The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Plaintiff Konstantinos Katsigianis, filed an application for supplemental security income ("SSI") under the Social Security Act (the "Act") on March 4, 2004. Plaintiff's application was denied initially and on reconsideration. Plaintiff appeared with counsel and testified at a hearing held before an Administrative Law Judge ("ALJ") on March 8, 2006. By a decision dated April 28, 2006, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. On October 5, 2006, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review. Plaintiff filed the instant action seeking judicial review of the denial of benefits, pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). The Commissioner now moves for judgment on the pleadings, pursuant to Rule 12 of the Federal Rules of Civil Procedure, seeking affirmation of the denial of benefits. Plaintiff cross-moves for judgment on the pleadings, seeking reversal of the Commissioner's decision, or alternatively, remand. For the reasons set forth more fully below, defendant's motion is granted in part and denied in part. The court finds that substantial evidence supports the ALJ's decision and that the decision is free of legal error. However, plaintiff now is of "advanced age"*fn2 and, thus, may be entitled to benefits. Plaintiff's motion, accordingly, is granted in part in that this action is remanded for further proceedings on the sole issue of whether plaintiff, as a person of "advanced age," is now entitled to benefits.
A. Non-Medical and Testimonial Evidence
Plaintiff is a 56-year-old who attended school through the ninth grade. (A.R. 265.)*fn3 He testified that a heart condition requiring a bypass surgery limited his ability to work and "uncontrollable" blood pressure causes him to feel dizzy. (A.R. 56-57, 271.) In connection with these conditions, plaintiff alleges to suffer from fatigue, dizziness, shortness of breath, and chest pain. (A.R. 268, 271.) Further, he testified that he experienced chest pain daily, which prevented him from working. (A.R. 266, 268.) Plaintiff's employment history is limited. He worked at Pepsico and the Bulova Watch Company during the 1970s, and had no earnings from 1984 to 2001. (A.R. 14, 265, 268.) In his SSI application, he indicated that he was self-employed as a part-time taxi driver in 2002, earning $5,514.00 for the year. (A.R. 14, 52.) He has not worked since 2002 due to "lack of work." (A.R. 57.)
On February 18, 2004, plaintiff was admitted to NYU Medical Center with chest pains and severe shortness of breath. (A.R. 102, 108.) He was diagnosed with severe unstable angina, severe triple vessel disease, hypertension, and hyperlipidemia and underwent a quadruple-vessel coronary artery bypass. (A.R. 98-100.) By February 27, 2004, plaintiff had stabilized, and was discharged home with prescriptions for Amiodarone, Digoxin, Lopressor-Metoprolol, Plavix, Lipitor, folic acid, and ferrous sulfate. (Id.) He was counseled on his diet and activity. (Id.) Plaintiff went to Bellevue Hospital Center for three follow-up visits. On March 19, 2004, he was described as "doing well." (A.R. 143-44, 146.)
There is no evidence of any further treatment until December 2005. On December 7, 2005, Dr. Constantine Kosmas evaluated plaintiff. (A.R. 191.) Plaintiff underwent a nuclear stress test, which "was terminated due to fatigue." Id. Dr. Kosmas noted that plaintiff had "a hypertensive blood pressure response to exercise," a "negative stress-EKG response," and no arrhythmia during the test. Id. An imaging study "demonstrate[d] mild to moderate infero-lateral basal ischemia." Id. Additionally, plaintiff underwent an echocardiogram, which indicated mild to moderate left ventricular hypertrophy, moderate left atrial, and mild right atrial enlargement, among other abnormalities. (A.R. 192.) On December 14, 2005, Dr. Papadakos Stylianos conducted a diagnostic procedure that revealed triple vessel coronary artery disease marked by stenosis in several arteries, and critical stenosis in the right coronary artery. (A.R. 206, 243.) He diagnosed plaintiff with mild to moderate systemic disease and inserted stents to increase blood flow to plaintiff's heart. (A.R. 206, 238.) Plaintiff was prescribed Zocor, Metoprolol, and Fosinopril. (A.R. 200.)
The next medical appointment on record is a May 17, 2006 visit to New York Hospital in Queens, at which time Dr. Stylianos conducted diagnostic procedures including cardiac catheterization, ventriculography, aortogram, and coronary angiography. (A.R. 258.) The procedures revealed stenosis at levels similar to those recorded in December 2005. Dr. Stylianos concluded that plaintiff had triple vessel disease, old occlusion, patent left internal mammary artery graft to left anterior descending artery, and saphenous vein graft to first diagonal branch. (A.R. 258.) Dr. Stylianos recommended "continued medical therapy and secondary prevention measures." Id. There is no indication what, if any, treatment or medical therapy plaintiff received after these diagnostic procedures.
The record contains a Physical Residual Functional Capacity Assessment completed by Daii A. Shteyngart, a Disability Determination Services ("DDS") physician. (A.R. 154-61.) It is unclear when this assessment took place. Dr. Shteyngart indicated that plaintiff could occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, stand and/or walk about six hours in an eight-hour workday, and sit with normal breaks for approximately six hours in an eight-hour work day. Id. Dr. Shetyngart found plaintiff's statements regarding symptoms of chest pain, shortness of breath and inability to walk and stand for long periods of time "partially credible" based on an abnormal EKG. (A.R. 159.) Finally, Dr. Shteyngart noted that the treating source's statements regarding plaintiff's physical capacity were not "significantly different" from his findings. Id.
On June 25, 2004, Dr. E. B. Balinberg, a consultant for the Agency, evaluated plaintiff. (A.R. 162-84.) He noted that plaintiff took Zocor, Metorprolol, Enalapril, Diflucan, and, Tylenol for his symptoms. (A.R. 162.) He diagnosed plaintiff with "coronary artery disease, status post- aorta coronary bypass graft surgery." (A.R. 163.) He found plaintiff's condition "chronic, possibly progressive" and noted that he had a "limited ability to do heavy physical activities like, lifting, carrying, pushing, pulling, heavy loads." (A.R. 164.) Plaintiff also underwent a treadmill stress test, administered by Dr. Soo Park, that revealed no evidence of ischemia, and that plaintiff's physical fitness was above average. (A.R. 165.) Further, Dr. A. S. Kape evaluated plaintiff's medical records upon request of the New York Office of Temporary and Disability Assistance, concluding that plaintiff was able to lift ten pounds frequently, lift twenty pounds occasionally, and walk and stand six hours in an eight-hour day. (A.R. 185.)