The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Jeffrey Charlton ("Charlton") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying his application for benefits under the Social Security Act. Charlton moves for a finding of disability and the Commissioner cross-moves for a judgment on the pleadings. Docket Nos. 10, 12. For the reasons which follow, it is recommended that the Commissioner's decision be affirmed.
On January 31, 2005, Charlton filed an application for disability insurance benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq. T. 40-44.*fn1 That application was denied on August 2, 2005. T. 22. Charlton requested a hearing before an administrative law judge ("ALJ") and a hearing was held before ALJ Elizabeth Koennecke on July 5, 2007 via video conference. T. 25-26, 218-49. In a decision dated September 21, 2007, the ALJ held that Charlton was not entitled to disability benefits. T. 11-20. On November 5, 2007, Charlton filed a timely request for review with the Appeals Council. T. 7-9. On January 4, 2008, the Appeals Council denied Charlton's request, thus making the ALJ's findings the final decision of the Commissioner. T. 4-9. This action followed.
II. Contentions Charlton contends that the ALJ erred in (1) finding that his obesity, was not of sufficient severity to constitute a listed condition, (2) not considering properly the medical opinions and other evidence of record, (3) finding that Charlton was not credible concerning his statements of pain and disability, (4) concluding that Charlton retained sufficient residual functional capacity (RFC) to perform work, and (5) stating that a vocational expert was not required to determine whether Charlton retained the residual functional capacity (RFC) to continue working.
Charlton is currently forty-six years old and completed high school, a Pinkerton Security Guard training course, and the correctional officers academy. T. 60, 224-25. Charlton's previous work experience included assembly work, field supervisor for the Salvation Army, gas station attendant, publications distributor, test administrator for federal airport security, custodian, security guard, hardware department associate, taxicab operator, doorman, and chauffeur. T. 56-57, 62, 225-27. Charlton alleges that he became disabled on October 15, 2002 due to musculoskeletal complaints, morbid obesity,*fn2 asthma, and depression.T. 16.
"Every individual who is under a disability shall be entitled to a disability. . . benefit. . . ." 42 U.S.C. § 423(a)(1) (2004). Disability is defined as the "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." Id. § 423(d)(1)(A). A medically determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be supported by "medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). Additionally, the severity of the impairment is "based [upon] objective medical facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience." Ventura v. Barnhart, No. -4 Civ. 9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).
The Second Circuit employs a five-step analysis, based upon 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he [or she] is not, the [Commissioner] next considers whether the claimant has a 'severe impairment' which significantly limits his [or her] 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 [or her] disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a 'listed' impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he [or she] has the residual functional capacity to perform his [or her] past work. Finally, if the claimant is unable to perform his [or her] past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The plaintiff bears the initial burden of proof to establish each of the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Berry, 675 F.2d at 467. Substantial evidence is "more than a mere scintilla," meaning that in the record one can find "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)).
"In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 72 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If the Commissioner's finding is supported by substantial evidence, it is conclusive. 42 USC § 405(g) (2006); Halloran, 362 F.3d at 31.
Charlton has not engaged in any substantial gainful activity since the onset of disability on October 15, 2002. T. 16.
On June 9, 2002, Charlton received treatment from Dr. Shah for bilateral leg swelling and right knee pain. T. 211. On August 27, 2002, Charlton returned with complaints of left knee pain which had persisted for several months. T. 149. Examination showed tenderness over the knee joint, x-rays were unremarkable, and Dr. Shah diagnosed Charlton with a possible medial meniscus tear. Id. at 149, 154. On September 21, 2002, Charlton underwent an MRI of his left knee which showed that his anterior and posterior cruciate ligaments were intact, a definite meniscal tear could not be identified, and fluid had built up in the knee confirming a possible injury.
T. 152. The impression was that further arthroscopy and therapeutic evaluations should be conducted. Id.
On October 1, 2002, Charlton was seen by orthopaedist Dr. Stewart for his continued left knee pain. T. 148. Dr. Stewart indicated that the MRI was inconclusive but that Charlton still suffered from pain, especially when walking and pivoting, which was consistent with a torn meniscus. Id. Dr. Stewart discussed surgery with Charlton and suggested he undergo a knee arthroscopy. Id. On October 17, 2002, Charlton signed the surgical consent forms, and underwent a physical examination which showed that, other than obesity and his injured left knee, his health was normal. T. 148.
On October 21, 2002, Charlton underwent another preoperative examination at Massena Memorial Hospital before his knee surgery. T. 86-92. The examination indicated that (1) he was obese, (2) he had normal vital signs, and (3) his chest x-ray showed scarring in his lungs but he was asymptomatic. T. 87-89, 92. The surgery was scheduled for November 6, 2002. T. 94, 148. On April 3, 2003, Charlton returned to the orthopaedic group seeing Dr. Bakirtzian for complaints of on-going left knee pain. T. 146. By then, Charlton had been scheduled for knee surgery three times and had cancelled all three but now wished to undergo surgery. Id. Charlton still experienced pain in his knee and was informed that he would be scheduled for surgery a final time, but that if he cancelled again, he would be required to seek treatment from a different orthopaedic group. Id. Twelve days later, Charlton's wife cancelled the surgery due to a family member's illness. Id.
On June 6, 2003, Charlton returned to Dr. Bakirtzian on a referral from Dr. Gupta at Massena Memorial. T. 146. On July 1, 2003, Charlton underwent a preoperative consultation at the hospital, subjectively stating that he generally felt good, had aches and pains and some numbness and tingling in extremities, exhibited good range of motion in his knee, and showed no signs of clubbing or swelling. T. 125; see generally T. 124-32. Surgery revealed no lateral meniscal tears but a "very small tear" in the medial compartment which was successfully debrided. T. 128.
On July 15, 2003, Dr. Bakirtzian found that Charlton was doing well, previous pain had dissipated, he had good quadricep strength, the knee had full mobility, and Charlton was finishing his therapy that week. T. 144. Ten days later, Charlton returned to the orthopaedist seeing Dr. Stewart complaining of left knee and right ankle pain. T. 144. Dr. Stewart noted full range of motion and strength in the left knee with no signs of significant pain and slight ankle pain which was improving. Dr. Stewart recommended that Charlton continue to increase his work and activities culminating in exercising for a mile. Id. On August 20, 2003, Dr. Stewart again found full range of motion in both the ankle and knee, full strength in the knee, and mild to moderate tenderness of the knee and ankle upon palpation. Id. Dr. Stewart recommended physical therapy for the right ankle and left knee. Id.
A month later, Charlton returned for a follow-up appointment for a right ankle sprain. T. 142. Physical examination showed improved range of motion, the ability to walk with a nonantalgic gait,*fn3 and intact sensation. Id. Dr. Stewart recommended continued physical therapy as it seemed to be helping. Id. On October 3, 2003, Dr. Stewart found full range of motion in his ankle, tenderness over the tendons, and unremarkable x-rays, and recommended continued physical therapy. T. 142. Charlton did not attend his next appointment. Id. On October 31, 2003, Dr. Stewart found that physical therapy was improving the status of his knee and foot and Charlton was advised to continue with it. Id. A month and a half later, Charlton again failed to attend his scheduled appointment. T. 141.
On April 6, 2004, Charlton underwent x-rays of his right foot at Massena Memorial Hospital. T. 181. The x-rays showed no indication of fracture or dislocation, the joint spaces were well preserved, there were no abnormalities, but there was a subchondral defect in the ankle possibly associated with a loose body. Id. Charlton was diagnosed with an osteochondral defect*fn4 of his ankle. Id. On April 17, 2004, Charlton underwent an MRI of his right foot and ankle which confirmed the existence of an osteochondral defect, discovered no fragments in the joint space, the structures surrounding the ankle appeared intact, and there were no masses or swelling. T. 180. The impression was that the defect was the result of a stage III lesion. Id. On April 30, 2004, Charlton returned to Dr. Stewart complaining of ankle pain. T. 141. Charlton had attempted weight reduction programs but was still experiencing pain. Id. The physical examination showed slight pain but full range of motion and strength in the ankle. Id. Dr. Stewart advised further examination by an orthopaedist in Syracuse. Id.
Charlton did not seek additional treatment for his ankle or knees until February 3, 2005 when he was seen by his primary care physician, Dr. Gupta, complaining of right ankle pain, arthritis in both knees, and back pain. T. 178. Physical examination showed no swelling in the extremities but pain in the right ankle, both knees, and his lower back. Id. Charlton was diagnosed with degenerative joint disease of the knee and other joints, ankle and low back pain, asthma, and obesity. Id. Dr. Gupta again advised Charlton to see the orthopaedist in Syracuse or return to Dr. Stewart. T. 179.*fn5
On March 22, 2005, Charlton saw Dr. Gupta again, complaining that his ankle had continued to bother him, he was still financially unable to travel to Syracuse, and he was hesitant to see the Syracuse orthopaedist. T. 175. Charlton's physical examination was unremarkable and he was again diagnosed with degenerative joint disease at multiple sites and encouraged to seek ...