MEMORANDUM OPINION
INTRODUCTION
On July 24, 2015, Plaintiff Jameel Wilson (“Plaintiff’ or “Wilson”) filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration (“Defendant”), which denied his application for Supplemental Security Income (“SSI”) benefits under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-1383Í.
After a thorough de novo review of the objections to the R & R, the administrative record,
BACKGROUND
The factual and procedural backgrounds of this case are set forth in detail in the R & R and will be recited herein only as needed to address the issues presented by Plaintiffs objections; to wit:
Plaintiff was born on April 6, 1973, has an eleventh-grade education, (Tr. at 165, 170), and worked as a professional boxer and forklift operator, although he never filed tax returns. (Id. at 60, 170). On October 26, 2005, November 27, 2009, and August 3, 2011, Plaintiff filed applications for SSI which were each denied. (Id. at 73, 84).
On July 31, 2012, Plaintiff filed the instant application for SSI benefits contending that he suffered from the following conditions: neck injury, spinal cord injury, back injury, shoulder injury, and numbness in his hands and fingers. (Id. at 72). His application was initially denied on September 28, 2012. (Id. at 97), Plaintiff filed a timely request for a hearing on October 25, 2012. (Id. at 104). The hearing was held on November 19, 2013, before Administrative Law Judge William Kurlander (“the ALJ”). (Id. at 22, 24). Plaintiff testified at the hearing, and offered medical evidence from treating and non-treating physicians, including an evaluation conducted by consulting physician David Chomsky, M.D. (“Dr. Chomsky”). (Id. at 193-197).
After reviewing the evidence and applying the required five-step sequential analysis,3 the ALJ concluded that Plaintiff was not disabled. (Id. at 81-96). Specifically, in the decision dated February 26, 2014, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 31, 2012; that he suffered from the following severe impairments: back disorder, eye disorder, depression, chronic obstructive pulmonary disease (“COPD”), and chronic pain syndrome, (id. at 86); that he did not have an impairment that met or medically equaled the severity of any impairment listed at 20 C.F.R. Part 404, Sub-part P, Appendix 1 (“the Appendix”),4
(1) Reasoning level 1-2;7 (2) sit/stand option (by this I mean, if the person is sitting and experiences other pain, they can stand and stretch in place to alleviate their pain and continue working in the standing position if desired. Similarly, if the person is standing and experiences back or other pain, they can sit down to continue their work in a sitting position if desired, in order to alleviate their pain); (3) no climbing rope, scaffolds, ladders; (4) no more than occasional exposure to temperature extremes, wetness or high humidity; (5) no more than occasional postural activity, but no climbing or crawling; (6) no more than occasional exposure to moving machinery and unprotected heights; (7) no more than frequent exposure to atmospheric irritants, such as dust, fumes, odors and gasses; (8) no overhead reaching with the bilateral upper extremities; (9) no more than occasional pushing/pulling with the bilateral upper extremities; (10) no more than occasional pushing/pulling with the bilateral lower extremities; and (11) no more than frequent fingering.8
(Id. at 88). Crediting the testimony of the vocational expert (“VE”) who testified at the hearing, the ALJ concluded that, considering Plaintiffs age, education, work experience, and RFC, there were jobs, such as ticket taker, sorter, or folding machine operator, that existed in significant numbers in the national economy which Plaintiff was capable of performing and, therefore, he was not disabled. (Id. at 92).
On March 13, 2014, Plaintiff filed a timely appeal with the Appeals Council.
DISCUSSION
The Social Security Act provides for judicial review of any “final decision of the Commissioner of Social Security made after a hearing.” 42 U.S.C. § 405(g). The review of a Commissioner’s decision is, however, limited in scope. When reviewing an administrative decision denying social security benefits, the court must uphold any factual determination made by the ALJ that is supported by substantial evidence. Id. That is, the court’s scope of review is limited to determining whether the ALJ applied the correct legal standards and whether the record, as a whole, contains substantial evidence to support the ALJ’s findings of fact. Rutherford v. Barnhart,
Substantial evidence “does not mean a large or considerable amount of evidence, but rather, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Hartranft v. Apfel,
To prove entitlement to social security benefits, a claimant must demonstrate an inability to engage in substantial gainful activity because of a medically determinable physical and/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 at least 12 months.” 42 U.S.C. § 423(d)(1)(A). As noted, agency regulations provide for a five-step sequential evaluation process for determining whether an individual is disabled. See 20 C.F.R. § 416.920(a)(1). The steps are followed in a sequential order, and if the claimant is determined to be, or not to be, disabled at a particular step of the evaluation process, the evaluation will not proceed to the next step. Id. § 416.920(a)(4). The five-step sequential evaluation process requires the Commissioner to consider the following:
At step one, the [administrative law judge or ALJ] must determine whether the claimant is currently engaging in substantial gainful activity. If the claimant is found to be engaged in substantial activity, the disability claim will be denied; otherwise the evaluation proceeds to step two.
At step two, the [the ALJ] must determine whether the claimant has an impairment that is severe or a combination of impairments that is severe. If the claimant fails to show that the impairment or combination of impairments is“severe,” claimant is ineligible for disability benefits; otherwise, the evaluation proceeds to step three.
At step three, the [the ALJ] must determine whether the claimant’s impairment or combination of impairments is of a severity to meet or medically equal the criteria of a listed impairment. If the claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five.
At step four, the ALJ must first consider whether the claimant retains the residual functional capacity to perform past relevant work. The claimant bears the burden of demonstrating an inability to return to past relevant work.
If the claimant is unable to resume [his] former occupation, the evaluation moves to the final step. At step five, the ALJ must determine whether the claimant, consistent with the claimant’s medical impairments, age, education, past work experience, and residual functional capacity, is capable of performing other available work in the national economy. The ALJ must analyze the cumulative effect of all the claimant’s impairments in determining whether claimant is capable of performing work and is not disabled.
20 C.F.R. § 416.920(a)(4)(i)-(v) (applying same five-step test when evaluating SSI claims); see also Plummer v. Apfel,
As stated, the Magistrate Judge recommended that Plaintiffs request for judicial review be denied. Plaintiff challenges the Magistrate Judge’s recommendation and offers five (5) objections which are similar to the issues raised in his request for judicial review. Essentially, Plaintiff contends that the Magistrate Judge erred in finding that the ALJ: (1) appropriately assessed and credited the opinion of Dr. David Chomsky; (2) properly assessed Plaintiffs credibility; (3) correctly determined that a review by a psychologist and/or psychiatrist to assess a mental impairment was not necessary; (4) adequately assessed Plaintiffs residual functional capacity (“RFC”); and (5) properly refused to reopen Plaintiffs prior applications for SSL
When considering objections to a magistrate judge’s report and recommendation, a court must undertake a de novo review of the portions of the report and recommendation to which the plaintiff has objected. See 28 U.S.C. § 636(b)(1); Cont’l Cas. Co. v. Dominick D’Andrea, Inc.,
First Objection
In his first objection to the R & R, Plaintiff argues that the ALJ failed to appropriately assess and credit the opinions of Dr. Chomsky, a non-treating physician, offered by Plaintiff in support of his application. [ECF 14 at 1-2]. Specifically, Plaintiff contends that the ALJ failed to provide adequate justification for the partial rejection of Dr. Chomsky’s opinion, in contravention of the guidelines set forth in 20 C.F.R. § 416.927(c) and Burnett v. Comm’r of Soc. Sec. Admin.,
Undisputedly, an ALJ must consider all relevant evidence, including medical evidence, in the record when assessing a claimant’s RFC at step four. Fargnoli v. Massanari,
Even when an ALJ gives considerable weight to a medical opinion, physician’s opinions are not binding upon an ALJ, who is free to reject a medical source’s conclusions. Chandler v. Comm’r of Soc. Sec.,
Plaintiff objects and contends that these step-four findings are inconsistent with Dr. Chomsky’s opinions as to his sitting/standing and carrying/lifting limitations, and, consequently, were not based on substantial evidence in the record. Af-fer a careful de novo review of the record, this Court agrees, and finds that the ALJ failed to discuss or explain the contradictory medical evidence in the record regarding Plaintiffs physical limitations. As noted supra, the ALJ found that Plaintiff has the RFC to perform light work with certain exceptions. In reaching this assessment, however, the ALJ offered little or no explanation, analysis or insight on how he reconciled the competing opinions of Plaintiffs treating physicians with those of Dr. Chomsky. Although the ALJ indicated that he afforded great weight to Dr. Chomsky’s report, (Tr. at 91), his step-four finding belies this affirmation since it suggests, without any explanation, an implicit rejection of Dr. Chomsky’s carrying/lifting opinion when compared to the ALJ’s finding of RFC to do light work. As defined, light work involves “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 416.967(b) (emphasis added). Yet, Dr. Chomsky opined that Plaintiff was incapable of carrying even 10-pound objects without pain. (Tr. at 196). The ALJ neither reconciled this inconsistency nor ex
While it is possible, as both Defendant and the Magistrate Judge posit, that the ALJ relied upon the inconsistent medical evidence in the record, particularly the opinions of Plaintiffs treating physicians, to conclude that Plaintiff has the RFC to perform limited light work, the ALJ provided no adequate explanation on how this conclusion was reached. Although the ALJ is not required to accept Dr. Chomsky’s carrying/lifting opinion, the ALJ is required “to be explicit about what evidence was considered and what evidence was rejected.” Frazier v. Comm’r of Soc. Sec.,
Given this uncertainty, this Court agrees with Plaintiff that the ALJ’s analysis at step four is incomplete and inadequate, It is impossible to discern from the ALJ’s decision what medical evidence has been rejected and what medical evidence has been credited. Accordingly, this Court cannot conduct a meaningful review of whether substantial evidence supports the ALJ’s findings at step four. This Court will remand this matter to the ALJ, who is directed to consider all of the medical opinion evidence in the record and explain what weight, if any, he accords to each opinion when making findings at step four of the five-step sequential analysis.
Second Objection
Plaintiff objects to the Magistrate Judge’s finding that the ALJ’s assessment of Plaintiffs credibility was legally sound. Specifically, Plaintiff argues that, rather than considering the enumerated factors to assess credibility, the ALJ, instead, found him not credible solely on the basis of his failure to file tax returns on earnings received during his boxing career. Defendant counters that the ALJ provided valid reasons for discounting Plaintiffs credibility which are supported by substantial evidence in the record, and that this Court should defer to the ALJ’s assessment of Plaintiffs credibility.
Generally, a court affords an administrative law judge’s assessment of credibility great deference because the ALJ is in the best position to evaluate the demeanor and attitude of a claimant. See, e.g. Fargnoli v. Massanari,
[i]n determining the credibility of the [claimant’s] statements, the adjudicator must consider the entire case record, including the objective medical evidence, the individual’s own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the ease record.
SSR 96-7p,
Here, in his decision, the ALJ notes that he afforded Plaintiffs testimony “very, very little weight.” (Tr. at 90). Although the ALJ mentions other evidence that impugns on Plaintiffs credibility, including Plaintiffs testimony that he continues to drive despite his eye disorder and that he continued to box for two years after undergoing a cervical fusion, (id.), the ALJ’s credibility finding appears to rest almost exclusively on Plaintiffs failure to pay taxes. (Id. at 89). The failure to file or pay taxes is relevant to evaluate the credibility of a witness, see, e.g., United States v. Sullivan,
Third Objection
In his third objection, Plaintiff contends that Social Security Rule 96-6p (“SSR 96-6p”) imposes an affirmative duty on an ALJ to obtain expert medical testimony on listing equivalence at step three.
As stated, an ALJ’s task at step three is to determine whether the claimant’s impairment or combination of impairments is of a severity sufficient to meet or medically equal the criteria of an impairment listed in the Appendix. 20 C.F.R. § 416.920(a)(4)(iii). In his application for SSI benefits, Plaintiff claimed that he suffered from a neck injury, spinal cord injury, back injury, shoulder injury, and numbness in his hands and fingers. No mention was made in his application or at the hearing that he suffered from or claimed a mental impairment. Notwithstanding, the ALJ noted that Dr. Chomsky’s opinion stated that Plaintiff suffered a severe mental impairment, i.e., depression, and considered this diagnosis at step two of the sequential analysis. (Tr. at 87). However, at step three, the ALJ found that the severity of Plaintiffs mental impairment did not meet or medically equal the criteria of Listing 12.04,
When evaluating the severity of a claimant’s mental impairment(s), an ALJ is directed to apply a “special technique” to “rate the degree of functional limitation resulting from the impairment(s).” 20 C.F.R. § 416.920a(b)(l)-(2). The regulations set forth “four broad functional areas” in which the ALJ must rate the degree of the claimant’s functional limitation: (1) activities of daily living, (2) social functioning, (3) concentration, persistence, or pace, and (4) deterioration or decompensation in work or work-like settings, id. § 416.920a(c)(3), using a five-point scale of “[n]one, mild, moderate, marked, and extreme,” to rate the first three functional areas, and a four-point scale of “[n]one, one or two, three, [and] four or more” to rate the fourth functional area, id. § 416.920a(c)(4). The regulations explicitly require the ALJ to “document application of the technique in the decision,” id. § 416.920a(e), including “a specific finding as to the degree of limitation in each of the functional areas.” Id. § 416.920a(e).
The fact that Plaintiff did not al-lége a disabling mental impairment in his application or at the hearing is significant.
Contrary to Plaintiffs assertions, SSR 96-6p does not “impose an affirmative duty on an ALJ to seek out a medical opinion on the equivalency issue.” Walker v. Colvin,
Fourth Objection
In his fourth objection, Plaintiff argues that the ALJ failed to account for all of his mental health limitations when assessing Plaintiffs RFC at step four of the sequential analysis. In his opening brief, Plaintiff makes no mention of any faults in the ALJ’s step-four analysis save for those that are the subject of his third objection supra. In fact, this argument was raised for the first time in Plaintiffs reply brief. Arguments not raised in an appellant’s opening brief are deemed waived. See Lucas v. Barnhart,
Fifth Objection
Plaintiffs final objection pertains to the ALJ’s decision not to reopen Plaintiffs prior SSI applications dated October 26, 2005, November 27, 2009, and August 3, 2011, respectively. The ALJ had declined to reopen these applications because he found that the current application was not filed within two years of the date of the initial determinations of his earlier applications, as required by 20 C.F.R. § 416.1488. Plaintiff argues that the ALJ miscalculated the prescribed two-year window within which his prior SSI applications could be reopened and, as such, erred when declining to reopen Plaintiffs earlier applications. Defendant concedes the error as to the 2011 application but argues that, in spite of the error, the ALJ properly exercised his discretion under the confines of the regulations to deny Plaintiffs request. In the alternative, Defendant argues that even assuming the ALJ abused this discretion, the court lacks jurisdiction to review the ALJ’s decision. Defendant is correct on both counts.
A claimant may request that an SSI application be reopened within twelve months of the date of the notice of the initial determination for “any reason,” and within two years of the same date “for good cause.” 20 C.F.R. § 416.1488(a)-(b). A claimant establishes “good cause” by (1) furnishing new and material evidence; (2) demonstrating that a clerical error was made in the computation or re-computation of benefits; or (3) offering evidence in the administrative record “that clearly shows that an error was made.” Id. § 416.1489(a)(l)-(3).
Given the regulations and these limitations, Plaintiffs requests to reopen his 2005 and 2009 applications at the time that he filed the instant application would be untimely. However, as the Magistrate Judge noted, the ALJ erred when calculating the timeliness of his request to reopen his 2011 application. [See ECF 13 at 22]. On July 31, 2012, Plaintiff filed the current application requesting, inter alia, a review of the Commissioner’s decision to deny his prior applications. Clearly, the filing date of Plaintiffs current application was within one year of the initial denial of his August 2011 application. The ALJ could have con
Assuming that the ALJ abused his discretion when refusing to reopen Plaintiffs 2005 and 2009 SSI applications, as Plaintiff posits, this Court lacks jurisdiction to review said refusal. Judicial review of final decisions on claims arising under Title II or Title XVI of the Social Security Act is provided for and limited by Sections 205(g) and (h) of the Act, applicable to SSI cases by 42 U.S.C. § 1383(c)(3).
Plaintiff seeks to premise this Court’s jurisdiction on the narrow exception carved out for colorable constitutional claims. However, Plaintiff raised the constitutional claim for the first time in his objections to the R & R. Thus, this argument has been waived. See, e.g., Jimenez v. Barnhart,
CONCLUSION
For the reasons stated herein, this matter is remanded to the Acting Commissioner of the Social Security Administration pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this Memorandum Opinion.
Notes
. In the request for judicial review, Plaintiff contends that administrative law judge (“the
.Citations to the administrative record will be denoted by ‘Tr.” followed by the page number.
. Agency regulations require that the administrative law judge utilize a five-step sequential process to evaluate disability insurance benefits claims. See 20 C.F.R. § 416.920(a)(1). This process will be explained infra at pp. 444-45.
. The Listing of Impairments in Appendix 1, Subpart P, Part 404 of Title 20 of the Code of
.A claimant’s RFC reflects the most the claimant can still do after considering the physical limitations affecting his ability to perform work-related tasks. See 20 C.F.R. § 416.945(a)(1).
. ■ Light work is defined as work that includes lifting up to twenty pounds at one time with frequent lifting and carrying of objects weighing úp to ten pounds and positions that require a good amount of walking or standing or when they include mostly sitting with some pushing and pulling of arm or leg controls. See 20 C.F.R. § 416.967(b).
. The Dictionary of Occupational Titles specifies the type of reasoning capabilities any particular job contained therein requires, 2 , U.S. Dep’t of Labor, Dictionary of Occupational Titles, 1010—11 (4th ed. 1991). For instance, a job rated reasoning level one requires the ability to understand and carry out simple instructions, whereas a job rated reasoning level two requires the ability to understand and carry out detailed instructions. Id. at 1011.
. Fingering is defined as “[pjicking, pinching, or otherwise working with the fingers primarily rather than with the whole hand or arm ....” SSR 85-15,
. A treating source is defined as a physician, psychologist or otherwise acceptable medical source who provides or has provided a claimant with medical treatment or evaluation, and who has or had an ongoing treatment relationship with the claimant. 20 C.F.R. § 416.902. A non-treating, or examining, source is defined as an acceptable medical source that has examined the claimant but did not have an ongoing treatment relationship with the claimant, including, inter alia, consultative examiners. Id. A non-examining source is defined as an acceptable medical source that has not examined the claimant, but has provided an opinion in the case, including, inter alia, a state agency reviewing doctor. Id.
. Light work is defined as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up- to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can, also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
20 C.F.R. § 416.967(b) (emphasis added). Social Security Ruling 83-10 further clarifies that "since frequent lifting or carrying requires being on one’s feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time.” SSR 83-10,
. In addition to Dr. Chomsky’s report, the ALJ considered the treatment notfes of Dr. Eric Williams, .an orthopedist who .had treated Plaintiff in 2012 for neck pain; the monthly progress notes of Dr. Alexander Fine cover- ' ing the period of April 2011 through October 2013, which documented Plaintiff’s continued complaints of neck and back pain; the treatment notes of Dr. Robert Dudnick, a gas-troenterologist, who treated Plaintiff on September 21, 2012; and a report from state agency physician Dr. Kurt Mass when making his findings at step four. (See Tr. at 87, 90-91).
. SSR 96-6p provides that, although an ALJ, as the determiner of the "ultimate question of
When no additional medical evidence is received, but in the opinion of the administrative law judge or the Appeals Council the symptoms, signs, and laboratory findings reported in the case record suggest that a judgment of equivalence may be reasonable; or
When additional medical evidence is received that in the opinion of the [ALJ] or the Appeals Council may change the State agency medical or psychological consultant's finding that the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments.
Id.; see also Walker v. Colvin,
. Listing 12.04 sets forth the criteria for affective disorders, including depression. The requirements of Listing 12.04 are, in relevant part:
A. Medically documented persistence, either continuous or intermittent, of one of the following:
1.Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; OR
2. Manic syndrome ...; or
3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive symptoms (and currently characterized by either or both syndromes);
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or;
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Pt. 404, Subpt. P., App.l § 12.04.
. The impairments Plaintiff alleges in his application for SSI benefits, dated August 9, 2012, relate to ailments of the neck, spinal cord, back, shoulders, and hands. (Tr. at 97). While Dr. Chomsky diagnosed Plaintiff with situational depression, he did not observe any functional limitations resulting from the diagnosis. (Tr. at 193-97). It is thus unsurprising that Plaintiff did not allege, in either his application or at the administrative hearing, that his depression was a disabling impairment.
. Pursuant to 42 U.S.C. § 1383(c)(3), the Commissioner’s final determination after an administrative hearing not to award SSI benefits is subject to judicial review to the same extent as provided in Section 205(g) of the Social Security Act. 42 U.S.C. § 1383(c)(3). Section 205(g) provides that a district court has jurisdiction over “any final decision of the Commissioner of Social Security made after a hearing to which [the claimant] was a party, irrespective of the amount in controversy.” Id. at § 405(g). Section 205(h) of the Act precludes judicial review of the "findings of fact or decision of the Commissioner of Social Security ... except as herein provided.” Id. § 405(h).