PETER A. GORTON, ESQ., for Plaintiff.
VERNON NORWOOD, 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 Frederick J. Scullin, Jr., Senior 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. Plaintiff's brief was filed on April 25, 2013, and defendant's brief was filed on June 10, 2013. (Dkt. Nos. 13, 14). Plaintiff was granted permission to file, and subsequently filed, a reply. (Dkt. Nos. 16, 17).
I. PROCEDURAL HISTORY
On June 4, 2009, plaintiff protectively filed an application for Disability Insurance Benefits ("DIB") and an application for Supplemental Security Income ("SSI"), claiming disability beginning June 13, 2007. (Administrative Transcript ("T") 155-58, 162-64). Both applications were denied initially, and plaintiff requested a hearing before an Administrative Law Judge. ("ALJ"). (T. 70-84, 85-86). The video-hearing, at which plaintiff and his fiance testified, was conducted on February 28, 2011. (T. 41-69). At the hearing, plaintiff amended his claimed onset date to February 15, 2009. (T. 45). Plaintiff submitted additional evidence to the ALJ after the hearing. (T. 189, 282-312, 580-653). On April 15, 2011, the ALJ issued a decision, finding that plaintiff was not disabled. (T. 16-40).
On October 12, 2012, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (T. 7-12). The plaintiff's counsel submitted additional evidence to the Appeals Council after the first denial. (T. 313-23, 654-713). The Appeals Council set aside its October 12, 2012 decision to consider the additional evidence, making that evidence a part of the record. (T. 1). On December 3, 2012, the Appeals Council denied plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner, allowing plaintiff to file a civil action in this court. (T. 1-6).
II. ISSUES IN CONTENTION
The plaintiff makes the following claims:
1. The Commissioner failed to properly assess plaintiff's fibromyalgia. (Pl.'s Br. at 10-12).
2. The ALJ failed to properly evaluate the opinion of plaintiff's treating physicians. (T. 12-13).
3. The evidence submitted to the Appeals Council warrants reversal, or in the alternative, remand. (Pl.'s Br. 13-14).
4. The ALJ erred in finding that plaintiff did not satisfy the requirements for Listing 12.04. (Pl.'s Br. at 14-16).
5. The ALJ's Residual Functional Capacity ("RFC") determination is not supported by substantial evidence. (Pl.'s Br. at 17-19).
6. The ALJ's credibility determination is not supported by substantial evidence. (Pl.'s Br. at 20).
7. The ALJ erred in failing to consult a Vocational Expert ("VE"). (Pl.'s Br. at 20-22).
Defendant argues that the Commissioner's decision is supported by substantial evidence and should be affirmed, dismissing the complaint in its entirety. (Dkt. No. 14). For the following reasons, this court finds that this action should be reversed and remanded for further consideration.
III. 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 his impairment prevents him from performing his 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) (clarifying that the burden shift to the Commissioner at step five is limited, and the Commissioner "need not provide additional evidence of the claimant's residual functional capacity"); 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. 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's brief contains a lengthy statement of facts that defense counsel has incorporated into his discussion, with the exception of any inferences, suggestions, or arguments that the brief contains. (Def.'s Br. at 2) (Dkt. No. 14). Defense counsel has also supplemented the plaintiff's statement of facts. ( Id. at 2-9). This court will incorporate the statements of fact contained in both parties' briefs, including the supplemental facts stated by the defendant.
V. THE ALJ'S DECISION
The ALJ found that plaintiff had four severe impairments: depressive disorder, degenerative joint disease of the left knee, degenerative disc disease of the cervical spine, and bilateral carpal tunnel syndrome. (T. 21). Plaintiff alleged additional impairments which the ALJ found were not severe: obstructive sleep apnea, diabetes, high ...