits under Title II of the Act on September 15, 2008, alleging an inability to work since December 1, 2006. The Commissioner of Social Security ("Commissioner") denied Thompson's initial application and, as a result, she requested an administrative hearing. A hearing was held on October 19, 2010 before Administrative Law Judge ("ALJ") Robert T. Harvey, at which Thompson appeared with counsel and testified. The ALJ considered the case de novo, and on November 8, 2010, issued a decision denying Thompson's application for benefits. Thompson filed a request for review with the Appeals Council, but the Council denied her request on December 7, 2011. Thompson filed the current civil action on February 8, 2012, challenging the Commissioner's final decision.*fn1
3. On July 5, 2012, the Commissioner and Thompson each filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Briefing on the motions concluded on August 6, 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 granted, and Thompson's motion is denied.
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) Thompson did not engage in substantial gainful activity during the closed period from December 1, 2006 to July 15, 2009 (R. at 12);*fn2 (2) during that time, her bipolar disorder and right elbow pain were severe impairments within the meaning of the Act (R. at 12); (3) these impairments did not meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. at 12); (4) during the requested time period, Thompson retained the residual functional capacity to perform light work with certain additional limitations, including lifting of no more that five pounds with her right arm (R. at 14); and (5) during that time, she was able to perform her past relevant work as a cosmetology instructor and salon manager (R. at 19). Ultimately, the ALJ concluded that Thompson was not under a disability as defined by the Act. (R. at 20.)
10. Thompson maintains the ALJ committed legal error and that his decision is not supported by substantial evidence. Her arguments are addressed in the order they arise in the sequential process.
11. Thompson first contends the ALJ erred at step two by failing to consider whether her obesity was a severe impairment. The Court notes that Thompson and her counsel did not assert obesity as a disabling condition in her application for benefits, at her hearing, or in her brief to the Appeals Council. (R. 25-62, 132, 192-99.) Nevertheless, an ALJ may have a duty to consider the impact of a claimant's obesity even where he or she does not identify it as a limiting condition.
At step two, obesity can constitute a "severe impairment" when "alone or in combination with another medically determinable physical or mental impairment(s), it significantly limits an individual's physical or mental ability to do basic work activities." SSR 02-1p, 2002 LEXIS 1, at *11. Such obesity must be more than a slight abnormality, and have more than a minimal effect on a claimant's ability to perform basic work activities. Id. Where the record contains evidence of limiting effects from a claimant's obesity, the ALJ must consider the impact of obesity together with any other impairments. Sotack v. Astrue, 2009 U.S. Dist. LEXIS 102794, at *11 (W.D.N.Y. Nov. 4, 2009). Conversely, the ALJ's obligation to discuss obesity, either alone or in combination with other impairments, diminishes where evidence in the record indicates the claimant's ...