The opinion of the court was delivered by: Conner, Senior D.J.
This is an action brought by plaintiff Patrick Henry pursuant to Title II of the Social Security Act, 42 U.S.C. § 405(g) (the "Act"), to review the final determination of defendant Michael J. Astrue, Commissioner of Social Security (the "Commissioner"), determining that plaintiff was not disabled and therefore not entitled to disability insurance benefits under the Act. Plaintiff has moved for remand for calculation of benefits, and the Commissioner has cross-moved for remand for further administrative proceedings. We have reviewed the record and conclude, for the reasons stated below, that remand for further administrative proceedings is appropriate. Accordingly, defendant's cross-motion for remand is granted, and plaintiff's motion is denied.
On October 6, 1998, the Social Security Administration ("SSA") denied plaintiff's application for disability and disability insurance benefits for the period December 23, 1980 to June 30, 1987. (Tr. 11-12.)*fn1 The plaintiff requested a hearing, which was held before Administrative Law Judge ("ALJ") J. Lawson Brown on November 12, 1999. (Id.) ALJ Brown issued a decision on January 5, 2000 determining that plaintiff was not entitled to a period of disability or disability insurance benefits. (Id. 11-17.) ALJ Brown found that plaintiff had a severe musculoskeletal impairment which did not meet the level of severity prescribed in the Regulations but which did prevent him from performing his past relevant work as a truck driver and warehouse worker. (Id. 16.) ALJ Brown also found that plaintiff retained the residual functional capacity to perform a full range of sedentary work activity prior to June 30, 1987 and therefore was not disabled. (Id. 16-17.) The Appeals Council denied plaintiff's request for review of ALJ Brown's decision. (Id. 3.) Plaintiff then filed a complaint in the Southern District of New York on October 18, 2000. (Id. 181.)
On July 22, 2002, United States Magistrate Judge Theodore H. Katz recommended that the case be remanded to the Commissioner for further proceedings to clarify the basis for the ALJ's opinion and further develop the record regarding plaintiff's vocational capacity. (Id. 198.) On March 30, 2004, United States District Judge Loretta A. Preska adopted Judge Katz's report. (Id. 169-70.) On remand, the Appeals Council remanded the case to ALJ Thomas P. Zolezzi. (Id. 160, 173.)
A hearing was held on February 3, 2005 before ALJ Zolezzi in which plaintiff testified and Peter A. Manzi, Ed.D. ("Manzi"), a vocational expert ("VE"), provided testimony by telephone. (Id. 160.) ALJ Zolezzi issued a decision on June 6, 2005, determining that plaintiff was not entitled to a period of disability or disability insurance benefits. (Id. 166.) ALJ Zolezzi found that plaintiff had a severe impairment which did not meet the level of severity prescribed in the Regulations. (Id. 165.) He also found that plaintiff did not have the capacity to perform his past relevant work, but retained the residual functional capacity to perform a wide range of sedentary work where he was able to change positions as needed, using a sit/stand option every 30 to 60 minutes. (Id.) Based on the testimony of the VE, ALJ Zolezzi determined that plaintiff had the residual functional capacity to perform other jobs existing in significant numbers in the national and local economies and was not disabled at any time from December 23, 1980 through June 30, 1987. (Id. 165-66.) The Appeals Council denied plaintiff's request for review of ALJ Zolezzi's decision. (Id. 138-40.) Plaintiff then filed this Complaint on February 9, 2007.
II. Plaintiff's Personal History
Plaintiff was born in 1941 and graduated from a high school which specialized in aviation. (Id. 261, 302.) He was in the military from 1963 to 1966 and served in the Vietnam War. (Id. 263.) Plaintiff worked as a truck driver and warehouse worker prior to his application for disability benefits. (Id. 265-66.) While at work in December 1980, he slipped on "particles" on the floor and landed at a strange angle, resulting in a back injury. (Id. 31.) Plaintiff filed for New York State Workers' Compensation benefits. (Id.) He stopped working as a truck driver and warehouse worker after this injury and his only attempt at work after that was a job with the United States Postal Service (the "Post Office") in 1985, which lasted two weeks. (Id. 33.) Plaintiff could not sit long enough to do a scanning job at the Post Office and he could not lift the bags to do a stacking job. (Id.) The Post Office sent plaintiff for a physical examination and terminated him because he was not physically fit for the job. (Id. 34.)
Plaintiff testified that during the relevant time period he had low back pain, pain down his right leg, numbness in his right leg and he could do no lifting. (Id. 263-64.) He also testified that he was depressed for a few years but he was not treated by a psychiatrist and he did not take any medication for depression. (Id. 264, 271.) Plaintiff testified that he took Naprosyn for pain at least once a day. (Id. 273.) He testified that, after 30 to 60 minutes of sitting or standing, he would get pain in his lower back going down his right leg and there was nothing he could do to relieve it except to sit or lie down. (Id. 273-74.) He testified that the heaviest thing he could lift was a pot. (Id. 275.)
Plaintiff is married with three sons. (Id. 263.) His wife did the food shopping but he cooked.
(Id. 276-77.) He did not help out with household chores except to do laundry placed at the machine. (Id. 277-78.) He tried to get exercise, like walking, and he would walk around the mall for about a half hour and then sit down. (Id. 279.) Plaintiff belonged to a political party in which he tried to be active but he could not really participate. (Id. 280.) He attended his sons' athletic events and he read. (Id. 281-82.)
During the period at issue, from December 23, 1980 though June 30, 1987, plaintiff had five examinations with his treating physician, Dr. Howard D. Balensweig. (Id. 161.) On January 9, 1981, plaintiff saw Dr. Balensweig and complained of numbness in his right foot that occurred when he drove. (Id. 127.) He told Dr. Balensweig that he was comfortable sitting and lying but needed to change position after a short time. (Id.) Dr. Balensweig's impression was that plaintiff had a recurrent lumbar sprain superimposed upon disc-degenerative disease, which was precipitated by an accident at work. (Id. 128.) Dr. Balensweig opined that plaintiff was permanently disabled from his occupation and should seek a "lighter occupation." (Id.) He prescribed Anaprox to plaintiff as a pain reliever. (Id. 129.)
Plaintiff next saw Dr. Balensweig on July 14, 1981, however no report of this visit is in the record. (Id. 161.) The next report from Dr. Balensweig is dated February 5, 1982. (Id. 125.) Plaintiff reported pain in his back radiating into both legs and numbness along the right leg. (Id.) Dr. Balensweig reported that plaintiff was now developing some neurological symptoms because of his lumbosacral sprain. (Id. 126.) Dr. Balensweig opined that plaintiff was disabled from his former occupation and was fit for primarily sedentary work. (Id.) He continued the Anaprox. (Id.)
Plaintiff's next visit with Dr. Balensweig was May 20, 1983. (Id. 122.) Plaintiff reported that he felt the same as when he last saw Dr. Balensweig and that a couple of weeks prior to the visit he developed an "acute attack" of pain which lasted five or six days. (Id.) Dr. Balensweig reported that plaintiff had a traumatic precipitation of disc-degenerative disease at L5-S1 with intermittent disc bulging, which explained the occasional pain running down plaintiff's right leg. (Id. 124.) Dr. Balensweig noted that plaintiff needed to resort to bedrest intermittently. He also noted that plaintiff had thinning of the right thigh which was evidence of some low-grade intermittent nerve root irritation. (Id.) He opined that plaintiff was partially disabled and unable to do any frequent bending or heavy lifting and at times unable to work at a "lighter job" because he had to resort to bedrest with acute attacks. (Id.)
Plaintiff saw Dr. Balensweig again on May 16, 1985. (Id. 119.) Plaintiff reported that his back had not changed and that "[h]is present limitations are one half-hour to an hour depending upon how he feels," standing for about 15 minutes and walking five to ten blocks. (Id.) He had pain with frequent bending and some pain if he tried to lift 15 pounds or if he tried lifting repetitively. (Id.) Dr. Balensweig reported that plaintiff had a chronic lumbosacral sprain with secondary arthritic changes and nerve root compression on the right side. (Id. 121.) He opined that plaintiff was disabled for any strenuous activity, prolonged sitting or frequent bending and should not lift more than 15 pounds. (Id.) He reported that plaintiff can sit for a half hour to an hour, should be allowed to change positions on occasion, can be on his feet part-time and should not bend more than occasionally. (Id.)
Plaintiff also saw a chiropractor from July 1982 through November 1983. (Id. 95-98, 94.) The chiropractor opined that plaintiff was disabled with respect to his ability to perform the duties of his occupation but could perform sedentary work with vocational rehabilitation. (Id. 97-98.)
IV. ALJ Zolezzi's Decision
ALJ Zolezzi considered Dr. Balensweig's reports for the relevant time frame, from 1981 through 1985, and determined that no reported clinical findings met or equaled in severity the criteria for presumptive disability due to disorders of the spine in Listing 1.04. (Id. 161.) ALJ Zolezzi determined that plaintiff did not have the residual functional capacity to perform his past relevant work as a truck driver, truck driver helper or warehouse worker, but that he did have the residual functional capacity to perform a wide range of sedentary work. (Id. 163-65.)
ALJ Zolezzi also considered plaintiff's testimony. He noted that plaintiff had not worked since 1980 except for an attempt to work for the Post Office in 1985 which he was unable to do because he did not pass a physical examination. (Id. 162.) Plaintiff testified that he could not lift more than 5 to 10 pounds, had trouble walking, had pain, and lost control sometimes when driving because his leg went numb. (Id.) He considered factors such as daily activities, objective findings, the intensity, frequency and duration of symptoms, the frequency of treatment, the use of medications, other forms of treatment and the consistency of his allegations and concluded that plaintiff's allegations were not fully credible. (Id.) For example, plaintiff was advised by his physician to get some physical activity during this time, especially walking, he reported taking care of his baby while his wife worked and working on a local political committee, although he could not go door-to-door. (Id. 162-63.)
ALJ Zolezzi also considered that Dr. Balensweig, whom plaintiff identified as his treating physician, had only examined plaintiff 5 times during the relevant period and each examination was for plaintiff's Workers' Compensation claim. (Id. 162.) He noted that plaintiff also saw Dr. Arnold Belgraier on December 23, 1980 and for a follow-up visit on January 3, 1981. (Id.) Dr. Belgraier diagnosed plaintiff with a low back strain with possible disc disease and estimated that he would be out of work for two weeks. (Id.)
ALJ Zolezzi noted that while Dr. Balensweig consistently opined that plaintiff could not perform his past work, he repeatedly advised that plaintiff should seek a lighter occupation and recommended vocation rehabilitation. (Id. 163.) Therefore, he noted that Dr. Balensweig's findings did not support plaintiff's allegations of "virtual debility." (Id.) ALJ Zolezzi also considered the observations of plaintiff's chiropractor, Charles Krasner, although he noted that chiropractors are not an acceptable medical source to establish impairment, diagnosis or residual functional capacity. (Id.) However, he noted that Dr. Krasner's opinion and observations were consistent with those of Dr. Balensweig in concluding that plaintiff could not perform his past work but could be trained for lighter work. (Id.)
ALJ Zolezzi noted that sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting and carrying articles like docket files and small tools. (Id.) He also noted that jobs are sedentary even though walking and standing are required occasionally. (Id.) ALJ Zolezzi determined that plaintiff was able to perform a wide range of sedentary work where he would be able to change positions as needed, using a sit/stand option every 30 to 60 minutes; would perform occasional but not frequent bending; would not be required to lift over 15 pounds and would be able to stand up to 15 minutes. (Id.) He determined that these findings were supported by the opinions of the treating physician. (Id.) ALJ Zolezzi noted, that although in 1983 Dr. Balensweig opined that plaintiff needed bedrest during acute attacks, no other acute attacks were documented during the six years at issue other than the one that plaintiff reported during his May 1983 visit. (Id. 164.) ALJ Zolezzi concluded that "the rarity of such an event during this period does not significantly limit [plaintiff's] residual functional capacity." (Id.)
ALJ Zolezzi noted that once he determined that plaintiff could not return to his past relevant work because it involved medium or heavy exertion, the burden shifted to the Commissioner to show that there were other jobs existing in significant numbers in the national economy which plaintiff could still perform considering his age, education, vocational history and residual functional capacity. (Id.) Plaintiff was 39 to 45 years of age during the relevant period, which is considered a younger individual, with a high school education. (Id.) According to ...