United States District Court, E.D. New York
DECISION AND ORDER
WILLIAM F. KUNTZ, II, District Judge.
This is a review of a denial of Supplemental Security Income ("SSI") by the Commissioner of Social Security ("Commissioner"). Plaintiff Thomas McCoy ("Plaintiff') commenced this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner which denied his application for SSL Before the Court are motions for judgment on the pleadings from each party. For the reasons set forth below, the Commissioner's motion is GRANTED IN PART and DENIED IN PART and Plaintiff's cross-motion is GRANTED IN PART and DENIED IN PART. The case is REMANDED for further review consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff is a forty-two year old African-American male and United States citizen who was born on August 16, 1972. Dkt. 21 ("R.") at 118235. He is 5' 11" and weighed two hundred and thirty pounds in 2011. Id. at 158. Plaintiff graduated from high school in 1990 and has received vocational training at various points in his life, but did not pursue any other higher education opportunities. Id. at 159, 235. Plaintiff also spent time incarcerated and was homeless as of October 26, 2011. Id. at 119, 248, 294, 364-65. Plaintiff was last employed in 2008, and he has worked at various times during his adult life as a security guard, a delivery boy, a stock boy, a mechanic, and doing asbestos removal. Id. at 148, 200, 235.
Plaintiff claims to suffer from a long list of conditions, including depression, anxiety, schizophrenia, bipolar disorder, "learning and concentration problems, " "[being] overweight, " asthma, migraine, lower back pain, pain in right shoulder, pain in left knee, pain in right hand, lumbar spine pain, juxta-articular osteoporosis, and right pinky knuckle pain. Id. at 158; see also id. at 304-07, 321-22, 345, 363. The list of his severe impairments (according to his attorney before the Appeals Council) includes lumbago, lumbar sprain, left knee (tibial tuberosity), lower back pain, major depressive disorder with psychotic features, untreated chronic mood disorder, bipolar disorder, panic disorder with agoraphobia, paranoia, and claustrophobia, and schizoaffective disorder. Id. at 235-36. Plaintiff also reports having trouble sleeping. Id. at 173, 183, 425. In order to manage his pain, Plaintiff has been prescribed bilateral lumbar facet injections which he reports provide relief for two days. Id. at 236, 335, 337. Further, Plaintiff has been prescribed a laundry list of medications for his conditions, including but not limited to acetaminophen with codeine, Maxalt MLT, and facet joint injections for the pain, and Ventolin HFA and steroids for his asthma. Id. at 191-94; see also id. at 339 (list of ten medications being taken by Plaintiff as of September 2011), 360-61 (list of eight medications being taken by Plaintiff as of October 26, 2011), 472-82 (list of ten medications being taken by Plaintiff in 2012, along with prescription information). Plaintiff also takes medications for his psychological conditions, including Haldol, Zyprexa, and Atarax. Id. at 196, 236.
On September 26, 2011, Plaintiff applied for SSL Id. at 237. On December 5, 2011, Plaintiff's application was denied. Id. at 54. As a result of the denial, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Id. at 58-60. Plaintiff had a hearing on his SSI application in front of ALJ Gitel Reich ("the ALJ") on August 9, 2012. Id. at 25-47. Plaintiff was represented by counsel. Id. at 25. He received an Unfavorable Notice of Decision on October 11, 2012. Id. at 239. Plaintiff appealed that decision. Id. at 239-42. The Appeals Council denied his request for review on January 15, 2013. Id. at 1-3.
On March 21, 2013, Plaintiff filed a complaint against the Commissioner pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision by the Commissioner which denied his application for SSL Dkt 1 ("Compl"). The Commissioner filed a motion for judgment on the pleadings on August 19, 2013. Dkt. 16 ("C's Memo"). Plaintiff cross-moved for judgment on the pleadings on October 9, 2013. Dkt. 18 ("P's Memo").
The Commissioner argues the Court should affirm the ALJ's determination that Plaintiff was not disabled because the ALJ properly evaluated the evidence and applied the correct legal standards to the facts. C's Memo at 21-32. Plaintiff, on the other hand, argues that the Court should reverse the ALJ's decision, or at least remand it, because the ALJ: (1) violated the treating physician rule by failing to give controlling weight to the opinion of Dr. Nidhiry; (2) failed to make findings regarding Plaintiff's substance abuse; (3) failed to make findings regarding Plaintiff's mental residual functional capacity; (4) made a finding of physical residual functional capacity that was not supported by substantial evidence in the record; (5) should have used a vocational expert; and (6) ignored the opinion of the agency consultant. P's Memo at 7-25; Dkt. 20 ("P's Reply").
The Court will address each of the six issues raised by Plaintiff in his motion in turn.
I. Legal Standards
A. Standard of Review
When a claimant challenges the Social Security Administration's ("SSA") denial of disability benefits, the Court's function is not to evaluate de nova whether the claimant is disabled, but rather to determine only "whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on reh'g, 416 F.3d 101 (2d Cir. 2005) (internal citation omitted); see also 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive..."); Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). Substantial evidence is "more than a mere scintilla"; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted) (quoting Consol. Edison Co. of NY, Inc. v. NLRB, 305 U.S. 197, 229 (1938)); Moran, 569 F.3d at 112. The substantial evidence test applies not only to the Commissioner's factual findings, but also to inferences and conclusions of law to be drawn from those facts. See Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999) (Sweet, J.). In determining whether the record contains substantial evidence to support a denial of benefits, the reviewing court must examine the entire record, weighing the evidence on both sides to ensure that the claim "has been fairly evaluated." See Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (internal quotation marks omitted) (citing Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983)).
It is the function of the SSA, not of the federal district court, "to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant." Carroll v. Sec'Y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citing Richardson, 402 U.S. at 399); see also Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Although the ALJ need not resolve every conflict in the record, "the crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence." Calzada v. Asture, 753 F.Supp.2d 250, 268-269 (S.D.N.Y. 2010) (Sullivan, J.) (internal quotation marks omitted) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)).
To fulfill this burden, the ALJ must "adequately explain [her] reasoning in making the findings on which [her] ultimate decision rests" and must "address all pertinent evidence." Kane v. Astrue, 942 F.Supp.2d 301, 305 (E.D.N.Y. 2013) (Kuntz, J.) (quoting Calzada, 753 F.Supp.2d at 269). "[A]n ALJ's failure to acknowledge relevant evidence or to explain its implicit rejection is plain error." Id. (internal quotation marks and citations omitted). Remand is warranted when "there are gaps in the administrative record or the ALJ has applied an improper legal standard." Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999).
B. Statutory and Regulatory Standards
To qualify for SSI, the Social Security Act requires the claimant to prove he has a disability. See 42 U.S.C. § 1382c. "Disability" is defined in the Social Security Act as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §1382c(a)(3)(A).
The Commissioner must evaluate whether an individual qualifies as disabled using a five step process promulgated by the Social Security Administration ("SSA"):
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.... 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.
Salmini v. Comm'r of Soc. Sec., 371 F.Appx. 109, 111-12 (2d Cir. 2010) (brackets and ellipses in original) (citations omitted); see also 20 C.F.R. §416. 920. The claimant bears the burden of proof at steps one through four in the analysis. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per curiam) (citations omitted). At step five, the burden shifts to the Commissioner to prove that there are jobs in the national economy that the claimant could perform even with ...