The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Joann Clobridge brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny her application for disability benefits.
On June 7, 2005, plaintiff protectively filed an application for Disability Insurance Benefits ("DIB"). (T. 65)*fn1 . Plaintiff was 47 years old at the time of her application and alleged an inability to work due to neck surgery on March 3, 1997 and continued neck, left arm and left hand pain. (T. 76). Plaintiff completed two years of college and received an Associates Degree.
(T. 27). Plaintiff's past work consisted of employment as a bank teller, bookkeeper, cashier and data entry/secretarial work. (T. 26).
On September 6, 2005, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on January 3, 2007. (T. 20, 45). On February 20, 2007, the ALJ issued a decision denying plaintiff's claim for disability benefits. (T. 11-18). The Appeals Council denied plaintiff's request for review on April 27, 2007, making the ALJ's decision the final determination of the Commissioner. (T. 3). This action followed.
The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." The Act defines "disability" 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." 42 U.S.C. § 423(d)(1)(A). There is a five-step analysis for evaluating disability claims:
"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted).
A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw, 221 F.3d at 131. Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
On February 20, 2007, the ALJ issued a decision noting that the relevant period was March 1, 1997, the alleged onset date, through September 30, 1998, the date last insured.*fn2 (T. 13). The ALJ found at step one that plaintiff has not engaged in substantial gainful activity since March 1, 1997. (T. 13). At step two, the ALJ concluded that plaintiff suffered from status post cervical discectomy and fusion which qualified as "severe impairments" within the meaning of the Social Security Regulations (the "Regulations"). (T. 13). At the third step of the analysis, the ALJ determined that plaintiff's impairments did not meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. (T. 15). The ALJ found that plaintiff had the residual functional capacity ("RFC") to "lift/carry 20 pounds occasionally and 10 pounds frequently, sit for 6 hours in an 8 hour workday, stand/walk for 6 hours in an 8 hour workday, could occasionally engage in postural activities and could not engage in repetitive pushing and pulling with her upper extremities." (T. 15). Therefore, at step four, the ALJ concluded that plaintiff was unable to perform all of her past relevant work. (T. 16). Relying on the medical-vocational guidelines ("the grids") set forth in the Social Security Regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ found that plaintiff has the exertional capacity to perform a full range of light work. (T. 17). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 17).
In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:
(1) plaintiff's neck impairment meets the requirements of Listing § 1.04A; (2) the ALJ failed to develop the record and follow the treating physician rule; (3) the ALJ's credibility assessment did not comply with §404.1529; (4) the RFC determination by the ALJ is not supported by substantial evidence; and (5) plaintiff presents non-exertional impairments which require the use of a vocational rehabilitation expert rather than reliance upon the grids and thus, the Commissioner did not sustain his burden of proof at the fifth step of the sequential evaluation process. (Dkt. No. 16).
A. Meet or Medically Equals a Listed Impairment - Listing § 1.04A
Plaintiff claims that she suffers from an impairment that meets the level described in Listing § 1.04A. Plaintiff contends that the Commissioner's decision should be vacated and the matter remanded to the agency for the sole purpose of calculation of benefits. (Dkt. No. 16, p. 20). The Commissioner argues that the ALJ's decision on the issue is supported by substantial evidence. (Dkt. No. 18, p. 11). Defendant contends that the evidence does not depict a condition of Listing-level severity lasting for 12 continuous months during the insured period.
A claimant is automatically entitled to benefits if her impairment(s) meets the criteria set forth in Appendix 1 to Subpart P of Part 404. McKinnev v. Astrue, 2008 WL 312758, *4 (N.D.N.Y. 2008). The burden is on the plaintiff to present medical findings which show that her impairments match a listing or are equal in severity to a listed impairment. Zwick v. Apfel, 1998 WL 426800, at *6 (S.D.N.Y. 1998). In order to show that an impairment matches a listing, the claimant must show that her impairment meets all of the specified medical criteria. Pratt v. Astrue, 2008 WL 2594430, at *6 (N.D.N.Y. 2008) (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)) (holding that if a claimant's impairment "manifests only some of those criteria, no matter how severely," such impairment does not qualify). Evidence of an impairment that reached disabling severity after the expiration of an individual's insured status cannot be the basis for a disability determination, even though the impairment itself may have existed before the individual's insured status expired. Mattison v. Astrue, 2009 WL 3839398, at *5 (N.D.N.Y. 2009) (citations omitted). However, evidence of a disability attained after a plaintiff's insured period may be pertinent "in that it may disclose the severity and continuity of impairments existing before" the insured period expired. Gold v. Sec'y of Health, Educ. & Welfare, 463 F.2d 38, 41-42 (2d Cir.1972).
The requirements of disability for spine disorders listed in 20 C.F.R. Part 404, Subpt. P, App. 1, state:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).
Horohoe v. Astrue, 2009 WL 2156915, at *9 (N.D.N.Y. 2009). The plaintiff's treating source or other health care provider records must demonstrate that plaintiff suffered from nerve root compression and each of the four characteristics required by the Listing for the relevant time period. See Sullivan, 493 U.S. at 530.
Here, treatment records for the insured period reveal as follows: In February 1997, plaintiff was treated by Richard Zogby, M.D., an orthopedic surgeon for complaints of neck, upper arm and shoulder pain. Dr. Zogby ordered an MRI to rule out the cervical spine as the source of her shoulder and elbow pain. (T. 152). According to Dr. Zogby's records, the MRI "reveals several abnormalities and fairly significant at C4-5". Dr. Zogby further noted, "there is a central disc herniation which appears fairly acute . . [a]t C5-6 and C6-7 there are more right than left sided impingement of the spinal cord but there is at least moderate central canal stenosis with impingement".*fn3 (T. 152). In March 1997, Dr. Zogby performed a cervical discectomy and fusion at Crouse Hospital. In the operative report, Dr. Zogby noted that plaintiff, "had a central herniated disk at C4-5 impinging the thecal sac and spinal cord". (T. 100). Plaintiff's discharge diagnosis was cervical radiculopathy and herniated cervical disc.*fn4 (T. 95).
After surgery, plaintiff had approximately eleven follow up visits with Dr. Zogby. (T. 136-149). In April 1997, Dr. Zogby noted that plaintiff's neck pain was decreasing and her upper and lower extremity strength was improving. (T. 148). In May 1997, Dr. Zogby noted that plaintiff had "improving radiculopathy" and her sensory examination was "normal". (T. 147). In July 1997, plaintiff admitted that she had more motion in her neck and upon examination, Dr. Zogby noted, "ROM of her neck is improved" and plaintiff exhibited "5/5 strength with upper extremities and 4/5 strength in her shoulder". (T. 143). In November 1997, plaintiff admitted that her pain was much better and that her arm strength was improving. (T. 140). Dr. Zogby opined that, "things are improving, as I expected". (T. 140). In February and March 1998, Dr. Zogby noted plaintiff was neurologically stable and "near 5/5 strength". (T. 138). On May 21, 1998, plaintiff complained of discomfort in her shoulder but made no complaints regarding her neck.
(T. 136). Plaintiff did not seek further treatment with Dr. Zogby until December 7, 2001.
On September 14, 1998, plaintiff was examined by Dr. Ami Milton, a specialist in internal medicine and rheumatology, at Dr. Zogby's request. (T. 134). Dr. Milton noted that plaintiff exhibited moderate decreased range of motion in her cervical spine without pain or radicular symptoms, plaintiff's grip, strength and range of motion in her extremities were "good" and essentially "normal". (T. 135). Dr. ...