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Yassin v. Commissioner of Social Security

United States District Court, N.D. New York

January 28, 2014

AMJAD YASSIN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

HOWARD D. OLINSKY, ESQ., OLINSKY LAW GROUP, Syracuse, New York, Attorney for Plaintiff,

KRISTINA D. COHN, ESQ., Special Assistant United States Attorney, ROBERT R. SCHRIVER, ESQ., Special Assistant United States Attorney, RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, Attorney for Defendant, Syracuse, New York,

REPORT-RECOMMENDATION and ORDER[1]

CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff Amjad Yassin ("Yassin") brings this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying his application for benefits under the Social Security Act. Compl. (Dkt. No. 1). Yassin moves for a finding of disability and the Commissioner cross-moves for a judgment on the pleadings. Dkt. Nos. 10, 11. For the following reasons, it is recommended that the Commissioner's decision be affirmed.

I. Background

A. Facts

Born August 12, 1971, Yassin was thirty-eight years old when he applied for disability benefits. Tr. at 134.[2] Yassin graduated from high school in Iraq, has limited knowledge of the English language, cannot read the newspaper, and requires an interpreter on a daily basis. Tr. at 31, 33-34, 136, 138, 142. Yassin was previously employed as a jewelry maker in Iraq and Syria and an optical lens inserter in the United States. Tr. at 35, 39-41, 45. Yassin alleges disability from a heart condition and a history of asthma. Tr. at 37-38, 139.

B. Procedural History

On September 21, 2009, Yassin filed an application for social security income ("SSI") pursuant to the Social Security Act, 42 U.S.C. § 401 et seq. claiming an alleged onset date of January 1, 1999. Tr. 134. That application was denied on November 30, 2009. Tr. 19, 61-67. Yassin requested a hearing before an administrative law judge ("ALJ"), Barry Peffley, which was held on February 8, 2011. Tr. 16-28, 29-54 (transcript of the administrative hearing). In a decision dated April 5, 2011, the ALJ found that Yassin was not entitled to disability benefits. Tr. 19-28. Yassin's counsel filed a timely request for review with the Appeals Council and on October 23, 2012, the request was denied, thus making the ALJ's findings the final decision of the Commissioner. Tr. 1-5. This action followed.

II. Discussion

A. Standard of Review

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 v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). 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 U.S.C. § 405(g) (2006); Halloran, 362 F.3d at 31.

B. Determination of Disability[3]

"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. 04-CV-9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006)[4] (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, 675 F.2d at 467. 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).

C. ALJ Peffley's Findings

Yassin, represented by counsel, testified at a hearing held on February 8, 2011 with the assistance of an Arabic interpreter Taima Yagan, in addition to an impartial vocational expert ("VE") Mina Schwartz. Tr. 29-54 (transcript of the administrative hearing). Using the five-step disability sequential evaluation, the ALJ found that Yassin: (1) had engaged in substantial gainful activity from March 2010 to December 2010 as a lens inserter but there was a continuous twelve-month period during which Yassin did not engage in substantial gainful activity; (2) had severe medically determinable impairments of mitral valve prolapse[5] and a history of asthma which cause more than a minimal effect on Yassin's ability to perform basic work activities; (3) did not have an impairment, alone or in combination, sufficient to meet the listed impairments in Appendix 1, Subpart P of Social Security Regulation Part 404; (4) maintains

the residual functional capacity [("RFC")] to perform light work as defined in 20 CFR 416.967(b)[6] except [that Yassin] may only occasionally climb ramps or stairs[, ] never climb ladders, ropes, or scaffolds[, ]... must avoid all concentrated exposure to operational control of moving machinery and unprotected heights[, ] and avoid all concentrated exposure to irritants such as fumes, odors, dust, gases, poorly ventilated areas. [Yassin] is limited to simple, routine, and repetitive tasks involving only simple, work-related decisions[, ] with few, if any, work place changes. [Yassin] must work in a low stress job, defined as having only occasional decision making required and only occasional changes in the work setting. [Yassin] does not read or write the English language[;]

(5) could perform past relevant work; and (6) given his age, education, work experience, and RFC, was capable of engaging in employment which exists in significant numbers in the national economy. Tr. 21-25. Therefore, a determination of not disabled was made.

D. Yassin's contentions

Yassin first contends that the ALJ's RFC determination was not supported by substantial evidence because the ALJ (1) gave inappropriate weight to the medical opinions of the examining physicians and consultative examiner and (2) failed to set forth an explicit function-by-function analysis. Yassin next contends that the ALJ erred in discounting Yassin's credibility. Yassin then asserts that the ALJ's determination of Step 4 was not supported by substantial evidence. Yassin lastly claims that the ALJ failed to support the Step 5 conclusion with substantial evidence.

1. RFC

Yassin contends that the ALJ's RFC determination was not supported by substantial evidence. RFC describes what a claimant is capable of doing despite his or her impairments considering all relevant evidence, which consists of physical limitations, symptoms, and other limitations beyond the symptoms. Martone v. Apfel, 70 F.Supp.2d 145, 150 (N.D.N.Y. 1999); 20 C.F.R. §§ 404.1545, 416.945. "In assessing RFC, the ALJ's findings must specify the functions plaintiff is capable of performing; conclusory statements regarding plaintiff's capacities are not sufficient." Martone, 70 F.Supp.2d at 150. RFC is then used to determine whether the claimant can perform his or her past relevant work in the national economy. New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990); 20 C.F.R. §§ 404.1545, 416.960 (2003). The Second Circuit has clarified that, in Step 5 of the Commissioner's analysis, once RFC has been determined "the Commissioner need only show that there is work in the national economy that the claimant can do; he need not provide additional evidence of the claimant's [RFC]." Pourpre v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).

Each finding as to the plaintiff's functional abilities must be supported by substantial evidence because conclusory statements regarding plaintiff's capacities are not sufficient... Only after the ALJ has described the plaintiff's capabilities on a function-by-function basis supported by substantial evidence may RFC then be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.

DiVetro v. Comm'r of Soc. Sec., No. 05-CV-830 (GLS/DEP), 2008 WL 3930032, at *2 (N.D.N.Y. Aug. 21, 2008) (internal quotation marks and citations omitted).

i. Treating Physicians

The Second Circuit defines a "treating physician" as one "who has provided the [claimant] with medical treatment or evaluation, and who has or had an ongoing treatment and physician-patient relationship with the individual." Sokol v. Astrue, No. 04-CV-6631 (KMK) (LMS), 2008 WL 4899545, at *12 (S.D.N.Y. Nov. 12, 2008) (citing Schisler v. Bowen, 851 F.2d 43, 46 (2d Cir. 1988) (internal quotation marks omitted)). In determining whether a physician qualifies as a treating physician, the court conducts a case-specific analysis based on the nature of the relationship between the patient and physician. ld. (citing Arnone v. Bowen, 882 F.2d 34, 41 (2d Cir. 1989)). In his decision, the ALJ gave "[s]ome weight... to the opinions of [Yassin's] treating physicians, as their observations did not include more than minimal limitations and they were largely consistent with the objective medical evidence." Tr. 23. Yassin contends that it was error for the ALJ to assign such weight because the record lacks such opinions. Pl.'s Mem. of Law (Dkt. No. 10) at 11.

Here, the record is devoid of any treating physician's medical opinion. "[A]n ALJ is not required to discuss in depth every piece of evidence contained in the record, so long [as] the evidence of record permits the Court to glean the rationale of an ALJ's decision." LaRock ex. rel. M.K. v. Astrue, No. 10-CV-1019 (NAM/VEB), 2011 WL 1882292, at *7 (N.D.N.Y. Apr. 29, 2011) (citing Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (internal quotation marks omitted)). The record reveals that Dr. Kuzbari saw Yassin only once in June 2009[7] when Dr. Kuzbari noted that Yassin's electrocardiogram ("EKG") showed inferior changes related to a mitral valve prolapse rather than a cardiac ischemia[8] and that Yassin required no more than 100 mg of Aspirin daily. Tr. 205. Similarly, Dr. Naseem[9] only treated Yassin's complaints of chest pains over the course of three days in November 2009 at St. Joseph's Hospital Health Center ("St. Joseph's). Tr. 212, 215-16. Dr. Naseem opined that a chest x-ray showed no acute cardiopulmonary process and an EKG revealed normal sinus rhythm. Id . Dr. Naseem discharged Yassin and instructed him to take 81 mg of Aspirin daily. Tr. 215. "Doctors who see a patient only once do not have a chance to develop an ongoing relationship with the patient, and therefore are not generally considered treating physicians." Garcia v. Barnhart, No. 01-CV-8300 (GEL), 2003 WL 68040 (S.D.N.Y. Jan. 7, 2013) (citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) and Jones v. Apfel, 66 F.Supp.2d 518, 525 (S.D.N.Y. 1999)). Since there is no evidence that Yassin saw either Dr. Kuzbari or Dr. Naseem for more than one medical incident or episode, they are not considered treating sources who had an ongoing treatment and physicianpatient relationship with Yassin. Sokol, 2008 WL 4899545, at *12.

Nevertheless, both Dr. Kuzbari or Dr. Naseem supported their findings with objective evidence, namely EKGs and x-ray. A reasonable mind would accept such evidence as adequate to support the ALJ's conclusion that the physicians' observations did not include more than minimal limitations on Yassin's part and were largely consistent with the objective medical evidence. Halloran, 362 F.3d at 31. As such, the ALJ's assignment of some weight to Yassin's examining physicians is supported by substantial evidence. Accordingly, any fault in designating these physicians as Yassin's "treating physicians" is harmless error.[10]

Accordingly, the Commissioner's decision on this issue should be affirmed.

ii. Consultative Examiner ("CE")

Yassin next contends that the ALJ erred in giving the CE Dr. Ali's opinion "great weight" because the opinion is vague and incomplete. Pl.'s Mem. of Law at 11. Yassin contends that although Dr. Ali opined Yassin "should avoid activities that require moderate or greater exertion, " Dr. Ali failed to explain what constitutes "moderate or greater exertion." Id. at 12 (citing Tr. at 23, 210). Furthermore, Yassin contends that Dr. Ali failed to assess any of Yassin's functional limitations. Id.

To support his argument, Yassin cites to Dickson v. Comm'r of Soc. Sec., No. 04-CV-1296 (NAM/RFT), 2008 WL 553208 (N.D.N.Y. Feb. 27, 2008) (citing Curry v. Apfel, 209 F.3d 117, 123 (2d Cir. 2000)) (Dkt. No. 10-1 at 35-42). The Curry court held the CE's use of the terms "mild" or "moderate, " without additional information, to describe a claimant's physical condition was vague, which cannot be relied upon in determining a plaintiff's ability to work. Curry, 209 F.3d at 123. Here, Dr. Ali made specific findings based on a physical examination of Yassin. Tr. at 209-12. Dr. Ali provided a medical source statement opining that because of Yassin's cardiac history, he should avoid activities requiring moderate or greater exertion. Tr. at 211. Dr. Ali noted that Yassin cooks three times a week, cleans sometimes and shops once a week, cares for his children daily, showers himself three times a week, dresses himself daily, watches television, listens to the radio, reads, and socializes with friends. Tr. at 209. Dr. Ali further noted that Yassin had a heart attack and complaints of chest pains that radiate to the arm, and shortness of breath. Tr. at 208. However, Dr. Ali also remarked that Yassin has a normal gait and stance, normal chest and heart examinations, a full range of motion and strength throughout the body, no neurological deficiency, no muscle atrophy, 5/5 strength in upper and lower extremities, and 5/5 grip strength bilaterally in his hands. Tr. at 209-11. As such, Dr. Ali's opinion was not vague and incomplete as he made unequivocal findings to support his opinion. Graves v. Astrue, No. 12-CV-48, 2013 WL 4779193, at *23 (N.D.N.Y. Sept. 5, 2013) (finding CE's opinion not vague when CE discussed plaintiff's daily activities and exertional limitations despite the lack of an express function-by-function analysis). Thus, the ALJ was not precluded from according the CE's opinion great weight.

Accordingly, the Commissioner's decision on this issue should be affirmed.

iii. Physical Function-by-Function Analysis

Yassin contends that the ALJ erred by failing to set forth a physical function-byfunction analysis before classifying his RFC. Pl.'s Mem. of Law at 12-13 (citing Tr. at 22).

A function-by-function analysis requires the ALJ to express "the RFC... [not] in terms of the exertional categories of sedentary, ' light, ' medium, ' heavy, ' and very heavy'...., " but instead in terms "of the individual's physical and mental capacities, " so that it is "possible to determine whether the individual is able to do past relevant work...." SSR 96-8p. These functions include physical abilities such as "sitting, standing, walking, lifting, carrying, pushing, pulling, " and mental abilities such as "understanding, remembering, carrying out instructions, and responding appropriately to supervision, " and other abilities such as "the ability to tolerate environmental factors." Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (citing 20 C.F.R. §§ 404.1545, 416.945, SSR 96-8p). In this Circuit, an ALJ's failure to perform a function-by-function analysis does not necessitate a per se remand. Id. at 177. Rather, "the relevant inquiry is whether the ALJ applied the correct legal standards and whether the ALJ's determination is supported by substantial evidence." Id.

In this case, the ALJ did not perform an explicit function-by-function analysis but addressed all relevant limitations. Moreover, the ALJ's conclusion is supported by substantial evidence. First, in determining Yassin's physical limitations, the ALJ relied on Yassin's disability benefits application where Yassin indicates he suffers from chest pain and a heart condition, which cause him difficulty in lifting objects. Tr. at 22. Yassin was a competitive runner in Iraq and had a heart attack after a run. Id . Yassin was advised to avoid running and anything that overworked his heart muscle. Id . The ALJ noted Yassin's testimony, that Yassin experiences shortness of breath and chest pains that radiate to the left arm and fingers. Id . The ALJ cited to Dr. Kuzbari's medical assessment that Yassin was able to travel because his coronary angiogram, left atrium root, aortic root, aortic valve, right sided and heart chambers were normal and Yassin did not require any medical treatment other than Aspirin. Tr. at 23. The ALJ next cited Dr. Ali's assessment that Yassin has chest pains which resolves on its own, takes care of personal daily activities, has a normal gait, is able to change clothes, gets on and off the exam table, and walks on his heels and toes without difficulty. Id . Further, the ALJ relied on Yassin's medical records from St. Joseph's where an x-ray revealed no acute cardiopulmonary process, an EKG showing normal sinus rhythm, and a diagnosis of stress as a cause for the chest pains. Id.

Second, with respect to mental abilities, the ALJ noted that Yassin had difficulty concentrating and anxiety in adjusting to his life in the United States. Tr. at 22. The ALJ also noted that Yassin had quit working as a lens inserter because of work pressure and a hostile environment. Id . There is no record evidence indicating that Yassin could not perform his previous work because of his heart or asthma conditions. Furthermore, the ALJ noted that Yassin is a former citizen of Iraq, cannot read, write or speak English, and required an interpreter for the administrative hearing. Id.

Given the above examination of the evidence of Yassin's relevant limitations and restrictions, the ALJ concluded that Yassin's impairments did not preclude him from light work subject to certain limitations. Tr. at 22. The ALJ concluded that Yassin may only occasionally climb ramps or stairs, never climb ladders, ropes, or scaffolds, must avoid all concentrated exposure to operational control of moving machinery and unprotected heights, avoid all concentrated exposure to irritants. Tr. at 23. Further, Yassin is limited to routine tasks involving simple work-related decisions, few work place changes, low stress jobs defined as having only occasional decision making required and occasional changes in the work setting. Id . This determination is supported by the substantial evidence as stated above.

Accordingly, the Commissioner's decision on this issue should be affirmed.

2. Yassin's Credibility

The ALJ determines whether an ailment is an impairment based on a two-part test. First, the ALJ must decide, based upon objective medical evidence, whether "there [are] medical signs and laboratory findings which show... medical impairment(s) which could reasonably be expected to produce [such] pain...." Barringer v. Comm'r of Soc. Sec., 358 F.Supp.2d 67, 81 (N.D.N.Y. 2005); 20 C.F.R. § 404.1529 (2003). This primary evaluation includes subjective complaints of pain. 20 C.F.R. § 404.1529 (2003). "Second, if the medical evidence alone establishes the existence of such impairments, then the ALJ need only evaluate the intensity, persistence, and limiting effects of a claimant's symptoms to determine the extent to which it limits the claimant's capacity to work.'" Barringer, 358 F.Supp.2d at 81 (quoting Crouch v. Comm'r of Soc. Sec. Admin., No. 01-CV-0899 (LEK/GJD), 2003 WL 22145644, at *10 (N.D.N.Y. Sept. 11, 2003).

An ALJ must consider all symptoms, including pain, and the extent to which these symptoms are consistent with the medical and other evidence. 20 C.F.R. § 404.1529 (2003). "Pain itself may be so great as to merit a conclusion of disability where a medically ascertained impairment is found, even if the pain is not corroborated by objective medical findings." Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir. 1983) (citing Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir. 1983)). However, "disability requires more than mere inability to work without pain." Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983). Pain is a subjective concept "difficult to prove, yet equally difficult to disprove" and courts should be reluctant to constrain the Commissioner's ability to evaluate pain. Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983). In the event there is "conflicting evidence about a [claimant's] pain, the ALJ must make credibility findings." Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999) (citing Donato v. Sec'y of HHS, 721 F.2d 414');"> 721 F.2d 414, 418-19 (2d Cir. 1983)). Thus, the ALJ may reject the claims of disabling pain so long as the ALJ's decision is supported by substantial evidence. Aponte v. Sec'y of HHS, 728 F.2d 588, 591 (2d Cir. 1984).

The claimant's credibility and motivation, as well as the medical evidence of impairment, are used to evaluate the true extent of the alleged pain and the degree to which it hampers the applicant's ability to engage in substantial gainful employment. See Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1978). The ALJ must consider several factors pursuant to 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3):

(i) [The claimant's] daily activities;
(ii) The location, duration, frequency, and intensity of [the claimant's] pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication [the claimant] take[s] or ha[s] taken to alleviate... pain or other symptoms;
(v) Treatment, other than medication, [the claimant] receive[s] or ha[s] received for relief of... pain or other symptoms;
(vi) Any measures [the claimant] use[s] or ha[s] used to relieve... pain or other symptoms (e.g., lying flat on [his] back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning [the claimant's] functional limitations and restrictions due to pain or other symptoms.

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2003).

In this case, the ALJ concluded that Yassin's medically determinable impairments could reasonably be expected to cause the alleged symptoms but that the objective evidence did not indicate the impairments were as severe as alleged. Tr. at 22. The ALJ found that Yassin "[took] care of all of his activities of daily living, " was able to return to work full-time and only quit due to a social conflict, and did not receive treatment for his alleged disability. Tr. at 23.

Here, the ALJ noted that the objective medical evidence, the EKGs and x-ray, were generally normal and relatively unremarkable and Yassin's chest pains are likely caused by stress and treated with Aspirin. The ALJ turned to Yassin's daily activities. Yassin's disability application indicated that his daily routine includes helping his children to prepare for school, attending school himself as well to Jobs-Plus, returning home to prepare lunch for his children, helping his children with homework, watching television, then going to sleep. Tr. at 147, 151. Yassin indicated he shaves, eats, and uses the restroom without assistance. Tr. at 148. Yassin also indicated he could cook and perform other activities as long as he takes breaks. Id . Yassin travels outside on a daily basis by feet, public transportation, or bicycle. Tr. at 149. Yassin also testified that he acquired a driver's license and only experiences chest pains during long drives/rides. Tr. 36. Yassin goes grocery shopping once a week, which takes thirty to sixty minutes. Tr. at 150. Yassin watches television, visits friends twice a week, reads, and listens to the radio. Tr. at 150-51. Yassin further reported that he has no difficulty sitting, reaching, and using his hands. Tr. at 151. Yassin's testimony did not change when he was interviewed by Dr. Ali. Dr. Ali indicated Yassin cooks three times a week, cleans sometimes, shops once a week, takes care of his children daily, showers three times a week, dresses himself daily, watches television, listens to the radio, reads, and socializes with friends. Tr. at 209.

Yassin contends that the ALJ failed to consider Yassin's need: (1) for his children to help him complete daily activities such as cleaning and cooking; (2) to sit when he dresses or bathe himself; (3) to ask his children to check on him every five minutes while he is bathing; and (4) for someone to be close by in case he becomes unconscious due to his heart condition. Pl.'s Mem. of Law at 14 (citing Tr. at 147-48). While it is true "that a claimant need not be an invalid to be found disabled, " in this case Yassin was able to engage in activities comparable to those required of a light job with certain modifications. Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (citation and internal quotation marks omitted). Yassin's representations indicate an ability to do a varied amount of activities throughout the day, given the ability for intermittent breaks, which the ALJ considered given his conclusion of light work with modifications. These capabilities are not indicative of an individual unable to sustain himself throughout the workday. Rivera v. Harris, 623 F.2d 212, 215-16 (2d Cir. 1980) (finding that a claimant's ability, "despite her pains and shortness of breath, [that] she can cook, sew, wash and shop, so long as she does these chores slowly and takes an afternoon rest... did not preclude the possibility that she could perform gainful activity of a light, ... nature."). The ALJ's reliance on Yassin's abilities to complete these daily activities, which were supported by substantial evidence, was not erroneous in determining that Yassin's allegations of intensity, persistence, and limiting effects of his symptoms were inconsistent with the objective medical evidence.

Yassin next contends that the ALJ erred in drawing negative inferences as to his credibility based on lack of treatment because as a refugee, he had difficulty establishing medical treatment in the United States. Pl.'s Mem. of Law at 15. A plaintiff's unexplained failure to seek treatment may support an inference that the effects of his conditions are not as severe as alleged. Toro v. Chater, 937 F.Supp. 1083, 1093 (S.D.N.Y. 1996). In drawing such a negative inference, the ALJ must first explore and consider any explanation for it. SSR 96-7p; Campbell v. Astrue, 596 F.Supp.2d 446, 454 (D. Conn. 2009). Courts have found that such a negative inference may be appropriately explained if the lack of treatment is related to finances, Ebert v. Astrue, No. 07-CV-1166 (LEK/DEP), 2009 WL 3764219, at *7 n.6 (N.D.N.Y. Nov. 10, 2009), or mental impairments. Snetselaar v. Astrue, 588 F.Supp.2d 1030, 1048 (W.D. Mo. 2008).

Here, the ALJ's decision did not explore Yassin's reasons for the lack of treatment. Although Yassin reported to Dr. Ali that he occasionally did not take the medication that had been prescribed for him in Iraq, Yassin did report that he was taking Aspirin to treat his chest pains. Tr. 208-09. Furthermore, Yassin explained that he was undergoing stress in attempting to adjust to a new culture and country. Pl.'s Mem. of Law at 15. (citing Tr. at 212). These explanations were contained in the record but never explored. Thus, in this regard, the ALJ erred in drawing a negative inference against Yassin's credibility. However, such an error is harmless because substantial evidence, as discussed supra, supports the ALJ's adverse credibility determination. Moreover, the ALJ noted that Yassin returned to work during the majority of 2010 and only quit because of a social conflict. While a plaintiff's physical ability to return to work does not per se suggest plaintiff should or could have returned to work at an earlier date, Sachs v. Comm'r of Soc. Sec., 567 F.Supp.2d 423, 430 (W.D.N.Y. 2008), the record is devoid of evidence showing that Yassins voluntary termination of previous work was in any way related to his impairments. As such, the ALJ's credibility determination was supported by substantial evidence.

Lastly, Yassin contends that the ALJ erred in finding Yassin's statements not fully credible because they are inconsistent with the ALJ's own RFC finding. Pl.'s Mem. of Law at 15. "A claimant's credibility may be questioned if it is inconsistent with the medical evidence. However, it is improper to question the plaintiff's credibility because it is inconsistent with the RFC determined by the ALJ." Gehm v. Astrue, No. 10-C1170, 2013 WL 25976, at *5 (N.D.N.Y. Jan. 12, 2013) (footnote omitted) (Dkt. No. 10-1 at 78-82); Ubiles v. Astrue, No. 11-CV-6340T(MAT), 2012 WL 2572772, at *12 (W.D.N.Y. July 2, 2012) (collecting cases) (Dkt. No. 10-1 at 68-76). SSR 96-7p requires the ALJ to consider the entire case record in making a credibility determination. Ubiles, 2012 WL 2572772, at *12. Here, the ALJ first states that Yassin's "statements concerning the intensity, persistence, and limiting effects of [his] symptoms are not credible to the extent they are inconsistent with the above [RFC]." Tr. at 23. However, the ALJ questioned Yassin's credibility in connection to the record medical evidence when he stated, "the objective evidence does not indicate that the claimant's impairments are as severe as alleged or that he is unable to do any work." Id . Furthermore, the RFC as found by the Commissioner is supported by substantial evidence. See Sanders v. Comm'r of Soc. Sec., 506 F.Appx. 74, 78, n.5 (2d Cir. 2012) (directing the ALJ to reassess credibility assessment on remand since the ALJ found the claimant not completely credible because his statements were inconsistent with his RFC, which was not supported by substantial evidence); Shepard v. Astrue, No. 11-C0211 (LEK), 2013 WL 3243560, at *9 (N.D.N.Y. June 26, 2013) (same).

Accordingly, the Commissioner's decision on this issue should be affirmed.

3. Step 4

The ALJ determined that Yassin could perform his past relevant job as a lens inserter as well as, in the alternative, perform certain unskilled, light exertional work with certain limitations. Tr. 24-25. The ALJ employed the expertise of a VE.

At step four of the disability analysis, plaintiff has the burden to show both an inability to return both to his or her previous job as well as the former type of employment. Jock v. Harris, 651 F.2d 133, 135 (citations omitted).

Thus, at the hearing level, the ALJ must, first, define the claimant's RFC and, second, determine whether this RFC will permit the claimant to meet the actual physical and mental demands of the type of work that she previously performed.... The ALJ may discharge his responsibilities with regard to the second prong by referring to the Dictionary of Occupational Titles (hereinafter "DOT") for a definition of a particular job as it is ordinarily performed throughout the national economy.

French v. Apfel, 62 F.Supp.2d 659, 664 (N.D.N.Y. 1999) (citations omitted). Categorization of employment demands require "explicit findings regarding the actual physical and mental demands of [p]laintiff's previous work." Id . (citations omitted).

In this case, the VE testified that Yassin's performed past work as a lens inserter at the sedentary exertional level. Tr. at 42. This involves lifting no more than ten pounds at a time and occasionally lifting or carrying articles such as docket files, ledgers, and small tools. 20 C.F.R. § 416.967(a). Dr. Ali opined that Yassin should avoid activities requiring moderate or greater exertion and with Yassin's RFC, Yassin can do a range of light work with certain limitations. Thus, Yassin can perform the strength requirements of his past relevant work as a lens inserter.

Furthermore, the following discussion occurred between Yassin's counsel and the VE:

Q:... for the lens inserter position... is it not correct that as far as his language skills he would need to, according [to] the DOT a lens inserter needs to recognize the meaning of 2, 500 two or three syllable words, read at a rate of 95 to 100 words per minute, compare similarities and differences between words, ... speak simple sentences.
...
A: [The lens inserter position] is considered according to the DOT unskilled, simple and routine and I would say that it does require English. It's really an assembler type of position.
Q: So that's based on your experience not the DOT?
A: Yes, also from the DOT, [INAUDIBLE] requirements.
PL: I think here is an important point [that] need[s] to be addressed. I was just trying to tell him about the simple English knowledge. He said what helped a lot [was] that [the] employer was from an Arabic background.... The owners of the family all spoke Arabic so that helped him.

Tr. 49-50.

The ALJ took into consideration Yassin's limited English abilities in Yassin's RFC and ability to do past relevant work. Yassin's counsel's questioning of the VE demonstrated that Yassin's limited knowledge of the English language permits him to perform the duties of a lens inserter, regardless of whether Yassin returns to his previous job or the former type of employment. Jock, 651 F.2d at 135. Here, the record shows that Yassin could write more than his name in English and completed a disability report in English. Tr. at 50, 138, 146-53. Moreover, the VE explained that based on both the DOT and her thirty years of experience in disability management, her testimony was that a lens inserter is an assembler position requiring only limited English proficiency. Tr. at 48, 104-06 (VE resume). In light of the foregoing, the ALJ's decision on this point was supported by substantial evidence.

Accordingly, the Commissioner's decision on this issue should be affirmed.

4. Step 5

Yassin contends that because the ALJ's RFC and credibility determinations are erroneous, and the ALJ failed to determine the VE's reliability, the hypothetical posed to the VE was incomplete. Pl.'s Mem. of Law at 19.

The ALJ conducted his Step Five analysis. The ALJ may apply the Grids or consult a VE. See Heckler v. Campbell, 461 U.S. 458, 462 (1983); Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999); 20 C.F.R. pt. 404, subpt. P, App. 2 (2003). Here, a VE was questioned because the ALJ determined that Yassin's capacity to perform light work was limited by his non-exertional limitations. Tr. at 24.

A hypothetical question that does not present the full extent of a claimant's impairments cannot provide a sound basis for vocational expert testimony... [thus i]f a hypothetical question does not include all... impairments, limitations and restrictions... a [VE's] response cannot constitute substantial evidence to support a conclusion of no disability.

Pardee v. Astrue, 631 F.Supp.2d 200, 211 (N.D.N.Y. 2009) (citations omitted). As an initial matter, because the ALJ's RFC and credibility determinations are supported by substantial evidence and not improper, Yassin's only remaining claim under Step 5 is the ALJ's reliance on the VE's testimony and the alleged incompleteness of the hypothetical posed to the VE.

During his questioning of the VE, the ALJ presented a hypothetical question of an individual thirty-nine years of age with a high school education, cannot read and write English, can do light work, is limited to occasionally climbing ramps or stairs, never climbing ladders, ropes or scaffolds, must avoid concentrated exposure to the operational controls of moving machinery and unprotected heights as well as irritants such as fumes, odors, dust, gases and poorly ventilated areas. Tr. at 46. The hypothetical individual is further "limited to simple, routine, repetitive tasks involving only simple work related decisions with few if any work place changes... [and] in a low stress job defined as having only occasional decision making required and only occasional changes in the work setting." Id . The VE concluded that the individual would be restricted to light employment such as a ticket taker/usher, pricer/marker, and cafeteria attendant, all of which exist in significant numbers in the national economy. Tr. at 47-48. The VE further testified that she would reduce the number of cafeteria attendant jobs in the national economy as some of those positions require customer contact. Tr. at 48. The ALJ asked whether the incorporation of "low stress" as a consideration in the VE's opinion was set out in the DOT, to which the VE replied that such incorporation is based on her own experience as the DOT does not classify that. Tr. at 48-49. When Yassin's counsel examined the VE, the discussion was:

Q.... for the ticket taker position, again, according to the DOT it says the language skills required are a passive vocabulary of 5, 000 to 6, 000 words, read at a rate of 190 to 215 words per minute, write compound and complex sentences, speak clearly and distinctly with appropriate pauses and emphasis, correct punctuation. With your experience would a ticket taker need these skills or no?
A. No.
Q. A ticket taker wouldn't need to be able to communicate verbally with the customers.
A. They might need to tell them what movie theater to go to and to take the stubs but I don't think there's a lot of communication with that, no.
...
ALJ:... I understand thank you.... Tell him I understand and I'll take that into consideration when I make my decision in this case.
Q.... would such a ticket taker, would they need to be able to use the present and future tenses when they're speaking?
A. I don't think so.
Q. And that's based on your experience.
A. Yes.
Q.... I'm getting all this information from the DOT and it says... all these jobs you need to recognize thousands of words that he doesn't, he can't recognize while reading and he also needs to be able to speak... simple sentences and write simple sentences.
ALJ. All right... I'll take into consideration when I make the decision in this case.

Tr. 50-52.

Here too, the ALJ took into consideration Yassin's limited English abilities in Yassin's RFC and to do other work in the national economy. Yassin's counsel's questioning of the VE demonstrated that so long as Yassin could perform the duties of a ticket taker, particularly with limited customer contact, he would be able to perform the jobs which the VE identified. It is clear from the transcript that the VE gave her conclusions based on her extensive and relevant experience, despite that they are contrary to the DOT.

As substantial evidence supports the RFC findings which served as the basis of the aforementioned hypothetical question, including any limitations with the English language, the ALJ appropriately relied upon the VE's testimony in concluding that Yassin could continue to work and find substantial gainful activity. See Stenoski v. Astrue, No. 07-CV-552 (FJS/VEB), 2009 WL 6055830, at *11 (N.D.N.Y. July 23, 2009) (explaining that the VE's opinion regarding disability may be relied upon by the ALJ if the factors in the hypothetical are supported by substantial evidence) (citations omitted). This satisfied the Commissioner's burden at Step Five of the analysis. As substantial evidence supports the ALJ's conclusions, remand for a calculation of benefits is unwarranted.

Accordingly, for these reasons, the Commissioner's decision on this issue should be affirmed.

III. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that the Commissioner's decision denying disability benefits be AFFIRMED.

Pursuant to 28 U.S.C. §636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. §636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e).

Julian Ventura, New York, NY, for Plaintiff pro se.

John E. Gura, United States Attorney's Office, New York, NY, for Defendants.

Opinion

MEMORANDUM AND ORDER

BUCHWALD, J.

*1 Plaintiff Julian Ventura ("plaintiff") brings this action pursuant to Section 1631(c)(3) of the Social Security Act ("the Act"), 42 U.S.C. § 1383(c)(3), challenging a final decision of the Commissioner of Social Security ("defendant" or the "Commissioner") denying his application for disability insurance benefits. Defendant has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, defendant's motion is granted.

BACKGROUND

On November 12, 2002, plaintiff filed an application for Supplemental Security Income ("SSI") disability insurance benefits in which he alleged to have been disabled since

May 1, 2000. Tr. 52-54.[1] This application was denied on December 24, 2002, Tr. 37-38, 40-43, after which plaintiff requested a hearing before an administrative law judge ("ALJ"). Tr. 44-45. The hearing was held on April 22, 2004 before ALJ Mark S. Sochaczewsky. Tr. 22-36. On June 10, 2004, the ALJ issued a decision concluding that plaintiff was not disabled. Tr. 10-21. Specifically, the ALJ found that while plaintiff had medically determinable impairments that cause "some degree of work related functional limitations", Tr. 18, he retained the residual functional capacity ("RFC")[2] to perform the requirements of his past relevant work under 20 C.F.R. § 416.945. Tr. 19-20. This decision became the final decision of the Commissioner when the Appeals Council denied review on August 12, 2004. Tr. 3-7. This action followed.[3]

FACTS

Plaintiff was born on March 15, 1958, in the Dominican Republic and was forty-six years old at the time of the April 2004 hearing. Tr. 17, 52. Plaintiff came to the United States in 1977 and currently lives in upper Manhattan. Tr. 25-26, 37. Plaintiff indicated that he was educated through the second or third grade and could not read or speak English. Tr. 26, 55.

Plaintiff's relevant past work experience consists of working at a fabric-cutting factory and a restaurant. Tr. 27-28. Plaintiff worked for four years as a floor-person at a fabric-cutting factory, where he passed on work from one person to another. Tr. 27-28. This position required plaintiff to walk or stand for most of the workday and carry objects weighing about ten pounds. Tr. 28, 57. Prior to this job, plaintiff worked as a cleaner at a restaurant, where he lifted no heavy objects. Tr. 28.[4]

A. Plaintiff's Impairments

Plaintiff suffers from hepatitis B, hypertension, and hypercholesterolemia. Tr. 20, 80. At the hearing, plaintiff testified that he experienced severe back and shoulder pain and abdominal swelling due to hepatitis. Tr. 29, 32. Plaintiff testified that he was not taking any medication for pain although previously he had taken pain medication for one month, which relieved his pain for four to five hours. Tr. 29-30. Plaintiff indicated that his hypertension was controlled by medication but that he did not take any medication for his hepatitis. Tr. 29, 104, 106.

*2 Plaintiff testified that he spent his days lying down or watching television and did not cook, clean, shop, or do any housework. Tr. 33. He further testified that he could lift five to ten pounds, walk two to three blocks, stand for about a halfhour, and sit for twenty to thirty minutes. Tr. 34.

B. Medical Evidence

On January 5, 2001, plaintiff was admitted to Bronx Lebanon Hospital for one day of testing after blood tests revealed abnormal liver function tests ("LFT's"). Tr. 73-75. Plaintiff's reported medical history included hepatitis B and C. Tr. 73. A liver biopsy revealed increased iron deposits but the examining physician ruled out "hemochromatosis/siderosis (primary or secondary iron overload)." Tr. 75. The physician suggested "further evaluation (iron studies) and clinical correlation, " Tr. 75, and gave a principal diagnosis of abnormal LFT's. Tr. 74.

On June 13, 2002, an abdominal sonogram detected a mildly inhomogeneous liver. Tr. 76-77. Plaintiff's other structures were "grossly within normal limits." Tr. 76.

In a report dated November 16, 2002, plaintiff's treating physician, Dr. Echevarria, gave a diagnosis of hypertension, hypercholesterolemia, and abnormal LFT's. Tr. 80. Dr. Echevarria observed that plaintiff was asymptomatic in his last visit in September 2002 and that he had no complaints prior to that visit. Tr. 81, 84. She further opined that plaintiff had no limitations in lifting, carrying, standing, walking, sitting, pushing, or pulling. Tr. 83.

On December 2, 2002, plaintiff was examined by Dr. Antonio De Leon, a consulting internal medicine physician. Tr. 87-90. Dr. De Leon's impression was hypertension and chest pains. Dr. De Leon noted that the plaintiff's abdomen was soft and non-tender, with no masses, organomegaly, [5] or external hernia. Tr. 87. Dr. De Leon observed that plaintiff's station and gait were normal, and that he had no difficulty transferring from a seated to standing position or getting on and off the examination table. Id. Plaintiff was able to tandem walk and to walk on the balls and heels of his feet. Tr. 88. Dr. De Leon also found that plaintiff's extremities exhibited no abnormalities. Tr. 87. Plaintiffs spine and joints had full range of motion without any evidence of deformities, swelling, warmth, or tenderness. Tr. 88. Plaintiff's heart tones were regular; no murmurs or gallops were detected. Tr. 87. A neurological examination revealed normal motor power, sensation, and reflexes. Tr. 88. The electrocardiogram ("EKG") was unremarkable. Tr. 88-90. He concluded that the plaintiff had no limitations in sitting, and only mild limitations in lifting, carrying, walking, and standing due to hypertension and chest pains. Tr. 88.

On December 16, 2002, Dr. David Daly, a state agency medical consultant, reviewed the medical evidence and concluded that the plaintiff did not have a severe impairment or any exertional limitations. Tr. 91. He also advised against purchasing an exercise stress test given the absence of objective evidence of coronary artery disease. Id.

*3 An abdominal MRI taken on January 21, 2003 showed that plaintiff's liver was normal in size, contour, and signal intensity. Tr. 98. In addition, the pancreas, adrenal glands, and spleen were normal. Id.

In a September 2, 2003 report, [6] Dr. Animita Saha assessed plaintiff's ability to perform work-related activities. Tr. 99-102. Dr. Saha opined that plaintiff's ability to lift and carry was limited to ten pounds. Tr. 99. In addition, plaintiff's ability to push, pull, reach and to perform gross manipulations was limited due to shoulder pain. Tr. 100-101. However, Dr. Saha concluded that plaintiff was not limited in his ability to stand, walk, or sit. Tr. 99-100. He further opined that plaintiff could climb, balance, kneel, and stoop occasionally but that he could not crouch or crawl. Id.

DISCUSSION

Standard of Review

Under the Act, a person is entitled to Social Security disability benefits when he or she is unable "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A); Melville v. Apfel, 198 F.3d 45, 50 (2d Cir.1999). Such a "physical or mental impairment" must be supported by "medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). Determinations of severity are based on objective medical facts, diagnoses or medical opinions inferable from these facts, subjective complaints of pain or disability, and educational background, age, and work experience. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983); Fishburn v. Sullivan, 802 F.Supp. 1018, 1023 (S.D.N.Y.1992).

The scope of judicial review in this context is limited. The Commissioner's decision is deemed conclusive unless it is not supported by substantial evidence in the record or is based on an erroneous legal standard. 42 U.S.C. § 405(g); see Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998). Substantial evidence has been defined as "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998). If substantial evidence supports the Commissioner's decision, then it must be upheld, even if substantial evidence also supports the contrary result. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.").

To facilitate our review of the Commissioner's findings, we will briefly summarize the standard that applies to plaintiff's claim.

The Five-Step Analysis

The Second Circuit has established a five-step analysis to be followed by the Commissioner for determining whether a plaintiff is eligible for disability benefits under 20 C.F.R. § 404.920(a)(4). First, the Commissioner should consider whether the plaintiff is currently engaged in substantial gainful activity. If he is not, the Commissioner next should consider whether the plaintiff has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the plaintiff has such an impairment, the third step requires the Commissioner to determine whether the impairment is listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 of the regulations ("Appendix 1"). If the impairment is listed, disability is presumed, and the plaintiff is considered unable to perform substantial gainful activity. Otherwise, the Commissioner must proceed to the fourth step and determine whether the plaintiff retains the RFC to perform his past work. If he is unable to perform his past work, the final step requires the Commissioner to determine whether there is other work within the national economy which the plaintiff is qualified to perform. 20 C.F.R. § 416.920(a)(4); DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir.1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982).

*4 For each of the first four steps, the plaintiff bears the burden of proof; the Commissioner bears the burden of proof on only the last step. DeChirico, 134 F.3d at 1180 (citing Berry, 675 F.2d at 467); see also Melville, 198 F.3d at 51.

The ALJ's Findings

The ALJ denied plaintiff's claim at the fourth step of the above analysis. The ALJ determined that, while the plaintiff suffered from a severe impairment or combination of impairments, he retained the RFC to return to his past work. Accordingly, the ALJ ruled that plaintiff was not disabled within the meaning of the Act.

At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since November 12, 2002. Tr. 17, 20.

At step two, the ALJ examined whether plaintiff had an impairment or combination of impairments defined as "severe" under 20 C.F.R. § 416.920(c).[7] Tr. 18, 20. Based on medical evidence in the record, the ALJ determined that plaintiff's hepatitis, hypertension, and hypercholesterolemia qualified as severe within the meaning of the regulations. Id.

However, at step three, the ALJ found that plaintiff's impairments did not meet or medically equal one of the listed impairments in Appendix 1. Tr. 18, 20. As required by the five-step analysis framework, the ALJ proceeded to step four to determine whether plaintiff retained the RFC to perform the requirements of his past relevant work. After examining plaintiff's medical history in the record, the ALJ concluded that plaintiff's impairments, while causing some functional limitations, did not "prevent him from doing at least light work" as defined by 20 C.F.R. § 416.967(b).[8] Tr. 19-20. Specifically, the ALJ found that plaintiff had a "residual functional capacity to lift and carry objects weighing up to [twenty] pounds occasionally and [ten] pounds frequently, and sit, stand and/or walk for up to six hours each, with normal breaks, in an eight hour workday." Tr. 20. Moreover, the ALJ found that plaintiff's subjective allegations of his limitations were not credible to the extent alleged. Tr. 20. Lastly, the ALJ examined plaintiff's previous work, and determined that his "past relevant work as a floorperson did not require the performance of work-related activities precluded by his residual functional capacity." Id. [9]

Accordingly, the ALJ concluded that plaintiff was not eligible for disability insurance benefits under the Act. Tr. 21.

Review of the ALJ's Findings

Based on our review of the record, we find substantial evidence to support the ALJ's determination that plaintiff was capable of light work and therefore, not disabled within the meaning of the Act.

Plaintiff's cumulative medical records demonstrate that his various conditions did not, even in combination, result in functional limitations so severe as to prevent him from performing his past work. Plaintiff's hypertension could only be characterized as mild[10] and was controlled by medication.[11] Tr. 29. In addition, although plaintiff alleged that he experienced abdominal swelling due to hepatitis, no laboratory or physical examinations corroborated his allegations. An abdominal sonogram in June 2002 detected a mildly inhomogeneous liver but it appears that no followup treatment was required. Tr. 76-77. An abdominal MRI taken 6 months later showed that plaintiff's liver was normal in size, contour, and signal intensity. Tr. 98. In addition, Dr. Echevarria, who had been treating plaintiff since July 2001, reported that plaintiff exhibited no symptoms during his last visit in September 2002 and that he had no complaints prior to that visit. Tr. 81, 84. Dr. De Leon also did not find any abnormalities in plaintiff's EKG or during his physical examination. Finally, plaintiff's claims of severe back and shoulder pain and migraine headaches were further unsubstantiated by medical evidence. In short, plaintiff failed to carry his burden of proving that his impairments were severe enough to constitute a disability under the Act.

A. Plaintiff's Residual Functional Capacity

*5 Substantial evidence supports the ALJ's finding that plaintiff retained the RFC to perform light work. Specifically, the ALJ concluded that plaintiff was able to "sit, stand and walk for up to six hours (with normal breaks) in an eight hour workday, and lift, carry, push and/or pull objects weighing up to 10 pounds frequently and 20 pounds occasionally." Tr. 18. This finding is supported by Dr. Echevarria's opinion that plaintiff had no work-related limitations, Tr. 83-84, as well as Dr. De Leon's conclusion that plaintiff had no limitations in sitting and only mild limitations in lifting, carrying, walking, and standing. Tr. 88.[12]

The ALJ did consider Dr. Saha's evaluation that plaintiff's lifting or carrying ability was limited to objects weighing less than ten pounds. Tr. 19, 99-100. However, the ALJ decided against assigning controlling weight to the opinion of Dr. Saha, a treating source, because it was not supported by any clinical findings or other medical evidence, and because it was inconsistent with the opinion of Dr. Echevarria, another treating source. Tr. 19. We find that the ALJ's decision in this regard was not erroneous. Regulations provide that, in evaluating medical source opinions about a claimant's impairment, the Commissioner gives controlling weight to opinions from treating sources only if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with other substantial evidence of record. 20 C.F.R. § 416.927(d)(2); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.1999). The record confirms that Dr. Saha's assessment was not supported by clinical or laboratory diagnostic findings, Tr. 99-102, and was inconsistent with the opinions of two other medical sources and objective medical evidence. Therefore, the ALJ's treatment of Dr. Saha's assessment comported with the relevant regulations.

Moreover, Dr. Saha's opinion is not wholly inconsistent with the ALJ's conclusion that plaintiff could perform his past work because, according to plaintiff's testimony, his job involved mostly standing and moving objects weighing "about" ten pounds. Tr. 28. Although Dr. Saha found that plaintiff was limited in his ability to lift and carry, he opined that plaintiff had no limitations with respect to walking or standing. Tr. 99.

In assessing plaintiff's RFC, the ALJ also evaluated the credibility of plaintiff's subjective complaints of pain but found them to be generally unsupported by the evidence. Tr. 19. When evaluating subjective allegations of pain, the ALJ must assess whether medical evidence shows "the existence of a medical impairment... which could reasonably be expected to produce the pain or other symptoms alleged." 42 U.S.C. § 423(d)(5)(A). If there is "conflicting evidence about a [plaintiff's] pain, the ALJ must make credibility findings." Snell, 177 F.3d at 135. As a fact-finder, the ALJ can accept or reject testimony, but the ALJ's findings must be consistent with the evidence. See Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir.1988). When the alleged symptoms suggests greater severity of impairment than the objective medical evidence alone, the ALJ considers all the evidence submitted, and considers "the extent to which there are any conflicts between [claimant's] statements and the rest of the evidence." 20 C.F.R. § 416.929(c)(4).

*6 In assessing the credibility of plaintiffs subjective pain, the ALJ noted that plaintiff had used pain medication in the past for one month, which relieved his symptoms for four to five hours, but had discontinued its use for no apparent reason. Tr. 19, 30. The ALJ also reviewed the medical evidence which failed to locate the cause of pain plaintiff alleged. Based on our review of the record, we find substantial evidence in support of the ALJ's credibility finding. Accordingly, the ALJ properly discounted plaintiff's subjective allegations of pain.

B. Past Relevant Work

Pursuant to the Social Security Act, plaintiff bears the burden of demonstrating that "his physical or mental impairment or impairments are of such severity that he is... unable to do his previous work...." 42 U.S.C. 1382c(a)(3)(B); See Parker v. Harris, 626 F.2d 225, 230 (2d Cir.1980). At his hearing, plaintiff testified that his most recent job required that he walk or stand for most of the workday and carry objects weighing about ten pounds.[13] Tr. 27-28. However, plaintiff has produced virtually no evidence to support his contention that he was unable to perform his past work in the fabriccutting factory. Instead, the medical evidence in the record strongly supports the contrary finding by the ALJ. Although plaintiff is undeniably hampered by his difficulty with the English language and his pro se status, his statement that he "can't work, " Tr. 35, is simply not enough to refute the substantial evidence that supports the ALJ's determination. Based upon our review of the record, we find that plaintiff has failed to meet his burden, and moreover, that the ALJ's findings are supported by substantial evidence.[14]

CONCLUSION

Because we find that substantial evidence in the record supports the Commissioner's determination that plaintiff is not disabled and because the Commissioner did not apply an erroneous legal standard, we hereby affirm the decision to deny plaintiff benefits. Defendant's motion for judgment on the pleadings is granted. The Clerk of the Court is respectfully requested to close this case.

SO ORDERED.

Attorneys and Law Firms

Legal Services of Central New York, Christopher Cadin, Esq., of Counsel, Syracuse, NY, for Plaintiff.

Hon. Glenn T. Suddaby, United States Attorney for the Northern District of New York, William H. Pease, Esq. Assistant U.S. Attorney, of Counsel, Syracuse, NY, Office of General Counsel, Social Security Administration, Barbara L. Spivak, Esq., Chief Counsel, Region II, Kimberly L. Schiro, Esq., Assistant Regional Counsel, of Counsel, New York, NY, for Defendant.

Opinion

MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, District Judge.

I. Introduction

*1 Pursuant to 42 U.S.C. § 405(g), Rosemarie DiVetro ("DiVetro") challenges the denial of disability benefits by the Commissioner of Social Security. Pending is the Commissioner's objection to Magistrate Judge David E. Peebles' Report-Recommendation. (See Dkt. No. 23.) Upon careful consideration of the arguments, the relevant parts of the record, and the applicable law, the court adopts the Report-Recommendation in its entirety.[1]

II. Procedural History

DiVetro filed for disability benefits in or about early 2004, alleging disability as of December 31, 2000. Her application was denied, and a hearing was conducted by an Administrative Law Judge ("ALJ"). On March 25, 2005, the ALJ issued a decision denying benefits, and that decision became the Commissioner's final determination.

DiVetro filed a complaint in the Northern District of New York challenging the Commissioner's denial of benefits. (See Dkt. No. 1.) On June 13, 2008, Magistrate Judge David E. Peebles issued a report recommending that the Commissioner's finding of disability be vacated and the case be remanded for further consideration. (See Dkt. No. 22.) On June 19th the Commissioner filed his objections. (See Dkt. No. 23.)

III. Standard of Review

By statute and rule, district courts are authorized to refer social security petitions to Magistrate Judges for proposed findings and recommendations regarding disposition. See 28 U.S.C. § 636(b)(1)(A) & (B); N.D.N.Y. R. 40.1, 72.3(d); General Order #18.

When a report and recommendation is filed, the parties have ten (10) days from receipt of the report to file specific, written objections to proposed findings and recommendations, and ten (10) days from the receipt of adversary objections to file responses. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); N.D.N.Y. R. 72.1(c). The local rules further require that the objections must specify the findings and recommendations which are the subject of the objections, and the substantive basis for these objections. See N.D.N.Y. R. 72.1(c).

The district court must review de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved by compliance with the specificity requirement. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); N.D.N.Y. R. 72.1(c). "De novo review requires that the court give fresh consideration to those issues to which specific objections have been made. It will examine the entire record, and make an independent assessment of the magistrate judge's factual and legal conclusions." See Almonte v. New York State Div. of Parole, No. 04-CV-484, 2006 WL 149049, at *5 (N.D.N.Y. Jan. 18, 2006) (citation and internal quotation marks omitted).

If a party fails to object in a timely manner, it procedurally defaults and is not entitled to judicial review. See id. at *3. Although failure to object or timely object constitutes procedural default, lack of specificity also gives rise to default. See id. at *4. The local rule requires that objections address specific findings and conclusions. See id. Therefore, a party that limits its specific objections to a part of a report's findings or recommendations procedurally defaults as to the remainder. See id. Frivolous or conclusory objections also fail to satisfy the specificity requirement. See id. Furthermore, mere resubmission of the same papers and arguments as submitted to the magistrate judge fails to comply with the specificity requirement and also results in default. See id.

*2 While a procedural default dissolves a party's right to judicial review, courts may nevertheless elect to conduct such a review. Id. at *5. This court has consistently done so under "a clearly erroneous' standard, and defines that phrase as follows: a report is clearly erroneous if the court determines that there is a mistake of fact or law which is obvious and affects substantial rights." Id. at *6. "Furthermore, the court will routinely identify issues which have been procedurally defaulted, and articulate the standard of review applied to all issues." Id.

IV. Discussion [2]

The Commissioner objects to Judge Peebles' Report-Recommendation solely insofar as it concluded remand was appropriate due to the absence of record support for the ALJ's finding that DiVetro can sit for an eight hour workday. The Commissioner contends that even if such finding was unsupported, the error was harmless because the ultimate RFC conclusion that DiVetro can engage in light and sedentary work would require her to sit for only 2 to 6 hours in a workday. See SSR 83-10; SSR 96-9p. This objection is reviewed under a de novo standard, while the remainder of the Report-Recommendation is reviewed for clear error.

A claimant's RFC is determined by considering all relevant evidence, including objective medical evidence and the claimant's subjective complaints of pain. See 20 C.F.R. §§ 404.1545 and 416.945. On the basis of this evidence, the ALJ "identifies] the individual's functional limitations and assess[es] his or her work-related abilities[, including the ability to sit, ] on a function-by-function basis." Social Security Ruling ("SSR") 96-8p, Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184, at *1 (S.S.A 1996); see also 20 C.F.R. §§ 404.1545(b) and 416.945(b). Each finding as to the plaintiff's functional abilities must be supported by substantial evidence because "conclusory statements regarding plaintiff's capacities are not sufficient." Verginio v. Apfel, No. 97-CV-456, 1998 WL 743706, at *3 (N.D.N.Y. Oct. 23, 1998). Only after the ALJ has described the plaintiff's capabilities on a function-byfunction basis supported by substantial evidence, "may RFC [then] be expressed in terms of the exertional levels of work, sedentary, light medium, heavy, and very heavy." SSR 96-8p, 1996 WL 374184, at *1; see also McEaney v. Comm'r of Soc. Sec., 536 F.Supp.2d 252, 258 (N.D.N.Y.2008).

In the present instance, it is clear that the ALJ misapplied the above legal standards when he found that DiVetro retained the functional ability to sit for 8 hours, as substantial evidence does not support this finding. Indeed, the record is simply devoid of any assessment which would indicate that DiVetro was able to sit for an entire work day. Without a proper functional analysis as to DiVetro's ability to sit, the ALJ had no basis to find that she had the capacity to perform light or sedentary work. See McEaney, 536 F.Supp.2d at 258 ("only after [a proper functional analysis] may RFC be expressed in terms of the exertional levels of work"); SSR 96-8p, 1996 WL 374184, at *1. Thus, it is clear that the ALJ's RFC formulation was improper.

*3 The court further notes that the ALJ's errors here are not mooted by the possible existence of substantial evidence indicating that DiVetro can sit for a time period generally sufficient to perform light or sedentary work. "Where there is a reasonable basis for doubting whether the Commissioner applied the proper legal standard, even if the ultimate decision may be arguably supported by substantial evidence, the Commissioner's decision may not be affirmed." See Barnett v. Apfel, 13 F.Supp.2d 312, 314 (N.D.N.Y.1998) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987)). Accordingly, the ALJ's misapplication of the appropriate legal standards here, resulting in an improper RFC finding, mandates remand. Upon such remand, the ALJ should reexamine DiVetro's functional capacity to sit on the basis of the record evidence and develop her RFC accordingly.

V. Conclusion

Having addressed the Commissioner's specific objection de novo, and otherwise finding no clear error in the proceedings below, the court accepts and adopts Judge Peebles' Report-Recommendation in its entirety, for the reasons stated therein and above.

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that the plaintiff's motion for judgment on the pleadings is GRANTED; and it is further

ORDERED that the Commissioner's decision is VACATED and the case REMANDED for further proceedings consistent with this opinion; and it is further

ORDERED that the Clerk provide a copy of this Decision and Order to the parties.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, United States Magistrate Judge.

Plaintiff Rosemarie DiVetro, who suffers from various diagnosed mental and physical conditions including bilateral knee, neck and back pain, as well as depression, has commenced this proceeding pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner's denial of her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") payments under the Social Security Act. In her appeal, plaintiff asserts that the determination of the administrative law judge ("ALJ") assigned by the agency to hear and determine the matter, to the effect that she was not disabled at the relevant times, is not supported by substantial evidence in the record and overlooks both contrary opinions of her treating physician and her statements concerning the limitations which she experiences as a result of her conditions. Plaintiff further maintains that the ALJ erroneously determined that she retains the requisite residual functional capacity ("RFC") to perform available work in the national and regional economies.

Having carefully reviewed the record of evidence and proceedings before the agency, considered in the light of plaintiff's arguments, and applying the requisite deferential review standard, I find that while the Commissioner's determination is in most respects proper, the ALJ's RFC determination, which serves as the lynchpin for his finding of no disability, is not supported by substantial evidence. Accordingly, I recommend that plaintiff's motion for judgment on the pleadings be granted, and the matter be remanded to the agency for further proceedings.

I. BACKGROUND

*4 Plaintiff was born in 1952; at the time of the administrative hearing in this matter, she was fifty-three years old.[1] AT 48, 325. Plaintiff is not currently married, and lives alone in an apartment in Auburn, New York. AT 56, 335. Plaintiff is a high school graduate and has completed two years of college course work. AT 75, 334.

Plaintiff last worked sometime in 2003. AT 13, 330. Prior to that time, DiVetro was employed for approximately thirtyone years in various positions, including as a hairstylist, receptionist, retail sales clerk, and factory production worker. AT 59, 70, 82, 330, 332.

Over time plaintiff has experienced several injuries, both work-related and otherwise. Plaintiff has reported, for example, having fallen at a gas station in 1999 or 2000, causing injury to her left knee and resulting in persistent mild pain.[2] AT 194. In July 2000, plaintiff was involved in an automobile accident, resulting in injuries to her lower back and left knee. AT 163-71, 184, 247, 265, 289. Plaintiff also reports having sustained a work-related injury in October of 2000 to her right knee and lower back, AT 165-66, and additionally has registered complaints of back pain, radiating into her thighs and both knees, as well as up into her shoulder and neck, resulting from another fall at work, experienced in December of 2000.[3] AT 123, 182, 199.

Plaintiff has received treatment for her various physical conditions from multiple sources. Dr. John Cambareri, an orthopedist, treated plaintiff's lower back and knee conditions between November of 2001 and June 2004.[4] AT 182-200, 227-49A, 283-91. During the course of that treatment, plaintiff was diagnosed by Dr. Cambareri as suffering from joint knee and low back pain, lumbostenosis, and a lumbosacral strain/sprain. AT 185, 198, 200, 229, 232, 235, 238, 284, 286-87, 289, 291. Plaintiff has also received treatment from Dr. Awayda for several physical conditions, including neck pain.[5] AT 173-181, 250-53, 304-07, 312-16.

Plaintiff's physical conditions have been treated fairly conservatively over time, including with such medications as Vioxx, Tylenol with Codeine, Advil, Motrin, Lexapro, Aspirin, and Cortizone injections. See AT 111, 124, 128, 135, 261, 316, 341. Physical therapy has also been recommended, although plaintiff participated in physical therapy for only two months, including June of 2002 and June of 2003.[6] See AT 149, 151-54, 207-13, 215, 217-21. Surgery for plaintiff's physical condition has not been recommended. See AT 174-200, 227-249A, 250-51, 283-91, 304-07.

In addition to her physical conditions, plaintiff has also sought treatment for mental health issues with the Cayuga County Mental Health Center ("CCMHC"), beginning in December of 2003, complaining of feeling overwhelmed and stressed by a combination of factors, including chronic pain and her economic circumstances. AT 100-01, 109, 254-59, 293-303. Professionals at the CCMHC have variously diagnosed the plaintiff as suffering from an adjustment disorder with depressed mood, a depression disorder, a dependent personality disorder, and a borderline personality disorder. AT 259, 303.

*5 In addition to the records of her treating sources, the administrative transcript contains reports of consultative physical and mental examinations of the plaintiff. On March 15, 2004 plaintiff was examined by Dr. Kalyani Ganesh, an orthopedic consultant. AT 265-68. Based upon his examination of the plaintiff and an account of her daily activities, Dr. Ganesh diagnosed the plaintiff as suffering from chronic lower back pain, neck pain, and bilateral knee pain, opining that as a result of those conditions she does not suffer any significant limitations in sitting, walking, or standing, and is only mildly to moderately limited in her ability to lift, carry, push and pull. AT 267.

Plaintiff was twice examined by consultants to discern whether she experiences any limitations associated with her mental conditions. The first of those consultative examinations was conducted on March 15, 2004 by Dennis M. Noia, Ph.D. AT 260-64. In a report of that examination Dr. Noia opined that vocationally, plaintiff appears capable of following, understanding and remembering simple instructions and directions, and to have the capacity to perform simple and some complex tasks with supervision and independently, maintain attention and concentration for tasks, and regularly attend to a routine in maintaining a schedule. AT 263. After elaborating on his findings, Dr. Noia diagnosed the plaintiff as suffering from an adjustment disorder with mixed features, and concluded that her condition did not "appear to be significant enough to interfere with [her] ability to function on a daily basis." Id.

Plaintiff was later tested and psychologically evaluated on August 25, 2004 by Thomas A. Lazzaro, Ph.D. AT 317-20. Based upon his testing, which revealed intelligence quotient ("IQ") scores placing the plaintiff toward the bottom of the low average range of intellectual functioning, Dr. Lazzaro determined that DiVetro suffers from a learning disability affecting primarily the dominant left verbal hemisphere of her brain, and that as a result her working vocabulary and verbal abstracting skills are deficient. AT 317-18. Dr. Lazzaro also detected the presence of emotional difficulties, representing the most significant factor adversely affecting plaintiff's vocational training, but concluded that she has "potentially sufficient psychological resources to cope adequately with the demands imposed on her by internal and external events in her life, [as well as] the adaptive capacity to think logically and coherently, and that she appears capable of attending to her experiences in a reasonably open and flexible manner." AT 320.

In a follow-up assessment of plaintiff's ability to perform work-related activities, completed on February 16, 2005, Dr. Lazzaro reported that plaintiff experiences short term memory deficits with slight limitations in understanding, remembering, and carrying out short, simple instructions, and moderate limitations in understanding, remembering, and carrying out detailed instructions. AT 323-24. In that report, Dr. Lazzaro also noted his view that plaintiff has marked limitations in making simple work-related decisions and judgment, interacting appropriately with the public, responding appropriately to work pressures in a usual work environment, and responding to changes in a routine work setting. Id.

II. PROCEEDINGS BEFORE THE AGENCY

*6 Plaintiff filed applications for DIB and SSI benefits in or about early 2004, asserting a disability onset date of December 31, 2000.[7], [8] AT 48-50, 54-56. Those oapplications were denied at the initial stage of the administrative process. AT 32-41.

A hearing was conducted on February 15, 2005 by ALJ William T. Vest, Jr. to address plaintiff's claim for benefits. See AT 325-58. On March 25, 2005, following the close of the hearing, ALJ Vest issued a written decision regarding plaintiff's request for DIB and SSI benefits. AT 12-21. Based upon his de novo review of the record, and applying the now familiar five part sequential test for determining disability, ALJ Vest concluded at step one that plaintiff had not engaged in substantial gainful activity since her alleged disability onset date. AT 20. At steps two and three of the disability algorithm, the ALJ concluded that plaintiff's degenerative disc disease, adjustment disorder, and learning disorder were impairments of sufficient severity to significantly restrict her ability to perform basic work activities, AT 20, but that they did not meet or equal any of the listed, presumptively disabling impairments set forth in the governing regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 1. AT 21. In his decision, ALJ Vest specifically considered but rejected plaintiff's knee conditions as also qualifying at step two of the disability analysis as being of sufficient severity, noting the lack of significant treatment and empirical evidence demonstrating abnormality. AT 14.

Before proceeding to step four of the sequential analysis, ALJ Vest next determined that despite the limitations imposed by her medical conditions, plaintiff retains the RFC to perform a significant range of light work, provided that she is not required to climb, work at unprotected heights, or to perform more than simple routine repetitive tasks, and is allowed to alternate sitting and standing as needed.[9] AT 17-18, 21. In making that determination, ALJ Vest relied upon medical evidence in the record, including reports generated by treating and evaluating physicians, and rejected plaintiff's subjective testimony, to the extent that it was inconsistent with that finding, as not being fully credible. AT 13-21. Applying that RFC finding, assisted by testimony elicited from a vocational expert regarding the demands of that past relevant work, ALJ Vest determined that plaintiff is able to perform in certain of her prior jobs, including as a production assembler, and thus is not disabled. AT 13-21.

Notwithstanding his past relevant work finding, ALJ Vest went on to consider plaintiff's circumstances as they apply at step five of the relevant inquiry, at which point the burden shifts to the Commissioner to determine the availability of other work within the national and local economies susceptible of being performed by the claimant. AT 19. Noting that even if plaintiff retained only the RFC to perform sedentary work, and relying upon the medical vocational guidelines (the "grid") set forth in the applicable regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 2 as a framework, again assisted by testimony from the vocational expert, the ALJ concluded that there is available work within the national and local economies which plaintiff is capable of performing including, inter alia, as a manicurist and an information clerk. AT 19-20. ALJ Vest thus found that plaintiff is not disabled and, accordingly, denied her applications for DIB and SSI benefits. AT 20-21. ALJ Vest's opinion became a final determination of the agency on April 29, 2005, when the Social Security Administration Appeals Council denied her request for review of that decision. AT 5-7.

B. This Action

*7 Plaintiff commenced this action on July 1, 2005. Dkt. No. 1. Issue was thereafter joined on March 14, 2006 by the Commissioner's filing of an answer, accompanied by an administrative transcript of the proceedings and evidence before the agency. Dkt. Nos. 10, 11. With the filing of plaintiffs brief on February 28, 2007, Dkt. No. 21, preceded by that on behalf of the Commissioner filed on October 13, 2006, Dkt. No. 16, the case is now ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(d).[10] See also Fed.R.Civ.P. 72(b).

III. DISCUSSION

A. Scope of Review

A court's review under 42 U.S.C. § 405(g) of a final decision by the Commissioner is limited; that review requires a determination of whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998); Martone v. Apfel, 70 F.Supp.2d 145, 148 (N.D.N.Y.1999) (Hurd, J.) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987)). Where there is reasonable doubt as to whether the Commissioner applied the proper legal standards, his decision should not be affirmed even though the ultimate conclusion reached is arguably supported by substantial evidence. Martone, 70 F.Supp.2d at 148. If, however, the correct legal standards have been applied and the ALJ's findings are supported by substantial evidence, those findings are conclusive, and the decision should withstand judicial scrutiny regardless of whether the reviewing court might have reached a contrary result if acting as the trier of fact. Veino, 312 F.3d at 586; Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988); Barnett v. Apfel, 13 F.Supp.2d 312, 314 (N.D.N.Y.1998) (Hurd, M.J.); see also 42 U.S.C. § 405(g).

The term "substantial evidence" has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17 (1938)); Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir.2003). To be substantial, there must be "more than a mere scintilla'" of evidence scattered throughout the administrative record. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427; Martone, 70 F.Supp.2d at 148 (quoting Richardson ). "To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d at 258 (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 715 S.Ct. 456, 464 (1951)).

*8 When a reviewing court concludes that incorrect legal standards have been applied, and/or that substantial evidence does not support the agency's determination, the agency's decision should be reversed. 42 U.S.C. § 405(g); see Martone, 70 F.Supp.2d at 148. In such a case the court may remand the matter to the Commissioner under sentence four of 42 U.S.C. § 405(g), particularly if deemed necessary to allow the ALJ to develop a full and fair record or to explain his or her reasoning. Martone, 70 F.Supp.2d at 148 (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir.1980)). A remand pursuant to sentence six of section 405(g) is warranted if new, non-cumulative evidence proffered to the district court should be considered at the agency level. See Lisa v. Sec'y of Dep't of Health and Human Servs. of U.S., 940 F.2d 40, 43 (2d Cir.1991). Reversal without remand, while unusual, is appropriate when there is "persuasive proof of disability" in the record and it would serve no useful purpose to remand the matter for further proceedings before the agency. Parker, 626 F.2d at 235; Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir.1992); Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 644 (2d Cir.1983).

B. Disability Determination-The Five Step Evaluation Process

The Social Security Act defines "disability" to include the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). In addition, the Act requires that a claimant's

physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

Id. § 423(d)(2)(A).

The agency has prescribed a five step evaluative process to be employed in determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The first step requires a determination of whether the claimant is engaging in substantial gainful activity; if so, then the claimant is not disabled, and the inquiry need proceed no further. Id. §§ 404.1520(b), 416.920(b). If the claimant is not gainfully employed, then the second step involves an examination of whether the claimant has a severe impairment or combination of impairments which significantly restricts his or her physical or mental ability to perform basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from such an impairment, the agency must next determine whether it meets or equals an impairment listed in Appendix 1 of the regulations. Id. §§ 404.1520(d), 416.920(d); see also id. Part 404, Subpt. P, App. 1. If so, then the claimant is "presumptively disabled." Martone, 70 F.Supp.2d at 149 (citing Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir.1984)); 20 C.F.R. §§ 404.1520(d), 416.920(d).

*9 If the claimant is not presumptively disabled, step four requires an assessment of whether the claimant's RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If it is determined that it does, then as a final matter the agency must examine whether the claimant can do any other work. Id. §§ 404.1520(f), 416.920(f).

The burden of showing that the claimant cannot perform past work lies with the claimant. Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996); Ferraris, 728 F.2d at 584. Once that burden has been met, however, it becomes incumbent upon the agency to prove that the claimant is capable of performing other work. Perez, 77 F.3d at 46. In deciding whether that burden has been met, the ALJ should consider the claimant's RFC, age, education, past work experience, and transferability of skills. Ferraris, 728 F.2d at 585; Martone, 70 F.Supp.2d at 150.

C. The Evidence In This Case

1. Rejection of Treating Source Assessments

The ALJ's finding of no disability hinges upon his findings regarding the limitations imposed by plaintiff's physical and mental conditions and resulting RFC determination. In support of her challenge to the Commissioner's determination, plaintiff argues that the ALJ's RFC determination is not properly supported, and that in arriving at his RFC determination ALJ Vest improperly rejected more limiting views of her treating physician, Dr. Cambareri, concerning the limitations imposed by her physical conditions.

Ordinarily, the opinion of a treating physician is entitled to considerable deference, provided that it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence. Veino, 312 F.3d at 588; Barnett, 13 F.Supp.2d at 316.[11] Such opinions are not controlling, however, if contrary to other substantial evidence in the record, including the opinions of other medical experts. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004); Veino, 312 F.3d at 588. Where conflicts arise in the form of contradictory medical evidence, their resolution is properly entrusted to the Commissioner. Veino, 312 F.3d at 588.

In deciding what weight, if any, an ALJ should accord to medical opinions, he or she may consider a variety of factors including "[t]he duration of a patient-physician relationship, the reasoning accompanying the opinion, the opinion's consistency with other evidence, and the physician's specialization or lack thereof[.]" See Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir.1993) (discussing 20 C.F.R. §§ 404.1527, 416.927). When a treating physician's opinions are repudiated, the ALJ must provide reasons for the rejection. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Failure to apply the appropriate legal standards for considering a treating physician's opinions is a proper basis for reversal and remand, as is the failure to provide reasons for rejection of his or her opinions. Johnson, 817 F.2d at 985-86; Barnett, 13 F.Supp.2d at 316-17.

*10 In his decision, ALJ Vest found that the plaintiff retains the RFC to lift and carry twenty pounds occasionally and ten pounds frequently, and to stand for six hours and sit for eight hours in an eight-hour workday, provided she is allowed to alternate between the two as required, additionally concluding that she should avoid certain other circumstances including climbing, working at unprotected heights, and performing more than simple repetitive job tasks.[12] AT 17-18. In arriving at that RFC finding, the ALJ placed significant reliance upon two RFC assessments of state agency consultants, completed on June 18, 2003 and April 1, 2004, AT 201-06, 269-74, as well as an evaluation by consultative examiner Dr. Kalyani Ganesh on March 15, 2004, AT 265-68, rejecting a much more limiting RFC assessment issued by Dr. Cambareri in February 2005. AT 18-19. The ALJ further relied for support upon state agency psychologist Dr. Noia's opinion concerning plaintiff's mental impairment, while eschewing the more substantial limitations discerned by Dr. Thomas Lazzaro.[13] AT 17-18.

The record now before the court contains two formal assessments by Dr. Cambareri regarding plaintiff's ability to perform work-related functions. In the first, dated July 11, 2003, Dr. Cambareri noted his opinion that plaintiff is capable of lifting up to ten pounds; can stand for two hours, walk for two hours, and sit for four hours in an eight hour work day; and can stand, walk and sit in combination over the course of for a full eight hour work day. AT 249-49A. In that evaluation, Dr. Cambareri noted his view that plaintiff does not suffer from any condition which would preclude her ability to work, and stated that he anticipated she would be released for work on August 1 of that year, though not to her past work. Id.

In February of 2005, without explanation or apparent reason for the change, Dr. Cambareri provided a significantly more restrictive assessment, opining at that point that plaintiff was only able to lift less than ten pounds, could stand or walk less than two hours per day, and could sit less than six hours per day, noting additional limitations as well. AT 308-11. Determining that second assessment to be unsupported, ALJ Vest rejected its findings. AT 18.

The ALJ's rejection of Dr. Cambareri's assessment garners considerable support from the record, including, the assessments of state agency consultants and objective findings made by Dr. Cambareri and Dr. Awayda. See AT 174-76, 179-81, 183-84, 186, 188, 190, 192, 195, 197-99, 228, 231, 234, 237, 241, 247, 250, 284, 286, 289, 291, 304-06. Dr. Cambareri's RFC assessment is also at odds with the results of an examination by orthopedic consultant Dr. Ganesh, who found no gross limitation in standing, walking and climbing resulting from plaintiff's physical conditions, and only mild to moderate limitations in her ability to lift, carry, push and pull. AT 267.

In marked contrast to available clinical evidence, Dr. Cambareri's RFC assessment identifies far greater limitations arising from plaintiff's physical condition than are disclosed anywhere in notes of his examinations of the plaintiff. Throughout 2003 and 2004, when plaintiff was seen for complaints of low back and knee pain, Dr. Cambareri reported many normal findings and relatively modest limitations. See, e.g., AT 183-84, 186, 188, 190, 192, 195, 197-99, 228, 231, 234, 237, 247, 284, 286, 289, 291. The records reflect a fairly conservative course of treatment for plaintiff's alleged back, knee, and neck pain, without serious consideration of surgical intervention. See AT 149, 151-54, 207-13, 215, 217-21. During the course of his treatment of DiVetro, Dr. Cambareri found that despite tenderness in her lumbar spine and knees, straight leg raising was generally negative; motor, sensory, and vascular exams were normal; there was no instability or effusion of the knees; plaintiff generally had full range of motion of the knees, her gait was normal, and she could heel and toe walk. AT 183-84, 186, 188, 190, 192, 195, 197-99, 228, 231, 234, 237, 241, 247, 284, 286, 289, 291. These findings are in stark contrast to Dr. Cambareri's conclusions that plaintiff is partially and totally disabled.[14] See AT 185, 198, 200, 229, 232, 235, 238-39, 284, 286-87, 289, 291.

*11 The ALJ's rejection of Dr. Cambareri's opinions also draw support from findings of Dr. Awayda. According to notes from that treating physician, plaintiff was found to have little to no tenderness in her neck, range of motion was essentially normal, her asthma was stable and under control, and her pulmonary embolism condition was much improved. AT 174-76, 179-81, 250, 304-06. Reports of x-rays and MRI testing further contradicts the severe limitations described by Dr. Cambareri. AT 159-60, 166-67, 171, 240-41.

In sum, having carefully considered the evidence in the record I am unable to conclude that the ALJ's rejection of Dr. Cambareri's February, 2005 assessment was either inappropriate or improperly explained.

2. RFC Determination

At the heart of plaintiff's challenge regarding the ALJ's finding of no disability is her contention that the RFC finding of the ALJ's inconsistent with the limitations imposed by both her physical and mental conditions.

A claimant's RFC represents a finding of the range of tasks he or she is capable of performing notwithstanding the impairments at issue. 20 C.F.R. §§ 404.1545(a), 416.945(a). An RFC determination is informed by consideration of 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. Id .; Martone, 70 F.Supp.2d at 150.

To properly ascertain a claimant's RFC, an ALJ must therefore assess plaintiff's exertional capabilities, addressing his or her ability to sit, stand, walk, lift, carry, push and pull. 20 C.F.R. §§ 404.1545(b), 404.1569a, 416.945(b), 416.969a. Nonexertional limitations or impairments, including impairments which result in postural and manipulative limitations, must also be considered. 20 C.F.R. §§ 404.1545(b), 404.1569a, 416.945(b), 416.969a; see also 20 C.F.R. Part 404, Subpt. P, App. 2 § 200.00(e). When making an RFC determination, an ALJ must specify those functions which the claimant is capable of performing; conclusory statements concerning his or her capabilities, however, will not suffice. Martone, 70 F.Supp.2d at 150 (citing Ferraris, 728 F.2d at 587). An administrative RFC finding can withstand judicial scrutiny only if there is substantial evidence in the record to support each requirement listed in the regulations. Martone, 70 F.Supp.2d at 150 (citing LaPorta v. Bowen, 737 F.Supp. 180, 183 (N.D.N.Y.1990)); Sobolewski v. Apfel, 985 F.Supp. 300, 309-10 (E.D.N.Y.1997).

The only limitation discerned by the ALJ as stemming from plaintiffs mental impairments concerns her ability to perform anything other than simple, repetitive job tasks. AT 18. This finding is at odds with the conclusion of Dr. Lazzaro, an agency consultant who, after evaluating her, opined in an assessment dated February 16, 2005 that plaintiff has slight limitations in understanding, remembering, and carrying out short and simple instructions; moderate limitations in understanding, remembering, and carrying out detailed instructions, and interacting appropriately with supervisors and co-workers; and marked limitations in the ability to make judgments on simple work-related decisions, interact appropriately with the public, and respond appropriately to work pressure in a usual work setting and changes in a routine work setting. AT 323-24.

*12 Despite these findings of Dr. Lazzaro, I cannot conclude that the ALJ's determination regarding the impact of plaintiff's mental, nonexertional limitations lacks the support of substantial evidence. Another examining consultant, Dr. Dennis Noia, who evaluated the plaintiff on March 15, 2004, diagnosed her as suffering from an adjustment disorder with mixed features/depressed mood, but concluded that she is nonetheless capable of following, understanding, and remembering simple instructions and directions, performing simple and some complex tasks with supervision and independently, maintaining attention and concentration for tasks and regularly attending to a routine and maintaining a schedule, making appropriate decisions, learning new tasks, relating to and interacting appropriately with others, and dealing with stress. AT 260-64. Dr. Noia further found that plaintiff's psychiatric problems did not "appear to be significant enough to interfere with the claimant's ability to function on a daily basis." AT 263.

The ALJ's finding also finds support in the opinions of a non-examining physician, Dr. Carlos Gieseken, who in an evaluation dated April 7, 2004 found that plaintiff has moderate limitations in only one out of twenty designated categories of mental functioning-the ability to respond appropriately to changes in the work setting. AT 275-82. Dr. Gieseken concluded that plaintiff is not significantly limited in eighteen of the other categories, and that there is no evidence of limitation in her ability to accept instructions and respond appropriately to criticism of supervisors. Id. Dr. Gieseken also opined that plaintiff had no episodes of deterioration, and that she has only mild restrictions of activities of daily living and difficulties in maintaining social functioning and concentration, persistence, or pace. AT 280. Staff from the CCMHC has similarly observed that plaintiff's thought processes are logical, affect is blunted and sad, mood is depressed and dysthymic, sensorium and cognitive functioning are normal, and judgment and insight are fair. AT 258, 302. Even Dr. Lazzaro has noted that plaintiff's affect is appropriate, sensorium is clear, and she has no hallucinations, delusions, or other psychotic process.[15] AT 317.

Plaintiff also challenges the portion of the ALJ's RFC finding relating to plaintiff's physical limitations. After surveying the available evidence, ALJ Vest concluded that plaintiff can sit for eight hours in a workday and stand for six hours, provided she is permitted to alternate between sitting and standing as needed. AT 17-18. Significantly, however, neither state agency consultant who rendered assessments stated that plaintiff can sit for a full eight hours. See AT 202, 270. While Dr. Ganesh opined that plaintiff has no "gross limitation" in her ability to sit, he did not elaborate, nor did he particularly state that she can sit for an entire workday. AT 267. Simply stated, the record lacks any assessment from either a treating source or a consultant supporting a finding of plaintiff's ability to sit for eight hours in a given workday.

*13 In arriving at his conclusions regarding available work, the vocational expert relied upon a hypothetical question which included, as a requirement, the ability to sit for eight hours in a workday. Since this portion of the ALJ's RFC finding is not well-supported, and appears to have been essential element of the expert's finding that plaintiff is capable of working, I recommend that the matter be remanded to the Commissioner for further consideration of this issue.[16]

3. Plaintiff's Credibility

In arriving at his determination, ALJ Vest discounted plaintiff's claims regarding her disabling symptomology as not being fully credible based upon accounts of her daily activities and the medical record. Plaintiff contends that the ALJ's rejection of her disabling claims was not supported by substantial evidence.

It is well within the discretion of the Commissioner to evaluate the credibility of a plaintiff's complaints and render an independent judgment in light of the medical findings and other evidence. See Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir.1984); Social Security Ruling ("SSR") 96-7p, 1996 WL 374186, Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements (S.S.A.1996). "Since symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, " all information submitted by a claimant concerning his or her symptoms must be considered. 20 C.F.R. §§ 404.1529(c) (3), 416.929(c)(3). The claimant's testimony alone carries independent weight; to require a claimant to fully substantiate his or her symptoms with "medical evidence would be both in abrogation of the regulations and against their stated purpose." Matejka v. Barnhart, 386 F.Supp.2d 198, 207 (W.D.N.Y.2005) (citing Castillo v. Apfel, No. 98 CIV. 0792, 1999 WL 147748, at *7 (S.D.N.Y. Mar. 18, 1999)).

The regulations proscribe a specific process that the ALJ is to follow in weighing a claimant's testimony. The ALJ must first establish that there is a medically determinable impairment that could reasonably be expected to produce the claimant's symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b). If the ALJ finds such an impairment, he or she next evaluates the intensity and persistence of the symptoms to determine how the symptoms limit the claimant's functioning. Id. § 416.929(c).

A claimant's testimony is entitled to considerable weight when it is consistent with and supported by objective clinical evidence demonstrating that the claimant has a medical impairment which one could reasonably anticipate would produce such symptoms. Barnett v. Apfel, 13 F.Supp.2d 312, 316 (N.D.N.Y.1998) (Hurd, M.J.); see also 20 C.F.R. §§ 404.1529(a), 416.929(a). If the claimant's testimony concerning the intensity, persistence, or functional limitations is not fully supported by clinical evidence, the ALJ must consider additional factors, including: (1) daily activities; (2) location, duration, frequency, and intensity of any symptoms; (3) precipitating and aggregating factors; (4) type, dosage, effectiveness, and side effects of any medications taken to relieve symptoms; (5) other treatment received; and (6) any other measures taken to relieve symptoms. 20 C.F.R. §§ 404.1529(c)(3) (i)-(vi), 416.929(c)(3)(i)-(vi).

*14 After considering plaintiff's subjective testimony, the objective medical evidence, and any other factors deemed relevant, the ALJ may accept or reject a claimant's subjective testimony. Martone, 70 F.Supp.2d at 151; see also 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Although the ALJ is free to accept or reject such testimony, a "finding that the witness is not credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary review of the record." Williams, 859 F.2d at 260-61 (citation omitted). Where the ALJ's findings are supported by substantial evidence, the decision to discount subjective testimony may not be disturbed on court review. 42 U.S.C. § 405(g); Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588, 591 (2d Cir.1984).

In this case, the ALJ noted that plaintiff suffers from a documented medical condition which could reasonably be expected to produce some degree of pain comparable to that attributed by her to the condition. AT 16. ALJ Vest nonetheless rejected plaintiff's complaints as not being credible, however, finding that they were unsubstantiated by clinical evidence in the record, including reports from her treating physicians as well as the consultative report of Dr. Ganesh, and due to the level of activity performed by her in her daily life. AT 16-17, 21. While the basis for the ALJ's rejection in this regard is adequately stated, and appears to draw ample support from substantial evidence in the record, it is not necessary to address this issue in light of my recommendation that the matter be remanded for further consideration.

IV. SUMMARY AND RECOMMENDATION

By all accounts, plaintiff suffers from a documented lower back condition that has caused chronic pain, as well as adjustment disorder with mixed features, a mental impairment of modest proportions. In determining that plaintiff was not disabled, the ALJ properly rejected the opinions of plaintiff's treating physician, Dr. Cambareri, and her psychologist, Dr. Lazzaro, concerning the limitations presented by her conditions, and in this regard the ALJ's decision is supported by substantial evidence and was properly explained. Additionally, the ALJ's finding that plaintiff's subjective testimony concerning pain and the exertional limitations experienced by her was not fully credible appears to be well-articulated, and at least facially supported.

Turning to the issue of the RFC determination, however, I find that the ALJ failed to specify how his findings were made in light of the rejection of the opinion of plaintiff's treating physician, Dr. Cambareri, particularly since they do not conform to the conclusions of the state agency consultants upon which the ALJ relied, and literally no medical expert has opined, as the ALJ found, that the plaintiff can sit for a full eight hours in a given workday. Accordingly, it is hereby

RECOMMENDED that the plaintiff's motion for judgment on the pleadings be GRANTED, the Commissioner's finding of disability be VACATED, and the matter REMANDED to the agency for further consideration consistent with this recommendation.

*15 NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of Court within ten (10) days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (2006); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).

IT IS FURTHER ORDERED that the Clerk of the Court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

[1]

Opinion

ORDER ADOPTING REPORT AND RECOMMENDATION

KENNETH M. KARAS, District Judge.

*1 Plaintiff Abraham I. Sokol ("Plaintiff) brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner of Social Security's decision to deny him disability insurance benefits. Plaintiff has filed a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), requesting that this Court reverse the Commissioner's final decision and remand to the Commissioner for a new administrative hearing. The Commissioner has crossmoved for judgment on the pleadings, requesting that the Commissioner's decision be affirmed and that Plaintiff's Complaint be dismissed. Judge Colleen McMahon, who was originally assigned to this case, referred the case to Magistrate Judge Lisa Margaret Smith.[2] Magistrate Judge Smith filed a Report and Recommendation ("R & R") on August 18, 2008, recommending that this Court deny Plaintiff's motion for judgment on the pleadings, grant the Commissioner's crossmotion for judgment on the pleadings, and dismiss Plaintiff's Complaint. (R & R 27.)

A district court reviewing a magistrate judge's report and recommendation addressing a dispositive motion "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see, e.g., Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at * 1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), parties may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written, " Fed.R.Civ.P. 72(b)(2), and must be made "[w]ithin 10 days after being served with a copy of the recommended disposition, " id.; see also 28 U.S.C. § 636(b)(1), plus an additional three days when service is made pursuant to Fed.R.Civ.P. 5(b)(2)(C)-(F), see Fed.R.Civ.P. 6(d), as was the case here (R & R 27).

Where a party submits timely objections to a report and recommendation, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b) (3); Donahue, 2007 WL 831816, at *1. "However, where a party does not submit an objection, a district court need only satisfy itself that there is no clear error on the face of the record." Donahue, 2007 WL 831816, at *1 (internal quotation marks omitted); see also Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y.2008) (The district court "may adopt those portions of the... report [and recommendation] to which no specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." (quoting Fed.R.Civ.P. 72(b)(2)). "In addition, a party's failure to submit an objection will waive that party's right to challenge the report and recommendation on appeal." Donahue, 2007 WL 831816, at *1.

*2 Here, Plaintiff has not filed objections to Magistrate Judge Smith's R & R. Accordingly, the Court has reviewed the R & R for clear error. Finding none, the Court adopts the R & R in its entirety. In particular, the Court concurs with Magistrate Judge Smith that any inadequacy in the measures taken by the administrative law judge's efforts to obtain medical records from Dr. Lawrence Roach does not undermine the conclusion that substantial evidence supports the ALJ's conclusion that Plaintiff was not entitled to disability benefits. The Court finds no clear error in Magistrate Judge Smith's determination that "Dr. Roach was not a treating physician of the Plaintiff during Plaintiff's disability insurance period" (R & R 23) or in her determination that, even if Dr. Roach were Plaintiff's treating physician during the relevant time period, the "cursory" records from Dr. Roach that were ultimately submitted to the Appeals Council would not have altered the ALJ's conclusion had they been before the ALJ ( id. 22-23).

Accordingly, it is hereby

ORDERED that the Report and Recommendation filed August 18, 2008 is ADOPTED in its entirety. It is further

ORDERED that Plaintiff's motion for judgment on the pleadings is DENIED. It is further

ORDERED that the Commissioner's motion for judgment on the pleadings is GRANTED. It is further

ORDERED that the Clerk of the Court is respectfully directed to enter a judgment in favor of the Commissioner, terminate the pending motions (Dkt. Nos. 9 and 13), and close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

LISA MARGARET SMITH, United States Magistrate Judge.

TO: THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE

Plaintiff Abraham Sokol (herein, "Plaintiff) brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner of Social Security's decision to deny him disability insurance benefits. See Docket # 1, Complaint (herein, "Comp."). Plaintiff has filed a motion for judgment on the pleadings pursuant to FED. R. CIV. P. 12(c) seeking reversal of the Commissioner's final decision and an order of remand to the Commissioner for a new administrative hearing. See Docket # 9, Plaintiff's Notice of Motion and Affirmation (herein, "Sokol Aff."); Docket # 10, Memorandum of Law (herein, "Pl's Mem."). The Commissioner has cross-moved for judgment on the pleadings under Rule 12(c) requesting dismissal of the Complaint and an order affirming the Commissioner's decision to deny Plaintiff disability benefits. See Docket # 13, Commissioner's Notice of Cross-Motion. For the following reasons I conclude, and respectfully recommend that Your Honor should conclude, that the Commissioner's motion for judgment on the pleadings should be granted and that the Plaintiff's motion for judgment on the pleadings should be denied.

BACKGROUND

A. Facts

The following undisputed facts are taken from the pleadings, affidavits, transcripts and other documents submitted in support of the instant cross-motions. The majority of facts are taken from the transcript of the administrative hearing held before Administrative Law Judge Dennis G. Katz on August 8, 2001, and his decision affirming Plaintiff's denial of disability benefits on November 9, 2001. See R. 35-41 (Administrative Law Judge's decision); 423-60 (transcript of hearing before Administrative Law Judge).

*3 Plaintiff Abraham Sokol was born on January 22, 1947, in the Republic of Panama. See Sokol Aff., Ex. A at ¶ 2. Plaintiff received a medical degree in 1972, R. 30, and was employed as a radiologist until he was convicted of grand larceny and imprisoned in July of 1992, R. 39. Plaintiff was diagnosed with diabetes and hypertension during his period of incarceration. R. 426. Plaintiff testified at his administrative hearing that he suffered from several ailments during his period of incarceration, including high blood sugar levels, portions of his body feeling numb and asleep, tiredness and a lack of energy, and frequent urination. R. 433-44. Prison officials placed Plaintiff on a special diet and directed that he receive medication for his ailments in response to his diagnoses. R. 273-331. Although Plaintiff testified that his blood sugar levels remained abnormal despite this course of treatment, R. 435, Plaintiff's wife testified during the administrative hearing that the Plaintiff's medication lowered Plaintiff's blood sugar levels and controlled his hypertension during his period of incarceration, R. 450-51.

Plaintiff performed office work as a secretary during this time, which included tasks such as typing and filing. R. 431. Plaintiff testified that he worked for four to six hours a day, five days a week, during his incarceration, but was unable to work for longer periods of time because of his disabilities. R. 431-32. Plaintiff participated in a work release program in 1994 and was released from jail on parole in May of 1995. R. 452. During his time on work release, Plaintiff was employed by Doctor Lawrence C. Roach as a clerk and worked approximately four hours a day for three months. R. 345, 444. Upon his release from prison, Plaintiff completed training as a paralegal, R. 102, and was employed by a law firm in Manhattan performing legal research for six months beginning in May of 1995, R. 436-37.

Plaintiff testified during his administrative hearing that he worked on his criminal appeal for about twelve hours a day, seven days a week from 1995 to 1997. R. 438. Plaintiff's counsel has tried to clarify this statement by offering that the Plaintiff's definition of "work" included "thinking about [his] appeal." See Sokol Aff., Ex. A at ¶ 17. Plaintiff alleges that after he lost his appeal he became depressed and stopped working but did not seek psychiatric counseling. R. 439. Plaintiff's wife testified during the administrative hearing that despite Plaintiff's allegations of depression he gets along well with others and is able to take care of his personal daily needs. R. 457.

Plaintiff testified during his administrative hearing that although he cannot presently perform physical work he can do intellectual work. R. 440. Although Plaintiff worked in Manhattan following his release from prison, Plaintiff claims that he is no longer able to travel to Manhattan because of his illness. R. 441. Plaintiff conceded that if he could continue his employment in Scarsdale, his town of residence, he would. Id. Plaintiff also conceded that, although prohibited by law, he is physically capable of reviewing medical records for an insurance company or a lawyer, R. 442, and that he has looked for work as a receptionist, R. 443.

B. Plaintiffs Applications and Period of Disability Coverage

*4 Plaintiff initially filed an application for disability benefits on July 19, 2000, alleging a disability onset date as of January 1, 1993. R. 76. On July, 12, 2000, prior to submitting the July 19, 2000, application, however, Plaintiff spoke with Lawrence Deer, a personnel member of the Social Security Administration, and stated that that his disability onset period began on January 1, 1997. R. 108 (notation of Social Security Administration personnel). In processing Plaintiff's July 19, 2000, disability benefits application, the Social Security Administration therefore noted that the onset of Plaintiff's disability was January 1, 1997. R. 76-77. Plaintiff's application, however, contains handwritten modifications to this disability onset date that are initialed by the Plaintiff that specify that the proper disability onset date is January 1, 1993. Id.

Plaintiff signed and dated a second application for disability benefits on July 26, 2000, in which Plaintiff alleged a disability onset date as of July 15, 1992.[1] R. 78. Plaintiff noted in this application that his disabilities consisted of diabetes, bilateral cataract surgery, neuropathy, high blood pressure, coronary artery disease, congestive heart failure, high cholesterol, liver disease, and depression. R. 96. Administrative Law Judge Katz found that for the purposes of determining whether the Plaintiff was entitled to disability insurance benefits the Plaintiff's disability period began on July 15, 1992, which is the earliest date the Plaintiff claimed he was unable to work because of his disabilities, and ended on March 31, 1996, the date Plaintiff was last insured for disability benefits. R. 40; see also 42 U.S.C. §§ 423(a)(1)(A); 423(c)(1).

C. Administrative Law Judge Katz's Decision

Administrative Law Judge Katz held a hearing on August 8, 2001, following the Social Security Administration's denial of Plaintiff's application for benefits on December 8, 2000. R. 423-60. Plaintiff and his wife, Dr. Robyn Deutsch-Sokol, testified at the hearing. R 35-36. Plaintiff, who was not represented by counsel during this proceeding, acknowledged that he received notice from Administrative Law Judge Katz that he had a right to be represented during the hearing and waived this right. R. 35-36; 423-24. During the hearing Administrative Law Judge Katz elicited Plaintiff's work history, the nature of Plaintiff's limitations and disabilities during his period of incarceration, the efforts Plaintiff made to obtain work after his release from prison, and the degree of pain Plaintiff claimed to experience. R. 423-60. At the conclusion of the hearing, Administrative Law Judge Katz gave Plaintiff an additional period of time to supplement the record with additional evidence and asked Plaintiff to report back to him within one month with any further information Plaintiff wanted to be included in the record. R. 443-45.

On November 9, 2001, Administrative Law Judge Katz issued his opinion denying the Plaintiff's claim to an entitlement to disability insurance benefits. R. 35-41. Administrative Law Judge Katz found that the Plaintiff did not establish a disability as defined under the Social Security Act during his disability insurance coverage period from July 15, 1992, to March 31, 1996. R. 41. Administrative Law Judge Katz determined that the Plaintiff did not engage in substantial gainful activity during the period in question because of his incarceration and that the Plaintiff's alleged disabilities were "severe' within the meaning of the Social Security Act and the regulations because they might have tended to impose more than a slight limitation on the [Plaintiff's] abilities to perform work-related activities." R. 38. Administrative Law Judge Katz noted, however, that he only considered the disabilities Plaintiff claimed to have endured during the Plaintiff's disability period-from July 15, 1992, to March 31, 1996-and that he did not assess any evidence submitted to him for consideration that fell outside of this temporal limitation, such as evidence pertaining to Plaintiff's bypass surgery in 1998. R. 37. Administrative Law Judge Katz concluded that the Plaintiff's limitations did not meet the degree of severity equal to or in excess of the criteria listed in Appendix 1 of the social security administrative regulations and that the Plaintiff therefore retained the functional physical capacity to perform his past work as a physician. R. 39-40.

D. The Medical Evidence Considered by the Administrative Law Judge and New Evidence Presented to the Appeals Council

*5 In support of his application for disability benefits, Plaintiff argued that his disabilities became more acute during his period of incarceration and that his medical records and work history during this time period supported his application for disability benefits based upon his inability to work after he was released from prison. Administrate Law Judge Katz therefore subpoenaed Plaintiff's medical records from the New York State Department of Correctional Services for the period from September 16, 1992, the date Plaintiff began his period of incarceration, to July 6, 1995, the date the Plaintiff was released on parole. These records were received. R. 273-310. The Fishkill Correctional Facility, where Plaintiff was incarcerated, also maintained records covering Plaintiff's second period of incarceration from January 25, 2000, to February 10, 2000, and provided them in response to Administrative Law Judge Katz's subpoena for documents. R. 311-13. As explained by the Administrative Law Judge, however, these records were outside of the Plaintiff's disability insurance period and were not germane to the Administrative Law Judge's determination about Plaintiff's disabled status.

Plaintiff's prison medical records reflect that the Plaintiff was prescribed Glucotrol and Diabeta for his diabetes and Lopressor, Tenormin, and Atenol for his hypertension. R. 276. The Plaintiff's prison medical records also indicate that the Correctional Facility placed Plaintiff on a special diet to help control his diabetes. R. 329-30. In addition to diabetes and hypertension, the Plaintiff's prison medical records indicate that Plaintiff suffered from other minor ailments during his period of incarceration, including dizziness, dry skin, back pain, R. 279, periodic cold symptoms, R. 284, and a rash on his upper thighs, red lesions on his skin, and athlete's foot, R. 304. Plaintiff's prison medical records contain a variety of other minor complaints Plaintiff lodged during his period of incarceration. R. 274, 279, 286, 291, 292, 295, 312.

The administrative record also contains information about the Plaintiff's medical history that falls outside of the Plaintiff's period of disability coverage. As made clear by Administrative Law Judge Katz, the pertinent period in question is from July 15, 1992, to March 31, 1996; Plaintiff has not challenged the accuracy of these dates as the proper period of disability coverage. Plaintiff's medical records generated during his second period of incarceration, which fell outside of Plaintiff's period of disability coverage, note that Plaintiff had triple bypass surgery in 1998. R. 313. Plaintiff also asserts that he was diagnosed with cataracts in 1984 and underwent bilateral eye operations in 1985 and in 1986. See Sokol Aff. at ¶ 4. Plaintiff claims that a result of his cataracts surgery he cannot be in large crowds and must be careful not to sustain any trauma to his eyes. Id.

In addition to the Department of Correctional Services' medical records, Administrative Law Judge Katz received a letter from Dr. Lynn Herkowitz-Deutsch, Plaintiff's sister-in-law, dated October 12, 2001. R. 336. Dr. Herkowitz-Deutsch is board certified in general and geriatric psychiatry. R. 336. Dr. Herkowitz-Deutsch claimed she was familiar with the Plaintiff's medical, psychiatric, and psychosocial behavior and that it was her medical opinion that the Plaintiff suffered from "a long history of unrecognized major affective disorder that interfered significantly with his interpersonal and vocational functioning, and ability to make decisions." R. 336. Dr. Herkowitz-Deutsch based her opinion on her personal observations of the Plaintiff's "episodes of illness characterized by seclusiveness, suspiciousness, grandiosity, expansiveness, appetite and sleep disturbances, impulsiveness, hostility, and marked affective liability." R. 336. Dr. Herkowitz-Deutsch stated that Plaintiff resisted her recommendations that he receive a "formal psychiatric evaluation and treatment, " R. 336, and identified Plaintiff's psychological condition as the reason why he was unable to maintain employment, R. 336.

*6 Subsequent to Administrative Law Judge Katz rendering his decision, the Appeals Council received opinion letters from four physicians each claiming to have knowledge about Plaintiff's medical condition and disabilities. The Appeals Council received correspondence from Dr. Lawrence Roach, Dr. Robyn Deutsch-Sokol, the Plaintiff's wife, Dr. Dennis Gage, and Dr. Slobodan Aleksic. R. 345-51. The Appeals Council considered these opinion letters in the course of reviewing and upholding Administrative Law Judge Katz's decision. R. 5.

Dr. Roach, for whom Plaintiff worked during Plaintiffs work release program, submitted a letter to the Appeals Council dated April 16, 2004. R. 345-46. Dr. Roach explained that he and the Plaintiff completed their post-graduate studies together at Mount Sinai Hospital and that he employed the Plaintiff as a part of the Plaintiff's work release program in 1994. Id. Dr. Roach offered that during the six months that Plaintiff worked for him, "[Plaintiff] was in poor physical and mental health." Id. Dr. Roach additionally commented that Plaintiff was "obese depressed [sic] and on diabetic and anti-hypertensive medication prescribed by the prison doctor. He was severely depressed and disheveled." Id. Dr. Roach also opined that Plaintiff's blood sugar was not under control at this time and that he had come to this conclusion upon reviewing the Plaintiff's prison medical records and upon conducting an examination of the Plaintiff on January 4, 2002. Id.

Plaintiff designated Dr. Roach as his treating physician in his application for disability benefits dated July 26, 2000. R. 98. During his administrative hearing, Plaintiff noted that he began seeing Dr. Roach in 1994 for depression, hypertension, diabetes and congestive heart failure. Id. Plaintiff emphasized to Administrative Law Judge Katz during his administrative hearing hat he wanted Dr. Roach's medical records to be included in the administrative record and to be reviewed and considered in support of his application for disability benefits. See R.443-45. Administrative Law Judge Katz gave the Plaintiff an additional month to secure the medical information from Dr. Roach and instructed the Plaintiff to report back to him by September 10, 2001, to inform him whether Dr. Roach evaluated the Plaintiff and whether the Plaintiff was able to secure any additional documentation from Dr. Roach. R. 445. On October 26, 2001, Plaintiff corresponded with Administrative Law Judge Katz and informed him that he had contacted Dr. Roach's office and was told that "[Doctor Roach] will be busy probably till the middle of December." R. 68.

Dr. Dennis Gage, an internist specializing in internal medicine and endocrinology, also claims to have treated the Plaintiff since 1994. R. 347. Dr. Gage asserted in his letter to the Appeals Council that he reviewed Plaintiff's prison medical records and diagnosed him with "diabetes type 2 out of control, blood sugar elevation with poor control of diabetes over the years at some points blood sugars higher than 500 causing mental status changes and inability to perform a level of work that is expected of a radiologist." Id. Dr. Gage further stated that Plaintiff "is unable to practice... radiology" and "has had difficult (sic) in simply walking, lifting, and moving around." Id.

*7 In a letter to the Appeals Council dated April 19, 2004, Dr. Slobodan Aleksic, a neurologist and neuro-psychiatrist, claims to have psychiatrically treated the Plaintiff since January of 1994. R. 348. Dr. Aleksic stated that it was his medical opinion that the Plaintiff suffered from bipolar disorder and that he likely suffered from bipolar disorder prior to his incarceration. R. 348-49. Dr. Aleksic noted that he came to these medical conclusions upon reviewing the Plaintiff's testimony before Administrative Law Judge Katz, upon reviewing Dr. Herkowitz-Deutsch's letter to the Administrative Law Judge, and upon conversing with the Plaintiff and his wife. R. 349.

Dr. Robyn Deutsch-Sokol, Plaintiff's wife, who is board certified in pediatrics and ophthalmology, also wrote to the Appeals Council in April of 2004. R. 350. In her letter Dr. Deutsch-Sokol asserted that she diagnosed the Plaintiff with cataracts in 1985 and with severe depression between 1994 and 1995. R. 350. Dr. Deutsch-Sokol informed the Appeals Council that she had to obtain a restraining order against the Plaintiff because of his depression and paranoia in 1996 and in 1997, and that they were separated during this period of time. R. 350-51. Dr. Deutsch-Sokol also offered that she had made diagnoses concerning Plaintiff's coronary condition and limited mobility. R. 351. According to Dr. Deutsch-Sokol, however, these diagnoses were made in 1997 and 2002. R. 351.

Following the receipt of this information, the Appeals Council affirmed the decision of Administrative Law Judge Katz and denied Plaintiff's request for disability insurance benefits. R. 5-9. The Appeals Council's decision became the Commissioner's final decision and this timely request for judicial review of the Commissioner's final decision under 42 U.S.C. § 405(g) followed.

DISCUSSION

A. Standard of Review

A party may move for judgment on the pleadings "after the pleadings are closed but within such time as not to delay the trial." FED. R. CIV. P. 12(c). When considering a Rule 12(c) motion for judgment on the pleadings, "the court must view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party." Madonna v. U.S., 878 F.2d 62, 65 (2d Cir.1989). The moving party is entitled to judgment on the pleadings "where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988).

Section 405(g) of Title 42 of the United States Code empowers a social security claimant to seek judicial review of the Commissioner of Social Security's final decision denying the claimant's application for disability benefits. District Courts are empowered "to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). It is not "the function of a reviewing court to decide de novo whether a claimant was disabled." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). Certain matters, such as resolving conflicting evidence and rendering credibility determinations, remain within the sole province of the administrative law judge and are not properly presented to the district court for de novo review. See, e.g., Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002).

*8 Upon review of the administrative record, a district court may affirm, modify or reverse the Commissioner's decision, or remand the case for rehearing. 42 U.S.C. § 405(g). A court must affirm the Commissioner's decision if it is supported by substantial evidence and if the proper legal standards were observed. See Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir.1997). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). A court must defer to the Commissioner's factual findings and the inferences drawn from those facts, and the Commissioner's findings of fact are considered conclusive if they are supported by substantial evidence. See 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000).

B. Plaintiffs Arguments in Support of Reversal of Commissioner's Final Decision

Plaintiff advances several arguments in support of reversal of the Commissioner's final decision to deny him disability insurance benefits. Plaintiff alleges that the Administrative Law Judge denied him a fair hearing by conducting the hearing in the absence of counsel, that the Administrative Law Judge failed to develop the record sufficiently, and that the Administrative Law Judge's determination that the Plaintiff was not disabled and retained the ability to perform his past work was erroneous. Plaintiff also raises a variety of minor alleged defects in the administrative proceeding that he contends warrants reversal of the Commissioner's final decision, such as the Administrative Law Judge's failure to inquire into the meaning of certain words used by the Plaintiff during the administrative hearing, his failure to inquire into the limitations placed on Plaintiff's ability to work while incarcerated, and his failure to inquire into whether Plaintiff could legally drive or legally perform certain employment functions. See Sokol Aff. at ¶¶ 5-10.

As correctly argued by the Commissioner in his Memorandum of Law, any argument raised by the Plaintiff pertaining to the non-medical limitations on the Plaintiff's ability to work were properly disregarded by the Administrative Law Judge because these non-medical limitations fail to establish medical disabilities that impaired or limited the Plaintiff's ability to work. See Commissioner's Mem. at p. 12-13 (citing 42 U.S.C. § 423(d)(1)(A) and Barnhart v. Walton, 535 U.S. 212, 217, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002)). As such, the Court will only consider the Plaintiff's challenges to the decision of the Administrative Law Judge that are based upon a review of the Plaintiff's disabilities and medical conditions. Any argument that the Administrative Law Judge should have inquired into limitations placed on Plaintiff's ability to work because of his incarceration, or into any limitations that were placed on Plaintiff's ability to work upon his release because of his prior conviction, is without merit. See, e.g., Sokol Aff. at ¶¶ 9, 10 (identifying Administrative Law Judge's errors as including failure to inquire into whether Plaintiff attempted to secure work in local community or whether Plaintiff was eligible to drive). Despite Plaintiff's counsel's import in her affidavit, Plaintiff is not entitled to disability insurance benefits because Plaintiff "look[ed] for jobs in Scarsdale, but was unsuccessful." See Sokol Aff. at ¶ 9. Social security disability benefits are awarded upon a substantiated finding of a claimant's medical inability to work because of his or her disabilities and not because he or she is unable to secure employment in his or her local community.

1. Commissioner's Disability Determination

*9 In order to be eligible for disability benefits, a claimant must establish the onset of a disability during the period in which the claimant was insured for disability benefits. See 42 U.S.C. § 423(a)(1)(A). If a claimant has a preexisting condition that does not become disabling until after the expiration of the insured period, the claimant is not entitled to disability benefits. Koss v. Schweiker, 582 F.Supp. 518, 522 (S.D.N.Y.1984). Disability is defined as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). A claimant's impairment must be "of such severity that he [or she] is not only unable to do his [or her] previous work but cannot, considering his [or her] age, education, and working experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).

The Social Security Administration has promulgated a five-step inquiry that administrative law judges must follow when assessing whether a claimant is disabled within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520. Step one directs the Administrative Law Judge to determine whether the claimant has engaged in substantial gainful employment. If the claimant has not engaged in substantial gainful employment, the Administrative Law Judge's inquiry proceeds to step two, which requires the Administrative Law Judge to assess the severity of the claimant's alleged impairments or disabilities. If a claimant's impairments qualify as severe, the Administrative Law Judge must next consider whether the claimant has an impairment that meets one of the listings in Appendix 1 of the social security regulations. If the claimant has an impairment that meets one of the listings in Appendix 1, the claimant is considered disabled within the meaning of the statute and is entitled to disability insurance benefits; if the claimant does not have an impairment that meets one of the listings in Appendix 1, the Administrative Law Judge must proceed to step four, where he or she assesses the claimant's functional residual capacity and determines whether the claimant can perform his or her past relevant work. If the Administrative Law Judge determines that the claimant can perform his or her past relevant work, the claimant is not disabled; if the Administrative Law Judge determines that the claimant cannot perform past relevant work, the inquiry proceeds to step five. At step five, the Administrative Law Judge assesses the claimant's residual functional capacity, age, education, and work experience in order to determine if the claimant can perform other gainful employment that is available in the national community. See 20 C.F.R. § 404.1520; Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999).

*10 The burden is on the claimant to establish his or her disability, which encompasses the first four steps of the Administrative Law Judge's inquiry. See Bush v. Shalala, 94 F.3d 40, 45 (2d Cir.1996). At step five, the burden shifts to the Commissioner. Id. An Administrative Law Judge must consider the entire record, including "objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence of pain or disability testified to by the claimant or other witnesses, and the claimant's educational background, age, and work experience" when proceeding through the five step disability analysis. See Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980).

Administrative Law Judge Katz determined that the Plaintiff retained his residual functional capacity to perform the actual functional demands and job duties of his past relevant work and that he therefore was not disabled during the time period in question. R. 40. Plaintiff claims that the Administrative Law Judge's decision is not supported by substantial evidence because he failed to take into account the effects of Plaintiff's medication, see Sokol Aff. at ¶ 19, and that the Administrative Law Judge's credibility findings were flawed because they did not incorporate Plaintiff's subjective complaints of pain, discomfort, and other physical limitations, see Pl's Mem. at p. 12.

Despite Plaintiff's assertions, I conclude, and respectfully recommend that Your Honor should conclude, that the Administrative Law Judge's decision is supported by substantial evidence. The Administrative Law Judge specifically acknowledged that he considered Plaintiff's complaints about the side effects caused by his medication when he evaluated the severity of Plaintiff's impairments and the Administrative Law Judge concluded that Plaintiff's work history during his period of incarceration and after his release from prison contradicted his testimony regarding his impairments and degree of pain. R. 38-39. In support of these conclusions, Administrative Law Judge Katz noted that Plaintiff himself testified that he worked four to six hours a day while incarcerated and that he worked on his own appeal of his state court criminal conviction upon his release from prison. R. 39. Although Plaintiff's counsel argues that Administrative Law Judge Katz's failed to inquire into what Plaintiff subjectively meant by "work on his appeal, " see Sokol Aff. at ¶ 6, regardless of Plaintiff's personal meaning of term "work, " Administrative Law Judge Katz concluded that the fact that the Plaintiff was able to work on his own appeal at all was some evidence of the Plaintiff's functional ability to work that contradicted his allegations of complete disability. See R. 39 (noting that Plaintiff's ability to work on and argue his own appeal demonstrated Plaintiff's "intellectual and mental ability").

Plaintiff's additional allegation that the Administrative Law Judge gave no weight to the letters of Doctors Herkowitz-Deutsch and Deutsch-Sokol is unfounded. As explained above, Dr. Herkowitz-Deutsch is Plaintiff's sister-in-law, and Dr. Robyn Deutsch-Sokol is Plaintiff's wife. Administrative Law Judge Katz explicitly stated that he attributed little evidentiary value to these letters because of the absence of any treatment history between the Plaintiff and these doctors, because the opinions were rendered retrospectively, and because Plaintiff did not allege a mental impairment in his application for disability benefits. R. 37. Although treating physicians are permitted to render retrospective opinions that may be entitled to the deferential standard under the treating physician rule, see, e.g., Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir.1981), Administrative Law Judge Katz determined that the opinions of Doctors Herkowitz-Deutsch and Deutsch-Sokol were not based on their own treatment of the Plaintiff and thus were not rendered in the course of a physician-patient relationship. See R. 37 n. 4

*11 A review of the administrative record leads me to conclude that Administrative Law Judge Katz's decision is supported by substantial evidence in the record. Both the Plaintiff and Dr. Deutsch-Sokol admit that records were provided to Dr. Deutsch-Sokol for the sole purpose of rendering an opinion on Plaintiff's disabled status. See R. 156 (letter from Dr. Robyn Deutsch-Sokol, dated August 8, 2001); R. 68 (letter from Plaintiff, dated October 26, 2001). In the correspondence provided by Dr. Herkowitz-Deutsch, Dr. Herkowitz-Deutsch offered that her opinions were based upon her personal observations of the Plaintiff and at no point suggests that she officially treated the Plaintiff or maintained any consistent records of treatment history for the Plaintiff covering the time period in question. R. 336-37. Absent any other information that would tend to support the opinions of Plaintiff's family members, the Plaintiff has not established that Administrative Law Judge Katz committed error by ascribing minimal weight to his family members' personal medical diagnoses rendered for the purpose of establishing his claim of disability.

Plaintiff also contends that the Administrative Law Judge incorrectly considered Plaintiff's demeanor while testifying during the administrative hearing. Plaintiff alleges that such consideration of the Plaintiffs demeanor resulted in a decision not based solely on an evaluation of the Plaintiff's medical records. See Sokol Aff. at ¶ 18. The applicable Social Security regulations, 20 C.F.R. 404.1545 in particular, however, allow an Administrative Law Judge to consider a variety of evidence when assessing a claimant's residual functional capacity, including "observations of [claimant's] limitations." See 20 C.F.R. § 404.1545. Thus, contrary to Plaintiff's assertion of legal error, the Administrative Law Judge did not commit error when he considered Plaintiff's demeanor in rendering his decision that the Plaintiff retained a functional ability to perform past employment. Moreover, Plaintiff's subjective complaints of limitations, pain, and disabilities, alone, cannot establish a claim for an entitlement to disability insurance benefits. See, e.g., Brockway v. Barnhart, 94 Fed.Appx. 25, 28 (2d Cir.2004) ("Contrary to [claimant's] assertions, moreover, his subjective assertions of pain could not provide a basis for satisfying the diagnostic criteria required for a finding of presumptive disability.").

2. Plaintiff's Pro Se Status

Plaintiff also challenges the propriety of the Commissioner's final decision on the ground that he was denied a full and fair hearing because he was not represented by counsel during the administrative hearing. See Sokol Aff. at ¶ 11. It is well established in the Second Circuit that an Administrative Law Judge is under an obligation to develop the administrative record fully, to ensure that there are no inconsistencies in the record that require further inquiry, and to obtain the reports of treating physicians and elicit the appropriate testimony during the proceeding. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999). When a claimant proceeds pro se, the Administrative Law Judge's responsibilities to develop the record fully are heightened. See Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990) (citing Hankerson v. Harris, 636 F.2d 893, 894 (2d Cir.1980)). Part of the Administrative Law Judge's heightened duty when evaluating disability claims of pro se claimants is to ensure that the claimant is aware of his or her right to be represented by counsel during the administrative proceedings. Robinson v. Sec'y of Human Health & Servs., 733 F.2d 255, 257 (2d Cir.1984); Johnson v. Barnhart, 03 Civ. 4606(DP1K), 2006 WL 1063195, at *7 (S.D.N.Y. April 20, 2006).

*12 Plaintiff's perfunctory claim that he was denied a full and fair hearing because he was not represented by counsel during the hearing is without merit. Administrative Law Judge Katz referenced Plaintiff's right to have an attorney at the outset of the Plaintiff's administrative hearing, referred to a notice that was sent to the Plaintiff prior to the hearing that informed the Plaintiff of this right, and questioned the Plaintiff about his desire to have an attorney present during the hearing. R. 423-24. The notice, which is included in the administrative record, informed the Plaintiff of the possibility of obtaining free legal services and contained information about how to secure such representation. R. 58-59. This notice complies with the regulations promulgated by the Social Security Administration pertaining to a claimant's right to counsel. See 20 C.F.R. §§ 404.938, 404.1706, 416.1506, 416.1507. Administrative Law Judge Katz offered to postpone the hearing to allow Plaintiff the opportunity to obtain counsel. R. 424. Plaintiff's response, which was that he "[didn't] need [an] attorney at this time, " was unequivocal, and at no point during the hearing did Plaintiff suggest that he believed he needed to obtain counsel. Id. Plaintiff's post hoc argument that he was prejudiced by lack of counsel during his administrative hearing is thus without merit.

3. Duty to Develop Record and New Evidence Presented to Appeals Council

Plaintiff also claims that the record was underdeveloped by the Administrative Law Judge in light of his failure to obtain the medical records and report of Dr. Roach, a physician whom the Plaintiff designated as a treating physician in his application for disability benefits. See Sokol Aff. at ¶ 28; R. 98. Although the undersigned has some concerns about the procedure the Administrative Law Judge used in the process of obtaining medical records from Dr. Roach, I nevertheless conclude, and respectfully recommend that Your Honor should conclude, that the weight of the evidence in the administrative record supports Administrative Law Judge Katz's decision and that the Administrative Law Judge's actions do not provide a valid basis upon which to remand the Plaintiff's application for disability insurance benefits to the Commissioner for further consideration.

The Second Circuit has defined a "treating physician" as "the claimant's own physician, osteopath or psychologist (including outpatient clinic and health maintenance organization) who has provided the individual with medical treatment or evaluation, and who has or who had an ongoing treatment and physician-patient relationship with the individual.'" Schisler v. Bowen, 851 F.2d 43, 46 (2d Cir.1988). In crafting this definition of a "treating physician, " the Second Circuit implicitly observed that whether a particular physician qualifies as a "treating physician" is an inherently case-specific analysis that is predicated upon the nature of the relationship between the patient and the physician. See Arnone v. Bowen, 882 F.2d 34, 41 (2d Cir.1989). Under the regulations and Circuit case law, an Administrative Law Judge has the affirmative duty to obtain medical evidence from a plaintiff's treating physician. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996) (noting Administrative Law Judge's duty to develop the record); 20 C.F.R. § 404.1512(d) (explaining obligation of Administrative Law Judge to obtain the records of a treating physician).

*13 The status of Dr. Roach as a treating physician appears to be in dispute and the administrative record does not clarify Dr. Roach's appropriate designation. Plaintiff noted on his disability benefits application that Dr. Roach served as one of his treating physicians beginning in 1994. R. 98. Plaintiff noted in his disability benefits application that he saw Dr. Roach for treatment for several ailments, including depression, hypertension, diabetes and congestive heart failure. Id. According to Plaintiff and the evidence within the administrative record, however, Plaintiff did not suffer from congestive heart failure until 1998, which is outside of the disability insurance period. Moreover, Plaintiff began working for Dr. Roach in 1994 as part of his work release program from prison and Plaintiff has been unable to supply any medical records or other evidence that would tend to support his assertion that he was being treated by Dr. Roach as a patient in 1994.

As noted above, Plaintiff requested that Administrative Law Judge Katz assist him in retrieving medical evidence and records from Dr. Roach during his administrative hearing. In Plaintiff's follow up correspondence to Administrative Law Judge Katz, however, Plaintiff explained that Dr. Roach experienced his own "personal problems" and was not able to supply any documentation for the Plaintiff until December of 2001. R. 68-69. It is unclear from the administrative record exactly what steps the Administrative Law Judge took to assist the Plaintiff to obtain such records, assuming that such records existed. Toward the end of the administrative hearing, Administrative Law Judge Katz gave the Plaintiff an additional month to secure documentation from Dr. Roach. It is not clear to the undersigned whether the Administrative Law Judge's permissive instruction to the Plaintiff that he should affirmatively develop his own medical history comports with the honored rule that the Administrative Law Judge must develop the record, especially when the claimant proceeds pro se. See, e.g., Oliveras v. Astrue, 07 Civ. 2841(RMB)(JCF), 2008 WL 2262618, at *5-6 (S.D.N.Y. May 30, 2008) (describing affirmative duty of administrative law judge to develop record, including issuing subpoenas to treating physicians).

I conclude, however, and respectfully recommend that Your Honor should conclude, that the propriety of the Administrative Law Judge's actions or inactions in obtaining records from Dr. Roach does not impact the instant recommendation that the Commissioner's denial of disability benefits should be affirmed. First, it appears from the record that the Administrative Law Judge harbored some suspicion about the status of Dr. Roach as a treating physician. As explained supra, the status of Dr. Roach as a treating physician during 1994 when the Plaintiff was working for Dr. Roach on work release from prison appears questionable. Additionally, Plaintiff identified Dr. Roach as a treating physician for ailments that the Plaintiff did not experience until after 1994 and until after his period of disability insurance coverage expired. Thus, whether Dr. Roach was one of the Plaintiff's treating physicians in 1994 appears to be in dispute.

*14 Second, and more important to the instant recommendation, Plaintiff submitted additional evidence to the Appeals Council from Dr. Roach that does not alter the weight of the evidence relied upon by the Administrative Law Judge in rendering his opinion. Evidence that is submitted to the Appeals Council, but that is not presented to the Administrative Law Judge, is considered part of the administrative record that the district court reviews under 42 U.S.C. § 405(g) and may be assessed and considered by the district court in the course of analyzing whether the Commissioner's final decision is supported by substantial evidence. See Perez v. Chater, 77 F.3d 41, 45 (2d Cir.1996); 20 C.F.R. § 404.970(b). In this case, however, the undersigned agrees that the new evidence submitted to the Appeals Council from Dr. Roach does not alter the Administrative Law Judge's analysis in light of the cursory nature of Dr. Roach's letter. R. 345-46.

In his letter to the Appeals Council, Dr. Roach concedes that he began his relationship with the Plaintiff as a social acquaintance in medical school and "next encounter[ed]" Plaintiff when he "agreed to supervise and employ him as a clerk in [his] office on a work release program..." in 1994. R. 345. Dr. Roach then offers his opinion about Plaintiff's condition at the time he was working for him in 1994 based upon his personal observation of the Plaintiff. Id. Dr. Roach offers no specifics about any treatment history or course of treatment he prescribed for the Plaintiff during this time and fails to explain any medical diagnoses he made during the course of a physician-patient relationship he maintained with the Plaintiff during this time. Id. Dr. Roach concedes that his observations are based upon his review of the Correctional Facility's medical records and reports provided to him. R. 346. Dr. Roach further notes that he examined the Plaintiff and performed tests on the Plaintiff in 2002, which is after the close of the Plaintiff's disability insurance period. Id.

Under the test developed by the Second Circuit, it appears to the undersigned that Dr. Roach was not a treating physician of the Plaintiff during Plaintiff's disability insurance period, and to the extent that Dr. Roach could be considered to be a treating physician during this time, it appears to the undersigned that Dr. Roach failed to offer a medical diagnosis based upon medical evidence in the administrative record that could undermine the weight of the evidence or alter the Administrative Law Judge's conclusion. The Appeals Council's election to disregard Dr. Roach's 2002 examination and assessment of the Plaintiff is supported by the fact that this analysis was performed after the Plaintiff applied for disability benefits and therefore has no connection to the disabilities Plaintiff claims he endured during the disability period in question. Additionally, Dr. Roach has not provided any medical records evincing his treatment of the Plaintiff in 1994; Dr. Roach did not even state that he treated the Plaintiff in 1994. R. 345-46. For these reasons I conclude, and respectfully recommend that Your Honor should conclude, that neither the Administrative Law Judge nor the Appeals Council committed legal error with respect to the information provided by Dr. Roach and that the new evidence he presented to the Appeals Council does not outweigh the evidence in the administrative record supporting the Administrative Law Judge's determination that the Plaintiff was not disabled.

*15 Plaintiff also claims that Administrative Law Judge Katz did not fully develop the record because he was unable to obtain medical records from Westchester Medical Center. See Sokol Aff. at ¶ 25. Plaintiff, however, acknowledges in his moving papers that the records from Westchester County Medical Center are no longer available because such records are only kept for up to ten years after a patient has been discharged. See Sokol Aff., Ex. B. The Administrative Law Judge, therefore, could not have neglected his obligation to develop the administrative record when the documents he may have been obligated to obtain did not exist.

Plaintiff additionally advances that Administrative Law Judge Katz erred when he did not order an independent psychiatric evaluation of the Plaintiff and when he failed to investigate the status of Plaintiff's psychiatric condition. See Sokol Aff. at ¶ 12. Upon a review of the administrative record, however, I conclude, and respectfully recommend that Your Honor should conclude, that the Administrative Law Judge was not under a duty to have the Plaintiff's mental state evaluated because Plaintiff failed to present evidence from a treating physician regarding his mental state and because the opinions of the Plaintiff's consulting physicians were contradicted by evidence elicited during the administrative hearing. As explained above, Dr. Deutsch-Sokol and Dr. Herkowitz Deutsch's opinions were based upon their social relationships with the Plaintiff, not on any physician-patient relationship. See supra at pp. 16-17. The record contains no indication that either of these doctors qualified as a treating physician. Further, an evaluation of the Plaintiff's current mental state would not assist the court in determining if the Plaintiff suffered from a psychological disability during the relevant time period as there is no other evidence in the record to support of a claim of disability insurance benefits based upon a mental disease or defect suffered by the Plaintiff from 1992 to 1996. The tenor of Plaintiff's application for disability benefits is based upon Plaintiff's alleged disabilities resulting from diabetes and hypertension. To the extent that the Plaintiff claims he was "depressed, " it does not appear that he sought treatment for such depression during the disability insured period, and the doctors' post hoc diagnoses of "unrecognized major affective disorder, " R. 336, is not supported by any other medical evidence in the administrative record. Plaintiff's argument that the Administrative Law Judge erred by failing to explore Plaintiff's alleged mental disabilities in 2001 is therefore without merit.

The remainder of the "new evidence" Plaintiff presented to the Appeals Council does not persuade the undersigned that such new evidence outweighs the evidence developed in support of the Commissioner's final determination. New evidence that is submitted to the Appeals Council should not be cumulative of the evidence already in the administrative record, and cumulative evidence, by definition, cannot serve as a predicate for finding that there is a lack of substantial evidence in support of the Commissioner's final determination. See Tai-Fatt v. Barnhart, 04 Civ. 9274(GWG), 2005 WL 3206552, at * 12 (S.D.N.Y. Nov. 30, 2005).

*16 The balance of the additional evidence submitted to the Appeals Council, however, falls within this category of cumulative evidence already in the administrative record and does not raise the likelihood that the Commissioner would have decided the Plaintiff's application for disability insurance benefits differently. One of the letters submitted to the Appeals Council was authored by Plaintiff's wife, Doctor Robyn Deutsch-Sokol, who previously testified at the Plaintiff's administrative hearing and provided only a brief synopsis and history of some of Plaintiff's alleged disabilities. R. 350-51. Dr. Deutsch-Sokol's letter offered no new evidence substantiating Plaintiff's claim of a disability and was properly designated and treated as cumulative in nature by the Appeals Council.

Dr. Slobodan Aleksic submitted a letter to the Appeals Council in which he alleges that he treated Plaintiff since January of 1994. R. 348-49. Plaintiff, however, did not list Dr. Aleksic as a treating physician in any of his applications for disability insurance benefits. Dr. Aleksic, moreover, failed to produce any medical records he kept or maintained in the course of allegedly treating the Plaintiff during the Plaintiff's disability insurance period. Dr. Aleksic additionally admitted in his letter that his opinion about the Plaintiff's condition in 1994 was based on records submitted during the Plaintiff's administrative hearing before Administrative Law Judge Katz. R. 348-49. Based upon Dr. Aleksic's own statements, therefore, it appears clear to the undersigned that Dr. Aleksic does not qualify as a treating physician and that the commentary offered by Dr. Aleksic is merely cumulative of the scant evidence in the administrative record pertaining to Plaintiff's alleged disabilities.

Lastly, Dr. Dennis Gage submitted an opinion letter about the Plaintiff's condition and purported disabilities which does not specify when it was rendered or upon what specific information it is based. R. 347 ("I have reviewed [Plaintiff's] records."). Dr. Gage's assessment, which consists of a terse single paragraph, is conclusory in nature and is not supported by any independent medical analysis or citation to other objective medical documentation. Dr. Gage's one paragraph assessment does not alter the balance of the evidence in the administrative record or countenance a result different than the one reached by the Administrative Law Judge.

As explained above, although a currently treating physician of a Plaintiff can render a retrospective diagnosis and opinion of a Plaintiff's condition, see Dousewicz, 646 F.2d at 774, such a retrospective opinion must be supported by medical evidence and is only entitled to the deferential treating physician standard by the Administrative Law Judge when there exists such medical evidence supporting the retrospective opinion. In this case, however, even if any of the aforementioned physicians who submitted opinion letters to the Appeals Council could be designated as treating physicians, none of these letters is accompanied by objective medical evidence that supports the conclusions offered by the respective doctors. I therefore conclude, and respectfully recommend that Your Honor should conclude, that the weight of the evidence in the administrative record outweighs the letters' possible evidentiary value and do not alter the Administrative Law Judge's final determination that the Plaintiff was not disabled.

CONCLUSION

*17 For the reasons stated above, I conclude, and respectfully recommend that Your Honor should conclude, that the Commissioner's motion for judgment on the pleadings should be granted, that the Plaintiff's motion for judgment on the pleadings should be denied, and that the Plaintiff's Complaint seeking judicial review of the Commissioner's final decision denying the Plaintiff social security disability benefits should be dismissed.

NOTICE

Pursuant to 28 U.S.C. § 636(b)(1), as amended, and FED. R. CIV. P. 72(b), the parties shall have ten (10) days, plus an additional three (3) days, pursuant to FED. R. CIV. P. 6(d), or a total of thirteen (13) working days, see FED. R. CIV. P. 6(a), from the date hereof, to file written objections to this Report and Recommendation. Such objections, if any, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of The Honorable Kenneth M. Karas at the United States Courthouse, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at the same address.

Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.

Requests for extensions of time to file objections must be made to Judge Karas.

Attorneys and Law Firms

Lawrence D. Hasseler, Conboy, McKay Law Firm, Carthage, NY, for Plaintiff.

Andreea L. Lechleitner, Social Security Administration Office of Regional General Counsel, New York, NY, for Defendant.

Opinion

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

*1 In December 2006, Plaintiff Jody LaRock, on behalf of her minor child, MK, filed an application for Supplemental Security Income ("SSI") under the Social Security Act ("the Act"). Plaintiff alleges MK has been disabled since May 1, 1997, due to various mental impairments, including attention deficit hyperactivity disorder ("ADHD"), low intellectual functioning, depression, anxiety, and a learning disorder. The Commissioner of Social Security ("Commissioner") denied Plaintiff's application.

Plaintiff, through her attorney, Mr. Lawrence D. Hassleler, commenced this action on August 24, 2010, by filing a Complaint in the United States District Court for the Northern District of New York. (Docket No. 1). Plaintiff seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c) (3).

On February 18, 2011, the Honorable Norman A. Mordue, Chief United States District Judge, referred this case to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) (A) and (B). (Docket No. 16).

II. Background

The relevant procedural history may be summarized as follows: Plaintiff, on behalf of her minor child, MK, initially applied for SSI on December 14, 2006, alleging disability beginning on May 1, 1997 (R. at 33).[1] Plaintiff alleged disability due to various mental impairments, including ADHD, low intellectual functioning, depression, anxiety, and a learning disorder. The application was denied. Id. A subsequent application was filed on February 9, 2007[2] (R. at 100-03). This application was again denied (R. at 59-66). Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ") (R. at 70). A video hearing was held between Canton, New York, and Syracuse, New York, on July 21, 2009, before ALJ Elizabeth W. Koennecke (R. at 8-32). MK, the minor child, represented by counsel, appeared and testified (R. at 11-18). Plaintiff, MK's mother, also testified (R. at 13-32). On October 19, 2009, ALJ Koennecke issued a decision finding MK not disabled (R. at 37-50). Plaintiff filed a request for review of that decision (R. at 6). The ALJ's decision became the Commissioner's final decision on July 28, 2010, when the Appeals Council denied Plaintiff's request for review (R. at 1-5).

Plaintiff, through counsel, timely commenced this action on August 24, 2010. (Docket No. 1). The Commissioner interposed an Answer on October 6, 2010. (Docket No. 8). Plaintiff filed a supporting Brief on November 22, 2010. (Docket No. 12). The Commissioner filed a Brief in opposition on November 30, 2010. (Docket No. 14).

Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern District of New York on September 12, 2003, this Court will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings.[3]

For the reasons that follow, it is respectfully recommended that the Commissioner's motion be granted, Plaintiff's motion be denied, and that the Commissioner's decision denying disability benefits be affirmed.

III. Discussion

A. Legal Standard and Scope of Review

*2 A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); see Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla, " and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982).

"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y.1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984).

A child is deemed disabled under the Act if he has "a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C) (i). The Commissioner has established the following three-step sequential evaluation to determine whether a child is disabled: first, the ALJ must determine whether the child has engaged in "substantial gainful activity." 20 C.F.R. § 416.924(a), (b). If the child has engaged in substantial gainful activity he will be found not disabled. Id. If not, the analysis will continue. At step two, the ALJ must determine whether the child "ha[s] a medically determinable impairment(s) that is severe." § 416.924(c). "If you do not have a medically determinable impairment, or your impairment(s) is a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations, [the ALJ] will find that you do not have a severe impairment(s) and are, therefore, not disabled." Id. Finally, at step three, the ALJ must determine whether the child "meet[s], medically equal[s], or functionally equal[s] the listings." § 416.924(d). To functionally equal the Listings, the ALJ must evaluate six domains: "[a]cquiring and using information; [a]ttending and ...


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