PETER W. ANTONOWICZ, ESQ., for Plaintiff.
JOANNE JACKSON, Special Asst. U.S., Attorney for Defendant.
ANDREW T. BAXTER, Magistrate Judge.
This matter was referred to me for report and recommendation by the Honorable Thomas J. McAvoy, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18.
I. PROCEDURAL HISTORY
On January 24, 2010, Cheri Coughlin ("plaintiff"), protectively filed for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), with an onset date of June 19, 2009. (Administrative Transcript ("T") 160-67). Plaintiff's claims were initially denied on April 22, 2010. (T. 81-84). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") which was held on April 25, 2011. (T. 44-73). On July 12, 2011, the ALJ found plaintiff was not disabled. (T. 23-30). The ALJ's decision became the Commissioner's final decision when the Appeals Council denied a request for review on March 12, 2012. (T. 1-6).
II. ISSUES IN CONTENTION
Plaintiff makes the following arguments:
(1) The ALJ erred in finding that plaintiff's spinal impairments were not "severe" under the regulations. (Pl.'s Br. 9-12).
(3) The ALJ failed to give adequate weight to the opinion of treating physician, Kin Tsoi. (Pl.'s Br. 13-15).
(4) The ALJ's RFC determination was not supported by substantial evidence. (Pl.'s Br. 13-18).
(5) The ALJ improperly evaluated plaintiff's credibility. (Pl.'s Br. 18-20).
Defendant argues that the ALJ's decision is supported by substantial evidence and must be affirmed. For the following reasons, this court agrees with defendant and will recommend dismissal of the complaint.
III. APPLICABLE LAW
A. Disability Standard
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months...." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's
physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.
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 meets or equals the criteria of an impairment 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.... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the ...