The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Plaintiff, Linda Martello, challenges an Administrative Law Judge's ("ALJ") determination that she was not disabled within the meaning of the Social Security Act ("the Act"). Martello alleges that she has been disabled since January 14, 2008, due to fibromyalgia, diabetes, anxiety, depression, obesity, genital herpes, irritable bowel syndrome, and heart problems. She maintains that these impairments rendered her unable to work, and asserts that she is entitled to disability insurance benefits under the Act.
2. Martello filed an application for benefits under Title II of the Act on June 12, 2008, alleging an inability to work since January 14, 2008. The Commissioner of Social Security ("Commissioner") denied the initial application and, as a result, Martello requested an administrative hearing. Administrative Law Judge ("ALJ") Robert T. Harvey held a hearing on July 21, 2009, at which Martello appeared with counsel and testified. The ALJ considered the case de novo, and on August 11, 2009, issued a decision denying Martello's application for benefits. Martello filed a request for review with the Appeals Council, which granted the request and remanded the case to the ALJ for a new hearing.
A second hearing was held on May 11, 2011. The ALJ issued a decision, on May 26, 2011, denying the application for benefits. The Appeals Counsel denied Martello's request for review on January 18, 2012. Martello filed the current civil action on March 15, 2012, challenging the Commissioner's final decision.*fn1
3. On August 20, 2012, Martello filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Commissioner filed his motion for judgment on the pleadings on August 22, 2012. The motions were fully briefed on September 24, 2012, at which time this Court took the matter under advisement without oral argument. For the reasons set forth below, the Commissioner's motion is denied, and Martello's motion is granted in part and denied in part.
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) Martello did not engage in substantial gainful activity since January 14, 2008 (R. 43);*fn2 (2) her diabetes mellitus, fibromyalgia, anxiety, depression, vision deficits, and obesity are severe impairments within the meaning of the Act (R. 43); (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. 44); (4) Martello retains the residual functional capacity ("RFC") to perform light work, with enumerated exceptions and limitations (R. 45); and (5) she is able to perform her past relevant work as a Cashier II (R. 48). Ultimately, the ALJ concluded that Martello was not under a disability as defined by the Act. (R. 48.)
10. Martello maintains the ALJ committed legal error and that his decision is not supported by substantial evidence. She advances numerous arguments in support of remand or reversal.
11. Martello first contends the ALJ should have contacted Dr. Stevens, who had treated her fibromyalgia since May 2008, for an opinion as to the severity of her physical limitations. In support, Martello relies on 404.1512(e),*fn3 which provided that an ALJ: will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. (emphasis added). The Commissioner maintains that because the ALJ ...