The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff challenges an Administrative Law Judge's ("ALJ") decision, dated May 24, 2011, wherein the ALJ determined that Plaintiff was not disabled under section 1614(a)(3)(A) of the Social Security Act. Plaintiff protectively filed an application for supplemental security income, alleging that he became disabled beginning September 4, 2009. He now contends that the ALJ's determination is not based upon substantial evidence, and reversal is warranted.
2. On May 10, 2011, the ALJ held a hearing at which Plaintiff and a vocational expert testified. After consideration of the evidence, including Plaintiff's medical records, the ALJ denied Plaintiff's application for supplemental security income. On October 19, 2011, the Appeals Council denied Plaintiff's request for review. Plaintiff filed the current civil action challenging Defendant's final decision in this Court on December 15, 2011.
3. Defendant filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on May 17, 2012. Plaintiff also moved for such judgment in his favor on the same date. This Court finds the matter fully briefed and oral argument unnecessary. Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988).
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 and 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," 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), cert denied, 459 U.S. 1212 (1983).
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 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 and 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 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
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) Plaintiff has not engaged in substantial gainful activity since October 19, 2009, the date of his protective application (R. 46);*fn1 (2) Plaintiff has the following severe impairments: "status-post left and right carpal tunnel release prior to period at issue, very mild right ulnar neuropathy and moderate right carpal tunnel syndrome in December 2009, complaints of bilateral knee pain, below average intelligence and some anti-personality traits" (R. 46); (3) neither these impairments nor any combination of these impairments meets or medically equals a recognized disabling impairment under the regulations (R. 46); (4) Plaintiff retains the residual functional capacity ("RFC") "to perform light work as defined in 20 CFR 416.967(b) except he requires an option to sit and or stand" (R. 47-50); and (5) although Plaintiff has no past relevant work, he can perform certain jobs, such as parking lot cashier or counter clerk. (R. 50-51.)
10. Plaintiff first contends that the ALJ failed to apply the appropriate legal standards in evaluating his mental impairments. "In addition to the five-step analysis outlined in 20 C.F.R. § 404.1520, the Commissioner has promulgated additional regulations governing evaluations of the severity of mental impairments." Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). These regulations require the application of a "special technique" that first requires the determination of whether a claimant has a mentally determinable mental impairment. Id. (citing § 404.1520a(b)(1)). As noted, the ALJ identified "below average intelligence and some anti-personality traits" as severe impairments. (R. 46.) Pursuant to 20 C.F.R. § 416.920a(c)(3), the ALJ was required to rate the functional limitations resulting from Plaintiff's mental impairment in four areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensations. [T]he written decision must incorporate the pertinent findings and conclusions based on the technique. The decision must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section. 20 C.F.R. § 416.920a(e)(4). "[I]f the degree of limitation in each of the first three areas is rated 'mild' or better, and no episodes of decompensation are identified," then the mental impairment is generally not considered severe. Kohler, 546 F.3d at 266; see § 404.1520a(d)(1).
Here, the ALJ determined Plaintiff's "B criteria to be as follows: mild, moderate, mild and never" without further explanation. (R. 46.) Defendant correctly argues that this could be easily interpreted as a reference to paragraph B of 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.04, which sets out the same four functional areas as those listed above in § 416.920a(c)(3). (See Def's Mem of Law in Opp'n at 2.) Thus, although simplistic, the ALJ's statement is that Plaintiff has mild limitations in daily living; moderate limitations in social functioning; mild limitations in concentration; and no episodes of decompensation. Yet it is unclear from the decision which impairments the ALJ is discussing. His conclusion that "some anti-personality traits" constitute a severe impairment appears to reflect the finding in one consultative psychiatric evaluation that Plaintiff suffers from anxiety-related disorders and has moderate difficulties in maintaining social functioning. (R. 46, 274, 276.) A separate consultative psychiatric evaluation found, however, that Plaintiff's "manner of relating and social skills were adequate." (R. 257.) There is no discussion in the decision of the apparent conflict between these conclusory opinions, nor any reference to Plaintiff's own testimony that "I never had a problem working with my attitude. I never -- never had any problem at a workplace as far as any subordinations, fires, you're reprimanded because you got disorderly, no." (R. 21.)
Moreover, neither Plaintiff's social anxiety nor his purported below average intelligence was clearly included in either hypothetical ...