United States District Court, N.D. New York
PETER W. ANTONOWICZ, ESQ., OFFICE OF PETER W. ANTONOWICZ, Counsel for Plaintiff, Rome, NY.
SERGEI ADEN, ESQ., OFFICE OF GENERAL COUNSEL, Social Security Administration, Region II, Counsel for Defendant, New York, NY.
REPORT AND RECOMMENDATION
THÉRÈSE WILEY DANCKS, Magistrate Judge.
This matter was referred to the undersigned for report and recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. This case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. Oral argument was not heard. For the reasons discussed below, it is recommended that the matter be remanded to the Commissioner for further proceedings consistent with the findings set forth below.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is fifty years old. (Dkt. No. 9-2 at 20.) Plaintiff completed ninth grade and later earned a cosmetology certificate. Id. at 34. She operated her own salon out of her home. Id. at 35. Plaintiff alleges disability due to pseudotumor cerebri, severe headaches, cervical disc herniations, bulging discs, cervical arthritis, left shoulder cuff tear, visual changes, asthma, allergies, anxiety, and depression. (Dkt. No. 9-6 at 6.)
Plaintiff applied for Supplemental Security Income ("SSI") on May 24, 2011, with a protective filing date of May 22, 2011. (Dkt. No. 9-5 at 2-21; Dkt. No. 9-6 at 2.) The application was denied on September 23, 2011. (Dkt. No. 9-4 at 2-4.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Id. at 13. The hearing was held on August 22, 2012. (Dkt. No. 9-2 at 28-60.) On November 16, 2012, the ALJ issued a decision finding that Plaintiff was not disabled. (Dkt. No. 9-2 at 13-21.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on November 1, 2013. (Dkt. No. 9-2 at 2-4.) Plaintiff commenced this action on December 5, 2013. (Dkt. No. 1.)
II. APPLICABLE LAW
A. Standard for Benefits
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) (2006). 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.
Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the Social Security Administration ("SSA") promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 416.920(a)(4) (2013). Under that five-step sequential evaluation process, the decision-maker determines:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a "residual functional capacity" assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national ...