The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Gloria Hodge ("Plaintiff") brought this action under §205(g) and §1631(c)(3) of the Social Security Act, codified as 42 U.S.C. §405(g) and §1383(c)(3), to review a final determination of the Commissioner of Social Security ("Commissioner") that denied Plaintiff's application for disability insurance benefits. Before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Plaintiff applied for Supplemental Security Income ("SSI") on January 28, 2003. She was denied benefits on June 12, 2003 and filed a pro se request for a hearing before an Administrative Law Judge ("ALJ"). The original hearing was held on September 17, 2004 at which time Plaintiff requested adjournment to obtain counsel. On November 24, 2004, Plaintiff appeared before the ALJ represented by an attorney. A supplemental hearing was held March 24, 2005 at which time Peter Manzi, a Vocational Expert ("VE"), testified. ALJ Thomas Zolezzi denied Plaintiff's request for Social Security benefits on June 20, 2005.
A request for review by the Appeals Council was submitted on behalf of Plaintiff on August 16, 2005 and was subsequently denied on December 18, 2006. The decision of the ALJ became the Commissioner's final decision in the case. Plaintiff commenced this civil action on February 12, 2007 requesting review of the Commissioner's decision.
Plaintiff was born on February 23, 1959 and completed some college. Tr. at 168, 275, 447.*fn2 *fn3 She has five children and four grandchildren. Tr. at 448. She was employed until November 1, 2001as a nurse's aide. Tr. at 107, 452. After that, she worked as a residential counselor until February 2003. Tr. at 168, 276, 454, 455. She then worked as a cook at a family restaurant until the fall of 2004. Tr. at 377, 383, 455.
Plaintiff was diagnosed as HIV positive in 1993. Tr. at 405. She also has Hepatitis C. Tr. at 403, 405. Plaintiff has a history of drug abuse and had been on a Methadone maintenance program. Tr. at 117, 168.*fn4 The record shows that Plaintiff has been on and off illegal drugs, with the most recent positive test for cocaine and opiates occurring in October of 2004. Tr. at 403. She is a smoker and occasionally consumes alcohol. Tr. at 118, 168.*fn5 Plaintiff maintains her own hygiene care and her son helps her with the cooking, shopping and cleaning. Tr. at 173, 467, 470.
Plaintiff's primary care physician until 2004 was Dr. Adetutu Adetona. Tr. at 252-54, 291, 462. Plaintiff visited Dr. Adetona on May 5, 2000 for examination of an injury that occurred at work on March 17, 2000. Tr. at 256-57. Dr. Adetona prescribed a muscle relaxant and physical therapy. Id. It was also noted that eight years prior, Plaintiff had been injured at work but had recovered. Id. During the May 2000 visit, Dr. Adetona declared Plaintiff disabled from her "regular duties or work" at that time. Id.
On January 29 and April 16, 2002, Plaintiff was again seen by Dr. Adetona. Tr. at 253-54. Plaintiff's complaints included insomnia, swollen hands and ankles, and pain in her left wrist. Id. Dr. Adetona's diagnosis stated that the swelling and pain in the ankles may be due to arthritis, and he prescribed insomnia and pain medication. Id. It was also noted that Plaintiff's past history was significant for chronic pain and HIV. Id. Plaintiff was taken off of Ketoprofen, an anti-inflammatory, and put on Mobic, another arthritis medication. Tr. at 253.*fn6
On June 29, 2002 Plaintiff visited the emergency room ("ER") where she complained of a cough. Tr. at 279. Tests were performed and bronchial markings were observed, which may have been due to bronchitis or lower airway infection. Id. These tests were sent to Dr. Adetona. Id.
Plaintiff visited Albany Medical Center on July 16, 2002 complaining of chest pain and persistent cough. Tr. at 153. She was seen by Dr. Marvin Day who discussed with Plaintiff the need to quit smoking. Tr. at 154. The report stated that Plaintiff had been to the Seton Health ER four times in the previous two weeks. Tr. at 153. There were no records included in the administrative record by Seton Health between June 29 and July 16. Tr. at 279.
Plaintiff visited Albany Medical Center again on September 6, 2002 for a routine HIV follow up visit. Tr. at 131, 151. She complained of leg numbness and back pain that she rated an eight out of ten. Id. Dr. Day reported that Plaintiff's back pain had gotten better over several years and that Plaintiff appeared under no distress. Id. Plaintiff reported that she was not on any drugs or alcohol, just Methadone maintenance. Id. Plaintiff was given prescriptions for Soma and Ketoprofen. Tr. at 132, 152.*fn7 A follow up appointment with Dr. Day was scheduled. Id.
On January 14, 2003, Plaintiff returned to Dr. Adetona. Tr. at 252. Plaintiff complained of back pain and depression. Id. She stated that she smoked, but did not use drugs or alcohol. Id. She claimed to have not used drugs in five years, but the records show that she tested positive for cocaine in August 2002. Id. Dr. Adetona prescribed Bextra and Soma for Plaintiff's pain and Zoloft for her depression. Id. Dr. Adetona stated that the back pain was due to injury or degenerative joint disease and recommended follow up in two to three weeks. Id.
The above was followed by two visits to Albany Medical Center. Tr. at 117, 129. On February 6, 2003, Plaintiff went to the ER complaining of abdominal pain that had lasted one week. Tr. at 117, 146. She was admitted and it was determined that Plaintiff had a urinary tract infection and Pyelonephritis*fn8. Id. Her current medications were listed as Soma, Ketoprofen, and Methadone and she was given Gatifloxacin to treat the infections. Tr. at 119. Dr. David Herman discharged the Plaintiff and recommended a follow up urinalysis. Tr. at 117, 119. On February 16, 2003 Plaintiff was admitted again with complaints of right sided flank pain. Tr. at 129. She was diagnosed with constipation and costochondritis*fn9, discharged on February 27 and scheduled for follow up with Dr. Day on March 12, 2003. Tr. at 129.
Next, Plaintiff was examined by several consultants at the request of the Social Security Administration. Tr. at 168, 172, 176, 183. On May 13, 2003, Plaintiff saw Dr. Annette Payne for a psychiatric evaluation. Tr. at 168. Plaintiff reported to Dr. Payne that she was in drug and alcohol rehabilitation and that she was one year clean and one year on the Methadone program. Id. Plaintiff also stated during this examination that as a result of being the victim of three rapes she had nightmares and flashbacks that led to difficulty sleeping. Tr. at 169. At this time, Plaintiff also denied having any panic attacks or manic symptoms but stated that she suffered from significant depression and anxiety. Id. Plaintiff also reported to Dr. Payne that she performed chores and could take care of herself, but that her children and significant other helped with the laundry, shopping, cooking and with managing finances. Tr. at 170.
Dr. Payne's analysis stated that Plaintiff could follow and understand simple directions and perform simple rote tasks under supervision. Tr. at 171. She also stated that Plaintiff had problems with attention and concentration, that she had difficulties performing complex tasks and making appropriate decisions and that she had difficulties relating with others and dealing with stress. Id. Dr. Payne reported that Plaintiff's psychiatric difficulties were moderately limiting. Id. Recommendations included in the evaluation stated that Plaintiff would likely benefit from vocational rehabilitation, regular counseling and psychotropic medications, and from a program that would address both substance abuse and psychiatric difficulties. Id. Dr. Payne's prognosis of Plaintiff was "fair". Id.
Also on May 13, Plaintiff was examined by Dr. Assim Yousef. Tr. at 172. Plaintiff complained to Dr. Yousef of back trouble and a pinched sciatic nerve which caused leg numbness on her left side. Id. She also mentioned swelling of both her hands and feet if she stood up for too long. Id. Plaintiff told Dr. Yousef that she cooked a few times a ...