The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Terri Beebe, brings the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking a review of the Commissioner of Social Security's decision to deny her application for disability insurance benefits ("DIB") and supplemental security income ("SSI").
On August 26, 2007, plaintiff protectively filed an application for SSI and DIB benefits. (Administrative Transcript at p. 153-165).*fn1 Plaintiff was 35 years old at the time of the application with prior work experience as a stock clerk. (T. 221). Plaintiff claimed that she was disabled, beginning on January 27, 2004 due to an injury that she sustained while at work. Plaintiff claims she was lifting a heavy box and suffered the following impairments: pain in her neck, back, leg and hand; depression; tingling in her arms and legs; and migraine headaches. (T. 494). On December 6, 2007, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on August 5, 2009. (T. 92-103). Plaintiff appeared with an attorney. On August 11, 2009, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 73-81). On December 22, 2009, the Appeals Council granted plaintiff's request for review. (T. 82-86). On May 5, 2010, a second hearing was held. On June 9, 2010, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 491-504). The Appeals Council denied plaintiff's request for review making the ALJ's decision the final determination of the Commissioner. (T. 488). 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).
The ALJ found at step one that plaintiff had not engaged in substantial gainful activity since January 27, 2004. (T. 494). At step two, the ALJ concluded that plaintiff suffered from cervical degenerative disc disease, low back pain, leg pain and depression which qualified as "severe impairments" within the meaning of the Social Security Regulations (the "Regulations").
(T. 494). 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. 494). The ALJ found that plaintiff had the residual functional capacity ("RFC") to, "to lift, carry, sit, stand, and walk in the light range of work; can only occasionally do overhead work; can only occasionally bend; is limited to simple work; and needs to be provided with the same regular breaks during mid-morning, for noon/lunch and during mid-afternoon that are available to all workers". (T. 497). At step four, the ALJ concluded that plaintiff was not capable of performing any past relevant work. (T. 501). The ALJ obtained the testimony of a vocational expert to determine whether there were jobs plaintiff could perform. Based upon the vocational expert's testimony, the ALJ concluded at step five, that plaintiff was capable of making a successful adjustment to work that exists in significant numbers in the national economy such as work as a counter clerk and shipping receiving weigher. (T. 503). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 503).
In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:
(1) the Commissioner erred by failing to find that plaintiff's back impairment met Listing § 1.04; (2) the ALJ failed to properly evaluate the medical evidence; (3) the ALJ failed to properly assess plaintiff's credibility; (4) the ALJ's RFC assessment is not supported by substantial evidence; and (5) the vocational expert's testimony does not support the ALJ's decision . (Dkt. No. 11).
I. Meet or Medically Equals a Listed Impairment--Listing § 1.04A
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). Courts have required an ALJ to provide an explanation as to why the claimant failed to meet or equal the Listings, "[w]here the claimant's symptoms as described by the medical evidence appear to match those described in the Listings." Rockwood v. Astrue, 614 F.Supp.2d 252, 273 (N.D.N.Y. 2009) (citation omitted). If an ALJ's decision lacks an express rationale for finding that a claimant does not meet a Listing, a Court may still uphold the ALJ's determination if it is supported by substantial evidence. Id. (citing Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir.1982)).
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).
The plaintiff's medical 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.
In the decision, the ALJ stated: the claimant's cervical degenerative disc disease, low back pain, leg pain and depression, when considered singly and in combination, do not meet or medically equal the severity of any impairment set fort in sections 1.04 or 12.04 of the Listings.
Plaintiff claims that substantial evidence supports a finding that her back impairments met the severity of Listing 1.04. Plaintiff argues that the Commissioner erred when he failed to discuss the Listing in any detail. Plaintiff moves for an order vacating the decision remanding the matter solely for the purposes of calculation of benefits. (Dkt. No. 11, p. 16). Defendant contends that although the ALJ failed to specify his findings relating to Listing 1.04, substantial evidence supports his conclusion and thus, remand is unwarranted.
The first requirement to meet Listing § 1.04A is "evidence of nerve root compression characterized by neuro-anatomic distribution of pain". Pitcher v. Barnhart, 2009 WL 890671, at *11 (N.D.N.Y.2009) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1). Plaintiff argues that the following objective studies support her claim and the diagnosis of cervical degenerative disc disease and cervical radiculopathy: (1) x-ray films; (2) August 2007 MRI films; and (3) January 2010 nerve conduction studies support.*fn2
The medical record reveals that on August 23, 2007, plaintiff had an initial consultation with Carri A. Jones, M.D. at Electrodiagnostic Medicine Consultation. Plaintiff complained of constant pain in her neck. Upon examination, Dr. Jones noted positive findings including decreased sensation on the left, tenderness over the left arm and cervical spine area and limited flexion and rotation of the head. (T. 360). Dr. Jones indicated, "[p]lain films show degenerative disc disease C5-6, C6-7". On the same day, plaintiff underwent an MRI of her cervical spine at Lake Radiology. (T. 368). The films revealed, "[m]inimal discal changes at C4-5 and C5-6 with no impingement on neural elements".
On January 13, 2010, Rina Davis, M.D. at New York Spine and Wellness Center reviewed plaintiff's EMG and NCV and prepared a report. (T. 481). Dr. Davis found, "[t]hese findings are suggestive of a right sided cervical radiculitis. There is no definite evidence of radiculopathy, peripheral neuropathy or peripheral nerve entrapment, such as carpal tunnel syndrome".
These films do not support the conclusion that plaintiff suffered from nerve root compression. Indeed, plaintiff does not even argue that she suffers from nerve root compression. In addition to the tests cited by plaintiff, other objective studies were performed that do not support plaintiff's contentions. On April 12, 2007, plaintiff had a Motor NCS, Sensory NCS, F Wave/H reflex and Needle EMG at Electrodiagnostic Medicine Consultation. Dr. Jones opined that the studies were normal. (T. 362). On April 16, 2008, Dr. Davis opined that the results of plaintiff's first EMG and NCV studies were "normal". (T. 453). Further, on March 28, 2009, plaintiff had a second MRI of her cervical spine at Syracuse Orthopedic Specialists. (T. 464). The film revealed, "minimal disc bulging but no herniation or stenosis".
Based upon the record, plaintiff has not established that she satisfied all the criteria symptoms of the Listing as she has failed to establish that she suffered from nerve root compression. Therefore, the ALJ's determination that Plaintiff did not meet Listing 1.04A was supported by substantial evidence. "[T]the ALJ's failure to provide a specific rationale for finding that plaintiff's spinal impairment did not meet Listing 1.04A does not prevent this Court from upholding his determination because substantial evidence, [ ], supports the ALJ's determination." Rockwood, 614 F.Supp.2d 273 (citing Berry, 675 F.2d at 468).
Residual functional capacity is:
"what an individual can still do despite his or her limitations.... Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule."
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999) (quoting SSR 96--8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims ("SSR 96--8p"), 1996 WL 374184, at *2 (S.S.A. July 2, 1996)). In making the RFC determination, the ALJ must consider a claimant's physical abilities, mental abilities, symptomology, including pain and other limitations which could interfere with work activities on a regular and continuing basis. 20 C.F.R. § 404.1545(a). The ALJ must consider all the relevant evidence, including medical opinions and facts, physical and mental abilities, non-severe impairments, and plaintiff's subjective evidence of symptoms. 20 C.F.R. §§ 404.1545(b)-(e).
Plaintiff claims that the RFC is unsupported by substantial evidence because the ALJ failed to follow the treating physician rule and assigned inappropriate weight to the medical evidence. To wit, plaintiff claims that the ALJ: (1) erred when he afforded "little weight" to Nurse Suzanne Shafer's Medical Source Statements which were co-signed by Mary Trusilo, M.D.; (2) failed to recontact Nurse Shafer or Dr. Trusilo to resolve any perceived conflict; and (3) inappropriately assigned "significant weight" to the opinions of the state agency medical examiner.
The Second Circuit has defined a treating physician as one "who has provided the individual with medical treatment or evaluation and who has or had an ongoing treatment and physician-patient relationship with the individual." Coty v. Sullivan, 793 F.Supp. 83, 85--86 (S.D.N.Y.1992) (quoting Schisler v. Bowen, 851 F.2d 43 (2d Cir.1988)). Under the Regulations, a treating physician's opinion is entitled to "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Rosa, 168 F.3d at 78--79; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993). When an ALJ refuses to assign a treating physician's opinion controlling weight, he must consider a number of factors to determine the appropriate weight to assign, including:
(i) the frequency of the examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social ...