PETER W. ANTONOWICZ, ESQ., for Plaintiff.
JEREMY A. LINDEN, 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 Gary L. Sharpe, Chief 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
Plaintiff first "protectively filed" applications for both Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits effective April 8, 2005. (Administrative Transcript ("T.") 12, 22, 40-45). The applications were denied on June 9, 2005. (T. 34-38). Administrative Law Judge ("ALJ") Gordon Mahley conducted a hearing on September 13, 2006, at which the plaintiff testified. (T. 188-221). On April 21, 2007, the ALJ issued a decision denying plaintiff's applications for benefits. (T. 12-20). The Appeals Council declined to review the ALJ's unfavorable decision on July 13, 2007. (T. 4-6). Plaintiff filed an appeal of the Commissioner's decision in U.S. District Court in this district on September 10, 2007. (No. 6:07-CV-931 (NAM)).
The plaintiff subsequently filed another application for SSI, and was found to be disabled by the Commissioner as of October 3, 2007. He is currently receiving SSI benefits. Plaintiff could not be found eligible for DIB after his insured status ended on March 31, 2006. (Pl.'s Brf. at 2, Dkt. No. 14).
In a decision dated September 1, 2010, then Chief U.S. District Judge Norman A. Mordue ruled that the ALJ's April 21, 2007 Residual Functional Capacity ("RFC") determination was not supported by substantial evidence, and that the ALJ failed to fully develop the administrative record. Schmelzle v. Astrue, 6:07-CV-931 (NAM), 2010 WL 3522305, at *3-4 (N.D.N.Y. Sept. 1, 2010). Judge Mordue remanded the case to the Commissioner for further proceedings, and he directed the ALJ, on remand, to attempt to obtain additional opinion evidence regarding plaintiff's functional limitations from his treating physician. Id., 2010 WL 3522305, at *4.
On remand, ALJ Mahley conducted a de novo hearing on July 11, 2011, at which plaintiff again testified. (T. 330-56). Because plaintiff's treating doctors from the relevant time period were not available to provide further opinion evidence, the plaintiff submitted a purportedly retrospective RFC assessment from plaintiff's current treating physician, Dr. Teng. (T. 237, 241, 321-23). The ALJ acknowledged that, in light of the award of SSI benefits to plaintiff effective October 3, 2007, the issue on remand was whether plaintiff was entitled to DIB benefits during a closed period, between January 1, 2004-the amended onset date claimed by plaintiff-and October 2, 2007. (T. 333, 352-54; Pl.'s Brf. at 4). The ALJ issued a decision dated October 13, 2011, denying plaintiff's claim for DIB benefits during the closed period and finding that he was not disabled between January 1, 2004 and the date of the decision. (T. 230-31, 239). On July 9, 2012, the Appeals Council advised that it would not further review the ALJ Mahley's decision on remand, which therefore became the final decision of the Commissioner. (T. 222-24).
II. GENERALLY APPLICABLE LAW
A. Disability Standard
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he or she 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 [per se] disabled.... 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.
Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that her impairment prevents her from performing her past work, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); Selian, 708 F.3d at 418 & n.2.
B. Scope of Review
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supported the decision. Selian v. Astrue, 708 F.3d at 417 (quoting Talavera v. Astrue, 697 F.3d at 151; Brault v. Soc. Sec. Admin, Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Talavera, 697 F.3d at 151 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Id. However, this standard is a very deferential standard of review "- even more so than the clearly erroneous standard.'" Brault, 683 F.3d at 448.
In order to determine whether an ALJ's findings are supported by substantial evidence, the reviewing court must consider 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.'" Petrie v. Astrue, 412 F.Appx. 401, 403-404 (2d Cir. 2011) (quoting Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). However, a reviewing court may not substitute its interpretation of the administrative record for that of the Commissioner, if the record contains substantial support of the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) (citing Williams, supra ).
Plaintiff originally applied for disability due to continuous pain in his right shoulder and back and other physical limitations relating to a gunshot injury to his right shoulder in 1991. (T. 54-55). He worked sporadically after his injury, most consistently between 2002 through early 2004, when he was employed as a bartender. (T. 238, 276-79, 336). As of January 1, 2004-the amended date of the alleged onset of his disabilities-plaintiff was 40 years old. (T. 335).
The court will not set forth here the medical and other factual evidence, which is discussed extensively in the parties' briefs and the ALJ's decision. Relevant details regarding the medical evidence are discussed further below in the ...