The opinion of the court was delivered by: Rufe, J.
MEMORANDUM OPINION AND ORDER
Plaintiff David Burlingame filed this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3), seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") denying his claim for disability insurance benefits under Title II of the Social Security Act. Mr. Burlingame seeks reversal of the Commissioner's decision on the grounds that the Administrative Law Judge's ("ALJ") finding that Mr. Burlingame is not disabled was not based on substantial evidence because (1) the hypothetical posed to the vocational expert who found that there were jobs in the national economy that Plaintiff could perform did not encompass all of Mr. Burlingame's limitations; (2) the medical evidence provided by Plaintiff's treating psychotherapist was not properly evaluated; and (3) the ALJ improperly rejected some of Plaintiff's testimony. The Commissioner argues that the ALJ's determination was supported by substantial evidence and should be upheld.
United States Magistrate Judge Linda K. Caracappa issued a Report and Recommendation ("R&R"), agreeing with Plaintiff that the hypothetical posed to the vocational expert did not encompass all of Mr. Burlingame's limitations and therefore the ALJ's decision was not based on substantial evidence. Magistrate Judge Caracappa recommended that this Court remand the final decision of the Commissioner for full and proper consideration of all of Plaintiff's limitations. Plaintiff filed timely objections to the R&R insofar as it rejected the second and third arguments, and requested that the case be assigned to another ALJ upon remand.
Upon this Court's careful, independent consideration of the administrative record, the parties' submissions, and the applicable law, the Court will approve and adopt in part the R&R's finding that the ALJ's disability determination was not supported by substantial evidence.
I. F ACTUAL AND P ROCEDURAL BACKGROUND
Mr. Burlingame filed an application seeking disability insurance
benefits on December 6, 2004, claiming that he had been disabled since
March 28, 2003. Mr. Burlingame was born on July 14, 1958; at the time
of the alleged disability onset, he was classified as a "younger
individual." He worked in the past as a metal worker, a landscaper, a
postal handler, and a maintenance worker. *fn1
Mr. Burlingame is a veteran who served in the military
from 1976 to 1980, and in 2003 the Department of Veterans Affairs
("VA") classified Mr. Burlingame with a 70% disability rating for
Post-Traumatic Stress Disorder related to his military service.
*fn2 The VA also classified Plaintiff with a 100%
unemployability rating. The VA determined that as a result of
service-related disabilities, Plaintiff had trouble keeping jobs
because of an inability to control
his temper and trouble concentrating. *fn3
This is the second time Plaintiff has sought relief in this Court. Plaintiff's application for disability benefits was initially denied by the ALJ on June 5, 2006. *fn4 The ALJ found that although Plaintiff had several severe impairments, he retained the residual functional capacity to perform work and was not disabled. *fn5 After the Appeals Council denied review, Plaintiff filed an action in this Court on December 13, 2006, at Civil Action No. 06-5465. In that case, Magistrate Judge Caracappa recommended remand, determining that the ALJ had failed to reconcile the reports of Mr. Burlingame's treating psychologist with the conclusions of a treating psychiatrist, *fn6 failed to give the VA's disability determination substantial weight or explain her reasons for rejecting it, *fn7 and failed to adequately consider the effect of Plaintiff's back and knee conditions in combination with his mental impairments. *fn8 This Court approved and adopted the R&R and remanded the case for a new hearing. The case was heard on remand before the same ALJ, who again determined that Mr. Burlingame was not disabled, and the Appeals Council again denied review. Mr. Burlingame then returned to this Court by filing this action.
Disability determinations before an ALJ "involve shifting burdens
of proof." *fn9 The claimant initially
satisfies the burden of showing he is disabled by demonstrating that
he cannot return to his customary occupation. *fn10
Once the claimant's initial burden is met, the burden
shifts to the Commissioner, who must show that the claimant can still
engage in substantial gainful activity. *fn11
This burden-shifting process follows a five-step sequential
evaluation process promulgated by the SSA. *fn12
At step one, the ALJ must determine whether the applicant
is currently engaging in "substantial gainful activity"; if the ALJ so
finds, the claim is denied. *fn13 In
step two, the ALJ must determine whether the claimant is suffering
from a severe impairment. *fn14
If the claimant suffers from a severe impairment, the ALJ next compares the claimant's impairment to a list of impairments presumed to preclude any gainful work, which are listed in Part 404, Subpart P, Appendix 1 of the applicable regulations ("listed impairments"). *fn15 If the applicant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five. At step four, the ALJ must determine whether the applicant has the residual functional capacity to perform past relevant work. *fn16 If the applicant proves he cannot resume his former occupation, the burden shifts to the Commissioner at step five, where the Commissioner must demonstrate that the applicant is capable of performing other work available in the national economy. *fn17 If the Commissioner cannot demonstrate that the applicant is capable of other work, the ALJ must find the applicant to be disabled.
A court reviewing a Social Security case must base its decision on the record of the administrative proceedings and the pleadings of the parties. *fn18 The court's review of legal issues is plenary, but its factual review is limited. *fn19 The court must determine whether the record contains substantial evidence to support the ALJ's factual findings, and whether the Commissioner applied the proper legal standards in making its decision. *fn20 For these purposes, "substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." *fn21 It is more than a mere scintilla, but requires less than a preponderance of the evidence. *fn22 If the ALJ's factual findings were determined according to the correct legal standards and are supported by substantial evidence, the court is bound by them, "even if [it] would have decided the factual inquiry differently." *fn23
A district court must review de novo those portions of a magistrate judge's report and recommendation to which a party has objected. *fn24 The district court may in its discretion "accept, reject or modify, in whole or in part, the ...