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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 completing tasks; [i]nteracting and relating with others; [m]oving about and manipulating objections; [c]aring for yourself; and, [h]ealth and physical well-being." § 416.926a(b)(1)(i)-(vi). A child's "impairment(s) is of listing-level severity if [he or she has] marked' limitations in two of the domains or an extreme' limitation in one domain." § 416.92a(d).

*3 Based on the entire record, the Court recommends that the Commissioner's decision denying disability benefits be affirmed.

B. Analysis

1. The Commissioner's Decision

The ALJ made the following findings with regard to factual information as well as the three-step process set forth above: the ALJ first noted that MK was born on March 8, 1995, and was therefore a school age child at the time the application was filed, and an adolescent at the time of her decision (R. at 40). The ALJ then found that MK had not engaged in substantial gainful activity as of her application date, December 14, 2006. Id. MK's ADHD, depressive disorder, and learning disorder, were found to be severe impairments. Id. At step three, the ALJ found that MK's impairments did not meet or medically equal a Listed impairment. Id. The ALJ afforded the statements from MK's mother "little weight" (R. at 43). The ALJ then found that none of MK's impairments functionally equaled the Listings (R. at 41). Specifically, the ALJ found that MK had no limitations in the moving about and manipulating objects domain (R. at 47-48). The ALJ also found that MK had less than marked limitations in the five remaining functional domains (R. at 44-50). Ultimately, the ALJ found that MK was not under a disability at any time from December 14, 2006, the application date, through the date of her decision (R. at 50).

2. Plaintiff's Claims:

Plaintiff argues that the ALJ's decision is neither supported by substantial evidence nor made in accordance with the applicable legal standards. Specifically, Plaintiff argues that a) the ALJ erred in failing to find MK met Listing 112.05D; b) the ALJ failed to consider specific portions of the record; and c) MK's impairments functionally equaled the Listings. The Court will discuss each argument in turn.

a) The ALJ's Finding that MK's Impairments Were Not of Listing Level Severity is Supported by Substantial Evidence

Plaintiff argues that the ALJ erred in failing to find that MK met Listing 112.05D, for mental retardation. Plaintiff's Brief, pp. 13-14.

Listing 112.05, for mental retardation, is "[characterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning." 20 C.F.R. Pt. 404, Subpt. P, App. 1. In order to meet part D of Listing 112.05, a claimant must also establish "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant limitation of function." Id.

The ALJ specifically rejected "any of the mental impairments found in section 112.00 of the listings" based on the opinions from psychiatrist Dr. A. Hameed (R. at 41). Dr. Hameed reviewed the record and found that while MK's impairments were severe, they did not meet or medically equal a Listed impairment (R. at 260-65). The Court finds that the ALJ's decision is supported by substantial evidence, despite new evidence submitted directly to the Appeals Council.

*4 Defendant argues only that, of the requirements for Listing 112.05D, Plaintiff failed to establish "[a] valid verbal, performance, or full scale IQ of 60 through 70." 20 C.F.R. Pt. 404, Subpt. P, App. 1; Defendant's Brief, pp. 7-10. The Court will therefore limit its discussion to whether the record establishes the necessary IQ score.

In support of her argument, Plaintiff cites to a psychoeducational evaluation completed in November 2008 by Ms. Karen Geer, a school psychologist (R. at 207-11). Plaintiff contends that an IQ test, completed by Ms. Geer meets the Listing 112.05D IQ criterion. Plaintiff's Brief, pp. 13-14. However, contrary to Plaintiff's argument, the relevant IQ test was not completed in November 2008. Instead, the IQ test to which Plaintiff refers was completed in May 2001.

In the November 2008 psychoeducational report, Ms. Geer noted the results of several prior cognitive and educational achievement examinations (R. at 207-09). Included in those results was the May 2001 intellectual examination (R. at 208-09). At the May 2001 IQ examination, MK received a verbal IQ score of 71, a performance IQ score of 73, and a full scale IQ score of 70. Id. The Court agrees that MK's full scale IQ score of 70 does appear to satisfy the 112.05D IQ requirement. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 112.00(D) (9) ("In cases where more than one IQ is customarily derived from the test administered, e.g., where verbal, performance, and full scale IQs are provided in the Wechsler series, the lowest of these is used in conjunction with listing 112.05."). However, this full scale IQ score of 70 constitutes the only evidence of record that MK had the required IQ to meet Listing 112.05D and was completed at a time when MK was only 6 years old as discussed further below.

Plaintiff argues that, based on this full scale IQ score of 70, the ALJ erred in failing to find that she met Listing 112.05D. However, the record indicates that the psychoeducational report containing this IQ score was submitted directly to the Appeals Council; as a consequence, the ALJ was unable to review this evidence and consider it as a part of his decision. See (R. at 4) (the Appeals Council stated that Exhibit B18E containing "[e]ducation records from the Ogdensburg City School District, " was additional evidence it had considered in denying review); (R. at 206-11) (exhibit B18E, records from Ogdensburg City School District, containing the psychoeducational evaluation and the May 2001 IQ test results); (R. at 18) (at the hearing, the ALJ stated she had received E' exhibits numbered 1 to 16). Thus, clearly, the ALJ did not err in failing to find Plaintiff met that Listing given these circumstances.

Nevertheless, the Court must review the record in its entirety to determine whether the ALJ's decision remains supported by substantial evidence, despite his inability to consider the psychoeducational report containing the May 2001 IQ test results. See Perez v. Chater, 77 F.3d 41, 45 (2d Cir.1996) ("[H]old[ing] that the new evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision."). For the following reasons, the Court finds that remand is not warranted.

*5 The Court acknowledges that the record fails to contain a subsequent Wechsler IQ test. However, several sources have diagnosed MK's intellectual functioning to be in the low average range, and not in the mental retardation range necessary to meet Listing 112.05D. For example, in November 2006, MK underwent a "Woodcock-Johnson Test[] of Cognitive Abilities-Third Edition in order to determine specific strengths and weakness in [MK's] intellectual profile. Results of the intelligence testing found [MK's] overall abilities fell in the low average range" (R. at 195). A letter dated May 2007, from Dr. Louisa Kalsner, noted that "[r]ecent testing ha[d] shown cognitive function in the low average range" (R. at 247). In November 2008, "[t]he Kaufman Brief intelligence Test-2nd Edition (KBIT-2) was administered to obtain a current measure of [MK's] cognitive ability" (R. at 208). Ms. Geer, the school psychologist completing the examination, found that MK's composite IQ score of 78 placed her in the "low average" or "well below average" range (R. at 210, 211). Indeed, the Court could find no indication in the record, other than MK's one IQ test score of 70 that her intellectual functioning was in the mental retardation range.

Importantly, MK's full scale IQ score of 70 was current only through May 2002. At the time MK took the May 2001 IQ test, she was six years old.[4] The Listings acknowledge that the IQ for a child under the age of sixteen may fluctuate. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 112.00(D)(10) (noting that "the results of IQ tests tend to stabilize by the age of 16"). The Listings therefore place restrictions on how long a child's IQ score may be considered "current." Id. Because MK was six at the May 2001 IQ test, her results were "current" for only one year. Id. ("IQ test results obtained before age 7 are current for 2 years if the tested IQ is less than 40 and 1 year if at 40 or above."). Thus, it would be improper for this Court to rely on the 2001 IQ test in evaluating whether MK met Listing 112.05D as of date of her application, December 14, 2006.

Based on the foregoing, the Court finds that the record as a whole supports the conclusion that MK's intellectual functioning was in the low average range. Thus, the ALJ's decision remains supported by substantial evidence despite the new evidence submitted directly to the Appeals Council.

b) The ALJ Adequately Reviewed the Evidence of Record

Plaintiff argues that the ALJ erred in failing to consider various pieces of medical evidence throughout the record. Plaintiff's Brief, pp. 11-12. Specifically, Plaintiff refers to the following: i) five emergency room visits; ii) the psychoeducational evaluation completed by Ms. Geer; iii) the diagnosis of MK with a separation anxiety disorder; iv) MK's difficulties interacting with others including Dr. Hameed's finding of "marked" limitations in that functional domain; and v) the opinion from MK's therapist, Ms. Robin Einbinder, that MK's behavioral problems were "chronic and severe." Id.

*6 The Court first notes that there is no obligation for the ALJ to discuss every piece of evidence contained in the record, so long "the evidence of record permits [the Court] to glean the rationale of an ALJ's decision." Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir.1983) ( citing Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir.1982)).

The ALJ specifically considered the following: treatment notes from MK's various medical sources; a November 2006 psychiatric evaluation; a November 2006 psychoeducational evaluation; a 2007 individualized education plan ("IEP"); a teacher questionnaire completed by Ms. Katherine Mathews in August 2007; a March 2009 psychiatric evaluation; a July 2009 letter from MK's therapist, Ms. Einbinder; the opinions from Dr. Hameed, the Social Security Administration ("SSA") non-examining psychiatrist; and Plaintiff's testimony (R. at 41-44). It is clear that the ALJ engaged in a thorough review of MK's medical and educational history. Nevertheless, the Court will address the various pieces of evidence to which Plaintiff cites.

Plaintiff first argues that the ALJ ignored MK's various trips to the emergency room between April 2006 and January 2009 (R. at 217, 283-313). Plaintiff's Brief, p. 11. Plaintiff contends that MK's five visits to the emergency room "for mental health related problems... contradict[ed] [the ALJ's] characterization of [MK] as a child who is doing fine and happy overall." Plaintiff's Brief, p. 11. The Court acknowledges that the ALJ did not specifically refer to these emergency room visits in her decision. However, contrary to Plaintiff's argument, at no point did the ALJ characterize MK as "fine and happy overall." Id. Instead, the ALJ noted that MK "ha[d] a long history of disturbed sleep and symptoms of depression and possible bipolar disease" (R. at 42). Furthermore, it is not clear that all MK's various trips to the emergency room were "for mental health related problems, " as argued by Plaintiff. Plaintiff's Brief, p. 11. For example, in April 2006, MK went to the emergency room after being "assaulted by a neighbor" and "diagnosed with a small laceration inside of her mouth as well as bruising to her face and back" (R. at 217). In February 2007, MK was "brought to [the] ER with [complaints] of not sleeping" (R. at 284). Finally, MK's mental health related emergency room visits also appear to be non-severe in nature. For example, MK visited the emergency room in November 2006 (R. at 285-88). The examiner noted complaints of agitation and frustration, however they were found to be only of a mild severity (R. at 287). MK again visited the emergency room in January 2009, this time for depression (R. at 304-06). The examiner found MK's appearance, speech, thought content, and judgment/insight all to be normal (R. at 305). Thus, the Court finds no reason to remand based on the ALJ's failure to specifically mention MK's various trips to the emergency room.

*7 Plaintiff next argues that the ALJ erred in failing to discuss Ms. Geer's psychoeducational report. Plaintiff's Brief, 11-12. However, as the Court has discussed above, this evidence was submitted directly to the Appeals Council, which the Appeals Council is presumed to have considered in its review of the ALJ decision. Supra Part III.B.2.a; Perez, 77 F.3d at 45 (if "the Appeals Council denies review after considering new evidence, the [Commissioner]'s final decision necessarily includes the Appeals Council's conclusion that the ALJ's findings remained correct despite the new evidence"). Therefore, clearly, the ALJ did not err in failing to consider this evidence because it was not available to her at the time of her decision.

Plaintiff's third argument is that the ALJ failed to note MK's diagnosis of a separation anxiety disorder. Plaintiff's Brief, p. 12. This is not accurate. Although the ALJ only cursorily discussed MK's separation anxiety disorder in her discussion of MK's medical history, an ALJ is not required to discuss in depth every piece of evidence contained in the record, so long "the evidence of record permits [the Court] to glean the rationale of an ALJ's decision." Mongeur, 722 F.2d at 1040 (citations removed). Here, the ALJ stated that MK's "difficulty separating from her mother was an issue of concern in the [November 2006 psychiatric] evaluation" (R. at 42). The ALJ also discussed a July 2009 letter written by MK's therapist, Ms. Einbinder R. at 43). In that letter, Ms. Einbinder stated that MK's diagnoses included a separation anxiety disorder (R. at 331, 43). Thus, although the ALJ did not specifically spell out that MK had been diagnosed with a separation anxiety disorder, it is clear to the Court that she considered MK's difficulties separating from her mother in the decision. The Court therefore declines to recommend remand on this basis.

Plaintiff next contends that the ALJ failed to consider MK's difficulties dealing with others, including Dr. Hameed's opinion that MK had marked limitations in this functional domain. Plaintiff's Brief, p. 12. Plaintiff's argument is meritless. The ALJ specifically noted that Dr. Hameed "concluded, after reviewing the... evidence, that the claimant had only one marked functional limitation, in interacting and relating with others" (R. at 42). The ALJ also considered that MK had "thrown a fellow student against a locker." Id. Ultimately, the ALJ found that "[a]lthough the claimant ha[d] a history of difficulties with other youngsters, the record show[ed] that she ha[d] friends and apparently ha[d] no difficulty dealing with others in small groups" (R. at 47); see (R. at 135) (MK's school noted in May 2007 that she "[wa]s a cooperative student. She [wa]s able to work well in pairs or small groups"). Thus, the ALJ acknowledged that MK had some difficulties dealing with others, but was not markedly limited in that functional domain.

*8 Plaintiff's final argument is that ALJ failed to consider the opinion from MK's therapist, Ms. Einbinder, that her problems were "chronic and severe." Plaintiff's Brief, p. 12. Plaintiff is referring to a letter written by Ms. Einbinder to Plaintiff's work regarding Plaintiff's "required work fare hours" (R. at 330). Ms. Einbinder stated that "[d]ue to the chronic and severe nature of [MK's] current psychiatric and behavioral problems, it [wa]s in [MK's] clinical best interest for her mother to be as available as possible in order to provide structure, supervision and emotional support, and to be available for all medical, psychiatric, counseling appointments and crises for [MK]" (R. at 330). The Court acknowledges that the ALJ did fail to mention this specific opinion from Ms. Einbinder. However, this letter was clearly not intended for diagnosis or treatment purposes, but instead appears to be written in request for leniency at Plaintiff's work and not for the purposes of diagnosis and treatment. The context of this letter calls into question the efficacy of relying upon the comment at issue as a medical finding. Thus, the ALJ's failure to mention this opinion was not error. Furthermore, it is unclear how this comment would have impacted the ALJ's decision. For example, the ALJ recognized that MK "ha[d] a long history of disturbed sleep and symptoms of depression and possible bipolar disease" (R. at 42). The ALJ also found that several of MK's impairments were severe, including her ADHD, a depressive disorder, and a learning disorder (R. at 40), all evidencing a careful and considered decision-making process. Thus, the Court can find no error in the ALJ's failure to specifically note Ms. Einbinder's opinion that MK's impairments were chronic and severe.

The Court therefore finds no reason to remand based on this claim.

c) The ALJ's Finding that MK Did Not Functionally Equal the Listings is Supported by Substantial Evidence

Plaintiff's final argument is that the ALJ erred in failing to find that MK functionally equaled the Listings. Plaintiff's Brief, pp. 14-23. Specifically, Plaintiff contends that the ALJ erred in failing to find MK afflicted with at least a marked limitation in five of the six functional domains: acquiring and using information; attending and completing tasks; interacting and relating with others; caring for oneself; and health and physical wellbeing. Id.

A finding of a "marked" limitation is appropriate when a child's

... impairment(s) interferes seriously with [her] ability to independently initiate, sustain, or complete activities. [Her] day-to-day functioning may be seriously limited when [her] impairment(s) limits only one activity or when the interactive and cumulative effects of [her] impairment(s) limit several activities. Marked' limitation also means a limitation that is more than moderate' but less than extreme.'

20 C.F.R. § 416.926a(e)(2)(i). The ALJ found that MK had no limitations in the moving about and manipulating objects domain (R. at 47-48). The ALJ found that MK had less than marked limitations in the five remaining functional domains (R. at 44-50). For the following reasons, the ALJ's findings are supported by substantial evidence.

*9 Of the opinion evidence, the ALJ relied most heavily on the findings from Dr. Hameed, the SSA non-examining review psychiatrist, and MK's fifth grade teacher, Ms. Karen Matthews[5] (R. at 41, 44). Although the record documents several psychological evaluations, Dr. Hameed and Ms. Matthews were the only sources of record to provide opinions of MK's functioning in the six domains.

In August 2007, Ms. Matthews completed a teacher questionnaire and rated MK's functioning in each of the six domains (R. at 146-152). The questionnaire asked Ms. Matthews to rate MK's functioning on the following scale: no problem; a slight problem; an obvious problem; a serious problem; and a very serious problem. Id. In the acquiring and using information domain, Ms. Matthews stated that MK's functioning ranged from no problem to an obvious problem (R. at 147). Ms. Matthews again found MK's functioning ranged from no problem to an obvious problem in the attending and completing tasks domain (R. at 148). Ms. Matthews found that MK had generally no problem in the interacting and relating with others category (R. at 149). She found no problem in the moving about and manipulating objects domain (R. at 150). Ms. Matthews found that MK's functioning in the caring for herself domain ranged from no problem to an obvious problem (R. at 151). Ms. Matthews did not identify any medical conditions that impacted MK's health and physical well-being (R. at 152). Thus, at no point did Ms. Matthews opine that MK's functioning rose to a serious problem in any of the functional domains. Her opinions therefore support the ALJ's finding of less than marked limitations in each of the functional domains. See 20 C.F.R. § 416.926a(e)(2)(i) (the ALJ "will find that [the child] ha[s] a marked' limitation in a domain when [the child's] impairment(s) interferes seriously with [her] ability to independently initiate, sustain, or complete activities").

Dr. Hameed, the SSA consultative psychiatrist, reviewed the record in September 2007 (R. at 260-65). Dr. Hameed found that MK had no limitation in the moving about and manipulating objects domain (R. at 263). Dr. Hameed also found less than marked limitations in the following domains: acquiring and using information; attending and completing tasks; and caring for oneself (R. at 262). The interacting and relating with others domain was the sole area in which Dr. Hameed found that MK was afflicted with marked limitations (R. at 262). Dr. Hameed failed to make a finding in the health and physical well-being domain (R. at 263). Thus, with the exception of the interacting and relating with others domain, Dr. Hameed's opinions support the ALJ's findings.

The Court acknowledges that the ALJ failed to offer a specific explanation as to why Dr. Hameed's opinion of a marked limitation in the interacting and relating with others domain was rejected. However, the ALJ's ultimate finding of less than a marked limitation in that domain is supported by substantial evidence.

*10 When evaluating the interacting with others domain, the ALJ noted that "[a]lthough the claimant ha[d] a history of difficulties with other youngsters, the record show[ed] that she ha[d] friends and apparently ha[d] no difficulty dealing with others in small groups" (R. at 47). This finding is supported by substantial evidence. An individual educational plan noted, in May 2007, that MK "[wa]s a cooperative student. She [wa]s able to work well in pairs or small groups. She w[ould] try hard to please adults" (R. at 135). Although MK's mother indicated at various points throughout the record that MK had only one friend (R. at 23, 125), MK testified that she did indeed have friends and "probably four" at school (R. at 14). MK's mother also indicated in a function disability report that MK generally got along with her siblings and school teachers (R. at 125). Furthermore, as noted above, Ms. Matthews found that MK had generally no problem in the interacting and relating with others category (R. at 149). While Ms. Matthews stated that MK "tend[ed] to isolate herself, " she also indicated that it had not been necessary to implement behavior modification strategies for MK. Id. In June 2007, psychiatrist, Dr. Mihaela Visula, noted that MK's school reported "adequate behavior" (R. at 274). Furthermore, Dr. Hameed was a non-examining review source whereas Ms. Matthews had an ongoing relationship with MK. Thus, the Court finds no error in the ALJ's apparent decision to afford more weight to Ms. Matthews finding that MK had generally no problem in the interacting and relating with others (R. at 149). See Vargas v. Sullivan, 898 F.2d 293, 295-96 (2d Cir.1990) (internal citations and quotations removed) ("The general rule is that the written reports of medical advisors who have not personally examined the claimant deserve little weight in the overall evaluation of disability."); Social Security Ruling 06-03p, 2006 WL 2329939, at *4-5 (S.S.A) (in weighing an opinion the ALJ should consider "[h]ow long the source has known and how frequently the source has seen the individual). Moreover, even if Dr. Hameed's opinion of a marked limitation in this domain had been accepted, it would not have resulted in a finding of disability because the ALJ found no other marked limitations. 20 C.F.R. § 416.92a(d) (a child's "impairment(s) is of listing-level severity if [he or she has] marked' limitations in two of the domains or an extreme' limitation in one domain"). Thus, the ALJ's failure to offer a specific explanation as to why this particular finding of Dr. Hameed's was rejected, at most amounts to harmless error. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.1998) ( citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) ("Where application of the correct legal standard could lead to only one conclusion, we need not remand.").

The record also contains further evidence that MK was not markedly limited in at least two functional domains. For example, psychiatrist, Dr. Visula, noted in June 2007 that MK's school reports "[we]re significant for good academic performance and adequate behavior" (R. at 274). Dr. Visula also noted that MK's "teachers endorsed phenomenal progress during this school year.'" Id. MK also underwent a psychiatric evaluation in March 2009 (R. at 325-28). The examiner noted that there were "no problems in school" and that "[c]urrently, [MK][wa]s on the honor roll" in her special education classes (R. at 325). The examiner also noted that "[a]s for [MK's] ADHD, at this time there [we]re no functional impairments and [MK] w[ould] not receive any treatment for that" (R. at 328).

*11 Therefore, the ALJ's finding that MK did not functionally equal the Listings is supported by substantial evidence.

V. Conclusion

For the foregoing reasons, the Court finds that the Commissioner's decision is supported by substantial evidence and free of legal error. Accordingly, it is respectfully recommended that the Commissioner's decision denying disability benefits be AFFIRMED pursuant to sentence four of 42 U.S.C. Section 405(g).

ORDER

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within fourteen (14) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir.1988).

Let the Clerk send a copy of this Report and recommendation to the attorneys for the Plaintiff and the Defendants.

SO ORDERED.

Opinion

REPORT & RECOMMENDATION

MICHAEL H. DOLINGER, United States Magistrate Judge.

*1 Plaintiff Frances Fagan seeks review of the determination of the Social Security Administration ("the SSA" or "Commissioner") on remand that she was not disabled between July 1, 1978 and February 9, 1987 and hence not entitled to Supplemental Security Income ("SSI") benefits for that period. Fagan claims that she became disabled, within the meaning of 42 U.S.C. § 423(d)(1)(A), in the early 1970s and has remained so ever since.

Background

1. Plaintiffs Multiple Disability Claims

Fagan has filed four applications for SSI benefits over the past thirty years. Her first application was filed on July 11, 1978, and was denied at the initial level on August 30, 1978, and at the reconsideration level on December 1, 1978. (Adminstrative Record ("R.") 58). The reason for the denial is stated as "[d]isability denied on 8/30/78 and 12/1/78 resulting from a Recon Affirmation with a non-severe impairment based on Cardiomyopathy." (R. 58). She filed a second application in March 1987, and it was denied at the initial level on June 8, 1987 (R. 79). In March of 1989, Fagan filed a third application, and it was denied on October 25, 1989. (R. 79). Finally, on April 20, 1994, Fagan filed her fourth application and was found to be disabled as of December 2, 1993. (R. 79). The primary diagnosis impairment code for plaintiffs disability is recorded as "4250, " indicating cardiomyopathy.[1] 9/2/08

No objections having been filed and no request for any extension granted the Court adopts the Report as its opinion. The decisions of the Commission is REVERSED, plaintiff: motion for summary judgment is [Missing text] to the Commissioner [Missing text] of damage.

Subsequently, on March 12, 1996, the SSA granted Fagan's 1987 application, finding her to have been disabled as of February 9, 1987. (R. 28). That favorable decision followed a hearing held before an Administrative Law Judge ("ALJ") pursuant to the class-action decision in State of New York v. Sullivan, 906 F.2d 910, 919 (2d Cir.1990) (affirming order that certain unfavorable determinations of cardiovasculardisability claims be readjudicated). (Pl.'s Mem. of Law dated July 17, 2007 at 3).

Prior to that award of benefits, Fagan had requested that the SSA revisit its earlier denial of her July 1978 application for SSI benefits. She made that request on August 23, 1995, pursuant to the Remedial Order in Dixon v. Shalala ("the Dixon Order"), 83 Civ. 7001(WCC) (S.D.N.Y. Dec. 23, 1993). The Dixon Order directed that claimants whose applications had been denied because their impairments were found not to be severe be given an opportunity to have their applications reconsidered. See Dixon v. Shalala, 54 F.3d 1019, 1034-35 (2d Cir.1995). Fagan's current claim arises out of the administrative proceedings readjudicating her 1978 Dixon claim.

The SSA was unable to locate Fagan's 1978 file or to acquire records from plaintiff's treating physicians, and thus no medical records from earlier than 1986 were available for the readjudication. The Dixon Order provides that where the SSA cannot locate a Dixon claimant's file and the claimant was adjudicated disabled for a period subsequent to that which made her a member of the Dixon class, the claimant will be presumed to have been disabled if "medical evidence related to [the later favorable] decision demonstrates that, given the class member's condition at the time of the favorable decision, it is reasonable to presume that he or she was disabled as of the date of the prior administrative determination which resulted in class membership [.]" Dixon Order at ¶ 13.

*2 Plaintiff argues that the ALJ committed legal error by misapplying both the Dixon Order's presumption of disability ("the Dixon presumption") and Social Security Ruling ("SSR") 83-20, which provides guidelines for determining the onset date of a disability of non-traumatic origin. She also contends that the ALJ's determination that she was not disabled during the relevant period was not based on substantial evidence. (See generally Pl.'s Mem. of Law dated July 17, 2007). The Commissioner has taken the position that the ALJ properly applied the Dixon presumption and SSR 83-20 and that there was substantial evidence to support his ultimate decision. (See generally Def.'s Opp. Mem. of Law dated September 7, 2007). We begin by reviewing the medical evidence contained in Fagan's file at the time of the readjudication.

II. Review of the Medical Evidence

The earliest records of Fagan's medical treatment during the relevant time period are from a hospital stay at Beth Israel Medical Center, from July 12 through July 16, 1986.[2] Fagan was admitted for atypical chest pain. (R. 115). She complained of dull, throbbing chest pain for the preceding two weeks, accompanied by numbness and tingling in her fingers, and sharp chest pain and tightness in her neck for one day prior to admission. (R. 117, 199). The physician noted that this was Fagan's fourth admission, and that she had a twenty-year history of hypertension, which had been controlled with medication. (R. 117). The physician recorded that Fagan had been hospitalized in 1975 and 1978 for "HTN, " indicating hypertension, and in 1973 for a problem with her kidneys. (R. 117). Fagan's blood pressure upon admission was 150/100. (R. 118). Her heart rate and rhythm were regular. (R. 118). Fagan was given two nitroglycerine tablets in the emergency room. That dosage reportedly promptly relieved her pain. (R. 119).

X-rays of Fagan's chest on July 13, 1986 showed that her heart was not enlarged, her lungs were clear, and the costophrenic angles were sharp.[3] (R. 122). An electrocardiogram on the same day revealed a nonspecific T-wave abnormality. (R. 123). On July 14, 1986, a second electrocardiogram showed borderline findings. (R. 124). Cardiac isoenzyme analyses showed abnormalities in some categories.[4] (R. 126).

Fagan was given a treadmill stress test on July 15, 1986, but the results were non-diagnostic because she failed to achieve 85% of the predicted maximal heart rate and only completed three minutes of exercise. (R. 121). However, the results were positive for chest tightness. (R. 121). The examining doctor recommended cardiac catherization, but Fagan declined this procedure. (R. 116).

The cardiologist opined that the duration of Fagan's pain with no electrocardiogram evidence of ischemia weighed against a cardiac origin for the pain.[5] (R. 119). He noted, however, that Fagan's response to nitroglycerine suggested ischemia, but offered a delphic addendum that the impression was "tempered by the fact that [Fagan] is a nursing student." (R. 119-20). The record contains no explanation of the posited link between the effect of nitroglycerine and a patient's status as a nursing student, however, and there is no evidence in the record that Fagan ever was a nursing student.

*3 On August 29, 1986, a state-agency medical consultant reviewed Fagan's records and, based on that review, assessed her residual functional capacity. (R. 105-06). The medical consultant concluded that Fagan had limited physical capacity, but opined that she could lift and/or carry fifty pounds maximum and twenty-five pounds frequently. (R. 105). The consultant also stated that she could stand and/or walk about six hours and sit about six hours in an eight-hour day. (R. 105). The consultant further found that she could climb, balance, stoop, kneel, crouch, and crawl occasionally and that there were no environmental restrictions. (R. 105). He observed, however, that Fagan's ability to push and pull was limited to medium work. (R. 105). The consultant described his findings as "H.B.P., " indicating high blood pressure, and "atypical chest pain." (R. 106).

On January 15, 1987, Fagan went to the Nena Health Center emergency room, complaining of dizziness. (R. 142). She denied chest pain or severe headache. (R. 142). Her blood pressure was 160/125. She was diagnosed with hypertension with poor control. (R. 142).

Fagan again sought emergency room treatment at the Nena Health Center on February 9, 1987 because of severe headaches and dizziness. (R. 141). Her blood pressure was 160/130. (R. 141). Fagan's neck was supple, and her lungs were clear. (R. 141). She had normal cardiac rhythm and no significant murmur. (R. 141). It was noted that Fagan had been hospitalized twice for severe hypertension. (R. 141). She denied any chest pain. She was diagnosed with non-controlled hypertension. (R. 141). Fagan was treated with Clonidine, and her blood pressure eventually dropped to 130/98. (R. 141).

On June 10, 1987, Dr. Greeley from the Riis-Wald Family Medical Group reported that Fagan had been diagnosed with hypertension and should avoid stressful situations. (R. 143). He observed that her blood pressure had been very hard to control, and that she required bed rest and was to return seven days later. (R. 143).

On August 26, 1987, Dr. A. Martinez from the Nena Health Clinic reported that Fagan had been examined in his clinic on August 15, 1987 for dizziness and seeing spots in front of her eyes. (R. 146). Fagan reported no chest pain. (R. 146). Her blood pressure was 160/125 bilaterally, and her cardiac rhythm and pulse were regular. (R. 146). Dr. Martinez found no evidence of papilledema or hemorrhage.[6] (R. 146). Two and a half hours after Clonidine was administered, Pagan's blood pressure improved to 150/105. (R. 146). Dr. Martinez instructed Fagan to rest, take her regular medications, and return to the clinic for a blood pressure check. (R. 146).

A state-agency medical consultant examined Fagan on October 9, 1987 and indicated that Fagan's chest pain was not consistent with cardiac angina. (R. 144). He reported that a stress test in 1986 was negative submaximal, [7] and her blood pressure was not consistently elevated. (R. 144). The consultant concluded that, even if the treadmill stress test had been positive, Fagan should still not be found to be disabled because there was no evidence of characteristic angina. (R. 144). He concluded that Fagan had no restrictions. (R. 144).

*4 On October 13, 1987, a second state-agency physician reviewed Fagan's medical records and assessed her residual functional capacity.[8] The physician concluded that Fagan could lift and/or carry fifty pounds maximum and twenty-five pounds frequently, that she could stand and/or walk about six hours and sit about six hours in an eight-hour day, and that her ability to push and/or pull was unlimited. (R. 109). The consultant further stated that she could climb, balance, stop, kneel, crouch and crawl frequently. Finally, he found that there were no environmental restrictions. ( Id. ).

On February 26, 1988, Dr. Alcater reported that Fagan was being treated in the Riis-Wald Family Medical Group for hypertension and routine medical care. (R. 145). She stated that Fagan's hypertension had been difficult to control and that Fagan had been hospitalized for malignant hypertension on each of three occasions on which she had examined her.[9] (R. 145).

Fagan was hospitalized at Beth Israel Medical Center from May 30 through June 1, 1990 for hypertension. Plaintiff reported headaches, visual disturbance, and numbness in her fingers bilaterally, but noted that these symptoms had resolved spontaneously. (R. 164). Fagan's blood pressure was intially recorded at 220/150. (R. 167). She was sent to the emergency room, where her pressure was noted to be 180/140. (R. 164). An examination revealed no papilledema in her eyes or edema in her extremities. (R. 164). Her neck was supple, her lungs were clear, and her cardiac rhythm was normal. (R. 164). Fagan's blood pressure dropped to 170/90 with medication. (R. 168). An electrocardiogram was performed and showed no significant changes (R. 169), but subsequent electrocardiograms were abnormal with ST-T wave abnormalities, indicating the possibility of ischemia. (R. 172-76). Plaintiff was referred for a renal angiogram (R. 167), but refused it. (R. 169). Fagan was advised to take Advil, and was discharged. (R. 165).

On July 18, 1990, Fagan was examined at the Renal Clinic at Beth Israel Medical Center. (R. 182-92, 252-69). Because her blood pressure was high, she was referred to the emergency room. (R. 188, 192). There, her blood pressure was measured to be 200/140. (R. 186). Fagan was admitted to the hospital from July 18 through July 24, 1990. (R. 182-207, 252-69). She complained of chest pressure, headaches, visual disturbances and edema in her extremities to the degree that she could not get her shoes on. (R. 192). She was diagnosed with out-of-control hypertension. (R. 186). On July 19, 1990, an electrocardiogram showed normal sinus rhythm, but abnormal ST-T wave patterns, suggesting ischemia. (R. 200-203). Fagan was discharged with prescriptions for medication. (R. 183).

Fagan was treated in the emergency room at Beth Israel Medical Center on November 29, 1990 for high blood pressure and increased chest tightness. (R. 221-26, 247-50).[10] Her blood pressure was 210/160 upon arrival. (R. 221). She reported increased chest tightness in episodes of twenty-minute duration during the last couple of weeks, which was resolved with medication and rest. (R. 221). Upon discharge, her blood pressure had dropped to 130/80. Fagan's dosage of Clonidine was increased to four times daily. (R. 21).

*5 On May 12, 1992, Fagan underwent a cardiac ultrasound at Beth Israel Medical Center to evaluate her left ventricular hypertrophy. (R. 220, 246). Dr. Marvin Berger, who interpreted the results, concluded that Fagan suffered from dilated cardiomyopathy.[11] (R. 220).

From December 29, 1992 through January 5, 1993, Fagan was again treated at Beth Israel Medical Center, this time for complaints of cough associated with chest and back pain. (R. 208-18). Her blood pressure was 120/80. Her lungs were clear, and her heart rhythm was normal. (R. 208). Fagan's chest pain eventually resolved, but she continued to experience shortness of breath. (R. 218). An electrocardiogram showed normal sinus rhythm, but also showed left ventricle hypertrophy. (R. 210, 216-17, 236, 242-43). Chest x-rays indicated a probable right middle lobe infiltrate and probable left lower lobe infiltrate. (R. 215). Fagan was discharged with a recommendation to rest and to drink fluids. (R. 209).

III. Plaintiffs Dixon Claim

A. The Initial Decision

On March 28, 2000, the Commissioner informed plaintiff by letter that she had been scheduled for an appointment on April 4, 2000, at which she could provide the medical information necessary for the SSA to conduct a Dixon review of her previously denied 1978 claim. (R. 55-56). Plaintiff attended the appointment and completed Disability Report Form SSA-3368-BK. (R. 85-94). In that form, plaintiff stated that, beginning in 1970, high blood pressure and a heart condition had limited her ability to work. (R. 86). She stated that she had worked part-time as a nurse's aide from 1977 to 1981, but eventually stopped working entirely because of lower back pain, chest pains, and high blood pressure (R. 86-87).

In addition, plaintiff cited visits to the Riis-Wald Medical Center for "all medical problems" in June 1984, and to the Nena Health Center for the "same" reasons in February 1987 (R. 88). She also reported that she had been an inpatient at Beth Israel Medical Center from July 10 through July 16, 1986 for high blood pressure and chest pains. (R. 89). She listed "Dr. Kramer" as a doctor whom she continued to visit on a regular basis, initially at Riis-Wald Medical Center, and currently at Beth Israel Medical Center. (R. 89)

On April 27, 2000, the Commissioner made an unfavorable disability determination on Fagan's Dixon claim. (R. 58). The Commissioner determined that Fagan suffered from a history of cardiac impairment and hypertension, but affirmed the prior decision denying benefits "[b]ased on the information in file, no prior folder, and no medical sources for the period under review [.]" (R. 58). The Commisssioner explained to Fagan that she was responsible for furnishing evidence to support her claim, and stated that "[a]lthough we contacted your medical sources we were unable to obtain all the evidence we needed." (R. 60)

B. Plaintiffs First Administrative Hearing on her Dixon Claim

*6 On June 26, 2000 Fagan requested an administrative hearing, stating that "I am doing my best to provide medical evidence. SSA did not show me my old files. I don't think I had reasonable help in making my case (Dixon case)." (R. 61). Plaintiff retained an attorney, Herbert Forsmith, Esq. (R. 153), and proceeded to a hearing before ALJ Mark Sackachefsky on December 22, 2000 (R. 21-53).

At the hearing, plaintiff's counsel first argued that the SSA had not demonstrated a good-faith effort to develop the evidence on her medical condition during the relevant period (R. 21-25). He also asserted that the Progress Notes from Beth Israel Medical Center dated July 12, 1986 indicate that she had been admitted four times prior to that admission.[12] (See R. 24). According to Fagan's attorney,

[t]he medical file shows that she's had malignant hypertension. There's a reference in the treatment record, which was before Your Honor before and is [in] the file today, to four hospitalizations prior to the time that the doctor reported in #86 or #87 for control of high blood pressure, malignant hypertension. She's had, according to the medical history file with us today, at least two hospitalizations for hypertension control in the #70s. (R. 24). Although the medical records from these prior hospitalizations were unavailable, counsel argued that they indicate malignant hypertension during the relevant time period. (R. 24). Plaintiff's memory was unclear, but she remembered being hospitalized approximately five times in the 1970s, and approximately twice in the 1980s. (R. 45-46).

Next, plaintiff testified to her background and to the severity of her condition during the relevant time period. (R. 27-40). Plaintiff reported that she had worked part-time as a nurse's aide from 1977 to 1981. She initially stated that she had not worked since 1970, but after the ALJ pointed to an exhibit documenting her part-time work, she remembered that she had worked part-time as a nurse's aide from 1977 to 1981 (R. 30-31). Plaintiff explained that she was experiencing problems with her memory. (R. 31). She testified that she had been unable to work full-time because she experienced dizziness, and because her hands and feet were swollen to the extent that she was unable to wear shoes about five days a week. (R. 31-33). She testified that her doctor had advised her that the dizziness, which generally lasted from two to three hours and occurred two to three times a week, was due to her hypertension, and that she should lie down in a quiet dark environment and elevate her feet when she felt dizzy. (R. 33). Plaintiff stated that she was visiting her doctor "sometimes two to three times a week" between 1977 and 1981. (R. 31-33). She explained that she had sought medical records from Beth Israel Medical Center for these visits, but had been told that these records were unavailable. (R. 34-35).

In addition to the dizziness, Fagan reported that she had experienced tightness in her chest about once a week during the period between 1978 and 1987. (R. 35-36). Fagan claimed that her symptoms had progressively worsened in 1980 or 1981, and that she had begun in that period to experience frequent difficulty breathing, both at rest and upon exertion, which her doctor advised her was because her long-term hypertension had caused her blood vessels to constrict. (R. 36-37). She also wore a back brace, and her doctors advised her not to lift more than ten to twenty pounds. (R. 38, 40). However, her work as a nurse's aide required her to lift patients. (R. 44). Fagan also claimed to have suffered from "[e]xcruciating" and continuous pain in her kidneys beginning in 1973 or 1974. (R. 50-51).

*7 Fagan stated that between 1978 and 1987 she had not socialized with friends or relatives, attended religious services, or performed cooking, cleaning, or general housework. (R. 39). Instead, she spent her time lying down because her medication made her "very lethargic." (R. 38). Her lethargy persisted even though her doctors tried changing her medicines and her dosage. Fagan stated that during the period of time from 1978 to 1987, she could walk only one or two long blocks before experiencing tightness in her chest and severe lower back pain, and that she could stand for one hour before needing to sit down, and could sit for one hour before needing to stand. (R. 39-40).

Plaintiff also informed the ALJ that there were several individuals who could testify with respect to her medical condition during the relevant time period. (R. 40-42). Fagan first named Dr. Grainie, who, according to her, is currently the chief of hypertension at Beth Israel Medical Center, and had treated her over one hundred times in the past. (R. 41-42). Next Fagan named an associate who had helped her several times with errands. (R. 41) Fagan also suggested that her eldest child and a neighbor may be able to offer information. (R. 43). The ALJ agreed to keep the record open for one week to receive supplemental evidence, and to "consider that as part of the greater picture." (R. 43).

In conclusion, plaintiff's attorney argued that "malignant hypertension is generally not an intermittent problem which comes and goes and is malignant one day and she's perfectly all right the next. It has tendency to persist over a long period of time." (R. 52). The ALJ reiterated that he would keep the record open for one week, and then concluded the hearing. (R. 53).

On February 8, 2001, Fagan wrote to the ALJ and stated her intention to relinquish her attorney's services because he had failed to submit the additional evidence to the ALJ that she had provided to him. (R. 155-57). Fagan wrote:

I faxed Mr. Forsmith 2 different documents from people who wrote letters acknowle[d]ging my medical condition and assistance to me. He was suppose [d] to fax that information to your office [but] he never did. When I spoke to your assistant Mrs. Dehaney she didn't have any documents he was suppose[d] to have sent. He knew I had an extension of time to gather any additional documents and it was important to fax them to your office but didn't... I used my phone and my time to try and contact Dr. Kramer[;] he's a doctor I had for myself and children for thirty years. I obtained his phone number at his house. I called and gave this information to Mr. Forsmith.

(R. 156-57).

The ALJ forwarded a copy of this letter to plaintiff's attorney. (R. 154). On February 24, 2001, the attorney wrote a letter to Fagan stating that he would immediately cease representation. (R. 270). He did not explain what had happened to the two supporting letters that plaintiff had faxed to him, nor did he detail the efforts he had made to contact Dr. Kramer. (R. 270).

C. The ALJ's First Decision

*8 The ALJ issued an unfavorable decision on May 16, 2001. (R. 11-18). He stated that plaintiff's claim that the Commissioner had not made adequate efforts to obtain relevant records for the period at issue was without merit because "[t]he prior folder was available in this case and all relevant evidence was added to the present file." (R. 12). Upon reviewing the evidence on record, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act for the period between July 1, 1978 and February 8, 1987 (R. 12).

In making that determination, the ALJ utilized the five-step evaluation process mandated by 20 CFR § 416.920. (R. 12). He initially, and accurately, defined disability as "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months." (R. 12).

The ALJ then described the sequential process as follows:

If the claimant was performing substantial gainful work, she was not disabled.
If the claimant was not performing substantial gainful work, her impairment(s) must have been severe before she could be found to be disabled.
If the claimant was not performing substantial gainful work and had a severe impairment (or impairments) that lasted or was expected to last for a continuous period of at least twelve months, and her impairment (or impairments) met or medically equaled a listed impairment contained in Appendix 1, Subpart P, Regulation No. 4, the claimant was presumed disabled without further inquiry.
If the claimant's impairment (or impairments) did not prevent her from doing her past relevant work, she was not disabled.
Even if the claimant's impairments prevented her from performing her past relevant work, if other work existed in significant numbers in the national economy that accomodated her residual functional capacity and vocational factors, she was not disabled.

(R. 12-13). In applying these criteria, the ALJ found that Fagan's part-time work as a nurse's aide did not constitute substantial gainful activity. (R. 13). He also found that Fagan suffered from severe hypertension, but that it was "not severe enough to meet or medically equal one of the impairments listed in Appendix 1, Subpart P, Regulations No. 4." (R. 13). He determined that, during the relevant period, Fagan retained a residual functional capacity to "lift and/or carry fifty pounds occasionally and twenty pounds frequently, stand and/or walk about six hours and sit about six hours an an eight-hour day." (R. 15). Based on this determination, the ALJ found that Fagan could not perform any of her past relevant work, but also found that she had the capacity to perform medium, light, or sedentary work existing in significant numbers in the national economy. (R. 15-16). Thus, the ALJ concluded that Fagan was not under a disability as defined in the Social Security Act during the period from July 1, 1978 to February 8, 1987. (R. 15).

*9 On May 24, 2001 plaintiff, proceeding pro se, requested that the Appeals Council review the ALJ's decision. (R. 271). In a July 10, 2002 letter to the Council, plaintiff contended that the ALJ's decision was improper because the SSA had made no attempt to obtain her Medicaid records to fill in the gaps in her medical history for the period in question. (R. 275). Fagan also noted that no one had yet obtained records from the estate of Dr. Kramer, her now deceased treating physician from approximately 1965 to 1990, and she requested that his records be subpoenaed. (Id.). In addition, Fagan asserted that she had not been given the opportunity to bring in witnesses at a supplemental hearing who could testify to her ability to function during the relevant period. (R. 276). On this subject, plaintiff reported that she had suffered from malignant hypertension since the 1960's, with multiple hospital stays as a result. She stated that medication had not relieved her "pain and dizziness, " and that despite her efforts at part-time employment, she had been unable to work. (Id.). On this basis, she asserted that the ALJ's finding that she was capable of medium work was erroneous. (Id.).

On July 22, 2002, the Appeals Council denied plaintiff's request for review, and the decision by the ALJ became the final decision of the Commissioner. (R. 3-4).

D. Plaintiffs Federal Lawsuit

On October 25, 2002, Fagan commenced this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Commissioner's determination denying her benefits. On June 24, 2003, defendant moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (See Def.'s Notice of Motion dated June 24, 2003 at p. 1). Defendant argued that the Commissioner's findings of fact were supported by substantial evidence and in accordance with the applicable laws and regulations. (See Def.'s Mem. of Law dated June 20, 2003 at 13-22).

In opposing defendant's motion, Fagan argued that defendant had committed numerous errors of law in denying her claim for SSI benefits pursuant to the Dixon remedial order. (See Pl.'s Mem. of Law dated Nov. 21, 2003 at 8-17). Specifically, she argued that 1) that the Commissioner had failed to make reasonable efforts to retrieve her original claim file, as required by Dixon; 2) that the Commissioner had failed to apply the presumption of disability, as required by Dixon; 3) that the Commissioner had failed to develop the evidence, as required by Dixon, by neglecting to contact her treating physicians; and 4) that the ALJ had failed in his affirmative obligation to develop the record by not attempting to obtain the two supporting letters Ms. Fagan had faxed to her former attorney. (See id.). Based on these arguments, Fagan also requested judgment on the pleadings.

On March 9, 2004, the Commissioner changed position and cross-moved to remand the case for further administrative action. The stated purposes for this remand were: 1) to obtain evidence from Dr. Kramer, plaintiff's retired treating doctor (at that time thought to be deceased); 2) to consider evidence contained in plaintiff's 1996 claim file; and 3) to make a documented effort to obtain plaintiff's original 1978 claim file. (See Def.'s Mem. of Law dated March 9, 2004).

*10 Fagan opposed the Commissioner's motion to remand. In short, she argued 1) that remand was inappropriate due to the amount of elapsed time; 2) that defendant had failed to show good cause for remand; and 3) that the Dixon presumption of disability should be applied and benefits should be awarded. (See Pl.'s Mem. of Law dated May 20, 2004).

By Report and Recommendation dated July 29, 2004, we concluded that remand was appropriate because the Commissioner had failed to make reasonable efforts to retrieve Fagan's original claim file from her 1978 application as required by the Dixon Order, and also had failed to follow SSA's regular policies on evidence development to make initial and follow-up requests to all treating sources. Furthermore, we found that the ALJ had failed to appropriately develop the record in that he did not seek out the two supporting letters plaintiff wished to include, nor did he attempt to contact the estate of Dr. Kramer, who plaintiff believed was deceased. Finally, the ALJ failed to follow or even mention SSR 83-20. Specifically, he did not utilize the path of analysis SSR 83-20 mandates in inferring the onset date of Fagan's disability, and he also failed to seek the services of a medical advisor, which SSR 83-20 requires in cases in which a disability onset date must be inferred. See SSR 83-20; Heckler v. Edwards, 465 U.S. 870, 873 n. 3, 104 S.Ct. 1532, 79 L.Ed.2d 878 (1984); Martinez v. Barnhardt, 262 F.Supp.2d 40, 45-46 (W.D.N.Y.2003); Felicie v. Apfel, 1998 WL 171460, at *3 (S.D.N.Y. Apr.13, 1998). We recommended that the court require all administrative proceedings to be completed, and a final decision to be issued, within ninety days of remand. Fagan v. Barnhart, 02 Civ. 8533(RCC), Report & Recommendation at 38-39 (S.D.N.Y. July 29, 2004).

On February 22, 2005, Judge Casey, to whom this case was then argued, adopted that Report and Recommendation with the exception of the ninety-day time limit. Fagan v. Barnhart, 02 Civ. 8533(RCC) (S.D.N.Y. Feb. 22, 2005).

E. Plaintiffs Second Administrative Hearing

The ALJ held a second hearing on April 25, 2006, at which Fagan was represented by new counsel. (R. 361). In that hearing, the ALJ utilized a medical expert to assist him in determining the onset date of plaintiff's disability. The medical expert, Dr. Jose J. Rabelo, testified that between July 11, 1978 and February 8, 1987, plaintiff suffered from hypertension. (R. 369). When asked by the ALJ when plaintiff was first admitted to a hospital, Dr. Rabelo responded that July 18, 1990 was her first admission, but he was corrected by plaintiff's counsel, who pointed out that the record reflected a hospitalization from July 12 to July 16, 1986. (Id. at 369-70). Dr. Rabelo then testified that in his opinion, plaintiff did not meet or equal any listed impairment between July 11, 1978 and February 8, 1987. His basis for that conclusion was, in his words, that:

some of the admissions were for atypical chest pain, which is not angina. It's just pain. They have the cardiac enzymes in a couple of locations. The enzymes were found to be negative. They were not acute EKG changes. Her main problem that I see least see [sic] after that period is now the blood pressure has been very difficult to control. I don't know about compliance or medications. When she goes to the hospital, she's stabilized, and then she goes home. But I cannot speculate.

*11 (Id. at 371). The ALJ then asked Dr. Rabelo whether he was talking about the 1990s, and he responded in the affirmative. (Id. ).

When asked whether he expected that plaintiff's condition in the period from 1978 to 1987 would have resulted in any limitations with respect to "the physical demands of work, such as sitting, standing, walking, lifting, carrying, et cetera[, ]" Dr. Rabelo stated, "If I base my remarks on this stress test, I have to limit her to like medium work."[13] (Id. at 371-72). Although Dr. Rabelo presumably was referring to the July 1986 stress test, the only one for which results were included in plaintiff's available pre-1986 medical records, plaintiff testified that she had been placed in intensive care in 1976 with a rapid heartbeat, and that she had been given stress tests five or six times but was not able to complete them. (R. 375). She further stated that she had been told that her difficulty completing stress tests was "related to [her] condition." ( Id. ).

The ALJ eventually asked Dr. Rabelo whether he was "able to relate back any finding of disability with respect to the medical reasonableness of relating that back prior to 1987 or not[.]" Dr. Rabelo answered, "in front of a stress test which is something [INAUDIBLE] and she could perform. There was no ischemia, which means no-the coronaries were well perfused [phonetic] during the test. And she had another [INAUDIBLE] response to the test. That's all I can say." (Id. at 373-74). When the ALJ pressed him to explain the significance of plaintiff's having been hospitalized, Dr. Rabelo explained, "[w]hen a patient come[s] with chest pain to the emergency room, especially a lady with a history of hypertension, you just don't send her home. You have to work her up. Legally, you know, if you send her home, you know, it can be [INAUDIBLE]. It can be heart attack, but they dothey didn't-they have done enzymes. They have done a stress test. They have done [INAUDIBLE] EKGs on the, you know, [INAUDIBLE] from that admission, and the things have been negative." (Id. at 374). The ALJ also clarified for the record that Dr. Rabelo had no evidence prior to 1986, and that the evidence from 1986 to 1990 was "very, very scarce." (Id. 377-78).

On cross examination, plaintiff's attorney established that clonidine, dioxin, and "kaplican [phonetic]"-which plaintiff had testified she was taking-are medications used to control hypertension. (R. 379-80). He asked Dr. Rabelo whether shortness of breath was a possible symptom of cardiomyopathy, to which Dr. Rabelo replied that it can be a symptom of heart disease, fatigue, anemia or "many issues[, ]" explaining that a person who stays home all the time and then climbs the stairs to the subway will feel short of breath, and that some medications also produce shortness of breath. ( Id. 380-81). Dr. Rabelo went on to note that shortness of breath is also common among smokers and is a symptom of emphysema. (Id. at 381).[14]

*12 When asked whether fluid retention was a symptom of cardiomyopathy, Dr. Rabelo responded, "That-well, she's taking diuretics. Fluid retention may have to do with thehow much salt the patient is also taking in the diet." (R. 382). Finally, in response to plaintiff's attorney's query as to whether a relatively young person could develop heart disease, Dr. Rabelo stated that in the black population hypertension can appear in the early 20s, and "if it's not treated [it] has very bad prognostic signs [, ]" and "[i]t mostly depends on obesity, sodium intake, family history." (Id. at 382-83). Dr. Rabelo also stated, "[o]f solid evidence to come to a medical conclusion or to make a medical statement, I don't have." ( Id. at 379).

Next, vocational expert Miriam Greene was examined by the ALJ. Ms. Greene testified that an individual who could perform medium work as defined by the Commissioner could perform plaintiff's past relevant work as a nurse's aide.[15] (R. 387). The ALJ then asked, "if the individual had all the limitations that the Claimant alleged as being accurate at that time, then I presume there would be no jobs that such an individual could perform?"[16] Ms. Greene responded that such an individual would not be able to perform any jobs available in the national economy. (R. 388).

F. The ALJ's Second Decision

In a decision dated September 28, 2006, the ALJ determined that plaintiff was not disabled between July 1, 1978 and February 9, 1987. He found that "it was not medically reasonable to presume that the claimant was disabled in July 1978, " (R. 286), and that therefore "the Dixon Remedial Order's presumption of disability [was] not applicable, " (R. 287). The ALJ went on to analyze whether the presumption, if it applied, had been rebutted by evidence to the contrary. Applying Federal Rule of Evidence 301 to the Dixon presumption, he concluded that the SSA had met its burden of going forward by producing "negative evidence of the claimant's disability, including the 1986 physical findings and stress test results showing that the claimant's cardiovascular condition was less severe than alleged." (R. 287). Therefore, he reasoned, the presumption of disability dropped out of the analysis and the five-step sequential analysis governed the disability determination. (R. 287).

With respect to plaintiff's testimony, he found that plaintiff's subjective complaints were not consistent with the medical records for the relevant time period, and concluded that her testimony should be credited only to the extent that it was consistent with the ability to do medium work.[17] (R. 290, 293). This finding was based on "the objective medical findings, the claimant's treatment record, and her demeanor at the hearing." (R. 290).

Regarding the application of SSR 83-20 to determining the disability onset date, the ALJ simply stated:

In addition, I have also considered Social Security Ruling ("SSR") 83-20 in inferring an onset date of the claimant's disability, as outlined in the United States Magistrate Judge's Report & Recommendation. While I am of the opinion that the SSR is more applicable in adjudications of disability cases upon the merits rather then [sic] in conjunction with the Dixon Remedial Order's presumption of disability, I find, based upon the testimony of the Medical Expert at the supplemental hearing, that it is not medically reasonable to infer the onset of the claimant's 1987 disability back to 1978. (R. 288).

*13 Having determined both that the Dixon presumption did not apply and that it had been rebutted, the ALJ went on to analyze plaintiff's disability claim with the five-step sequential process set forth in 20 CFR § 416.920. ( Id. ). He determined at step one that plaintiff had not engaged in substantial gainful activity in the relevant period (R. 288-89), and at step two that plaintiff "had the medically determinable physical impairments of hypertensive vascular disease with a history of obesity and renal disease... that were severe' and lasted for a continuous period of at least twelve months[.]" (R. 289). At step three the ALJ found that the record did not contain the medical findings necessary for plaintiff's condition to meet or medically equal the requirements of the Listing of Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. ( Id. ) Assessing plaintiff's residual functional capacity, "[b]ased on the testimony of the Medical Expert at the hearing and the Residual Functional Capacity ("RFC") Assessment forms completed by State Agency physicians on August 29, 1986 and October 3, 1987[, ]" he concluded that "she would at most have been able to... occasionally lift and/or carry a maximum of 50 pounds, frequently lift and/carry 25 pounds [sic], stand and/or walk up to 6 hours in an 8-hour workday, sit up to 6 hours in an 8-hour workday, and push/pull up to her lifting/carrying limitations." (R. 290). At step four, he found that plaintiff's past relevant work was as a "Nurse's Aide" and that, based on the Vocational Expert's testimony that someone who could do "medium" work could perform that job, plaintiff could have worked as a nurse's aide in the fifteen years following her last full-time job (until July 1985).[18] (R. 291). Since Ms. Fagan had no past relevant work for the period from July 1985 to February 1987, he found at step five that her residual functional capacity during that period was compatible with "medium" work as defined by 20 CFR § 416.967(c). He concluded that "a finding of not disabled' was directed by Medical-Vocational Rule 203.29 or 203.30 as of July 1985." (R. 293).

ANALYSIS

I. Standard of Review

A finding by the Commissioner of non-disability is subject only to limited review. In the absence of legal error, we must affirm the Commissioner's decision if it is based on substantial evidence, even if there is also substantial evidence to support the opposite conclusion. See, e.g., Rosa v. Callahan, 168 F.3d 72, 77 (1999); Crespo v. Apfel, 1999 WL 144483, at *4 (S.D.N.Y. Mar 17, 1999). Substantial evidence is "more than a mere scintilla [.]" Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Rather, it is defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion." E.g., id.; Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir.1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991); Wagner v. Sec'y of Health and Human Serve., 906 F.2d 856, 860 (2d Cir.1990).

*14 When determining "whether the findings are supported by-substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.1983)). However, factual findings of the Commissioner cannot be rejected if they are based on substantial evidence, despite the existence of substantial evidence supporting the plaintiff's contentions. See, e.g., Alston v. Sullivan, 904 F.2d 122, 136 (2d Cir.1990); Rosado v. Shalala, 868 F.Supp. 471, 473 (E.D.N.Y.1994); see also Rosa, 168 F.3d at 77; Rivera, 923 F.2d at 967. The substantial-evidence standard also applies to inferences to be drawn from the facts. See Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y.1999).

However, this deferential standard of review does not apply to review of the Commissioner's legal determinations. See, e.g., Townley v. Heckler, 248 F.2d 109, 112 (2d Cir.1984); Glavan v. Barnhart, 2004 WL 2326384, at *4 (E.D.N.Y. Aug, 17, 2004). Failure by the ALJ to adhere to the various procedural obligations created by the courts and by the Commissioner permits judicial reversal of an administrative determination. See, e.g., Townley, 248 F.2d at 112; Glavan, 2004 WL 2326384 at *4; Jones v. Barnhart, 2002 WL 655204, at *3 (S.D.N.Y. Apr.22, 2002). Thus, "a district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or expert opinion that supports the administrative determination." Jones v. Barnhart, 2002 WL 655204, at *5. Rather, the reviewing court is obligated to carefully examine the record and the Commissioner's decision to insure that the ALJ has complied with the relevant regulations. See, e.g., id.

For the reasons that follow, we conclude that the ALJ erred in several respects in his analysis of the Dixon presumption of disability, and that his determination of non-disability was not supported by substantial evidence. We therefore recommend reversal.

II. The Dixon Decision and Remedial Order

The Social Security Act defines "disability" as 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). "[I]n evaluating a claim of disability, both objective and subjective factors must be considered." Williams v. Bowen, 859 F.2d 255, 259 (2d Cir.1988). These factors include physicians' medical opinions, objective medical facts, testimony by the claimant and others regarding the claimant's subjective claims of pain, the claimant's age, work experience and level of education, her daily activities, the type of medication she takes, any measures the claimant has taken to relieve her pain, and other factors concerning the claimant's functional limitations due to pain and other symptoms. 20 C.F.R. §§ 404.1529(a)-(d); Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Anderson v. Astrue, 2008 WL 655605, at *7 (S.D.N.Y. Mar.12, 2008).

*15 Prior to 1978, a claimant could be denied disability benefits "where the only impairment [was] a slight neurosis, slight impairment of sight or hearing, or similar abnormality or combination of slight abnormalities.'" Dixon v. Sullivan, 792 F.Supp. 942, 944 (S.D.N.Y.1992) (quoting 20 C.F.R. § 404.1502(a) (1968)). In 1978, the SSA mandated that the disability determination follow the five-step sequential analysis embodied in 20 C.F.R. §§ 404.1520 and 416.920, which remains in place today. Dixon, 792 F.Supp. at 944. To be awarded disability benefits, a claimant must show at step two of the five-step analysis that her impairment is "severe." Id. Step two, codified at 20 C.F.R. §§ 404.1520(c) and 416.920(c), is thus known as "the severity regulation."[19]

In 1982, the Secretary issued SSR 82-255, which commanded administrators not to consider the combined effect of impairments when analyzing whether a plaintiff's impairment was severe at step 2. Dixon, 792 F.Supp. at 944. SSR 82-255 also provided ALJs with a list of 20 per se non-severe medical conditions. Id. Two years later, Congress passed the Social Security Disability Benefits Reform Act, which, in addition to other changes, added a provision to the Act instructing the Secretary to "consider the combined effect of all the individual's impairments without regard to whether any such impairment, if considered separately, would be of [sufficient] severity." 98 P.L. 460, 98 Stat. 1794, 1800 (Oct. 9, 1984). The Secretary then began to consider impairments in combination and rescinded the list of 20 per se non-severe impairments. Dixon, 792 F.Supp. at 944.

Although the Supreme Court has upheld the facial validity of the severity regulation, Bowen v. Yuckert, 482, U.S. 137, 154 (1987), in a class action titled Dixon v. Sullivan, 792 F.Supp. 942, the court found that the SSA had misapplied the regulation, resulting in the wrongful denial of disability benefits to an unknown number of claimants. Id. at 960. The Dixon court further found that the proportion of cases in which step two was misapplied to deny benefits was "grossly excessive and unacceptable." Dixon, 792 F.Supp. at 951, and that the "pattern and practice of misapplication of the severity regulation" had begun in June of 1976. Id. at 960.

The Dixon court also found that the SSA's policy of refusing to consider whether different non-severe impairments, in combination, resulted in a significant restriction of basic work activities was a violation of the Social Security Act. Id. at 956-57, 960. Finally, because "claimants were not notified and could not reasonably be expected to know that SSA adjudicators were engaging in a pattern and practice of misapplying the severity regulation [, ]" the court held that the statute of limitations should be equitably tolled, a holding affirmed by the Circuit Court. Id. at 960, affirmed by Dixon v. Shalala, 54 F.3d 1019, 1031-34 (2d Cir.1995).

*16 On December 22, 1993, the Dixon court issued a remedial order that stated that "all persons who, between June 1, 1976 and July 19, 1983 inclusive, were issued a final denial or termination decision by the New York Office of Disability Determinations (ODD) or the Social Security Administration concerning their application for new or continued disability insurance benefits or Supplemental Security Income payments based upon a finding that they did not have severe impairments, or that their impairments were only slight and who resided in the State of New York at the time of such decision" were entitled to relief. Dixon Order at ¶ 2. The Order directed the SSA to readjudicate the claims of all class members requesting readjudication. Id. at ¶ 5.

The Dixon court recognized that the SSA files and medical records from claims denied in the late 1970s and early 1980s might not be available due to the SSA's document-retention policies, and it consequently required the application of certain rebuttable presumptions in cases in which a class member's claim file could not be found. Dixon v. Shalala, 54 F.3d at 1035-36; Dixon Order at ¶¶ 11(c), 13. Paragraph 13 of the Order states:

However, if records cannot be located for any class member because they have not been retained pursuant to published file retention schedules... or SSA is unable to locate them, the class member will be found disabled if he or she received a favorable decision awarding benefits for any subsequent period of disability... and 1) medical evidence relevant to that decision demonstrates that, given the class member's condition at the time of the favorable decision, it is reasonable to presume that he or she was disabled as of the date of the prior administrative determination which resulted in membership, or 2) absent evidence to the contrary, a class member was 55 years of age or older at the time of the administrative determination which resulted in class membership. If these presumptions are not overcome by evidence to the contrary and the class member is found to be disabled as a result, he or she will be found disabled from the earliest possible entitlement date based on the alleged onset date in the application which resulted in class membership.

Id. at ¶ 13. Conversely, if a claimant whose records cannot be located received a denial or termination of benefits subsequent to the denial that resulted in class membership, or was later employed for a period of more than six months and obtained earnings in excess of the minimum monthly amounts prescribed in 20 C.F.R. §§ 404.1574 and 416.974, "there will be a rebuttable presumption that [the claimant] is not disabled." Id. at ¶ 13. The Order also requires the SSA to "consider the existing evidence of record in the light most favorable to class members." Id.

III. The ALJ's Determination that the Dixon Presumption is Inapplicable

The plain language of the paragraph 13 of the Dixon Order requires ALJs to engage in a two-step inquiry. First, the ALJ must determine whether or not the rebuttable presumption of disability applies. As pertinent to Fagan's case, to conclude that the presumption does apply, the ALJ would have to find that 1) the SSA cannot locate or has not retained records from the claim which resulted in membership in the Dixon class; 2) Ms. Fagan was subsequently found to be disabled; and 3) based on evidence relevant to the subsequent finding of disability, and "given the class member's condition at the time of the favorable decision, it is reasonable to presume that he or she was disabled as of the date of the prior administrative determination which resulted in membership." Dixon Order at ¶ 13. If any of these three requirements is not met, the ALJ should not apply the presumption and instead should analyze the claim with the regular five-step analysis embodied in 20 C.F.R. §§ 404.1520.

*17 If the ALJ determines that all three requirements have been met and the presumption of disability therefore applies, the ALJ should move on to the second step of analysisthe inquiry into whether or not the presumption has been rebutted by evidence to the contrary, viewed "in the light most favorable to" the applicant. See Dixon Order at ¶ 13. If the presumption has not been rebutted, the operation of the presumption directs a finding of disability. See id. ("[i]f these presumptions are not overcome be evidence to the contrary and the class member is found to be disabled as a result, he or she will be found disabled from the earliest possible entitlement date[.]") If it has been rebutted by contrary evidence, the ALJ should utilize the five-step analysis of 20 C.F.R. §§ 404.1520 and 416.20 to determine whether the claimant was disabled at the time of the denial of benefits that resulted in class membership.

In this case, on remand from this court the ALJ found that the first two requirements for the application of the presumption had been met, determining that the records from Ms. Fagan's 1978 claim could not be located (R. 285), and that she subsequently been found to be disabled as of February 9, 1987. (R. 286). However, he determined that it was not medically reasonable to presume that Pagan had been disabled at the time of her 1978 application, and thus concluded that the presumption did not apply. (R. 287). Although this conclusion required that the ALJ undertake the normal five-step analysis, he first went on to analyze whether the presumption had been rebutted, and found that it had not been. (R.287). Finally, he undertook the five-step analysis. (R. 288-92).

Although it is unclear whether the ALJ understood that he was deviating from the Dixon Order by first rejecting the application of the presumption and then finding it to have been rebutted, we infer, for present purposes, that he was making-in effect-alternative findings about the presumption before going to the five-step assessment. In any event, the ALJ made a series of legal errors in his determination that it was not medically reasonable to presume the onset of plaintiff's disability as of 1978, and in his finding as to what quantum of evidence is required to rebut the Dixon Order's presumption of disability.

A. Evidence Considered bv the ALJ

The ALJ erred in failing to consider evidence from after 1986 in determining whether it was medically reasonable to presume that plaintiff was disabled as of 1978. The Dixon Order is specific in its command that the ALJ, when determining whether it is medically reasonable to presume that the plaintiff was disabled on the date of the denial resulting in class membership, must look to the evidence relevant to the later decision awarding disability benefits. Dixon Order at ¶ 13. In this case, the ALJ was required to consider the evidence relevant to the finding that Ms. Fagan was disabled from February 9, 1987 onward.

*18 The few medical records that were retained from prior to February 9, 1987 were presumably relevant to whether it was medically reasonable to presume that Ms. Fagan had been disabled in 1978, since they were undoubtedly pertinent to the 1996 decision awarding her disability benefits as of 1987. However, the ALJ relied exclusively on pre-1987 evidence to conclude that it is not medically reasonable to presume plaintiff was disabled in 1978 (R. 286).[20] This was error. The ALJ readjudicated, and upheld, plaintiff's 1987 claim in 1996, when he had the benefit of post-1986 medical records upon which he relied in finding that plaintiff was disabled as of February 9, 1987:

I find that the record is replete with medical findings (including, but not limited to, an October 1988 EKG being positive for left ventricular hypertrophy, an April 1989 EKG showing first degree A-V block, a May 1992 Echocardiogram revealing dilated cardiopathy [sic], and a December 2000 ECG that was positive for chest pain and exercise induced atrial arrythmias and a tomographic myocardial imaging indicative of reversible myocardial ischemia of the left ventricular anteroapex) that substantiated her subjective complaints regarding her hypertension and cardiac abnormalities to the extent that I was convinced that she was not capable of performing any substantial gainful activity on a sustained basis as of February 9, 1987.
(R. 286; see also Pl.'s Opp. Mem. dated Nov. 11, 2003 at Ex. A). Thus, in adjudicating whether or not it was medically reasonable to presume that plaintiff was disabled as of 1978, the ALJ should have analyzed the significance of the post-1986 evidence that he previously cited in support of the decision finding her disabled as of February 9, 1987 rather than rely solely on the pre-1987 medical records.

B. The Application of SSR 83-20

This case was remanded to the ALJ in 2005 with explicit instructions to apply Social Security Ruling 83-20 in determining the onset of plaintiff's disability. ( See August 11, 2004 Report & Recommendation at 29-31). The purpose of SSR 83-20 is "[t]o state the policy and describe the relevant evidence to be considered when establishing the onset date of disability under the provisions of titles II and XVI of the Social Security Act (the Act) and implementing regulations." SSR 83-20. In determining the onset of disabilities of nontraumatic origin such as plaintiff's, SSR 83-20 instructs the ALJ to consider "the applicant's allegations, work history, if any, and the medical or other evidence concerning impairment severity. The weight to be given any of the relevant evidence depends on the individual case." Id.

SSR 83-20 states that medical evidence is the "primary element" in the determination of the onset date, but "[t]he starting point in determining the date of onset of disability is the individual's statement as to when disability began[, ]" which "should be used if it is consistent with all the evidence available." Id. Also, "[t]he day the impairment caused the individual to stop work[, ] is frequently of great significance[.]" Id. Although Ms. Fagan did not testify to having become disabled on a precise date, she stated that she stopped working full time in 1970 because of her illness (R. 30-31), began taking diuretics in 1972 (R. 32), and was hospitalized several times during the 1970s for hypertension. (R. 45). In any event, plaintiff indicated that her disability began significantly before July 1, 1978.

*19 Plaintiff contends that "[i]f the ALJ had applied SSR 83-20 like he was ordered to, he would have had to give significant weight to Ms. Fagan's allegations and work history." (Pl.'s Mem. of Law dated July 17, 2007 at 20). In his two-sentence discussion of SSR 83-20's application in this case, the ALJ reasoned that, based upon Dr. Rabelo's testimony, it was not medically reasonable to presume that plaintiff was disabled in 1978. (R. 288) Although he did not explain what weight he gave plaintiff's testimony in his discussion of SSR 83-20, he later stated that her subjective complaints were not fully credible because they were not consistent with the medical record. (R. 290, 293). We begin by examining Dr. Rabelo's testimony, and then examine the ALJ'a credibility finding regarding plaintiff.

1. Dr. Rabelo's Testimony

When assessing the weight to be given to a medical source's opinion, SSA regulations require consideration of "i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist.'" Gonzalez v. Appel, 113 F.Supp.2d 580, 588 (S.D.N.Y.2000) (quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998)); 20 C.F.R. § 416.927. In addition, ALJs are required to explain the weight given to the opinions of non-examining medical sources in their decisions. 20 C.F.R. § 416.927(f)(2)(ii).

A physician's opinion is entitled to little or no weight when it is "conclusory, inherently contradictory and based on careless factual errors." Gonzalez, 113 F.Supp.2d at 589. Furthermore, when an opinion reflects uncertainty and is predicated on factual errors, reversal may be appropriate. Downey v. Barnhart, 294 F.Supp.2d 495, 502 (S.D.N.Y.2003) ("Dr. Mylod's factual errors, his hesitation about giving an opinion... and his admission that he was not quite sure what's going on here, '... are grounds for reversal.").

Although the ALJ did not explain the weight he assigned to Dr. Rabelo's opinion in his discussions of either SSR 83-20 or the applicability of the Dixon presumption, he stated in his step-four analysis that he gave Dr. Rabelo's opinion "great weight in accordance with the requirements of § 416.927 and SSRs 96-5p and 96-6p." (R. 290). We find, however, that application of 20 C.F.R. § 416.927 to Dr. Rabelo's opinion should have resulted in a decision entitling his testimony to little or no weight.

Dr. Rabelo was not a cardiologist.[21] (R. 377-78). He also had never personally examined Ms. Fagan, and he based his testimony solely upon an examination of the medical records available from 1986 onward. (R. 367, 378). These two factors counsel against awarding his opinion "great weight." See Filocomo v. Chater, 944 F.Supp. 165, 170 n. 4 (E.D.N.Y.1996) ("[t]he conclusions of a physician who merely reviews a medical file and performs no examination are entitled to little if any weight.").

*20 In addition. Dr. Rabelo's testimony immediately revealed that he did not examine the records with care when he erroneously stated that plaintiff's first hospitalization was on July 18, 1990. (R. 369). In fact, the record contains notes from plaintiff's 1986 hospitalization, which in turn refer to three earlier hospitalizations, two of which were in the 1970s. (R. 117). Additionally, Dr. Alcater's February 26, 1988 report states that Ma. Fagan had been hospitalized on three occasions for malignant hypertension. (R. 145).

Furthermore, Dr. Rabelo's statements regarding plaintiff's condition after the period in question appear inconsistent with the SSA's own finding that she was disabled as of February 9, 1987 and with her later diagnosis of cardiomyopathy. When asked whether plaintiff met or medically equaled any listed impairment during the period between 1978 and 1987, Dr. Rabelo responded as follows:

A: No, Your Honor.
Q: And what do you base that conclusion on?
A: This is based on that some of the admissions were for atypical chest pain, which is not angina. It's just pain. They have the cardiac enzymes in a couple of locations. The enzymes were found to be negative. They were not acute EKG changes. Her main problem that I see least see after that period is now the blood pressure has been very difficult to control. I don't know about compliance or medications. When she goes to the hospital, she's stabilized, and then she goes home. But I cannot speculate.
Q: You talking about in the #90s?
A: In the #908, yes.

(R. 371). The records from plaintiff's hospitalizations in 1990 reflect ST-T wave abnormalities suggesting ischemia, [22] though we do not possess the expertise to opine as to whether those constitute "acute EKG changes." (R. 172-76, 200-03). In addition, plaintiff's 1992 cardiac ultrasound showed that she suffered from dilated cardiomyopathy. (R. 220). Although those records do not compel the conclusion that plaintiff's ailment met or medically equaled an impairment in the Listing of Impairments, Dr. Rabelo's failure to reference those findings, combined with his failure to notice that plaintiff had been hospitalized at least four times prior to 1990, counsels skepticism of his opinion. Furthermore, after giving his opinion, he stated "But I cannot speculate[, ]" thereby undermining the dispositive potential of his assessment. (R. 371).

Dr. Rabelo's testimony suffers from additional problems when compared with the medical records that he supposedly reviewed and relied upon-records that, under the Dixon Order, the ALJ was required to consider "in the light most favorable to [the claimant]." Dixon Order at ¶ 13. Several factors weigh against accepting uncritically, as the ALJ did ( see R. 286), Dr. Rabelo's conclusion that based on plaintiff's 1986 stress test results she was capable of "medium work" during the period from 1978 to 1987. (R. 371-72).

First, the record reflects that plaintiff could not complete the stress test. (R. 121). Indeed, the physician who administered the test interpreted it as "non-diagnostic due to failure to achieve 85% of the predicted maximal HR [heart rate].[23] (R. 121). Although a consulting physician employed by the New York State Department of Social Services interpreted the same test as "negative submaximal" and stated that "[e]ven if the treadmill [illegible] positive claimant would be a denial in the absence of characteristic angina [, ]" concluding that plaintiff had "no restrictions" (R. 144), that finding plainly does not justify Dr. Rabelo's conclusion. The consultative report was completed on a date subsequent to February 9, 1987, and the SSA later found that Fagan was indeed disabled as of that date. In short, the State consultant's conclusions regarding plaintiff's ability to work must be considered erroneous.

*21 Second, we note that the re-adjudication of plaintiff's February 1987 claim was the result of a finding in a ****classaction lawsuit that in denying benefits to claimants with certain cardiac illnesses, including hypertension, the SSA had improperly relied on stress tests, which frequently fail to detect disabling ischemia. Sullivan, 906 F.2d at 914 ("the treadmill test, while recommended by many experts as a good diagnostic tool, results in misdiagnosis of ischemic heart disease on more than one third of occasions. An individual who does not show signs of heart disease during a treadmill test may still be severely disabled from ischemia.").

Third, Dr. Rabelo's response to the most important question for the purpose of determining the applicability of the Dixon presumption- "are you able to relate back any finding of disability with respect to the medical reasonableness of relating that back prior to 1987 or not?" -reflects both uncertainty and undue reliance on the non-diagnostic stress test:

A: I cannot. I don't have-
Q: Why cannot you-
A: Because-
Q: -relate back?
A: I-
Q: Why do you believe it's not medically-
A: Well, number one-
Q: -reasonable to relate back that disability
A: In front of a stress test which is something [INAUDIBLE] and she could perform. There was no ischemia, which means no-the coronaries were well perfused [phonetic] during the test. And she had another [INAUDIBLE] response to the test. That's all I can say.

(R. 373-374). Additionally, Dr. Rabelo admitted that plaintiff had exhibited symptoms of cardiomyopathy between 1978 and 1986, although he also proffered alternative, concededly speculative, explanations for her shortness of breath and fluid retention. ( See R. 380-82). Exhibiting less than total confidence that plaintiff was not disabled prior to 1987, Dr. Rabelo stated on cross-examination, "[o]f solid evidence to come to a medical conclusion or to make a medical statement, I don't have." (R. 379).

Considering Dr. Rabelo's lack of a treating relationship with Ms. Pagan, lack of expertise in cardiology, uncertainty, and reliance on the 1986 stress test to support the opinions that he did express, we conclude that the ALJ erred in assigning "great weight" to his testimony. Rather, applying the factors in 20 C.F.R. 416.927(a)-(d), the ALJ should have concluded that his testimony was entitled to little or no weight. See Downey, 294 F.Supp.2d at 502; Gonzalez, 113 F.Supp.2d at 589.

2. Ms. Fagan's Testimony

An ALJ "has discretion to evaluate the credibilty of [a] claimant and to arrive at an independent judgment... regarding the true extent of the pain alleged[.]'" Gonzalez, 113 F.Supp.2d at 590 n. 16 (quoting Lugo v. Apfel, 20 F.Supp.2d 662, 662 (S.D.N.Y.1998)). However, "he must cite legitimate reasons' for disbelieving a claimant's testimony about his pain." Id ___ Although the ALJ acknowledged that "the claimant had underlying medically determinable physical impairments that could reasonably be expected to produce some of the claimant's alleged symptoms for the period from July 1, 1978 through February 9, 1987" (R. 290), "the objective medical findings, the claimant's treatment record, and her demeanor at the hearing" led him to conclude that her testimony was credible only to the extent that it was consistent with the ability, from 1978 to 1987, to perform medium work. ( Id. ).

*22 There is no dispute, however, that plaintiff's 1978 application was originally denied "with a non-severe impairment based on cardiomyopathy" (R. 58), that she was later awarded disability benefits based on cardiomyopathy begining on December 2, 1993, and that the symptoms plaintiff described experiencing between 1978 and 1987 are symptoms of cardiomyopathy. In addition, in readjudicating her 1987 claim, the ALJ found that in 1987 she suffered from uncontrolled hypertension, congestive heart failure, diastolic dysfunction, anemia, and persistent headaches, which, combined, precluded performance of any substantial gainful activity. (Def.'s Mem. of Law dated Sept. 7, 2007 at Ex. A).

The only medical records other than the consultative examination that could potentially be deemed inconsistent with plaintiff's testimony are the notes from her 1986 hospitalization, which reflected conflicting evidence as to whether or not she suffered from ischemia. Although the EKG results from that hospitalization indicated that she did not have ischemia, her response to nitroglycerin indicated that she did. (R. 119-20). The attending cardiologist. Dr. Haimowitz, stated that her response to nitroglycerin suggested ischemia, but then added the cryptic comment that this was "tempered by the fact [patient was] a nursing student." (R. 120). However, Dr. Haimowitz did not explain why that status was relevant to whether or not she suffered from ischemia, and in any event there is no evidence in the record that plaintiff was ever a nursing student. Furthermore, the Dixon Order's requirement that the SSA "consider the existing evidence of record in the light most favorable to class members" when the bulk of the relevant material has been lost or destroyed by the SSA commands that we consider the evidence that plaintiff may have suffered from ischemia as corroborative of her testimony regarding her symptoms. We therefore do not see any meaningful inconsistency between plaintiff's testimony and the medical evidence. Since, without more explanation, plaintiff's "demeanor" is not in itself a reason to reject her testimony, see Brandon v. Bowen, 666 F.Supp. 604, 600 (S.D.N.Y.1987) ("If the ALJ decides to reject subjective testimony concerning pain and other symptoms, he must do so explicitly and with sufficient specificity to enable the court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his determination is supported by substantial evidence"), we conclude that the ALJ did not have a legitimate reason to discount Ms. Fagan's testimony.

C. Conclusion as to Applicability of Dixon Presumption

In sum, the ALJ did not have substantial evidence for his conclusion that it was not medically reasonable to presume that plaintiff was disabled in 1978. His primary basis for that conclusion was Dr. Rabelo's testimony, which should have been entitled to little or no weight. The ALJ should have found instead that plaintiff was entitled to the Dixon presumption, and analyzed separately whether or not the presumption had been overcome. However, since the ALJ analyzed whether the presumption had been overcome despite concluding that it did not apply, we turn to the question of whether he applied the correct legal standard in determining the quantum of evidence required to overcome the presumption, and further assess whether substantial evidence supported his conclusion that the presumption wag overcome by evidence to the contrary.

IV. The ALJ's Determination that the Dixon Presumption was Rebutted

A. The Standard for Rebutting the Dixon Presumption

*23 Paragraph 13 of the Dixon Order indicates that a claimant entitled to the presumption of disability should prevail unless that presumption is "overcome by evidence to the contrary[.]" Dixon Order at ¶ 13. The ALJ concluded, relying on Grella v. Barnhart, 2005 WL 1607969 (E.D.N.Y. June 14, 2005), that the Commissioner had met his burden of production of evidence of non-disability and that the presumption therefore ceased to have any effect. (R. 287). This was legal error.

Grella involved the Dixon presumption of non-disability applicable to claimants who were later denied benefits or engaged in substantial gainful activity after the denial that resulted in class membership. The Grella court concluded that the burden of production on a plaintiff who was subject to the presumption of non-disability (because he had engaged in substantially gainful activity for more than six months after the denial of benefits that resulted in his class membership) is a "light burden, " consistent with Federal Rule of Evidence 301. Grella, 2005 WL 1607969, at *3-4. Whether the reasoning of Grella was correct, its analysis is plainly inapplicable in this case.

FRE 301 states:

In all civil actions and proceedings not otherwise provided for by Acts of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

Fed.R.Evid. 301. Although FRE 301 does not discuss the quantum of evidence necessary to meet or rebut a presumption, subsequent cases have interpreted the burden of going forward as requiring the production of evidence that would be legally sufficient to find the non-existence of the fact presumed. See, e.g., ITC Ltd. v. Punchgini 482 F.3d 135, 148 (2d Cir.2007) (citing Wanlass v. Fedders Corp., 145 F.3d 1461, 1464 (Fed.Cir.1998) and Joseph M. Maclaughlin, Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 301.02[3][c] (2d ed.2006)). If that burden is satisfied, the presumption drops out of the analysis, id.; Mando v. Sec'y of Health and Human Servs., 737 F.2d 278, 282 (2d Cir.1984), although the inference that the presumption would have mandated may nonetheless be drawn by the trier of fact. See H.R. Conf. Rep. No. 93-1597 at 2 (1974) ("If the adverse party does offer evidence contradicting the presumed fact, the court cannot instruct the jury that it may presume the existence of the presumed fact from proof of the basic facts. The court may instruct the jury, however, that it may infer the existence of the presumed fact from proof of the basic facts.")[24]

At the outset, we note that FRE 301 does not apply to administrative proceedings, and that the ALJ was not bound by FRE 301 in interpreting the Dixon presumption. See Fed.R.Evid. 1101; 20 C.F.R. § 404.950(c); Puckettv. Chater, 100 F.3d 730, 734 (10th Cir.1996); McMorrow v. Schweiker, 561 F.Supp. 584, 586 (D.N.J.1982); 2 Am.Jur.2d Admin. Law § 344 (2008). Although the Grella court recognized that FRE 301 was not binding in review of disability determinations, it adopted the principles of FRE 301 because the Dixon presumption of non-disability was "designed to weed out those cases in which there would be no evidence available to support the disability claim[, ]" Grella, 2005 WL 1607969 at *3, and, in its view, "[t]here is no reason... to conclude that the Dixon court sought to require any greater weight of evidence to rebut the presumption of non-disability" than that quantum required by FRE 301. Id. at *4. Furthermore, the court noted that "the Remedial Order's provision requiring the SSA [to] consider existing evidence of record in the light most favorable to the class member, ' [cite omitted], is consistent with imposing on the plaintiff only a light burden of production to rebut the presumption." Id.

*24 In our view, whether or not Grella is correct in this respect, plaintiff's case is quite different, since it involves the presumption of disability rather than the presumption of non-disability. We conclude that the burden of production on the Commissioner in a case in which a plaintiff is entitled to the Dixon Order's presumption of disability is to produce substantial evidence of non-disability during the relevant time period-a heavier burden than that required by FRE 301. See Neil S. Hecht & William M. Pinzler, Rebutting Presumptions: Order Out of Chaos, 58 B.U. L.Rev. 527, 549, 554 (1978).

Courts in this Circuit have faced the problem of defining the interaction between the substantial-evidence standard and a rebuttable presumption in Social Security proceedings in dealing with the presumption of death after an unexplained absence of more than seven years, and have concluded that the substantial-evidence standard for findings of fact and conclusions of law by ALJs requires production of "substantial evidence rationally pointing either to continued life or to any apparent reason for the absence." Bukawyn v. Schweiker, 567 F.Supp. 533, 534 (E.D.N.Y.1982); accord Grossman v. Bowen, 680 F.Supp. 570, 577-78 (S.D.N.Y.1988).[25]

This view, applied to the operation of the Dixon presumption of disability, is consistent with the Order's command to "consider existing evidence of record in the light most favorable to the class member, " Dixon Order at ¶e 13, as well as with the overarching purpose of the Order-to afford relief to claimants who were unjustly denied disability benefits. Characterizing the burden on the Commissioner to rebut the presumption of disability too lightly would contravene the purpose of the presumption, which operates as an evidentiary substitute-once the Commissioner produced minimal evidence of non-disability, claimants would be left with no way to prove their case in the absence of medical records from the time period in question.

Our conclusion is also consistent with Grella, which dealt with the burden of production on the plaintiff rather than the burden on the Commissioner. The provision of the Order that requires existing evidence of record to be construed in the light most favorable to the plaintiff necessarily makes the plaintiff's burden of production with respect to the presumption of non-disability a lighter one than the Commissioner's burden with respect to the presumption of disability. See Grella, 2005 WL 1607969 at *4. This result is consistent with the Dixon court's concern that plaintiffs not be penalized for the SSA's destruction of evidence, regardless of which presumption applies to them. See Dixon, 54 F.3d at 1037.

Thus, we turn to the question of whether the Commissioner produced substantial evidence that plaintiff was not disabled from July 1, 1978 to February 9, 1987.

B. Evidence Contrary to the Presumption of Disability

*25 The evidence that the ALJ relied on in concluding that the Dixon presumption had been overcome consisted of "the negative evidence of the claimant's disability, including the 1986 physical findings and stress test results showing that the claimant's cardiovascular condition was less severe than alleged." (R. 287). For the reasons discussed, we conclude the 1986 hospital records are, at best, equivocal as to whether or not plaintiff suffered from ischemia at that time, and under the Dixon Order that ambiguity must be resolved in favor of the plaintiff. In short, the ALJ did not have substantial evidence based on the 1986 hospital records and stress test to find that the presumption of disability had been rebutted.

The ALJ cited other evidence contrary to the Dixon presumption of disability in his five-step analysis-specifically, two Residual Functional Capacity Assessment ("RFC assessment") forms completed by state agency physicians on August 29, 1986 and October 3, 1987. The August 29, 1986 RFC assessment concluded that plaintiff could lift a maximum of 50 pounds and 25 pounds frequently, stand and/or walk or sit about six hours in an eight-hour day, occasionally climb, balance, stoop, kneel, crouch, and crawl, and do limited pushing and pulling. (R. 105). The only description of the clinical basis for those conclusions is "H.B.P. & ATYPICAL CHEST PAIN". (R. 106). The October 3, 1987 RFC assessment also concluded that plaintiff could lift a maximum of 50 pounds, lift 25 pounds frequently, and stand, walk or sit for about six hours in an eight-hour day, and also found that plaintiff could frequently climb, balance, stoop, kneel, crouch, and crawl and do unlimited pushing and pulling. (R. 109). The physician completing the 1987 RFC assessment did not provide any clinical basis for his or her conclusions. (R. 110).

It was plainly irrational for the ALJ to give any weight at all to the October 3, 1987 RFC assessment since the physician who completed it concluded that plaintiff was not disabled-and indeed was capable of medium work-on a date after February 9, 1987, which the SSA has already found to be the onset date for plaintiff's disability. The ALJ also did not explain why the August 29, 1986 RFC assessment should be given any significant weight considering that plaintiff was adjudicated disabled as of less than six months later. To credit the August 29, 1986 RFC assessment would require one to assume that plaintiff deteriorated from being able to perform medium work in August of 1986 to being unable to perform even sedentary work five months later, in February of 1987. While we assume that there could be a clinical basis for such a finding, the record contains not a scintilla of evidence to support such a medical collapse, and the ALJ did not ask Dr. Rabelo about the likelihood of such a rapid deterioration in plaintiff's condition.

Plaintiff's part-time employment as a nurse's aide from 1977 to 1981 also does not contradict her claim of disability. Although it shows that plaintiff was able to work a little bit, it does not, in itself, show that plaintiff would have been able to work enough hours for her employment as a nurse's aide to qualify as substantially gainful activity. See Nelson v. Bowen, 882 F.2d 45, 49 (2d Cir.1989) ("When a disabled person gamely chooses to endure pain in order to pursue important goals, it would be a shame to hold his endurance against him unless his conduct truly showed that he is capable of working."). Indeed, the ALJ found that plaintiff's part-time employment did not constitute substantial gainful activity (R. 289), and plaintiff testified that her dizziness, the frequent swelling in her hands and feet, tightness in her chest, difficulty breathing, pain, and the side effects of her medication made it impossible to work full time. (R. 32-39).

*26 Plaintiff also testified that in those years she was unable to walk more than one or two long blocks without experiencing tightness in her chest and severe lower back pain (R. 39). The ALJ did not explore in questioning her whether that condition was consistent with even part-time work. It also bears mention that in her Disability Report form, plaintiff stated that each day she worked as a nurse's aide from 1977 to 1981 she walked for one hour, stood for one hour, stooped for one hour, and handled, grabbed, or grasped big objects for one hour. (R. 87). In her testimony, she indicated that during that period of time one hour was the longest she could stand before having to sit down, or sit before needing to stand. (R. 40). She did not disclose her hourly rate, but listed her yearly earnings, which were minimal, ranging from $71.25 to $1, 642.07. (R. 87). Finally, plaintiff stated in the Disability Report form that in 1981 she could no longer work at all because she could not lift patients due to "severe back pain, chest pains, & HBP". (R. 86).

C. Conclusion as to Rebuttal of the Dixon Presumption

We conclude that the 1986 hospital records (which were equivocal about whether or not plaintiff suffered from ischemia), the incomplete stress test, and plaintiff's part-time work do not constitute substantial evidence of non-disability prior to 1987 in light of her later medical records and her testimony, and cannot permit a finding, in the face of the presumption of disability, that she was not disabled from 1978 to 1987. Furthermore, the RFC assessments, the 1987 consultative examination, and Dr. Rabelo's testimony are entitled to little or no weight. Thus, by operation of the Dixon presumption, the plaintiff should have been adjudicated disabled as of July 1, 1978.

Conclusion

We recommend that the Commissioner's motion for judgment on the pleadings be denied, and that the plaintiff's motion for judgment on the pleadings be granted. Although remand for further administrative proceedings is often appropriate when the ALJ has applied an incorrect legal standard or failed to properly develop the evidentiary record, see Taylor v. Astrue, 2008 WL 2437770, at *4-6 (E.D.N.Y. June 17, 2008), courts may reverse the ALJ's decision and remand for a calculation of benefits "when there is persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose." Parker, 626 F.2d at 235. Because this case has already been remanded once, and we have concluded that the proper application of the Dixon presumption should direct a finding of disability, another remand would serve no purpose and would cause unnecessary delay in payment to Ms. Fagan of the benefits to which she is entitled. See Balsamo, 142 F.3d at 82 (discussing the potential delays remand would engender). Thus, we recommend reversal and remand for a calculation of damages only. See Parker, 626 F.2d at 235.

Claimant brought action for review of decision of the Commissioner of Social Security (SSA) which denied her application for disability insurance benefits. SSA moved for judgment on the pleadings and claimant cross-moved for remand for calculation of benefits or further development of the record. The District Court, Lynch, J., held that: (1) ALJ erred in rejecting treating physician's opinion; (2) ALJ erred in failing to give good reasons for according physician's opinion little weight; but (3) remand solely for calculation of benefits was not warranted.

Remanded for further development of the record.

Attorneys and Law Firms

Charles E. Binder, Binder and Binder, LLP, New York, NY, for Plaintiff.

Lorraine S. Novinski, Assistant United States Attorney, Southern District of New York (James B. Comey, United States Attorney, on the brief), New York, NY, for Defendant.

Opinion

OPINION AND ORDER

LYNCH, J.

*1 Pursuant to 42 U.S.C. § 405(g), plaintiff Sondra Jeanne Garcia brings this action to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits on the ground that she was not disabled.[1] The Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), arguing that the Commissioner's decision is supported by substantial evidence and should be affirmed. Garcia maintains that the Commissioner's decision should be reversed and has accordingly cross-moved for judgment on the pleadings, asking that the Court remand solely for the calculation of benefits or, in the alternative, for an opportunity to develop the factual record further. For the reasons that follow, Garcia's motion is granted to the extent that the case is remanded for further development of the record, and the Commissioner's motion is denied.

BACKGROUND

Garcia was born on November 21, 1947. She is a college graduate who worked as a medical recruiter in an employment agency for approximately eight to ten years. (Tr. 118, 344.)[2] At the hearing before the ALJ, Garcia testified that this position required her to work three out of five days each week in the office, mostly sitting at a desk soliciting and interviewing people on the telephone. Another two hours during each of these days was spent standing or walking, but did not require any bending, reaching, lifting, or carrying. (Tr. 119, 347.) The remaining two days of the work week were spent visiting clients, which involved traveling and walking. (Tr. 347-48.) Prior to her employment in this position, Garcia worked as a medical office manager for approximately eight to ten years, a position that entailed sitting at a desk for most of the day. (Tr. 348.)

Garcia has not worked since April 1, 1992, when she was laid off from her job because of attendance problems that she attributes to "intermittent and severe" episodes of vomiting that caused pain in her lower back, neck, and head, and resulted in physical exhaustion. (Tr. 344-50.) The vomiting episodes were frequent and unpredictable, sometimes occurring when she was on the street or taking public transportation. (Tr. 345.) Garcia also experienced intense physical pain in her hands and arms, making it impossible for her to do any lifting or manual work. (Tr. 351.) After being laid off, Garcia received unemployment insurance benefits for a year. (Tr. 345.) She was last insured for disability insurance purposes on September 30, 1997, and thus her eligibility for SSDI benefits turns on whether she was disabled as of this date. See 42 U.S.C. § 423(a)(1)(A) (providing that a claimant must become disabled while she is still insured in order to be entitled to SSDI benefits).

Garcia began seeing her treating physician, Dr. Howard Bezoza, in January 1990, (Tr. 187), and saw him frequently through December 1991, for blood pressure checks and intravenous injections of vitamins. (Tr. 182, 184-87.) From January 1991 through January 1992, Dr. Bezoza examined Garcia on several occasions, noting her "acute agitated depression" and prescribing her several different medications to treat her depression and anxiety. (Tr. 183-85.) The record does not appear to indicate that Garcia visited Dr. Bezoza between January 1992 and April 1995, but on numerous occasions during that period, Dr. Bezoza continued to prescribe antidepressant medications, either calling the prescriptions into the pharmacy or mailing them directly to Garcia. (Tr. 179-83.)

*2 In July 1994, Garcia was treated by Dr. Luciano Del Guzzo for symptoms of arthralgias, febrile episodes, and chronic fatigue. (Tr. 252-53.) Dr. Del Guzzo stated in a handwritten report to Garcia's lawyer, dated May 17, 1995, that Garcia had had several injections of silicone in the early 1970s in her breasts as well as five additional silicone injections in her face between 1980 and 1990, and that she had begun to experience lower back, shoulder hand pains in 1981, for which she consulted a chiropractor, but not an orthopedist or rheumatologist. (Tr. 252.) Dr. Del Guzzo also noted that in 1983, Garcia developed hypertension and began experiencing high fevers, and that the "extensive" evaluations that were conducted at the time failed to reveal the etiology of her illness. (Id.) The examination also indicated mild crepitus in Garcia's right knee, but Dr. Del Guzzo observed that Garcia had full range of motion of her back and that the rest of the joint exam was normal. Dr. Del Guzzo concluded that Garcia's complaints of arthralgias, febrile episodes, and chronic fatigue were the result of "typical connective tissue disease caused by silicone injections, " and he ordered additional diagnostic testing. (Tr. 252-53.)

The record before the ALJ does not indicate that Garcia saw Dr. Del Guzzo more than once, or why Garcia elected to be seen by Dr. Del Guzzo on that particular occasion. However, the record does confirm that Garcia had several diagnostic tests conducted around this time, in June 1994, and that she was referred by Dr. Del Guzzo to Dr. Gerald Smallberg, a neurologist. An MRI of Garcia's cervical spine indicated multilevel disc degeneration and disc space narrowing, "very severe" reversal of the curvature of the spine, multilevel disc bulges, and the "suggestion of osteophyte formation to the right of the midline." (Tr. 189.) The MRI report concluded that the "[c]ombination of soft and hard discs may be responsible for [Garcia's] symptoms and nerve root compromise." (Id.)

In the spring of 1995, Garcia returned to Dr. Bezoza several times, for intravenous vitamins and treatment of a rash.[3] In a written report following a May 4, 1995, visit, which apparently was not presented to the ALJ but was submitted to the Appeals Council, Dr. Bezoza concluded that Garcia "has all the typical symptoms of a person with silicone related disease, non-specific joint and muscle swelling and pain, non-specific mood and mental disturbances, non-specific gastrointestinal problems, and of course chronic fatigue." (Tr. 299.) He also noted that his review of Garcia's chart "reveal[ed] multiple trial and errors with different [psychotrophic] medication[s], " and that in hindsight it had appeared that they "were probably chasing some of the mental disturbances patients with silicone disease experience." (Tr. 299.)

Garcia applied for disability insurance benefits on November 28, 1997, claiming she had been unable to work since April 1, 1992, because of chronic fatigue, severe arthritis, and chemical sensitivity. She sought disability benefits for the period between April 1, 1992, and September 30, 1997. (Tr. 95-98, 114.) As part of the application process, Garcia underwent a physical examination by Dr. DeLeon, a consulting physician, who found that Garcia suffered from back pains with locking of fingers, severe lower quadrant pain with an unknown etiology, and a history of depression. (Tr. 143.) An MRI revealed reversal of the curvature of the spine, loss of disc space, and loss of height, duplicating the results of the 1994 MRI. (Tr. 145.) Dr. DeLeon concluded that Garcia could sit without limitation, and could perform tasks involving walking, carrying, and lifting, with only minor limitation. (Id.) Garcia also saw a consultative psychiatrist in January 1998, who concluded that she would be able to perform the mental requirements of work. (Tr. 140.)

*3 Garcia's application for benefits was denied, both on initial review and again on reconsideration. (Tr. 81-84, 88-90.) She then requested a hearing before an administrative law judge ("ALJ"), which was held on January 11, 1999, before ALJ Newton Greenberg. (Tr. 91-92, 341-56.) In a written decision dated February 1, 1999, the ALJ concluded that Garcia was not entitled to benefits because she retained the ability to perform the full range of exertionally light work, including her past work as a job recruiter, and was therefore not disabled. (Tr. 55-63.) Garcia appealed the ALJ's decision to the Appeals Council on February 5, 1999, and on at least seven separate occasions between February 15, 1999, and August 28, 2000, submitted additional medical evidence to the Appeals Council in support of her claim. (Tr. 263-340.) The Appeals Council eventually denied Garcia's request to review the ALJ's decision on July 11, 2001, making the ALJ's written decision the final decision of the Commissioner. (Tr. 5-8, 52-54.) This action followed.

DISCUSSION

Under the Social Security Act, the findings of the Commissioner as to any fact are conclusive if supported by "substantial evidence." 42 U.S.C. § 405(g) (2002). Thus, a district court may remand, modify, or reverse an ALJ's decision only if the ALJ has misapplied the appropriate legal standard, or if the finding is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982)). "Substantial evidence" in the Social Security benefits context means "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 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The substantial evidence standard applies not only to the Commissioner's findings of fact, but also to her inferences and conclusions, which must be affirmed even where the Court's own analysis may differ. Figueroa v. Apfel, 99 Civ. 3185, 2000 U.S. Dist. LEXIS 5759 at *16-*17 (S.D.N.Y. Apr. 28, 2000); see Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991) ("[T]he court 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.") (internal quotation marks and citation omitted).

Despite this apparently deferential standard of review, administrative decisions regarding claimants' eligibility for disability benefits have proven surprisingly vulnerable to judicial reversal. This vulnerability results primarily from the creation by the Commissioner, and the enforcement by the courts, of a variety of procedural obligations to which ALJs must scrupulously adhere. Failure to do so is treated as "legal error" permitting reversal of the ALJ's decision. See generally Santiago v. Massanari, 00 Civ. 3847, 2001 U.S. Dist. LEXIS 9881 at *24-*25 (S.D.N.Y. July 16, 2001). Moreover, unlike factfinders in adversarial proceedings, an ALJ in a Social Security hearing may not rely upon the absence of probative evidence supporting the opinions of a claimant's expert without making an affirmative effort to fill any gaps in the record before her. See Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.1998) ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte. ") (citations omitted). "In fact, where there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history even when the claimant is represented by counsel.'" Rosa, 168 F.3d at 79 (quoting Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996)). Finally, the ALJ may turn out to be wrong even when she was right at the time the decision was rendered. Reports sent to the Appeals Council, so long as they concern the time period in question, become part of the record for judicial review, even when the Council has denied review. Perez v. Chater, 77 F.3d 41, 45 (2d Cir.1996).

*4 In light of rules such as these, a district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or expert opinion that supports the administrative determination. Rather, the record must be carefully developed and evaluated to determine whether the Commissioner fully complied with all the relevant regulations.

I. Legal Standard

To receive federal disability benefits, an applicant must be "disabled" within the meaning of the Social Security Act. 42 U.S.C. § 423(a), (d). In order for a claimant to be deemed "disabled, " she must demonstrate her "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). Moreover, the impairment 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) (2001). Agency rules, set forth at 20 C.F.R. § 404.1520, require the Commissioner to apply a five-step procedure when evaluating disability claims. This procedure was recently summarized by the Second Circuit as follows:

1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a "severe impairment" which significantly limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a "severe impairment, " the Commissioner must ask whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not "listed" in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. 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.

Shaw v. Cater, 221 F.3d 126, 132 (2d Cir.2000) (citing DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir.1998)); see also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir.2000). The disability claimant bears the burden of proving the first four steps laid out above. If the claimant satisfies her burden as to the first four steps, the burden then shifts to the Commissioner to establish the fifth step, that work exists in the national economy that the claimant can perform. Perez, 77 F.3d at 46.

II. Application to This Case

*5 In this case, the ALJ found that Garcia, who has not worked since April 1, 1992, has a severe immunological disorder and back disorder, but that these impairments were not equivalent in severity to any of the impairments listed in Appendix 1 of the regulations. The ALJ determined that Garcia remained capable of performing work-related activities that did not involve lifting or carrying over ten pounds or walking or standing for more than two hours in an eight-hour period, and accordingly that her impairments did not render her incapable of performing her past relevant work as an employment recruiter. Thus, the ALJ found that Garcia had failed to satisfy her burden under the fourth step laid out above, and concluded that Garcia did not have a "disability" within the meaning of the Social Security Act and was therefore not entitled to disability insurance benefits. (Tr. 62.)

Garcia maintains that the ALJ's denial of disability insurance benefits was incorrect, arguing that (1) the ALJ mischaracterized the medical evidence and accordingly failed to weigh properly the medical opinion of her treating physician, and (2) the ALJ's finding that Garcia was not disabled because she could perform the full range of exertionally sedentary work is not supported by substantial evidence. The Court concludes that the ALJ should have sought additional information before rejecting the treating physician's opinion, necessitating a remand for further development of the record.

A. Treating Physician Rule

Garcia first argues that the ALJ violated the "treating physician rule" by failing to give proper weight to the medical opinion of her treating physician. In support of her application, Garcia submitted the records and diagnosis of Dr. Howard Bezoza, a physician who treated her for approximately ten years, including during the period in which she was insured.[4] Garcia claims that the ALJ either misstated or ignored key portions of the medical evidence concerning her treatment and, on the basis of that distorted record, summarily discounted Dr. Bezoza's medical opinions and substituted his own lay judgment. In addition, Garcia contends that the ALJ did not adequately explain his rationale for the weights he assigned the various medical evidence, violating the Commissioner's regulations and Second Circuit case law. The Court agrees with both arguments.

In 1991, the Commissioner promulgated a new set of regulations establishing the weight to be accorded a treating physician's opinion.[5] Specifically, the regulations provide:

Generally, we give more weight to opinions from your treating sources.... If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply [various factors] in determining the weight given the opinion.
*6 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2) (2001); see also Schaal, 134 F.3d at 503.

When controlling weight is not given to the treating physician's opinion, the regulations provide that the following "various factors" must be considered in assessing the weight to be given it: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors brought to the Social Security Administration's attention which tend to support or contradict the opinion. See 20 C.F.R. § 404.1527(d)(2)-(6). The regulations also provide that the Commissioner "will always give good reasons in our notice of determination or decision for the weight we give [claimant's] treating source opinion." 20 C.F.R. § 404.1527(d)(2); Snell v. Apfel, 177 F.3d 128, 133-34 (2d Cir.1999). The ALJ must defer questions requiring medical expertise to physicians instead of substituting his own medical conclusions for those already present in the record, for a "circumstantial critique by [a] non-physician[ ], however thorough or responsible, must be overwhelmingly compelling" to justify a denial of benefits. Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 862 (2d Cir.1990); see Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000) ("Neither the trial judge nor the ALJ is permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion.").

Ultimately, the determination of a disability is reserved for the Commissioner. 20 C.F.R. §§ 404.1527(e)(1) and 416.927(e) (1) (2001) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability.... A statement by a medical source that you are disabled' or unable to work' does not mean that we will determine you are disabled."). This regulation has been interpreted by the Second Circuit as meaning "that the [Commissioner] considers the data that physicians provide but draws [his] own conclusions as to whether those data indicate disability. A treating physician's statement that [plaintiff] is disabled cannot itself be determinative." Snell, 177 F.3d at 133.

In this case, the record developed before the ALJ indicates that Dr. Bezoza had concluded in 1997 that "[i]t is in my professional estimation that [claimant] at this time is functionally disabled for any gainful employment." (Tr. 132.) He reached this conclusion after diagnosing a "nonspecific auto-immune disorder with multi system symptoms, " including joint pain, chronic fatigue, and flu-like symptoms. (Id.) He viewed these symptoms, which he considered debilitating, as consistent with silicone-related disease. (Tr. 299.) The ALJ rejected not only Dr. Bezoza's conclusion that Garcia was functionally disabled, but his diagnosis of her symptoms, stating that:

*7 Dr. Howard Bezoza has treated the claimant intermittently since August 1990. According to him, after years without a discernible diagnosis, the claimant seems to be experiencing a non-specific autoimmune disorder with multi system symptoms.... This is evidenced by some system abnormalities in the laboratory findings. But, much of this diagnosis comes from the claimant's own subjective complaints and is not substantiated in the medical findings. Dr. Bezoza opines that the claimant is functionally disabled for any gainful employment as a result of this condition. However, he also states that it is common for patients with this condition to have periods of good health. Moreover, it is important to note that Dr. Bezoza has rarely seen the claimant in the last two to three years, yet he readily makes this functional assessment.... In addition, he does not mention anything about the claimant's alleged back condition.

(Tr. 60.) Thus, the ALJ rejected Dr. Bezoza's determination that the symptoms did indeed exist, and were a part of her condition. He credited instead the consultative physician's view that Garcia did not experience any severe symptoms, opining that "the medical reports do not conclude that she has anything more than mild functional limitations." (Tr. 60-61.) The ALJ's stated reasons for his conclusion were that many of Garcia's symptoms could not be substantiated by objective testing, and that Dr. Bezoza saw Garcia infrequently. These reasons are insufficient in light of the regulations cited above.

The ALJ apparently concluded that Dr. Bezoza's findings were not "well-supported by clinical evidence, " Schaal, 134 F.3d at 504, and therefore were not entitled to controlling weight. See 20 C.F.R. §§ 404.1527(d)(2). Before rejecting the treating physician's diagnosis as unsupported, the ALJ was required to seek additional information from Dr. Bezoza to fill the apparent gaps in the clinical record. Schaal, 134 F.3d at 505; Zimmerman v. Massanari, 212 F.Supp.2d 127, 133 (S.D.N.Y.2002). The record indicates that the ALJ made no attempt to obtain additional information relating to Dr. Bezoza's diagnosis. Instead, he concluded that the "objective medical evidence" indicated that Garcia's subjective complaints were not credible, and that therefore Dr. Bezoza's assessment of the symptoms was incorrect and unsupported. (Tr. 62.) There are of course many illnesses and symptoms that cannot be neatly detected and described by objective testing, and where a claimant may suffer from such an illness, it is particularly important that the ALJ investigate the opinion of the treating physician, who has had the opportunity to evaluate the patient's demeanor and condition against the backdrop of his clinical experience. Rather than investigating Dr. Bezoza's medical reasons for concluding that Garcia's description of her debilitating symptoms was accurate, or the implications of the diagnosis of "non-specific auto-immune disorder with multi system symptoms, " however, the ALJ simply substituted his own assessment of the relative merits of the objective evidence and subjective complaints for that of the treating physician. This is unacceptable under the regulations and Second Circuit precedent. See, e.g., Curry v. Apfel, 209 F.3d 117, 123 (2d Cir.2000).

*8 In addition, the ALJ's critique of Dr. Bezoza's findings was not so "overwhelmingly compelling" as to overcome the otherwise valid medical opinion, and indeed, contains several inaccuracies. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999) (quoting Wagner v. Secretary of Health and Human Services, 906 F.2d 856, 862 (2d Cir.1990). The ALJ stated that the tests performed by Dr. Bezoza (and by Dr. Smallberg) showed few abnormalities except the presence of silicone antibodies (Tr. 60), but the results actually contained several indicators of an inflammatory process, such as a high sedimentation rate. (Tr. 146; Pl. Mem. at 16.) In addition, the ALJ asserted that the tests performed at the consultative physical exam did not produce any results consistent with Garcia's allegations, apparently ignoring the fact that the tests had shown reversal of the curvature of the spine, substantiating her complaints of back pain. (Tr. 60.) Finally, the ALJ discounted the severity of Garcia's back and immune problems in part because she had not regularly received treatment for them. (Id. 61.) Garcia had had only limited success with the various treatments recommended by Dr. Bezoza, however, and "[j]ust because plaintiff's disability went untreated does not mean that [s]he was not disabled." Shaw, 221 F.3d at 133. Expecting claimants to seek repeatedly ineffective care when their financial resources and ability to travel may be quite limited would contravene the purpose of the social security benefit system. Thus, taken as a whole, the ALJ's critique of Dr. Bezoza's diagnosis does not establish that the diagnosis was unreliable, and does not obviate the need to remand the case for further development of the record.

Having decided that Dr. Bezoza's opinion was not entitled to controlling weight, the ALJ was nonetheless obligated to weigh that diagnosis as part of the evidence, using the factors enumerated above to determine exactly how much weight to accord the opinion. Schaal, 134 F.3d at 504. The failure to explicitly consider all of these factors is legal error, as the regulations state that the Commissioner "will always give good reasons in our notice of determination or decision for the weight we give [the] treating source's opinion." 20 C.F.R. § 404.1527(d)(2); Schaal, 134 F.3d at 503-04. Here, the ALJ did not consider all of the factors in deciding to give Dr. Bezoza's opinion little weight, relying only on the infrequency of Garcia's visits, and the perceived lack of objective evidence in support of the opinion. (Tr. 60.) He did not examine the length and nature of the treatment relationship, the opinion's consistency with the record as a whole, or whether Dr. Bezoza was a specialist. See 20 C.F.R. § 404.1527(d)(2). Thus, because he did not consider all of the factors enumerated in the regulations, the ALJ failed to give "good reasons" for according Dr. Bezoza's opinion little weight. This constitutes an independent reason to remand the case for further development of the record.

B. Sufficiency of the Evidence

*9 Garcia next argues that the ALJ's conclusion that she possessed the functional capacity to perform her past work is not supported by substantial evidence, requiring that the Commissioner's decision be reversed, and her case be remanded solely for calculation of benefits. Where the Court has already determined that the ALJ's decision was made on the basis of an inadequate record, remand for the calculation of benefits is appropriate only where the record before the Court so clearly indicates that the plaintiff is disabled that there can be "but one conclusion in [the] matter, " such that developing the record further is unnecessary. Zimmerman, 212 F.Supp.2d at 134. Here, the difficulty in diagnosing and pinpointing Garcia's illness has led to some conflicting evidence in the record, and varying opinions as to the degree to which she is limited by her illness. It is therefore impossible to conclude that Garcia is without a doubt entitled to benefits, and the incompleteness of the record renders premature any opinion as to the evidentiary support for the ALJ's denial of benefits. Because the ALJ failed to supplement the record with additional information that may help resolve the inconsistencies and disagreements among the various physicians, remanding for further development of the record is particularly appropriate here. See Rosa, 168 F.3d at 83.

CONCLUSION

The plaintiff's motion for judgment on the pleadings is granted to the extent that the case is remanded to the Commissioner for further proceedings consistent with this opinion. The defendant's motion for judgment on the pleadings is denied.

SO ORDERED.

Attorneys and Law Firms

Olinsky Law Group, Brandon W. Sawyer, Esq., Howard D. Olinsky, Esq., of Counsel, Syracuse, NY, for Plaintiff.

Office of Regional General Counsel, Vernon Norwood, Esq., of Counsel, New York, NY, for Defendant.

Opinion

DECISION and ORDER

DAVID N. HURD, District Judge.

*1 Plaintiff Arteisha Harris filed this action seeking judicial review of a final decision of the Commissioner of Social Security denying her application for child's insurance benefits and Supplemental Security Income benefits under the Social Security Act. By Report-Recommendation dated May 2, 2013, the Honorable Victor E. Bianchini, United States Magistrate Judge, recommended that the Commissioner's motion for judgment on the pleadings be denied, plaintiff's motion be granted, and this case be remanded for further proceedings. No objections to the Report-Recommendation were filed.

Based upon a careful review of the entire file and the recommendations of the Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1).

Accordingly, it is

ORDERED that

1. The Commissioner's motion is DENIED;

2. Plaintiffs motion is GRANTED; and

3. The decision of the Commissioner is REVERSED, and this case is REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Report-Recommendation.

IT IS SO ORDERED.

[1]

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. INTRODUCTION

In May of 2010, Plaintiff Arteisha Harris' applied for child's insurance benefits and Supplemental Security Income ("SSI") benefits under the Social Security Act. Plaintiff alleges that she has been unable to work since April of 2010 due to attention deficit hyperactivity disorder ("ADHD") and oppositional defiant disorder. The Commissioner of Social Security denied Plaintiff's applications.

Plaintiff comes now before the court as an adult, by and through her attorneys, Olinsky Law Group, Brandon W. Sawyer, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c) (3).

On March 22, 2013, the Honorable Gary L. Sharpe, 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. 24).

II. BACKGROUND

The relevant procedural history may be summarized as follows:

Plaintiff applied for benefits on May 7, 2010, alleging disability beginning on April 1, 2010. (T at 159, 163, 173).[2] The applications were denied initially and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held on June 22, 2011, in Syracuse, New York, before ALJ Susan Wakshul. (T at 15).[3] Plaintiff appeared with her attorney and testified. (T at 20-33). Plaintiff's mother, Carol Harris, also appeared and testified. (T at 34-44). Melissa Glannon, a vocational expert, appeared and testified by telephone. (T at 44-50).

On July 28, 2011, ALJ Wakshul issued a written decision finding that Plaintiff was not disabled, as defined under the Social Security Act, and was therefore not entitled to benefits. (T at 55-69). The ALJ's decision became the Commissioner's final decision on November 16, 2011, when the Social Security Appeals Council denied Plaintiff's request for review. (T at 1-5).

*2 Plaintiff, through counsel, timely commenced this action on December 20, 2011. (Docket No. 1). The Commissioner interposed an Answer on April 23, 2012. (Docket No. 7). Plaintiff filed a supporting Brief on June 6, 2012. (Docket No. 11). The Commissioner filed a Brief in opposition on August 22, 2012. (Docket No. 16). Plaintiff filed an Amended Brief on September 14, 2012. (Docket No. 22). The Commissioner filed a Reply Brief on September 28, 2012. (Docket No. 23).

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.[4]

For the reasons that follow, it is recommended that the Commissioner's motion be denied, Plaintiff's motion be granted, and this case be remanded for further proceedings.

III. DISCUSSION

A. Legal Standard

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, 1427, 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).

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).

*3 The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. §§ 416.920, 404.1520. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.[5]

While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984). The fifth and final step of the inquiry is divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.920(g); 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).

B. Analysis

1. Commissioner's Decision

The ALJ noted that because Plaintiff filed for benefits after attaining age 18, her claim for child's insurance benefits would be evaluated under the adult standards of disability. (T at 58). The ALJ further indicated that, pursuant to § 202(d) of the Social Security Act, Plaintiff could only receive child's insurance benefits if she became disabled before turning 22.[6] (T at 59).

The ALJ found that Plaintiff had not engaged in substantial gainful activity since April 1, 2010, the alleged onset date. (T at 60). The ALJ concluded that Plaintiff had the following severe impairments, as defined under the Social Security Act: attention deficit disorder, oppositional defiant disorder, emotional disturbance, and substance abuse. (T at 60). However, the ALJ found that Plaintiff's impairments did meet or medically equal one of the listed impairments set forth in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). (T at 61-62).

The ALJ determined that Plaintiff retained the residual functional capacity to perform a full range of work at all exertional levels, except that she was limited to simple, routine, repetitive tasks in a low-stress environment (defined as requiring only occasional decision making, and only occasional changes in the work setting, use of judgment, and supervision). (T at 62-65). The ALJ found that Plaintiff had no past relevant work. (T at 65).

Considering Plaintiff's age (17 years old on the alleged onset date), education (high school), work experience (no past relevant work), and residual functional capacity (no exertional limitations, with non-exertional limitations as outlined above), the ALJ concluded that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 65-66). As such, the ALJ found that Plaintiff had not been under a disability, as defined in the Social Security Act, between the alleged onset date (April 1, 2010) and the date of the ALJ's decision (July 28, 2011). (T at 66). As noted above, the ALJ's decision became the Commissioner's final decision on November 16, 2011, when the Appeals Council denied Plaintiff's request for review. (T at 1-5).

2. Plaintiff's Arguments

*4 Plaintiff challenges the Commissioner's decision. She offers three (3) principal arguments in support of her position. First, Plaintiff contends that the ALJ did not properly assess the opinion provided by her treating physician. Second, Plaintiff challenges the ALJ's credibility determination. Third, Plaintiff argues that the ALJ's step 5 analysis was flawed. This Court will address each argument in turn.

a. Treating Physician

Under the "treating physician's rule, " the ALJ must give controlling weight to the treating physician's opinion when the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir.2004); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir.2000).[7]

Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. In this regard, the ALJ should consider the following factors when determining the proper weight to afford the opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. C.F.R. § 404.1527(d) (1)-(6); see also Shaw, 221 F.3d at 134; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998); Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998).

In September of 2010, Dr. Joseph Zollo, Plaintiff's treating physician completed a Medical Source Statement.[8] Dr. Zollo diagnosed attention deficit disorder, reading disorder, and a mathematics disorder. (T at 302). He reported that Plaintiff exhibited the following symptoms: appetite disturbance with weight change, thoughts of suicide/harming others, difficulty thinking or concentrating, impulsive and damaging behavior, hyperactivity, impairment in impulse control, emotional lability, and easy distractibility. (T at 302). Dr. Zollo opined that Plaintiff was unable to meet competitive standards with regard to completing a normal workday and workweek without interruptions from psychologically based symptoms. (T at 303). He found that Plaintiff was seriously limited, but not precluded, from sustaining an ordinary routine without special supervision, working in coordination with or proximity to others without being unduly distracted, making simple work-related decisions, performing at a consistent pace without an unreasonable number and length of rest periods, responding appropriately to changes in a routine work setting, and dealing with normal work stress. (T at 303).

Dr. Zollo indicated that Plaintiff had a limited, but satisfactory, ability to remember work-like procedures, understand and remember very short and simply instructions, carry out very short and simple instructions, maintain attention for two hour segments, ask simple questions or request assistance, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes, and be aware of normal hazards and take appropriate precautions. (T at 303). Dr. Zollo indicated that Plaintiff might need extra supervision to assist with attention and understanding. He described her as "[e]asily distracted and implusive" and opined that educational and vocational supports would be needed for Plaintiff to be successful. (T at 303).

*5 Dr. Zollo rated Plaintiff's ability to interact appropriately with the general public and maintain socially appropriate behavior as "limited, but satisfactory." (T at 304). He found her ability to travel in unfamiliar places seriously limited, but not precluded, and described Plaintiff's ability to use public transportation as limited, but satisfactory. Dr. Zollo indicated no limitation with respect to Plaintiff's capacity to adhere to basic standards of neatness and cleanliness. (T at 304). He estimated that Plaintiff would miss about 2 days per month from work due to her impairments or treatment. (T at 304).

The ALJ afforded Dr. Zollo's opinion "little weight, " finding it "inconsistent with [the] evidence of record as a whole." (T at 64). In addition, the ALJ noted that Dr. Zollo's opinion was not supported by treatment records following the alleged onset date. (T at 64).

This Court finds that the ALJ did not properly assess Dr. Zollo's opinion or adequately develop the record. First, the treatment records from the period immediately preceding the alleged onset date were consistent with Dr. Zollo's assessment of disabling limitations. In December of 2009, Dr. Zollo assigned a Global Assessment Functioning ("GAF")[9] score of 45. (T at 261). "A GAF range of 41-50 indicates that the individual has a serious impairment in one of the following: social, occupational, or school functioning.'" Pollard v. Halter, 377 F.3d 183, 186 n. 1 (2d Cir.2004). Although treatment notes from late 2009 and early 2010 described Plaintiff's symptoms as "stable and controlled" (T at 252, 254), Dr. Zollo assigned the same GAF score (45) in March of 2010. (T at 262).

Second, the ALJ afforded too much weight to the nonexamining State Agency review consultant. The medical consultant, identified as "T. Harding, " opined that Plaintiff was not significantly limited with regard to her ability to remember locations and work-like procedures or to understand and remember very short and simple instructions. (T at 292). The consultant assessed a markedly limited ability to understand, remember, and carry out detailed instructions. (T at 292). The consultant found no significant limitation with regard to carrying out very short and simple instructions, maintaining attention and concentration for extended periods, sustaining an ordinary routine without special supervision, and working in coordination with or proximity to others without being distracted by them. (T at 292).

The consultant opined that Plaintiff was not significantly limited with regard to her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (T at 292). Plaintiff was also found to have no significant limitation with regard to completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods. (T at 293). The consultant noted no significant limitations with regard to social interaction or adaptation skills. (T at 293). In sum, the consultant found that Plaintiff "may have difficulty with complex tasks and instructions, but maintain[ed][her] ability to perform a range of entry level work." (T at 294).

*6 The ALJ found the consultant's assessment "generally consistent with the evidence of record" and gave it "great weight." (T at 63). However, the consultant's opinion was rendered in June 2010 and, thus, did not include a review of the detailed assessment provided by Dr. Zollo (and cosigned by Plaintiff's social worker) in September of 2010. Moreover, although a non-examining consultant's opinion may constitute substantial evidence when supported by the record as a whole, the opinion cannot, by itself, support the Commissioner's decision. See Griffith v. Astrue, 08-C6004, 2009 WL 909630 at *9 (W.D.N.Y. July 27, 2009) ("The State Agency Officials' reports, which are conclusory, stale, and based on an incomplete medical record, are not substantial evidence"); see also McClean v. Astrue, 04-C1425, 2009 WL 1918397, at *4 n. 2 (E.D.N.Y. June 30, 2009).

Third, the ALJ placed too great an emphasis on apparent improvement in Plaintiff's condition during the spring of 2010. In March of 2010, upon Plaintiff's admission to St. Joseph's Hospital, Dr. John Harkulich, Ph.D. assigned a GAF score of 60 (T at 271), which indicates only moderate difficulty in social or occupational functioning. See Anderson v. Astrue, No. 07-CV-4969, 2009 WL 2824584, at *3 n. 3 (E.D.N.Y. Aug. 28, 2009); Snyder v. Astrue, No. 07-CV-0763, 2009 WL 3381556, at *2 n. 2 (N.D.N.Y. Oct. 16, 2009) ("A GAF of 51 to 60 signifies moderate symptoms (e.g., flat affect and circumstantial speech occasional panic attacks) or moderate difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or co-workers).'") (quoting Diagnostic and Statistical Manual of Mental Disorders-IV-TR, p. 34). A treatment note from May of 2010 assigned the same GAF score (60), with Plaintiff demonstrating "good" insight and judgment and with her symptoms "stable and controlled." (T at 264).

The ALJ considered this reported improvement during the spring of 2010 as establishing a "stable and upward trend of [Plaintiff's] symptoms." (T at 64). The ALJ then used the inconsistency between this "trend" and Dr. Zollo's September 2010 opinion to discount the opinion. (T at 64). However, the ALJ does not appear to have considered that (a) the "trend" might have been only a temporary improvement or (b) that the "trend" might not have represented as dramatic an improvement in Plaintiff's overall functioning as it appeared. In other words, the ALJ rejected Dr. Zollo's opinion as inconsistent with the "trend" theory, rather than considering it as evidence contradicting that theory. The ALJ also never re-contacted Dr. Zollo to explain the inconsistency between the improvement "trend" identified by the ALJ and the September 2010 opinion. This failure to develop the record, as discussed further below, was also an error.

Fourth, the ALJ failed to adequately develop the record. The ALJ has an "affirmative duty to develop the record and seek additional information from the treating physician, sua sponte, even if plaintiff is represented by counsel" to determine upon what information the treating source was basing his opinions. Colegrove v. Comm'r of Soc. Sec., 399 F.Supp.2d 185, 196 (W.D.N.Y.2005); see also 20 C.F.R. §§ 404.1212(e)(1), 416.912(e)(1) ("We will seek additional evidence or clarification from your medical source when the report from your medical source... does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques."). Failure to re-contact is error and is a reason to remand. See Taylor v. Astrue, No. CV-07-3469, 2008 WL 2437770, at *3 (E.D.N.Y. June 17, 2008) (finding it error for the ALJ to not re-contact Plaintiff's treating physician when he determined that the physician's opinion was "not wellsupported by objective medical evidence").

*7 Here, as outlined above, the ALJ discerned a "trend" with regard to Plaintiff's symptoms in the spring of 2010, noted the inconsistency between that "trend" and Dr. Zollo's September 2010 opinion, and then discounted the treating physician's opinion based upon the inconsistency and the lack of "any treatment records which would dispute the stable and upward trend of [Plaintiff's] symptoms." (T at 64).

This Court notes, with frustration, that it appears the ALJ held the administrative record open to obtain additional records from Dr. Zollo based upon a promise from Plaintiff's counsel that she would obtain those records. (T at 19, 58). It appears, for reasons not clear from the record, that counsel never submitted the additional documents, did not request additional time to obtain them, and did not ask for the ALJ's assistance in obtaining the records (by, for example, asking for a subpoena). (T at 58).

Counsel surely has an independent obligation to vigorously represent his or her client and to obtain and provide relevant documents, particularly when counsel has expressly agreed to do so and has obtained an extension of time based upon that representation.

Moreover, the Second Circuit (in an unpublished opinion) and at least two district courts have indicated that the ALJ may, under certain circumstances, satisfy the duty to develop the record by relying on claimant's counsel to obtain additional medical documentation. See Rivera v. Commissioner of Social Sec., 728 F.Supp.2d 297, 330 (S.D.N.Y.2010) ("Courts do not necessarily require ALJs to develop the record by obtaining additional evidence themselves, but often permit them to seek it through the claimant or his counsel... Accordingly, the ALJ's request that plaintiff's attorney obtain the recent treatment records from Lincoln Hospital fulfilled his obligations with regard to developing the record.") (citations omitted); Pagan v. Astrue, No. 11-CV-825, 2012 WL 2206886, at *8 (N.D.N.Y. June 14, 2012) (holding that ALJ satisfied duty to develop record by granting counsel additional time to obtain evidence and providing opportunity to request a further extension); see also Jordan v. Commissioner of Social Security, 42 Fed.Appx. 542, 543, 2005 WL 2176008, at *1 (2d Cir. Sep't 8, 2005) (unpublished).

However, this Court is mindful that district courts in the Second Circuit have reached conflicting conclusions on this issue and the Court of Appeals has certainly shown a willingness to interpret broadly the ALJ's duty to develop the record, even in cases where the claimant is represented by counsel. See Vincent v. Comm'r of Social Security, 651 F.3d 299, 305 (2d Cir.2011) ("The duty of the ALJ, unlike that of a judge at trial, is to investigate and develop the facts and develop the arguments both for and against the granting of benefits.'") (citations omitted); see also Newsome v. Astrue, 817 F.Supp.2d 111, 137 (E.D.N.Y.2011) ("The fact that the ALJ requested additional information from the Plaintiff's attorney and did not receive that information does not relieve the ALJ of his duty to fully develop the record."); Ayer v. Astrue, No. 11-CV-83, 2012 WL 381784, at *6 (D.Vt. Feb. 6, 2012) ("The fact that the ALJ requested additional medical records from [claimant's] attorney at the administrative hearing does not relieve him of his duty to fully develop the record.").

*8 Here, given the authority outlined above, this Court is compelled to conclude that the ALJ's reliance on claimant's counsel to obtain the treating physician's records was inadequate.[10] The ALJ's assessment of Plaintiff's residual functional capacity was based on his discernment of a "stable and upward trend" in Plaintiff's symptoms. Dr. Zollo's September 2010 opinion contradicted the ALJ's "trend" hypothesis. The ALJ's decision to discount Dr. Zollo's opinion, which was based in large part upon the lack of supporting treatment notes from the spring/summer of 2010, was thus fundamental to his residual functional capacity assessment. Thus, if the ALJ is understood to have an "independent" and "affirmative" duty to develop the record, that duty must include seeking out additional documentation before discounting the treating physician's opinion, even where counsel has previously promised (but failed) to provide the documents.

Fifth, the ALJ did not adequately account for the fact that the September 2010 opinion was co-signed by Dr. Zollo and Ms. Levering, a treating social worker. The fact that the assessment was adopted by both of these key treating providers was significant and not sufficiently considered by the ALJ. Although a social worker's opinion is not considered a "medical opinion, "[11] it is nevertheless "important and should be evaluated on key issues such as impairment severity and functional effects." SSR 06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006); see also White v. Comm'r, 302 F.Supp.2d 170, 174-76 (W.D.N.Y.2004) (reversing where the ALJ failed to give appropriate weight to social worker, who had a regular treatment relationship and whose diagnosis was consistent with the treating psychiatrist); Pogozelski v. Barnhart, No. 03-CV-2914, 2004 WL 1146059, at *12 (E.D.N.Y. May 19, 2004) (finding that "some weight should still have been accorded to [the therapist's] opinion based on his familiarity and treating relationship with the claimant"); Allen v. Astrue, 05-CV-0101, 2008 WL 660510, at *9 (N.D.N.Y. Mar. 10, 2008) (remanding because ALJ did not evaluate the treating therapist's opinion); Bergman v. Sullivan, No. 88-CV-513, 1989 WL 280264, *3 (W.D.N.Y. Aug. 7, 1989) (holding that treating social worker is "a non-medical source whose opinion concerning the nature and degree of plaintiff's impairment is not only helpful, but critically important, since he is the only treating source").

Accordingly for the foregoing reasons, this Court finds that a remand is necessary for further development of the record and reconsideration of Dr. Zollo's opinion.

b. Credibility

Courts in the Second Circuit have determined a claimant's subjective complaints are an important element in disability claims, and they must be thoroughly considered. See Ber v. Celebrezze, 332 F.2d 293, 298, 300 (2d Cir.1964). Further, if a claimant's testimony of pain and limitations is rejected or discounted, the ALJ must be explicit in the reasons for rejecting the testimony. See Brandon v. Bowen, 666 F.Supp. 604, 609 (S.D.N.Y.1997).

*9 However, subjective symptomatology by itself cannot be the basis for a finding of disability. A claimant must present medical evidence or findings that the existence of an underlying condition could reasonably be expected to produce the symptomatology alleged. See 42 U.S.C. §§ 423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. §§ 404.1529(b), 416.929; SSR 96-7p; Gernavage v. Shalala, 882 F.Supp. 1413, 1419 (S.D.N.Y.1995).

"An administrative law judge may properly reject claims of severe, disabling pain after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, but must set forth his or her reasons with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence." Lewis v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y.1999) (internal citations omitted).

To this end, the ALJ must follow a two-step process to evaluate the plaintiff's contention of pain, set forth in SSR 96-7p:

First, the adjudicator must consider whether there is an underlying medically determinable physical or medical impairment (s)... that could reasonably be expected to produce the individual's pain or other symptoms....
Second, ... the adjudicator must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities....

According to 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii) and 416.929(c)(3)(i)-(vii), if the plaintiff's pain contentions are not supported by objective medical evidence, the ALJ must consider the following factors in order to make a determination regarding the plaintiff's credibility:

1. [Plaintiff's] daily activities;
2. The location, duration, frequency and intensity of [Plaintiff's] pain or other symptoms;
3. Precipitating and aggravating factors;
4. The type, dosage, effectiveness, and side effects of any medication [Plaintiff] take[s] or ha[s] taken to alleviate... pain or other symptoms;
5. Treatment, other than medication [Plaintiff] receive[s] or ha[s] received for relief of... pain or other symptoms;
6. Any measure [Plaintiff] use[s] or ha[s] used to relieve... pain or other symptoms;
7. Other factors concerning [Plaintiff's] functional limitations and restrictions due to pain or other symptoms.

If the ALJ finds that the plaintiff's pain contentions are not credible, he or she must state his reasons "explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief." Young v. Astrue, No. 7:05-CV-1027, 2008 WL 4518992, at *11 (N.D.N.Y. Sept. 30, 2008) (quoting Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y.1987)).

In this case, Plaintiff testified as follows:

She graduated from high school in 2010 and attended one semester of community college. (T at 23). Her financial aid was cancelled after she failed one of her classes. (T at 23-24). She received special education services in high school. (T at 25). Her ADHD is treated with prescription medication, which initially caused headaches and vomiting. (T at 26-27). She has anger management problems. (T at 29). She would be able to remember and complete a list of five simple tasks. (T at 30). She is able to attend to her personal needs. (T at 31). Reading, playing the piano, cooking, watching television, and singing are hobbies. (T at 31). She cares for a pet fish. (T at 32). In her written application for benefits, Plaintiff reported that she was unable to stay focused, experienced fatigue, and had trouble with interpersonal relationships. (T at 186).

*10 The ALJ concluded that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that her statements concerning the intensity, persistence, and limiting effects of the symptoms were not credible to the extent they were inconsistent with his residual functional capacity assessment. (T at 63).

The ALJ relied on his discernment of an improvement "trend" in Plaintiff's condition as a reason for discounting Plaintiff's testimony. (T at 63). This "trend" analysis was flawed for the reasons outline above. In particular, it was contradicted by the September 2010 opinion adopted by Dr. Zollo and Ms. Levering, which the ALJ did not adequately address. In addition, the ALJ cited the fact that Plaintiff attended community college as evidence of her ability to perform basic work activities. (T at 64). The ALJ indicated that Plaintiff stopped attending college because of "her financial situation rather than an inability to handle its demands." (T at 64). However, Plaintiff testified that she lost her financial aid after failing one of three courses she took during her single semester. (T at 23-24). The ALJ also cited Plaintiff's ability to perform basic activities (such as feeding her fish) as evidence of an ability to perform basic work-activities. (T at 64). However, it is well-settled that "[s]uch activities do not by themselves contradict allegations of disability, ' as people should not be penalized for enduring the pain of their disability in order to care for themselves." Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y.2000); see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.1998) ("We have stated on numerous occasions that a claimant need not be an invalid to be found disabled' under the Social Security Act.").

Accordingly, the question of Plaintiff's credibility should be revisited on remand after further development of the record.

c. Step Five Analysis

At step 5 in the sequential evaluation, the ALJ was required to perform a two part process to first assess Plaintiff's job qualifications by considering his physical ability, age, education, and work experience, and then determine whether jobs exist in the national economy that Plaintiff could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983). The second part of this process is generally satisfied by referring to the applicable rule of the Medical-Vocational Guidelines set forth at 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly called "the Grids" or the "Grid"). See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986).

The function of the Grids was succinctly summarized by the court in Zorilla v. Chater, 915 F.Supp. 662, 667 (S.D.N.Y.1996) as follows:

In meeting [his] burden of proof on the fifth step of the sequential evaluation process described above, the Commissioner, under appropriate circumstances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as "the Grid." The Grid takes into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability.

*11 Id.

"The Grid classifies work into five categories based on the exertional requirements of the different jobs. Specifically, it divides work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling." Id. at 667 n. 2; see 20 C.F.R. § 404.1567(a). Upon consideration of the claimant's residual functional capacity, age, education, and prior work experience, the Grid yields a decision of "disabled" or "not disabled." 20 C.F.R. § 404.1569, § 404 Subpt. P, App. 2, 200.00(a).

If a claimant's work capacity is significantly diminished by non-exertional impairments beyond that caused by his or her exertional impairment(s), then the use of the Grids may be an inappropriate method of determining a claimant's residual functional capacity and the ALJ may be required to consult a vocational expert. See Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996); Bapp v. Bowen, 802 F.2d 601, 604-605 (2d Cir.1986).

In the present case, the ALJ concluded that Plaintiff's work capacity had been compromised by nonexertional limitations. (T at 65). As such, the ALJ elicited the testimony of a vocational expert by presenting hypothetical questions incorporating functional limitations. The ALJ then relied on the vocational expert's responses in finding, at step five, that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform. (T at 65-66).

Plaintiff challenges the validity of the hypotheticals presented to the vocational expert. The question of whether a hypothetical given to a vocational expert is appropriate depends on whether the hypothetical fully encompasses the claimant's limitations. Magee v. Astrue, No. 5:05-CV-413, 2008 WL 4186336, at *20 (N.D.N.Y. Sept. 9, 2008) (citing Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 799 (6th Cir.1987)). "If the factors set forth in the hypothetical are supported by substantial evidence, then the vocational expert's testimony may be relied upon by the ALJ in support of a finding of no disability." Id.

"[T]he ALJ must present a hypothetical that incorporates all of a claimant's impairments." Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 1794741, *11 (N.D.N.Y. June 23, 2009) (citation omitted). If the ALJ poses "hypothetical questions [that] do not include all of a claimant's impairments, limitations and restrictions, or [are] otherwise inadequate, a vocational expert's response cannot constitute substantial evidence to support a conclusion of no disability.'" Id. (quotation omitted).

The hypothethicals presented to the vocational expert here assumed that Plaintiff could meet competitive standards with regard to completing a normal workday and workweek without interruptions from psychologically based symptoms. (T at 48-49). This assumption is contradicted by the assessment co-signed by the treating physician and a treating social worker. (T at 303). For the reasons outlined above, the ALJ did not properly consider or develop the record with regard to that assessment. As such, the step five analysis will necessarily need to be revisited once that assessment is reconsidered after further development of the record.

3. Remand

*12 "Sentence four of Section 405(g) provides district courts with the authority to affirm, reverse, or modify a decision of the Commissioner with or without remanding the case for a rehearing.'" Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir.2002) (quoting 42 U.S.C. § 405(g)). Remand is "appropriate where, due to inconsistencies in the medical evidence and/or significant gaps in the record, further findings would... plainly help to assure the proper disposition of [a] claim." Kirkland v. Astrue, No. 06 CV 4861, 2008 WL 267429, at *8 (E.D.N.Y. Jan. 29, 2008). Given the deficiencies in the record as outlined above, it is recommended that the case be remanded for further proceedings consistent with this Report and Recommendation.

IV. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the Commissioner's motion be denied, Plaintiff's motion be granted, the decision of the Commissioner be reversed, and this case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Report and Recommendation.

V. ORDERS

Pursuant to 28 USC § 636(b)(1), it is hereby ordered that this Report & Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report & Recommendation to all parties.

ANY OBJECTIONS to this Report & Recommendation must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report & Recommendation in accordance with 28 U.S.C. § 636(b) (1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as NDNY Local Rule 72.1(c).

FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir.1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988); see also 28 U.S.C. § 636(b) (1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c).

Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988).

SO ORDERED.

Howard D. Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff.

Sandra M. Grossfeld, Social Security Administration, Office of Regional General Counsel, New York, NY, for Defendant.

Opinion

DECISION and ORDER

THOMAS J. McAVOY, Senior District Judge.

*1 Plaintiff Charlene Graves brought this suit under § 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for disability and supplemental security benefits.

I. FACTS

a. Procedural History

On July 17, 2008, the Plaintiff filed applications for disability insurance benefits and supplemental security income. (T. 149-59, 164, 169.) On August 13, 2010, Administrative Law Judge ("ALJ") Robert E. Gale denied the application by finding that: (1) Plaintiff had not engaged in substantial gainful activity since November 1, 2006, the alleged onset date (T. 31); (2) Plaintiff's fibromyalgia, mixed connective tissue disease ("MCTD"), and adjustment disorder with depressed mood constituted severe impairments (T. 32); (3) Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, 20 C.F.R. § 416.925 and § 416.926 (T. 35); (4) Plaintiff had the Residual Functional Capacity ("RFC") to lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, and walk for six to eight hours in a workday; occasionally perform postural activities (T. 35); and mentally could perform the basic demands of competitive, remunerative, unskilled work such as understanding, carrying out, and remembering simple instructions, responding appropriately to supervision, coworkers and usual work situations, and dealing with changes in a routine work setting (T. 35); and (5) based on Plaintiff's age, education, work experience and RFC, there were jobs that exist in significant numbers in the national economy that the Plaintiff can perform (T. 35).

On November 28, 2011, the Administration's Appeal Council denied review of the ALJ decision. (T.1.) Plaintiff commenced the present action for a review of the Commissioner's decision.

b. Medical Background

The Court primarily adopts Plaintiff's medical history as set forth in her objections to the findings of the ALJ. (Pl.Mem.2-13.) Plaintiff's alleged disability onset date is November 1, 2006, when she was 46 years of age. (T. 153, 164.) Plaintiff had obtained her General Education Diploma, and reported past work as a bus aide, cashier, home health aide, machine operator, and in the fast food industry. (T. 174, 176.) Plaintiff's date last insured was September 30, 2011. (T. 164.)

On September 1, 2006, Plaintiff reported to the hospital for abdominal pain that had progressively become more severe. (T. 261.) She was treated with levofloxacin and metronidazole intravenously, as well as morphine as needed, and was diagnosed with acute diverticulitis and right renal cysts. (T. 261). Plaintiff was discharged in good condition on September 5, 2006 and was prescribed with Metronidazole, Levofloxacin, Hydrochlorothiazide, Diltiazem CD, and Clopidogrel. (T. 261-62.)

*2 On November 16, 2006, Plaintiff treated with Alfredo Perez, M.D., for follow-up treatment. (T. 402.) Dr. Perez diagnosed Plaintiff as suffering, inter alia, from stage 3 chronic kidney disease and class 2 obesity. (T. 402.) On January 1, 2007, Plaintiff treated again with Dr. Perez for follow-up treatment. (T. 401.) Dr. Perez diagnosed Plaintiff as suffering from stage 2 chronic kidney disease, anemia, and MCTD based on a positive ANA test. (T. 401.) He also referred Plaintiff to a rheumatologist. (T. 401.)

On April 4, 2007, Plaintiff saw Hom P. Neupane, M.D., for muscular pain, a positive ANA test, and evaluation for autoimmune disease. (T. 355.) Plaintiff gave a "history of aches and pains for 5 years" and complained of "numbness and tingling in her hand." (T. 355.) Plaintiff further explained that "she cannot pick up heavy objects" and "she uses orthopedic shoes to walk." (T. 355.) She also reported that "she wakes up frequently at night" because of the pain. (T. 355.) On examination, Dr. Neupane found that Plaintiff "has cold extremities suggestive of Raynaud's." (T 355.) Dr. Neupane further found that Plaintiff "does have tender fibromyalgia points." (T. 356.) He diagnosed Plaintiff as suffering from, inter alia, mild impairment of the kidneys and clinical fibromyalgia. (T. 356.) Dr. Neupane further found that "the association of connective tissue disease cannot be ruled out." (T. 356.) He prescribed Nortriptyline. (T. 357.)

On April 5, 2007, x-rays of Plaintiffs hands revealed "evidence of very early degenerative joint disease in the interphalangeal joints of all the digits... a slight deformity of the base of the metacarpal of the left little finger, " and a "boutonniere deformity of the left index finger." (T. 320.) It was noted that "[t]he degree of change is not uncommon in patients of this age, " (T. 320) in regards to the degenerative joint disease. (T. 320).

On April 6, 2007, Plaintiff again saw Dr. Perez for followup treatment. (T. 399.) On examination, Dr. Perez found that Plaintiff had gained 6 pounds. (T. 399.) He diagnosed her as suffering from MCTD and stage 2 chronic kidney disease. (T. 399.) He prescribed Nortriptyline and Lovastatin. (T. 399.)

On April 12, 2007, Plaintiff reported to the emergency department for abdominal pain that radiated down her leg, and was seen by Davis W. Clark Jr., D.O. (T. 268). Plaintiff was treated for diverticulitis. Plaintiff was discharged home with prescriptions for Lortab, Cipro, and metronidazole. (T. 270.)

On April 13, 2007, a CT scan of Plaintiff's abdomen revealed minimal bibasilar atelectasis, a small hernia, a renal cyst in the right lower pole, and "low density lesions too small to characterize." (T 318.) A CT scan of the pelvis showed "[d]iverticulosis with mild pericolonic soft tissue stranding in the region of the proximal sigmoid colon consistent with diverticulitis" and a "[s]mall amount of fluid in the pelvis." (T. 318.)

*3 On May 4, 2007, Plaintiff had a follow up appointment with Dr. Neupane for pain and a positive ANA test. (T. 353.) Plaintiff complained that she continues to have spasms and pain in her thighs and feet. (T. 353.) On examination, Dr. Neupane found that Plaintiff "does have tender fibromyalgia points." (T. 354.) He also found "mild soft tissue swelling in [Plaintiff's] MCP ["metacarpophalangeal"] and PIP ["proximal interphalangeal"] joints." (T. 354.) Dr. Neupane further found that Plaintiff "has a lot crepitus in her knees." (T. 354.) Xrays of Plaintiffs wrists revealed the following: "deformity of the base of the metacarpal, left little finger suggestive of old healed fracture, " and "[r]esolved small ossification center distal to the left ulnar in a triangle." (T. 354.) Dr. Neupane assessed, inter alia, positive ANA, active fibromyalgia, and Raynaud's disease. (T. 354.) He prescribed Plaquenil and Flexeril. (T 354.)

On July 3, 2007, Plaintiff met with Dr. Perez for follow-up treatment. (T. 398.) Dr. Perez diagnosed Plaintiff as suffering, inter alia, from stage 2 chronic kidney disease and MTCD. He ordered "renal function re-evaluation, spot albumin, and creatinine and urinary sediment evaluation." (T. 398.)

On July 6, 2007, Plaintiff attended a follow-up visit with Dr. Neupane (T. 351.) Plaintiff complained of swelling in the ankles and pain in the neck, thighs, and feet. (T. 351.) On examination, Dr. Neupane found that Plaintiff "has tender fibromyalgia points" and "mild swelling in her ankles." (T. 352.) Dr. Neupane prescribed Plaquenil, Hydrocodone, and Nortriptyline among other medications. (T. 352.)

On August 10, 2007, Plaintiff met with Dr. Neupane. (T. 379.) Plaintiff complained of fatigue. (T. 379.) On examination, Dr. Neupane found that Plaintiff "has tender fibromyalgia points" and "cold hands." (T. 380.) Dr. Neupane opined that Plaintiff's fatigue "could be related to her medications." (T 380.) However, Plaintiff's pain had improved significantly. (T. 380.) He discontinued Flexeril and continued Plaintiff's dosage of Nortriptyline and Hydrocodone. (T 380.)

On September 30, 2008, Plaintiff saw Dr. Kristin Barry for a psychiatric evaluation. Dr. Barry found that Plaintiffs gait, posture, and motor behavior were normal. (T. 275). Her thought processes were "coherent and goal directed...." (T. 275.) Her attention and concentration were "somewhat impaired", "and her cognitive functioning was estimated to be "in the borderline to low average range, " with poor insight and judgment." (T. 275). Dr. Barry went on to find that Plaintiff "appears able to follow and understand simple directions and instructions. She is able to maintain her attention and concentration... and has poor judgment." (T. 276) Dr. Barry also noted that Plaintiff "did appear at times to be malingering on testing." (T. 276). She diagnosed Plaintiff as suffering from, inter alia, adjustment disorder with depressed mood, history of stroke, knee and leg problems, and fibromyalgia. (T. 276.) She recommended that Plaintiff receive "medical follow-up and individual counseling." (T. 277.) Dr. Barry noted that Plaintiff's "allegations are partially consistent with the examination results." (T. 276).

*4 Dr. Barry also conducted an organicity evaluation. Dr. Barry stated that "the results of the evaluation should be interpreted with caution... claimant's attitude toward the evaluation appeared somewhat resistant and apathetic. She did not appear to be putting forth a lot of effort... She was able to recall and understand the instructions, but her style of responding was seen as very careless at times. The claimant's attention and concentration were good. She did not evidence any severe emotional distress. However, she at times appeared to be doing poorly because of her lack of effort." (T. 283). Plaintiff was found to have a Wh grade reading level equivalent, (T. 283) and is "functioning in the deficient range of intelligence." (T. 284). However, Dr. Barry again noted that the "claimant's general cognitive functioning... should be interpreted with caution... it is more likely that the claimant is functioning at a higher level. She did not appear to be putting forth a lot of effort." (T. 284). Dr. Barry repeated that Plaintiff did not put forth much effort in the examination and then stated that her "short term auditory memory was average. Her sequential reasoning ability is below average." (T. 284.) Dr. Barry also noted that Plaintiff's "numerical reasoning abilities and practical judgment mediated by experience were significantly below average. Her visual constructual skills and visualmotor efficiency were significantly below average." (T. 284-85.) Dr. Barry then administered the Bender Visual-Motor Gestalt Test, again stating the results should be interpreted with caution as Plaintiff "rushed through the tasks, [and] worked in a very sloppy fashion. [Plaintiff] did not appear to be putting forth any effort and therefore did evidence significant distortions of simplification and closure, but it does not appear as if there is a severe degree of weakness within the perceptual motor integrative field. At this time, her reading, math, and written language abilities all appear fair." (T. 285). Dr. Barry's medical source statement was that "claimant at this time appears able to follow and understand simple directions and instructions. She is able to maintain her attention and concentration." (T. 285.) Dr. Barry's diagnosis was identical to those found in her first evaluation. (T. 286.)

Plaintiff was also examined on September 30, 2008 by Dr. Ganesh for an internal medicine examination. (T. 278.) Dr. Ganesh found that Plaintiff cannot walk on her heels or toes or squat, but she "[u]sed no assistive devices. Needed no help changing for exam or getting on and off exam table. Able to rise from chair without difficulty." (T. 279.) For the musculoskeletal portion of the exam, Dr. Ganesh found that Plaintiff's "[cervical spine shows full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally... [l]umbar spine shows full flexion... and full rotary movement bilaterally. SLR negative bilaterally. Full ROM of hips, knees, and ankles bilaterally. Strength 5/5 in upper and lower extremities... Joins stable and nontender. Tenderness is two to lateral epicondyle. Control points is two to mid-forearm." (T. 280.) For the fine motor activity of hands, Dr. Barry noted that Plaintiff's "hand and finger dexterity intact. Grip strength 5/5 bilaterally." (T. 280.) Dr. Ganesh's medical source statement was that Plaintiff had "no gross physical limitation noted to sitting, standing, walking, ro the use of upper extremities." (T. 280.)

*5 On October 28, 2008, State Agency Analyst, S. Marino completed a physical RFC assessment. (T. 301-06.) Marino found that Plaintiff could occasionally lift and/or carry 20 pounds, frequently lift/and or carry 10 pounds, stand and/or walk with normal breaks for about 6 hours in an 8 hour workday, sit with normal breaks for about 6 hours in an 8 hour work day, and push and/or pull unlimited, other then as shown for lift and/or carry evaluations. (T. 302.) The assessment stated that Plaintiff may frequently have limitations in balancing, stooping, kneeling, crouching, or crawling, and may occasionally have limitations claiming stairs or ladders. (T. 303.)

The same day, medical consultant R. Nobel completed a mental RFC assessment. (T. 307-10.) Consultant Nobel opined that Plaintiff is moderately limited in the following areas: the ability to understand and remember detailed instructions, the ability to carry out detailed instructions, the ability to maintain attention and concentration for extended periods, the ability to accept instructions and respond appropriately to criticisms from supervisors, the ability to set realistic goals or make plans independently of others. (T. 307-08.) Otherwise, Plaintiff was found to be "not significantly limited" in all other portions of the assessment. (T. 307-308.)

On October 30, 2008, Plaintiff was treated at the emergency room for right-sided body numbness. (T. 324-25.) Plaintiff reported that she stopped taking her medications three weeks prior to the emergency room visit because she had no medical insurance and prescription coverage. (T. 324.) She explained that "[after stopping the medications, she had been having intermittent headaches as well as intermittent difficulties with functioning levels, fatigue and balance." (T. 324.) She also complained of having weakness and numbness in the right cheek. (T. 324.) On examination, the emergency room doctors found that "[t]here was grade 1 clubbing in [her] fingers." (T 325.) They also found that she had some difficulty with tandem walking. (T. 325.) They further found "[objectively decreased vibration sensation up to the knees bilaterally." (T. 325.) A CT scan of Plaintiff's head revealed left frontal and left parietal encepalomalacia with cortical atrophy. (T. 325.) On October 30, 2008, a CT of Plaintiff's head revealed diffuse thickening of the skull. (T. 317.) The final impression made at the October 30, 2008 emergency room visit by Dr. Hassan was "symptoms of right-sided numbness lasting for about 3 days, however, with no objective clinical findings and no neurological evidence of that deficit. The patient's symptoms are less likely secondary to avascular event, however, it if is still needed, an MRI and MRA of the head would be recommended." (T. 325.)

On December 10, 2008, Plaintiff was treated at University Health Care Center for a followup visit. (T. 343-45.) On examination the doctors found that Plaintiff "is teary eyed and has a flat affect." (T. 343.) "[U]pon further questioning, [they found that Plaintiff] appears to have been having a very depressed mood over the past four to five months." (T. 343.) Plaintiff stated that "she has difficulty sleeping many hours" as she "goes to bed around 9:00 p.m., does not fall asleep until 2:00 a.m., [and] has loss of concentration and decrease in energy." (T. 343.) Plaintiff reported that she has "multiple stressors, including not being able to get Medicaid." (T. 343.) The doctors found that Plaintiff, "at this time definitely seems to have symptoms of depression." (T. 334.) They also found that her "SIGECAPS" [ (Sleep, Interest, Guilt, Energy, Concentration, Appetite, Psychomotor, Suicidal) ] have been positive with anhedonia." (T. 334.) They prescribed Citalopram and placed her on the depression pathway program. (T 334.)

*6 On March 19, 2009, Plaintiff saw Dr. Glidden for a follow-up for hypertension, GERD, and depression. (T. 338-42.) Plaintiff complained that "she continues to have difficulty sleeping" and "she does not enjoy activities as much as she used to." (T. 338.) Plaintiff also reported that "she has a poor appetite, a lot of aches and pain, and has had decrease in concentration and energy." (T. 338.) The doctors at University Health Care Center prescribed Citalopram among other medications. (T. 340.)

On April 8, 2009, Plaintiff saw Dr. Rodriguez at the emergency room, complaining of left leg pain and numbness. (T. 328.) Dr. Rodriguez stated that the leg pain was "consistent with sciatica, " and prescribed ibuprofen and a muscle relaxer. (T. 329.)

On May 27, 2009, Plaintiff had a follow-up visit with Dr. Loftus. (T. 333) Plaintiff stated that she did not believe Cymbalta was working for her depression, and requested a medication that would treat both depression and fibromyalgia. (T. 335.) Plaintiff's blood pressure seemed to be under control, and Plaintiff believed her gastroesophageal reflux disease symptoms seemed to be relatively under control. (T. 335.) Plaintiff was directed to follow up in three months with rheumatology. (T. 335.)

On July 24, 2009, Dr. Neupane completed a fibromyalgia residual functional capacity questionnaire. (T. 360). Dr. Neupane noted that Plaintiff was last seen on July 6.2009, and that he had started treating Plaintiff in April 2007, but had not treated her in two years. (T. 360.) Dr. Neupane opined that Plaintiff's fibromyalgia lasted or can be expected to last at least twelve months. (T. 360.) He also found that Plaintiff's impairments are supported by clinical findings, including a positive ANA test and mildly elevated ESR and creatinine levels. (T. 360.) He opined that Plaintiff's symptoms include multiple tender points, nonrestorative sleep, chronic fatigue, morning stiffness, muscle weakness, subjective swelling, and Raynaud's phenomenon. (T. 360.) He further opined that emotional factors contribute to the severity of Plaintiff's symptoms and functional limitations, and that she is only capable of low stress jobs. (T. 361.) Dr. Neupane opined that Plaintiff could sit for 30 minutes at a time, stand for 15 minutes at a time, sit for less than 2 hours in an 8 hour work day, stand/walk for less than 2 hours in an 8 hour work day, and is in need of a job which permits shifting positions from sitting, standing, or walking. (T. 362.) Plaintiff does not need an assistive device while standing/walking. (T. 362). Dr. Neupane further opined that Plaintiff can occasionally lift less than 10 pounds, rarely lift 10 pounds, rarely twist, crouch, climb ladders, and occasionally stoop or climb stairs. (T. 363.) Dr. Neupane opined that Plaintiff could use her hands, fingers, and arms 50% of an 8 hour work day to perform repetitive activities. (T. 363). Dr. Neupane opined that these symptoms would produce both "good" and "bad" days, with Plaintiff having to miss work more than four days per month. (T. 363).

*7 Dr. Neupane followed-up with Plaintiff on October 26, 2009. Plaintiff reported taking her medications, and that her pain rating was 5/10. Dr. Neupane noted that Plaintiff's pain rating was 8/10 at her last visit. (T. 382.) Dr. Neupane opined that Plaintiff has good grip, pinch, and fist. (T. 384.) Plaintiff had tender muscular fibromyalgia tender points and pasaspinal muscular tenderness. (T. 384.) Dr. Neupane prescribed Plaquenil among other medications, discussed dietary issues, good sleep hygiene, and recommended low impact aerobic exercise. (T. 384.)

On January 26, 2010, Plaintiff was discharged from Upstate University Hospital after being treated for a deep vein thrombosis ("DVT") of the left upper extremity. (T 365-68.)

On February 17, 2010, Plaintiff followed-up with Dr. Neupane. Plaintiff complained of "pain in her both knees without significant swelling." (T. 435.) Plaintiff reported a pain rating of 5/10. (T. 435). During a physical examination, Dr. Neupane noted some leg swelling, tender fibromyalgia points 18/18, degenerative arthritic changed in her knees and hands, fair grip, pinch, and fist, fair range of motion in her shoulders, and good c-spine range of motion. (T. 436). Dr. Neupane increased Plaintiff's Lyrica prescription, and gave Plaintiff an exercise sheet, again encouraging muscle strengthening exercises. (T. 436.)

On March 30, 2010, a CT of Plaintiff's abdomen and pelvis revealed the following: "mild bibasilar atelectasis, left greater than right, " "pericardial effusion/thickening, " "irregular contour of both kidneys, " "a right renal legion within the interpolar region of the right kidney... concerning for neoplasm such as renal cell carcinoma, " "a 1.6 cm left adrenal gland nodule... [that] is most consistent with an adenoma." (T. 394-95.)

Plaintiff followed-up with Dr. Neupane on April 5, 2010 for an "urgent visit." (T. 432.) Dr. Neupane noted that Plaintiff had been in the Emergency room in the past month for increased pain in her abdomen, and was found to have a renal mass. (T. 432.) Dr. Neupane noted diffuse tender fibromyalgia points, 18/18. (T. 433.) He also noted decreased range of motion in Plaintiff's shoulders and C-spine movement because of pain, as well as tenderness in her lowerback and knee pain. (T. 433). Dr. Neupane diagnosed Plaintiff with "significantly symptomatic fibromyalgia." (T. 434.) He also opined that Plaintiff "seems very much stressed because of the pain as well as the finding on [the] CT scan which probably caused the flare up of her fibromyalgia." (T 434.) He increased Plaintiff's dosage of Lyrica. (T 434.)

Plaintiff attended a follow-up appointment with Ann Sweet, N.P.-C. (T. 457-58). On April 9, 2010, Plaintiff treated with Ann M. Sweet, N.P.-C., for depression. (T. 457-58.) Plaintiff complained that "she is tired very often" and "has been more depressed since her admission to the hospital in January for a blood clot." (T. 457.) On examination, Nurse Sweet found that Plaintiff "has some persistent anhedonia" and "persistent anxiety due to her medical issues." (T. 458.) Nurse Practitioner Sweet diagnosed Plaintiff as suffering from depressive disorder. (T. 458.) She prescribed Celexa. (T. 458.)

*8 On May 11, 2010, Plaintiff treated with Nurse Practitioner Sweet for depression. (T. 453-54.) On examination, Nurse Sweet found Plaintiff's mood "mildly to moderately depressed" and her affect "appropriate but sad at times." (T. 453.) She also found "increased anhedonia and decreased energy." (T. 454.) She diagnosed Plaintiff as suffering from depressive disorder. (T. 454.) She continued Plaintiff's Celexa prescription. (T. 454.)

Plaintiff met with Nurse Practitioner Sweet on June 11, 2010. Plaintiff reported that her mood has been better, and that she was feeling better presently. (T. 451). Plaintiff reported no side effects from the Celexa prescription. (T. 451). Plaintiff also reported to recuperating from her surgery and was feeling "a little bit stronger." (T. 451). Nurse Practitioner Sweet opined that Plaintiff's "thought are logical and goal directed. Patient is less depressed and affect is brighter." (T. 452.) Plaintiff continued with "some anhedonia, some decreased energy, [and] concentration and been fair." (T. 452). The Celexa medication was continued. (T. 452.)

On July 7, 2010, Plaintiff met with Dr. Neupane for a followup visit. Plaintiff stated she did not feel good and was under a lot of stress. (T. 430.) Plaintiff also complained that she has more pain in her knees and ankles, and that she has "morning stiffness that may sometimes last for the whole day." (T. 430.) On examination, Dr. Neupane found that Plaintiff "has diffuse tender fibromyalgia points 18/18, " "minimal synovitis in her MCP and PIP joints, " and "a lot of paraspinal muscular tenderness." (T. 431.) Dr. Neupane prescribed Lyrica among other medications. (T. 432.)

On August 11, 2010, Plaintiff followed-up with Nurse Practitioner Sweet, complaining of feeling tired and having been not doing well as far as her depression. (T. 445-46.) Nurse Practitioner Sweet noted "increase depressive symptoms." (T. 445). Nurse Practitioner sweet increased the citalopram prescription, and also gave contact information for a behavioral therapy group for depression. (T. 446).

On September 3, 2010, Plaintiff treated with Nurse Practitioner Sweet for depression. (T. 441.) Plaintiff complained that "she continues to have some problems with pain, and it is limiting her ability to enjoy her family or get out and do anything with her family." (T. 441.) On examination, Nurse Practitioner Sweet found that Plaintiff's "[m]ood is depressed" and her "[a]ffect is sad." (T. 442.) She further found that Plaintiff continues to have problems with energy, "which is primarily due to her physical condition." (T. 442.) She diagnosed Plaintiff as suffering from fatigue, depression, and anxiety. (T. 442.)

On October 5, 2010, a CT of Plaintiff's abdomen and pelvis revealed the following: unchanged small hiatal hernia, emphysematous changes in both lower lobes, artherosclerotic disease and aortaand iliac arteries, probable lipoma involving the left latissimus dorsi muscle, left adrenal adenoma, interval resolution of the fluid anterior and lateral to the right kidney, lesions in the kidney that "are not definitely simple cysts and therefore follow-up examination is needed." (T. 414.)

*9 Plaintiff met with Dr. Neupane on October 6, 2010 for a follow-up visit. Plaintiff complained of muscle pain in the arms, neck, and knees. (T 428.) Plaintiff reported that her dosage of Flexeril was increased to 20 mg at bedtime to help her sleep. (T. 428.) However, "she has significant daytime somnolence and fatigue." (T 428.) On examination, Dr. Neupane found "minimal synovitis in [Plaintiff's] MCP and PCP joints, " "diffuse fibromyalgia tender points 18/18, " "a lot of paraspinal muscle tenderness, " and "left trochanter area... tenderness." (T. 429.) Dr. Neupane also noted fair grip, pinch, and fist, as well as fair range of motion in shoulders. (T. 429) Dr. Neupane decreased Plaintiff's dosage of Flexeril to 10 mg at bedtime. (T 429.)

On October 18, 2010, Plaintiff met with Dr. Buchan for a follow-up on depression. (T. 438). It was noted that Plaintiff "has been having problems with depression which have worsened over the past year because of her multiple problems and repeated admissions in the hospital." (T. 438.) On examination, the doctors found Plaintiff "tearful" with "no eye contact, " and a sad mood, but good concentration. (T. 439.) They recommended that Plaintiff continue taking her medications and follow-up with Nurse Sweet for her depression. (T. 440.)

II. STANDARD OF REVIEW

The court's review of the Commissioner's determination is limited to two inquiries. See 42 U.S.C. § 405(g). First, the court must determine whether the Commissioner applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998); Cruz v. Sullivan, 912 F.2d 8, 9 (2d Cir.1990); Shane v. Chater, 1997 WL 426203, at *4 (N.D.N.Y. July 16, 1997) (Pooler, J.) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987)). Second, the court reviews whether the Commissioner's findings are supported by substantial evidence within the administrative record. See Tejada, 167 F.3d at 773; Balsamo, 142 F.3d at 79; Cruz, 912 F.2d at 9; Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982). The Commissioner's finding will be deemed conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g); see also, Perez, 77 F.3d at 46; Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). In the context of Social Security cases, substantial evidence consists of "more than a mere scintilla'" and is measured by "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, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Although the reviewing court must give deference to the Commissioner's decision, the Act is ultimately "a remedial statute which must be liberally applied; its intent is inclusion rather than exclusion." Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir.1990) (quoting Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983)) (internal quotation marks omitted.)

*10 The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which 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). The administrative regulations established by the Commissioner require the ALJ to apply a five-step evaluation to determine whether an individual qualifies for disability insurance benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Williams v. Apfel, 204 F.3d 48, 48-49 (2d Cir.1999); Bush v. Shalala, 94 F.2d 40, 44-45 (2d Cir.1996).

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment which is listed in Appendix 1 of the regulations, [t]he [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 has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Barry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982).

III. DISCUSSION

Plaintiff alleges that the ALJ erred in denying her application for disability benefits in that a) the finding on Plaintiff's Residual Functional Capacity ("RFC") is unsupported by substantial evidence and is the product of legal error (Pl.Mem.15.); b) the ALJ failed to apply the appropriate legal standards in assessing Plaintiff's credibility (Pl.Mem.22.); and c) the step 5 determination completed by the ALJ is unsupported by substantial evidence and is the product of legal error. (Pl.Mem.24.) The Court will address each of these claims in turn.

a. The ALJ finding on Plaintiff's RFC

Plaintiff argues that the ALJ's finding of her RFC[1] is not supported by substantial evidence and is the product of legal error in that the ALJ 1) failed to properly apply the treating physician rule; 2) did not properly evaluate the opinions of Dr. Ganesh; and 3) improperly gave weight to Disability Analyst Marino.

1. The Treating Physician Rule

Plaintiff asserts that the ALJ erred in the RFC determination by failing to apply the treating physician rule. (Pl.Mem.15.) The treating physician rule provides that the opinion of a claimant's treating physicial will be given great weight, and that such an opinion may be disregarded if "the treating physician issued opinions that are not consistent with other substantial evidence on the record." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004). The treating physician rule is not absolute and the ALJ may weigh several factors in determining how much weight to accord to the treating physician's opinion. In determining whether to accord great weight to the treating physician's opinion under the treating physician rule, the ALJ must weigh six factors in assessing medical opinions: 1) the length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship 3) the supportability of medical findings in the record; 4) the consistency of an opinion with the record as a whole; 5) the physician's specialization with respect to the opinion; and 6) any other relevant factors. See, 20 C.F.R. 404.1527. Unless the ALJ gives a treating physician's opinion controlling weight under (d)(2) of this section, the ALJ will consider these six factors in deciding the weight given to any medical opinion. See, 404.1527(d).

*11 The Court finds that the ALJ acted well within his discretion by affording little weight to the opinion of Dr. Neupane. With respect to factor one, Dr. Neupane's July 24, 2009 restrictive finding[2] on Plaintiff's abilities were based on a single questionnaire, and until July 6, 2009, he had not treated Plaintiff for two years. (T. 360). Guided by the six factor test, the fact that Dr. Neupane's opinion was based on one questionnaire and that Dr. Neupane had not treated Plaintiff in two years supports the ALJ's finding that Dr. Neupan's opinion was not accorded controlling weight.

Additionally, the ALJ rightly accorded little weight to Dr. Neupane's opinion because evidence in the record contradicts his evaluation. (T. 52, 54.). In his July 2009 questionnaire Dr. Neupane indicated that Plaintiff's pain and/or symptoms would frequently interfere with her "attention and concentration needed to perform even simple work tasks." (T. 361.) However, at the end of September 2008, Dr. Barry stated that even though Plaintiff malingered on testing, she appears "able to follow and understand simple direction and instructions. She is able to maintain her attention and concentration. She was in regular education classes during her schooling. She did obtain a GED." (T. 285.) Again contrary to Dr. Neupane's findings, in September 2010 Nurse Practitioner Sweet stated that Plaintiff's "[t]houghts are logical and goal directed... patient appears to have good cognition. Insight and judgment are fair." (T. 442.) Most notably, in October 2008, Dr. Nobel found Plaintiff's "ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods" was "not significantly limited." (T. 308). Dr. Barry and Nurse Practitioner Sweet's opinions contradict Dr. Neupane's evaluation.

In addition to contradictory medical opinions, the fact that Plaintiff is a child care provider and engaged in a wide range of daily activities contradicts Dr. Neupane's assertion that Plaintiff is disabled. Dr. Neupane assessed that Plaintiff could sit for 20 minutes at a time, stand for 15 minutes at a time, sit for less than 2 hours in an 8 hour work day, and stand/walk for less than 2 hours in an 8 hour work day. (T. 362). Plaintiff could occasionally lift less than 10 pounds, rarely lift 19 pounds, rarely twist, crouch, climb ladders, and occasionally stoop or climb stares. (T. 363). On these findings, Dr. Neupane's opinion was that Plaintiff is in need of a job that permits shifting positions from sitting, standing, or walking and that accommodates her pain and/or symptoms. (T. 362). The ALJ, however, found in the record that Plaintiff worked as a child care provider for 2 years. (T. 36). This activity does not amount to substantially gainful activity, but the physical and mental demands of caring for children over a two year period contradict Dr. Neupane's findings that Plaintiff is not physically and mentally capable of working.

*12 Accordingly, the ALJ properly gave little weight to Dr. Neupane's opinion despite being the treating physician.

2. Dr. Ganesh's Opinion

Plaintiff argues that this case should be remanded for the proper weighing of Dr. Ganesh's opinion. (Pl.Mem.19-20.) The Court finds that the ALJ properly weighed Dr. Ganesh's opinion in his decision, making remand unnecessary.

Dr. Ganesh found that Plaintiff had no limitations on her abilities to sit, stand, walk, or use her upper extremities. (T. 280). Plaintiff argues that these findings are vague and the ALJ cannot rely on a consultative examiner's vague findings. (Pl.Mem.20). She cites Dickson v. Comm'r of Soc. Sec., No. 1:04-CV-1296 (NAM/RFT), 2008 U.S. Dist. LEXIS 14825 at *23, 2008 WL 553208 (N.D.N.Y Feb. 27, 2008) (Mordue, C.J.) (citing Curry v. Apfel, 209 F.3d 117, 123 (2d Cir.2000), to support this argument. The Court finds insufficient support for this argument. In Curry the court held that a consultative examiner's use of terms like "mild" or "moderate" used to describe a patient's physical condition are vague and the ALJ cannot rely on them to decide that the plaintiff is capable of working. Curry, 209 F.3d 117 at 123. Here, Dr. Ganesh made specific findings based on a physical examination of Plaintiff. (T. 278-281). Dr. Ganesh did not use broad terms such as "mild" or "moderate" when describing Plaintiff's condition. Instead Dr. Ganesh made unequivocal findings that Plaintiff had "no gross limitation" on her ability to sit, stand, walk, or use her upper extremities. (T. 280). Furthermore, Dr. Ganesh found that Plaintiff: is a childcare provider for three children, one being a seven-month-old (T. 278.); uses no assistive devices (T. 279.); shows full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally (T. 279.); has 5/5 strength in upper and lower extremities (T. 279); and has 5/5 grip strength bilaterally in her hands. (T. 280.) Accordingly, Dr. Ganesh's findings were not vague and the ALJ was not precluded from according more weight to these findings than the treating physician's evaluation.

Moreover, Dr. Ganesh's findings are consistent with the medical record as a whole, aside from the opinions of Dr. Neupane. In April 2007, Dr. Clark found Plaintiff's gross motor strength to be 5/5 in her upper and lower extremities. (T. 269.) In April 2009, Dr. Rodriguez found that Plaintiff has 5/5 power in upper and lower extremities. (T. 329.) Dr. Neupane himself had findings similar to Dr. Ganesh's, stating that although Plaintiff has tender fibromyalgia points, she has "no evidence of... [a] limitation of motion in both upper and lower extremity joints... she has good grip, pinch, and fist." (T. 356). In a subsequent examination Dr. Neupane again found no limitation of motion in either Plaintiff's upper and lower extremity joints on August 10, 2007. (T. 380).

Plaintiff also argues that the opinion of a consultative examiner cannot override the opinion of the treating physician. (T. 19). Generally, a consultative examiner's evaluation should be given less weight than the treating physician's evaluation. Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir.1990). This is because consultative examinations are typically brief and only give the examiner a glimpse of the patient's health on one particular day. Anderson v. Astrue, No. 07-CV-4969, 2009 U.S. Dist. LEXIS 77602, at *28, 2009 WL 2824584 (E.D.N.Y. Aug. 28, 2009). When other evidence in the record, however, contradicts the treating physician's opinion, the opinion of a consultative examiner can override that of a treating physician. See 20 C.F.R. §§ 404.1527(d)(2), 416. 927(d)(2); Snell v. Apfel, 177 F.3d 128, 132-33 (2d Cir.1999) (holding that the treating physician's evaluation is not dispositive of disability when the evaluation is contradicted by other substantial evidence); Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir.1983).

*13 Here Dr. Neupane, although he was the treating physician, made the restrictive evaluation on Plaintiff's abilities on a single evaluation, two years after his previous examination of Plaintiff. (T. 360). Therefore, Plaintiff's argument that Dr. Ganesh's evaluation should be given less weight because Dr. Ganesh evaluated Plaintiff on one occasion is weak because Dr. Neupane himself made his evaluation after examining Plaintiff on one occasion after a two year hiatus. Furthermore, other medical evaluations, including Dr. Ganesh's opinion, contradict Dr. Neupane's opinion. Because the record indicates that Dr. Neupane's evaluation of Plaintiff was no more thorough than Dr. Ganesh's evaluation, and Dr. Neupane's opinion is contradicted by other medical evaluations, the ALJ did not err in according more weight to Dr. Ganesh's opinion than that of Dr. Neupane.

3. Disability Analyst Marino's Opinion

Plaintiff argues that the Court should order a remand for reconsideration of Plaintiff's RFC without the opinion of Disability Analyst Marino, as a disability analyst has no medical training; and it was contrary to the Administration's policy which prohibits an ALJ to rely on the assessments of a Single Decision Maker. (Pl.Mem.21.) The Court disagrees.

The ALJ's consideration of Marino's opinion constitutes harmless error because the ALJ gave Marino's opinion such little weight that it did not affect the substantial rights of the parties. An error made by the ALJ warrants remand only when the error was harmful. An error is harmless when it does not affect the substantial rights of a party. Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988). A party seeking remand for error must show that the result of the proceeding could have been different but for the error. Brock v. Chater, 84 F.3d 726, 729 n. 1 (5th Cir.1996); see Shinseki v. Sanders, 556 U.S. 396, 129 S.Ct. 1696, 1706, 173 L.Ed.2d 532 (2009) (burden of showing harmful error "falls on the party attacking the agency's determination") (citing Nelson v. Apfel, 131 F.3d 1228, 1236 (7th Cir.1997); Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.2010) (remand unnecessary where "application of the correct legal principles... could lead only to the same conclusion" (internal quotation marks and brackets omitted)); Mitchell v. Astrue, No. 09-CV-6301, 2010 WL3070094, at *4 (W.D.N.Y. Aug. 4, 2010) (remand inappropriate where Plaintiff fails to show that any alleged error "was determinative of... the final RFC assessment").

Plaintiff failed to show that the ALJ's decision could have been different if the ALJ had not weighed Marino's opinion. The ALJ carefully noted that Marino "is a non-medical review official whose findings do not qualify as a medical source opinion." The ALJ further noted that he only gave "some weight" to the opinion of Marino to the extent that his "findings constitute a determination, based on a review of the medical evidence and the application of Social Security disability rules and polices..." (T. 37-38.) Because the ALJ did not give much weight to the disability analyst's opinion, and because the medical evidence record supports the ALJ's determination, this does not constitute a basis for remand. See Lawton v. Astrue, No. 1:08-CV-0137, 2009 WL 2867905, at *16 n. 28 (N.D.N.Y. Sept.2, 2009) (no error in assigning "only slight weight" to the opinion of a disability analyst). Plaintiff has not demonstrated that she was prejudiced by the minimal weight afforded this opinion. Plaintiff is correct in pointing out that the ALJ erred in giving weight to Marion's opinion, but she fails to argue that ALJ's decision could have been different if he had not weighed Marino's opinion. Thus, the Court finds no reason for remand on this ground.

b. Plaintiff's Credibility

*14 Plaintiff contends the ALJ did not apply the appropriate legal standards in assessing Plaintiff's credibility. (Pl.Mem.22) The ALJ found that Plaintiff was not credible in her statements regarding "... the intensity, persistence and limiting effects of [her] symptoms..." (T. 36). Factors to be considered in the context of symptoms claimed by a Plaintiff are set forth in 20 C.F.R. §§ 404.1529(c)(3), which include Plaintiff's daily activities and medications. Additionally, "the ALJ has the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant." Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). If the findings "are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain." Aponte v. Secretary, Dep't of Health & Human Services, 728 F.2d 588, 591 (2d Cir.1984); see also McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 704 (2d Cir.1982).

Here, the ALJ properly found Plaintiff's credibility to be diminished regarding the intensity and limiting effect of her symptoms. The ALJ noted that Plaintiff worked as a child care provider from August 2008 to January 2010, cooks three times a week, cleans and does laundry once a week, and shops once a month. (T. 36.) The ALJ also considered that Plaintiff told Dr. Barry that she attends church and is involved in activities there, and maintains friendships. (T. 36.) Moreover, the ALJ found a lesser credibility after noting that Plaintiff showed "poor effort and malingering" on her examination by Dr. Barry. (T. 36.) Lastly, the ALJ's conclusion on Plaintiff's credibility was founded on Plaintiff testifying that her weight had increased from 150 to 210 pounds as a result of her Lyrica, however the medical record indicates that Plaintiff's weight had remained stable from 2007, ranging from 188 to 198 pounds. (T. 36.)

Although the Court is sympathetic to the limitations that arise from her medically diagnosed conditions, the ALJ's rationale for finding Plaintiff not fully credible is apparent from a reading of the decision. Moreover, the Court finds that substantial evidence supports the ALJ's decision that the bulk of the objective medical evidence was inconsistent with the full extent of Plaintiff's subjective complaints. Thus, the ALJ's finding that Plaintiff was not fully credible will not be disturbed on review. Aponte v. Sec'y, Dep't of Health & Human Servs. of U.S., 728 F.2d 588, 591 (2d Cir.1984)

c. The ALJ did not Err in Making His Conclusion Without a Vocational Expert

Plaintiff lastly objects stating that the ALJ's Step 5 determination in her disability is unsupported by substantial evidence and is the product of legal error; specifically contending that the ALJ failed in obtaining the testimony of a vocational expert because of Plaintiff's nonexertional limitation. (Pl.Mem.24-25.)

*15 An ALJ may rely on the Grids for guidance in determining the range of work available to a claimant without calling a vocational expert, even if the claimant has nonexertional limitations, as long as those limitations do not significantly erode the range of work that would otherwise be available to the claimant. Bapp v. Bowen, 802 F.2d 601, 605 (2d. Cir.1986).

Here, the ALJ relied on substantial evidence on the record that although the plaintiff had some nonexertional limitations, the plaintiff retained the mental capabilities to perform the basic mental demands of work. (T. 39). Plaintiff argues that Dr. Neupane's opinion supports the conclusion that Plaintiff had significant nonexertional limitations, but as discussed above Dr. Neupane's opinion is not dispositive and the ALJ chose not to accord it much weight. As such, it was not error for the ALJ to fail to employ a vocational expert because there is substantial evidence supporting the ALJ's conclusion that "the evidence established that the claimant has no significant limitations in the performance of these basic mental demands at work"[3] (T. 39.), and that "her occupational bases at the light and sedentary levels or work are maintained such that jobs exist in significant numbers in the national economy." (T. 39.) Additionally, there is substantial evidence on which the ALJ could conclude that Plaintiff has no significant physical nonexertional limitations that would establish a necessity for a vocational expert, based upon her various medical examinations. Accordingly, the ALJ did not commit an error when he failed to employ a vocational expert to evaluate Plaintiff's abilities to obtain employment.

IV. CONCLUSION

For the foregoing reasons, the Court AFFIRMS the final decision of the Commissioner of Social Security.

IT IS SO ORDERED.

Amdursky, Pelky Law Firm, Oswego, New York, for Plaintiff, Gregory R. Gilbert, of counsel.

Glenn T. Suddaby, United States Attorney for the Northern District of New York, Syracuse, New York, for Defendant, William H. Pease, Asst. United States Attorney, of counsel.

Opinion

REPORT-RECOMMENDATION

DIBIANCO, Magistrate J.

*1 This matter was referred to me for report and recommendation by the Honorable Lawrence E. Kahn, United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(d). This case has proceeded in accordance with General Order 18 of this court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. Oral argument was not heard.

In a decision dated October 4, 2000, the ALJ found that plaintiff was not disabled. (T. at 13-19.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on April 19, 2001. (T. at 5.) This action was filed on June 6, 2001. (Dkt. No. 1.)

CONTENTIONS

Plaintiff makes the following claims:

(1) The ALJ erred in failing to apply the Treating Physician Rule pursuant to Social Security Ruling 96-2p. (Dkt. No. 6 at 5.)

(2) The ALJ erred in improperly applying Social Security Ruling 96-7p and failed to properly credit plaintiff's testimony that her shoulder and hand problems were so severe that the could not write for any length of time on a sustained basis. (Dkt. No. 6 at 5.)

(3) The ALJ erred in failing to adopt the vocational expert's testimony that plaintiff would be precluded from performing any substantial gainful employment if she could not write for more than a few minutes at a time. (Dkt. No. 6 at 5.)

(4) The ALJ erred in finding that plaintiff could perform the job of a patcher and assembler of electrical components. (Dkt. No. 6 at 5.)

Defendant argues that the Commissioner's determination is supported by substantial evidence in the record and must be affirmed.

PROCEDURAL HISTORY

Plaintiff filed an application for disability insurance benefits on June 18, 1999. (Administrative Transcript ("T") at 60.) The application was denied initially and upon reconsideration. (T. at 40, 45.)

Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") which was held on April 27, 2000. (T. at 24.) Plaintiff was represented by counsel and testified at the ALJ hearing. (T. at 24-37.)

FACTS

This court adopts the facts contained in plaintiff's brief under the heading "Factual History" (Dkt. No. 6 at 3-4), and supplemented in defendant's brief under the heading "Administrative Record" (Dkt. No. 7 at 2-7), with any exceptions noted.

DISCUSSION

I. Five Step Disability Determination

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he is "unable 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff'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.

*2 42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five step process, set forth in 20 C.F.R. §§ 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to basic work activities. If the claimant suffers such an impairment, the third inquiry is wether, based solely on medical evidence, the claimant has an impairment which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disable 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 dose not have a listed impairment, the fourth inquiry is whether, despite the claimant's sever impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that his impairment prevents him from performing his past work, the burden then shifts to the Commissioner to prove the final step. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984).

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. Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y.1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987)). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. 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. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984).

II. Scope of Review

A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). "Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988) (citations omitted). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 402 (1971) (quoting Consolidated Edison Co. v. NLRB, 197 U.S. 229 (1938)). "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 258. However, a reviewing 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. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.1972). See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982), cert. denied, 459 U.S. 1212 (1983).

III. Medical Evidence

A. Dr. Joy Dolorico

*3 In January, 1998, Plaintiff injured her left shoulder when she hit it on a door handle. (T. at 157.) On February 11, 1998, plaintiff complained of pain in her left shoulder and was examined by Joy Dolorico, M.D. at Oswego County Opportunities, Inc. Health Centers. (T. at 157-58.) Dr. Dolorico told plaintiff that an x-ray of her shoulder would be taken and that plaintiff should take ibuprofen and apply warm compresses to the area. (T. at 158.)

On March 16, 1998, Dr. Dolorico noted that the x-ray of plaintiff's shoulder was normal and that there was a slight restriction on full abduction of plaintiff's left shoulder, but there was no actual erythema or swelling. (T. at 158.) Dr. Dolorico diagnosed plaintiff with left shoulder strain. (Id.) On April 6, 1998, Plaintiff complained of continued pain in her left shoulder which was "making it harder do" her daily living activities. (T. at 159.) Dr. Dolorico found that there was no erythema or swelling in plaintiff's left shoulder but noted tenderness in plaintiff's trapezius muscle and positive restriction of full abduction of the left shoulder. (T. at 159.) Plaintiff's internal and external rotations were normal. Dr. Dolorico diagnosed plaintiff with tendinitis and scheduled plaintiff for physical therapy. (T. at 159.)

Dr. Dolorico examined plaintiff again on May 22, 1998 for pain in her left shoulder. (T. at 161.) Plaintiff had been attending physical therapy, and the physical therapist reported that plaintiffs prognosis was fair. (Id.) Plaintiff told Dr. Dolorico that her shoulder felt better but "still hurts occasionally." (T. at 161.) Dr. Dolorico conducted a physical exam, and noted no erythema, swelling, or tenderness of the trapezius muscle. ( Id. ) Plaintiff's internal and external rotations were normal and Dr. Dolorico noted that the tendinitis in plaintiff's left shoulder was "improving." (T. at 161.)

Plaintiff called Dr. Dolorico's office on May 26, 1998 and asked her whether plaintiff's light duty restriction should be extended.[1] (T. at 161.) In a record of the telephone call, apparently written by the person to whom plaintiff spoke, it states that Dr. Dolorico did not want to extend light duty at that time, but would wait for a report from the physical therapist.

On July 13, 1998, plaintiff was again examined by Dr. Dolorico regarding the tendinitis in plaintiff's left shoulder. (T. at 162.) Plaintiff claimed that the physical therapy worked initially, but during the last few sessions, she was not noticing any improvement. (Id.) Plaintiff also complained of a popping sound when she elevated her shoulder beyond eighty degrees. (T. at 162.) Dr. Dolorico's examination revealed that although there was a slight restriction on full abduction of the shoulder, there was no erythema or swelling and external and internal rotations were normal. (T. at 162.) Dr. Dolorico referred plaintiff to an orthopedic specialist for further evaluation. (Id.)

B. Dr. Thomas Smallman

*4 Plaintiff was first examined by Thomas Smallman, M.D., an orthopedic surgeon, on August 21, 1998. (T. at 203-204.) Dr. Smallman's physical examination of plaintiff revealed that she had a full range of motion in her shoulders, no ecchymosis or edema, but that plaintiff had pain with abduction, flexion, and internal rotation of her left shoulder. (T. at 203.) Dr. Smallman also noted that there was a positive impingement sign, consistent with Dr. Dolorico's findings. (Id.) Dr. Smallman stated that plaintiff's x-rays appeared negative for calcific tendinitis or arthritis. (T. at 203.) The doctor's assessment was that plaintiff had rotator cuff tendinitis and he prescribed Naprosyn. ( Id. )

On September 9, 1998, plaintiff complained that despite the use of anti-inflammatories and an adequate therapy program, her symptoms continued. (T. at 202.) Dr. Smallman kept "her out of work for a month" and stated that he would re-evaluate plaintiff in one month's time. ( Id. ) On October 19, 1998, plaintiff continued to have "mild to moderate symptoms, " consistent with Dr. Smallman's previous diagnosis of left shoulder impingement.[2] (T. at 200.) Dr. Smallman stated that although plaintiff's rotator cuff itself was strong, plaintiff had limited internal rotation, positive painful arc, positive impingement sign, and pain with resisted internal and external rotation. (T. at 200.) Dr. Smallman ordered an MRI and prescribed Depomedrol and Marcaine. ( Id. )

On November 25, 1998, plaintiff complained of persistent mild pain in her left shoulder at her next appointment. (T. at 199.) Dr. Smallman's examination revealed that plaintiff's range of motion was full and symmetric bilaterally. ( Id. ) Dr. Smallman also noted that plaintiff had positive impingement sign, positive painful arc of her shoulder, pain with resisted internal and external rotation, as well as pain with active cross chest adduction. (T. at 199.) Plaintiff also complained of occasional numbness and tingling in her left arm and her fingers. ( Id. ) Dr. Smallman continued to assess plaintiff with left shoulder impingement and prescribed Relafen. (T. at 199.)

Plaintiff had another appointment on January 15, 1999 and continued to have "discomfort." (T. at 198.) By this time, plaintiff had been terminated from work. ( Id. ) Plaintiff continued to have limited internal rotation, a painful arc, positive impingement signs, and pain with resisted internal and external rotation. Dr. Smallman's assessment was again, left shoulder impingement. (T. at 198.) Dr. Smallman injected plaintiff's left shoulder with Depomedrol and Marcaine. (T. at 198.)

At her February 16, 1999 appointment with Dr. Smallman, plaintiff complained of continued discomfort and as a result, Dr. Smallman ordered an arthroscopic evaluation of plaintiff's left shoulder. (T. at 197.) Dr. Smallman noted that plaintiff had attempted physical therapy, non-steriodal anti-inflammatory medications, and three cortico-steroid injections. (T. at 197.) According to plaintiff, these treatments produced only temporary relief. ( Id. )

*5 On May 17, 1999, a Magnetic Resonance Imaging ("MRI") was taken of plaintiff's left shoulder. (T. at 196.) Brian Meagher, M.D. stated that the MRI showed anatomic impingement and while there was no discrete cuff tear, "fraying of the superior aspect of the supraspinatous could be present and evaluated arthroscopically." ( Id. )

On June 1, 1999, Dr. Smallman examined plaintiff and noted that plaintiff had not responded to conservative management, the injury occurred over a year ago, and she remained "essentially disabled as a result of it." (T. at 195.) Dr. Smallman remarked that the MRI confirmed his clinical impression of impingement. ( Id. ) At this appointment, plaintiff also complained of numbness and tingling in the hand consistent with carpal tunnel syndrome. (T. at 195.) Dr. Smallman noted positive Tinel's at the wrist and a positive Phalen's, although plaintiff experienced no numbness at the appointment. (T. at 195.)

At her July 26, 1999 appointment, plaintiff's wrists continued to be mildly symptomatic of carpal tunnel syndrome. (T. at 194.) Plaintiff was scheduled for left side carpal tunnel release on August 31, 1999. ( Id. ) Dr. Smallman's Operative Report noted that plaintiff had experienced pain in her left wrist and numbness, pain, and occasional weakness in her left hand for approximately ten months. (T. at 191.)

On September 9, 1999 Dr. Smallman removed plaintiff's sutures. (T. at 188.) Dr. Smallman noted that the incisional site was healing nicely, plaintiff reported a return of sensation, and she was quite happy with the results of the carpal tunnel surgery. ( Id. )

Dr. Smallman completed a range of motion chart and a form for the New York State Office of Temporary and Disability Assistance, Division of Disability Determination, which although undated, states that the date of Dr. Smallman's last examination of plaintiff was on September 9, 1999. (T. at 182-187.) Dr. Smallman stated that the treating diagnosis was left shoulder impingement. (T. at 182.) Dr. Smallman also noted that his clinical findings included decreased range of motion in plaintiff's shoulder, positive painful arc, and positive impingement. (T. at 183.) The form also references plaintiff's carpal tunnel surgery, states that the incision site was healing nicely, and states that plaintiff had a good preliminary response after the surgery. (T. at 183.)

In the range of motion chart, Dr. Smallman indicated limitations in the forward elevation, abduction, adduction, and internal and external rotation of plaintiff's left shoulder. (T. at 185.) Dr. Smallman noted that plaintiff's last physical therapy notes dated November 3, 1999 indicated that plaintiff's grip strength was thirty-two pounds in her left hand and forty-nine pounds in her right hand. (T. at 187.) Dr. Smallman stated that plaintiff's fine motor manipulation was slowly improving with physical therapy and that plaintiff's gross motor manipulation was progressing appropriately with physical therapy. (T. at 187.) Dr. Smallman noted that plaintiff had not been released to perform repetitive movements. ( Id. )

*6 Plaintiff was examined by Dr. Smallman again on October 14, 1999. (T. at 226.) The paresthesia plaintiff experienced before the carpal tunnel surgery no longer existed after the surgery. (T. at 226.) Plaintiff did feel intermittent cramping and had begun physiotherapy for strengthening. ( Id. )

On November 4, 1999, plaintiff told Dr. Smallman that she had significant relief from the symptoms she experienced before the surgery. (T. at 227.) Plaintiff also stated that she was feeling less cramping than at the October 14 appointment. ( Id. ) Dr. Smallman noted that plaintiff had progressed significantly with her grip strength. (T. at 227.)

Plaintiff had a left shoulder arthroscopy and acromioplasty on December 13, 1999. (T. at 230-231.) Dr. Smallman examined her four days after the procedure and stated that plaintiff had little discomfort and excellent function of her hand and elbow. (T. at 230.) Dr. Smallman prescribed Relafen because the previously prescribed Cotorolac bothered plaintiff's stomach. (T. at 230.)

On January 7, 2000, Dr. Smallman noted that plaintiff was not progressing as well as expected. (T. at 231.) Plaintiff's pre-operative pain was not substantially different after the procedure. ( Id. ) Dr. Smallman stated that plaintiff had a positive impingement sign and pain on activation of the subscapularis and global activation of the cuff at forty-five degrees against resistence. (T. at 231.) However, there was no pain on activation of the supraspinous and infraspinous against resistence and no pain at the sternoclavicular or AC joints. ( Id. ) Dr. Smallman's assessment was that plaintiff had a recurrence of "impingement like pain." (T. at 231.)

On January 21, 2000, plaintiff again had positive impingement sign and a painful arc. (T. at 232.) Dr. Smallman stated that there was no evidence of cuff pathology in plaintiff's January 7, 2000 x-rays. ( Id. ) Dr. Smallman's found that plaintiff had no evidence of cuff tendinitis, but plaintiff had pain with initiation of abduction, external rotation, and downward pressure on the cuff at forty-five degrees against resistence. (T. at 232.) Dr. Smallman prescribed Vioxx and gave plaintiff an injection in her shoulder. (T. at 232.)

Dr. Smallman's notes regarding plaintiff's February 11, 2000 appointment state that "[w]hen previously seen 3 weeks ago, she had experienced a marked recurrence of her symptoms after a relatively asymptomatic interval." (T. at 233.) However, the symptoms were "completely ablated" at that moment by a sub-deltoid injection. ( Id. ) Dr. Smallman noted on February 11 that plaintiff's symptoms are "remarkably" improved since the injection and Vioxx prescription but that plaintiff remained "off work." (T. at 233.)

On March 21, 2000, Dr. Smallman remarked that plaintiff was making "gradual, consistent progress" regarding her left shoulder and that she had responded remarkably January injection. (T. at 234.) Plaintiff still had a slight irritation at the anterior aspect of the shoulder but had a comfortable range of motion at ninety degrees of abduction and much less pain at the impingement point. (T. at 234.) Dr. Smallman found no evidence of thoracic outlet syndrome. (T. at 234.)

*7 On April 11, 2000, Dr. Smallman completed a "Medical Assessment of Ability To Do Work-Related Activities (Physical)" form, stating he had last examined or treated plaintiff on March 21, 2000. (T. at 236-239.) In that form, Dr. Smallman noted that plaintiff's lifting and carrying abilities were affected by her impairment. (T. at 236.) Specifically, plaintiff was never to lift or carry more than eleven pounds, but Dr. Smallman indicated that plaintiff could occasionally lift and carry up to ten pounds. (T. at 236.) Furthermore, Dr. Smallman stated that plaintiff had continuous use of her right hand and frequent use of her left hand for simple grasping and fine manipulation. (T. at 237.)

Dr. Smallman placed no restrictions on plaintiff's sitting, standing, or walking. (T. at 237). While Dr. Smallman stated that plaintiff should never climb or crawl, he placed no restrictions on plaintiff's balancing, stooping, crouching, or kneeling. (T. at 238.) Dr. Smallman also stated plaintiff could frequently reach, push, pull, and handle, but could never perform overhead reaching and plaintiff's pushing and pulling were limited to "max 5#." (T. at 238.) Finally, Dr. Smallman indicated plaintiff should avoid all exposure to heights (because plaintiff would be unable to protect herself if she fell) and avoid concentrated exposure to vibrations. (T. at 239.) Otherwise, plaintiff had no restrictions with regard to moving machinery, chemicals, noise, humidity, dust, temperature extremes, or fumes. (T. at 239.)

C. Dr. Tamara A. Scerpella

Dr. Smallman referred plaintiff to Tamara A. Scerpella, M.D. for a second opinion. (T. at 240.) Dr. Scerpella examined plaintiff on July 25, 2000 and found that plaintiff had full left shoulder motion except for internal rotation to the thoracolumbar junction only, as opposed to T7 on the right. (T. at 240.) Dr. Scerpella noted plaintiff's mild discomfort in the impingement positions and with resisted supraspinatus testing, but Dr. Scerpella also noted that plaintiff had good strength with rotator cuff testing in all positions. (T. at 240.)

Dr. Scerpella's assessment was that plaintiff's pain "is very likely due to her capsular laxity"[3] and recommended a thermal capsulorrhapy. (T. at 241.) Because plaintiff showed no strength deficits on rotator cuff testing, Dr. Scerpella did not believe continued physical therapy would improve plaintiff's symptoms. (T. at 241.)

D. Dr. Myra Shayevitz

Plaintiff was referred to Myra Shayevitz, M.D. by the New York State Division of Disability Determinations for an orthopedic examination which Dr. Shayevitz conducted on July 8, 1999. (T. at 205.) Dr. Shayevitz's physical examination revealed that plaintiff's forward elevation and abduction of the left shoulder was 100 degrees and the right shoulder was 150 degrees. (T. at 206.) Furthermore, adduction on the left side was ten degrees and on the right was forty degrees. (T. at 206.) Internal rotation on the right was twenty degrees, forty degrees on the right, and external rotation was eighty degrees bilaterally. ( Id. ) Dr. Shayevitz also noted positive impingement signs on the left.

*8 Regarding plaintiffs fine motor activity, plaintiff was able to "hold a large object, pick up and manipulate a coin, write with a pen, button a button, open a cap, zip a zipper. Intrinsics, grasp, handshake, grip and pinch grip are 5/5 bilaterally. Can make a full fist bilaterally. Tinel sign is negative bilaterally." (T. at 206.) Dr. Shayevitz's impression was that plaintiff had a torn rotator cuff on the left side with positive impingement sign. (T. at 207.) Dr. Shayevitz's prognosis was guarded and she noted that plaintiff might require surgery. ( Id. )

E. Dr. Jose R. Lopez

Plaintiff was also referred to Jose R. Lopez, M.D., an orthopedic surgeon, for an evaluation which was conducted on August 26, 1999. (T. at 215.) Dr. Lopez reviewed plaintiff's May 17, 1999 MRI and said "[d]efinitely there is no evidence of any rotator cuff tear...." (T. at 216.) During Dr. Lopez's examination, plaintiff complained of persistent pain in her left shoulder, despite being out of work for over a year, since August 21, 1998. (T. at 216.) Dr. Lopez's examination of plaintiffs left shoulder revealed that her passive abduction was 170 degrees, active abduction was 135 degrees, forward flexion passively 170 degrees, actively 160 degrees, internal rotation to the T-10 level, external rotation to six degrees and adduction across the mid-line. (T. at 217.) Dr. Lopez's impression was that plaintiff had left shoulder impingement syndrome and left carpal tunnel syndrome and his prognosis was guarded. (T. at 217.) Dr. Lopez thought arthroscopic evaluation might be needed and that there was no evidence of a rotator cuff tear. ( Id. )

F. Dr. Sury Putcha

On July 22, 1999, Sury Putcha, M.D. completed a Physical Residual Functional Capacity Assessment ("RFC Assessment"). (T. at 208-214.) It appears that Dr. Putcha did not examine plaintiff. Dr. Putcha indicated that plaintiff could occasionally lift and/or carry up to twenty pounds and frequently lift and/or carry up to ten pounds. (T. at 209.) Furthermore, Dr. Putcha stated that plaintiff could sit, stand, and/or walk for about six hours in an eight hours work day, with normal breaks. ( Id. ) Furthermore, Dr. Putcha said plaintiff's ability to push and/or pull (including operation of hand and/or foot controls) was unlimited, except for the limitations noted for lifting and carrying. (T. at 209.) Dr. Putcha noted no postural, manipulative, visual, communicative, or environmental limitations. (T. at 210-212.)

G. Dr. In T. Seok

On December 13, 1999, In T. Seok, M.D., also a non-examining physician, completed an RFC Assessment. (T. at 219-225.) Dr. Seok indicated that plaintiff could occasionally lift and/or carry up to twenty pounds and frequently lift and/or carry up to ten pounds. (T. at 220.) Furthermore, Dr. Seok opined that plaintiff could sit, stand, and/or walk for about six hours in an eight hours work day, with normal breaks. (T. at 220.) Furthermore, Dr. Seok said plaintiffs ability to push and/or pull (including operation of hand and/or foot controls) was unlimited, except for the limitations noted for lifting and carrying. (T. at 220.) Dr. Seok limited plaintiff's reaching in all directions (including overhead) and plaintiff's fingering (fine manipulation) but did not limit plaintiff's handling (gross manipulation) or feeling. (T. at 222.) Dr. Seok noted no postural, visual, communicative, or environmental limitations. (T. at 221-223.)

IV. Treating Physician

*9 The medical conclusions of a treating physician[4] are controlling if well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). See also Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998); Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir.1999). An ALJ may not arbitrarily substitute his own judgment for a competent medical opinion. Rosa v. Callahan, 168 F.3d at 79 (citations omitted).

If the treating physician's opinion is not given "controlling weight, " the ALJ must assess the following factors to determine how much weight to afford the opinion: the length of the treatment relationship, the frequency of examination by the treating physician for the condition(s) in question, the medical evidence supporting the opinion, the consistency of the opinion with the record as a whole, the qualifications of the treating physician, and other factors tending to support or contradict the opinion. 20 C.F.R. §§ 404.1527(d)(2-6), 416.927(d)(2-7). Failure to follow this standard is a failure to apply the proper legal standard and is grounds for reversal. Barnett v. Apfel, 13 F.Supp.2d 312, 316 (N.D.N.Y.1998) (citing Johnson v. Bowen, 817 F.2d at 985).

Plaintiff argues that the ALJ erred in failing to give the appropriate weight to Dr. Smallman's opinions, including his finding that plaintiff remained fully disabled through the date of the hearing. (Dkt. No. 6 at 7, 9.) Plaintiff also argues that Dr. Smallman's opinions should receive greater weight because his opinions regarding plaintiff's restrictions are consistent with other doctors of record.

In reviewing the ALJ's decision, this court finds that the ALJ properly relied on Dr. Smallman's opinions and reports, as evidenced by the fact that the ALJ cites to them repeatedly. See T. at 15-16, references to Exs. 3F, 8F, 9F. Although Dr. Smallman is not mentioned by name, exhibits 3F, 8F, and 9F are Dr. Smallman's reports, notes, and records regarding plaintiff and her treatment. In fact, the ALJ only cited Dr. Smallman's reports, notes, and records, thereby giving his opinions treating physician weight.

Additionally, Dr. Smallman examined plaintiff approximately twenty times as well as performing her carpal tunnel surgery, arthroscopy, and acromioplasty. See supra at 9-16. Furthermore, Dr. Smallman's opinions and diagnoses are consistent with other doctors of record. Dr. Smallman's diagnosis regarding plaintiff's shoulder was left shoulder impingement. (T. at 182, 195, 196, 198, 199, 200, 231, 232.) This diagnosis was similar to and consistent with the diagnoses of Dr. Dolorico (diagnosis of left shoulder strain and tendinitis[5] (T. at 158, 159, 161)), Dr. Lopez (diagnosis of impingement syndrome (T. at 217)), and Dr. Scerpella (diagnosis of capsular laxity (T. at 241)).

The only doctor who had a slightly different diagnosis was Dr. Shayevitz, who saw plaintiff only once and diagnosed plaintiff with a torn rotator cuff on the left side with positive impingement sign.[6] (T. at 207.) Dr. Meagher definitively stated that there was "no discrete cuff tear" upon reading the MRI of plaintiff's left shoulder. (T. at 196, emphasis added.) Additionally, after reviewing the MRI, Dr. Lopez similarly stated "[d]efinitely there is no evidence of any rotator cuff tear...." (T. at 216.)

*10 Further support that the ALJ gave Dr. Smallman's opinions controlling weight is found in the fact that the ALJ sent Dr. Smallman's RFC evaluation to the vocational expert. The vocational expert used Dr. Smallman's stated limitations in determining that plaintiff could perform work in the national economy. (T. at 127-130, 140-141) (citing Exhibit 9F-Dr. Smallman's RFC at T. 235-239.)

Therefore, because Dr. Smallman's opinions regarding Plaintiff's physical condition are consistent with the other physicians' findings and because Dr. Smallman's opinions are well-supported by substantial evidence in the record, the ALJ correctly gave Dr. Smallman's medical conclusions controlling weight.

V. Pain and Credibility

"An [ALJ] may properly reject [subjective complaints] after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, but must set forth his or her reasons with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.'" Lewis v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y.1999) (quoting Gallardo v. Apfel, No. 96 Civ. 9435, 1999 WL 185253, at *5 (S.D.N.Y. Mar. 25, 1999)).

To satisfy the substantial evidence rule, the ALJ's credibility assessment must be based on a two step analysis of pertinent evidence in the record. See 20 C.F.R. §§ 404.1529, 416.929; see also Foster v. Callahan, No. 96 Civ. 1858, 1998 WL 106231, at *5 (N.D.N.Y. Mar. 3, 1998). First, the ALJ must determine, based upon the claimant's objective medical evidence, whether the medical impairments "could reasonably be expected to produce the pain or other symptoms alleged...." 20 C.F.R. §§ 404.1529(a), 416.929(a). 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. 20 C.F.R. §§ 404.1529(c), 416.929(c).

When the objective evidence alone does not substantiate the intensity, persistence, or limiting effects of the claimant's symptoms, the ALJ must assess the credibility of the claimant's subjective complaints by considering the record in light of the following symptom-related factors: (1) claimant's daily activities; (2) location, duration, frequency, and intensity of claimant's symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken by the claimant to relieve symptoms; and (7) any other factors concerning claimant's functional limitations and restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

Plaintiff claims that the ALJ erred in failing to credit plaintiff's testimony that her shoulder and hand problems were so severe she could not write for any length of time on a sustained basis. (Dkt. No. 6 at 9.) The ALJ found that based upon the medical evidence, plaintiff did not meet the first step of the two step analysis articulated in 20 C.F.R. §§ 404.1529, 416.929, thus "the objective findings in this case fail to provide strong support for the claimant's allegations of disabling symptoms and limitations. More specifically, the medical evidence does not support the existence of limitations greater than those determined above." (T. at 15.)

*11 During the course of time that plaintiff was treated by Dr. Dolorico (January 1998 through July 1998), Dr. Dolorico's notes stated that plaintiff's shoulder felt better but hurts "occasionally" and that plaintiff's shoulder was improving. (T. at 161.) Plaintiff's treating physician, Dr. Smallman, noted over the course of plaintiff's treatment that she had "mild to moderate symptoms, " persistent mild pain, and "discomfort, " in her left shoulder. (T. at 198, 199, 200.) Furthermore, plaintiff's symptoms were "completely ablated" by a sub-deltoid injection given on February 11, 2000 and that plaintiff's symptoms had "remarkably" improved since the injection and being prescribed Vioxx. (T. at 233.) Dr. Smallman noted that plaintiff was making "gradual, consistent progress" with her left shoulder and that she had responded "remarkably" to the injection given in January. (T. at 234.)

Regarding plaintiff's carpal tunnel syndrome, plaintiff had carpal tunnel release surgery performed on August 31, 1999. (T. at 194.) At her post-operation appointment on September 9, 1999, plaintiff reported a return of sensation and was "quite happy" with the results of the surgery. (T. at 188.) Furthermore, on October 14, 1999, Dr. Smallman noted that the paresthesia plaintiff experienced prior to the surgery no longer existed. (T. at 226.) On November 4, 1999, Dr. Smallman noted that plaintiff was feeling less cramping, that she was progressing "significantly" with her grip strength, and that she was "quite happy with her results." (T. at 227.)

There is no evidence in the record that plaintiff complained of an inability to write for any length of time. Additionally, Dr. Smallman's RFC evaluation specifically states that plaintiff can use her right hand "continuously" for simple grasping and manipulation and can use her left hand "frequently" for simple grasping and manipulation. (T. at 236-237.)

While plaintiff's symptoms regarding her shoulder and hands were clearly documented, the record supports the ALJ's determination that the medical evidence does not support the existence of limitations greater than those articulated in the ALJ's decision, which were the limitations imposed by plaintiff's own treating physician. Thus, this court finds that the ALJ's finding that plaintiff's allegations regarding her inability to write and any additional limitations were not fully credible is supported by substantial evidence.

VI. Testimony of Vocational Expert

A. Proper Hypothetical

If a claimant is unable to perform a full range of a particular exertional category of work, or the issue is whether a claimant's work skills are transferable to other jobs, the ALJ may utilize the services of a vocational expert. 20 C.F.R. §§ 404.1566, 416.966. A vocational expert may provide testimony regarding the existence of jobs in the national economy and whether a particular claimant may be able to perform any of those jobs given his or her functional limitations. See Rautio v. Bowen, 862 F.2d 176, 180 (8th Cir.1988) and Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir.1983). Although the ALJ is initially responsible for determining the claimant's capabilities based on all the evidence, [7] a hypothetical question that does not present the full extent of a claimant's impairments cannot provide a sound basis for vocational expert testimony. See De Leon v. Sec'y of Health and Human Servs., 734 F.2d 930, 936 (2d Cir.1984) and Lugo v. Chater, 932 F.Supp. 497, 503-04 (S.D.N.Y.1996). The Second Circuit has stated that there must be "substantial record evidence to support the assumption upon which the vocational expert based [her] opinion." Dumas, 712 F.2d at 1554.

*12 The ALJ used a vocational expert in this case to find that although plaintiff could not perform her past relevant work, she could perform the job of a patcher and assembler of electrical components. The vocational expert was given hypothetical questions which conformed to the facts of this case. (T. at 121-122.) Plaintiff argues that the ALJ erred in failing to adopt the vocational expert's opinion that plaintiff would be precluded from any substantial gainful activity if she could not write for more than a few minutes at a time.

This court finds that the questions posed by the ALJ properly articulated plaintiff's restrictions. The ALJ asked the vocational expert to assume a person with age, education, and work experience similar to plaintiff had the limitations set forth in Exhibit 9F, which was the RFC Assessment completed by Dr. Smallman. (T. at 122.)

The vocational expert did state that if plaintiff could not write, she would not be able to work at any job. (T. at 129.) However, the ALJ properly rejected plaintiff's claim that such a limitation existed. In addition, plaintiff's counsel proposed follow up interrogatories to the vocational expert, which he answered. (T. at 140-141.) The vocational expert again took into consideration the limitations posed in Exhibit 9F, the RFC Assessment completed by Dr. Smallman. (T. at 140.141.) This court finds that the ALJ properly and accurately evaluated the evidence presented by the vocational expert.

B. Performance of Specific Jobs

Plaintiff argues that the ALJ erred in finding that plaintiff could perform the jobs of patcher and assembler of electrical components. Plaintiff first argues that the regulations specify that an individual who has the RFC for only sedentary work and who has had any significant limitation in the ability to manipulate and handle small objects with both hands must be considered disabled. (Dkt. No. 6 at 12) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h)). Although plaintiff cites the rule properly, there is no evidence to support plaintiff's claim that she has had a "significant" limitation in bilateral manual dexterity. Dr. Smallman stated that plaintiff could use her right hand continuously and her left hand frequently. Thus, the ALJ did not err in applying this regulation.

Finally plaintiff disagrees with the vocational expert's interpretation of the Dictionary of Occupational Titles ("DOT"), in which the descriptions of the relevant jobs are found. Plaintiff's counsel wrote to the ALJ, specifically proposing additional questions regarding the requirements of the stated jobs. (T. at 133-137.) The ALJ then wrote to the vocational expert and asked the vocational expert plaintiff's additional questions. (T. at 138-139.) The vocational expert responded, essentially stating that based on the limitations set forth in Dr. Smallman's RFC Assessment, plaintiff could still perform the sedentary jobs of patcher and assembler. (T. at 140-141.) Although plaintiff's counsel argues that the vocational expert misinterpreted the provisions of the DOT, there is no indication that this is true. There is also no indication that plaintiff could not perform these jobs, given Dr. Smallman's RFC Assessment and the vocational expert's expert opinion. Although the court is not finding that the vocational expert's interpretation of the DOT is not correct or inconsistent, the court would point out that the Second Circuit has recently held that even an expert's deviations from the DOT are not necessarily incorrect or in conflict with the DOT. See Jasinski v. Barnhart, No. 02-6268, 2003 U.S.App. LEXIS 16788, at *6-7 (2d Cir. Aug. 14, 2003). While Jasinski dealt with a case at step four of the sequential evaluation in which the plaintiff still had the burden of proof to show that she could not perform her prior work, the reasoning is applicable to this case, in which plaintiff challenges the expert's interpretation of the DOT requirements for a particular job, and whether plaintiff's RFC would meet those requirements. This court finds that the ALJ's acceptance of the vocational expert's opinion was supported by substantial evidence.

*13 WHEREFORE, based upon the findings above, it is hereby

RECOMMENDED, that the decision of the Commissioner be AFFIRMED and the Complaint (Dkt. No. 1) be DISMISSED.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Svcs., 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b); FED. R. CIV. P. 6(a), 6(e), 72.

Legal Aid Society of Northeastern NY, Joanna S. Davis, Esq., of Counsel, Saratoga Springs, NY, for Plaintiff.

Hon. Andrew Baxter, United States Attorney, Northern District of New, John M. Kelly, Esq., Special Asst. U.S. Attorney, of Counsel, Syracuse, NY, Office of General Counsel, Social Security Administration, Barbara L. Spivak, Esq., Chief Counsel, Region II, of Counsel, New York, NY, for Defendant.

Opinion

DECISION AND ORDER

LAWRENCE E. KAHN, District Judge.

*1 This matter comes before the Court following a Report-Recommendation filed on October 22, 2009, by the Honorable David E. Peebles, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the Northern District of New York. Report-Rec. (Dkt. No. 13).

Within ten days, excluding weekends and holidays, after a party has been served with a copy of a Magistrate Judge's Report-Recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations, " FED. R. CIV. P. 72(b), in compliance with L.R. 72.1. No objections have been raised in the allotted time with respect to Judge Peeble's Report-Recommendation. Furthermore, after examining the record, the Court has determined that the Report-Recommendation is not subject to attack for plain error or manifest injustice.

Accordingly, it is hereby

ORDERED, that the Report-Recommendation (Dkt. No. 13) is APPROVED and ADOPTED in its ENTIRETY; and it is further

ORDERED, that Plaintiff's Motion for judgment on the pleading is GRANTED, the Commissioner's determination of no disability is VACATED, and the matter is REMANDED to the agency for further consideration consistent with this Report and Recommendation; and it is further

ORDERED, that the Clerk serve a copy of this Order on all parties.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, United States Magistrate Judge.

Plaintiff Brenda Ebert, who suffers from a variety of physical medical conditions including, inter alia, degenerative disc disease in her lumbar back area, chronic headaches, arthritis and bursitis, as well as depression, has commenced this action pursuant to section 405(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to challenge the Commissioner's denial of her application for supplemental security income ("SSI") payments under the Act. In support of her challenge plaintiff contends that the agency's determination that she is not disabled, a finding which serves as the lynchpin for the denial of her application for SSI benefits, is not supported by substantial evidence. Plaintiff argues that in rendering his determination regarding her residual functional capacity ("RFC") the administrative law judge ("ALJ") assigned to hear and determine the matter failed to consider the combined, cumulative effects of her various mental and physical conditions and that as a result, given her limitations, his reliance upon the testimony of a vocational expert who concluded that she is capable of performing only one job available in sufficient numbers in the national and local economies was misplaced.

Having carefully reviewed the record that was before the agency, I conclude that the ALJ's finding of no disability is fatally flawed because it fails to give adequate consideration to the potentially debilitating effects of the plaintiff's migraine headaches in combination with her other conditions and that the Commissioner's determination, is therefore not supported by substantial evidence. Accordingly, I recommend that the determination be vacated, and the matter be returned to the agency for further consideration.

I. BACKGROUND

*2 Plaintiff was born in April of 1958; when the ALJ issued his decision in this matter, she was forty-eight years old.

Administrative Transcript at pp. 96, 358, 388.[1] Plaintiff is between five feet nine inches and five feet ten and one-half inches in height, and while her weight has tended to fluctuate significantly over time, it was last reported to be one hundred and fifty pounds. AT 127, 192, 358, 388. Plaintiff completed the tenth grade, but has been unable to either finish high school or obtain a general educational development ("GED") diploma. AT 132, 359, 388. Plaintiff is married, has two adult children, and lives with her husband and mother in a two story home in Greenwich, New York. AT 387-89.

Although plaintiff worked for one day in 1999, having been unable to continue longer as a result of experiencing pain, she has been largely unable to work due to her mental and physical limitations since December of 1997. AT 128. Prior to that time plaintiff held casual employment in several settings, including as a baker's helper, painter, and laborer. Id .; see also AT 362-63. None of the jobs held by plaintiff appear to have lasted long enough to qualify as substantial gainful activity as defined under the Act. Id.

Since 2002 plaintiff has treated with Dr. Christopher Thomas, of the Saratoga Care Schuylerville Family Heath Center, for her various conditions. AT 227-47, 290-316. The records associated with that treatment reveal extensive complaints of frequent migraine and tension headaches; back, neck, arm, hip, and tail bone pain; and, depression. Id. Over time plaintiff has attempted to use several medications, both over-the-counter and prescription, to address her conditions, including Fiorocet and Elavil, both of which are reported to have helped reduce the pain associated with her headaches. See, e.g. AT 161-62, 171, 238, 241. See also AT 151 (report of contact with agency in which claimant advised receiving relief for her headaches from Fiorocet after about an hour).

On one occasion, April 2, 2002, plaintiff presented as an outpatient at the Glens Falls Hospital complaining of bilateral hip and lumbar spine pain. AT 282-86. Upon examination, no fracture or focal bony lesions were identified in either hip. AT 283. Addressing plaintiff's lumbar spine condition, on that occasion examiners noted the existence of "very mild degenerative joint disease" at the lower two levels, with "mild relative narrowing of the L5-S1 disc space without spondylosis, " and "no bony stenosis of the spinal canal." AT 285.

In addition to her treatment, plaintiff has been seen consultatively on several occasions for the purpose of assessing her reported physical and mental conditions. Plaintiff was examined on June 8, 2004 by Dr. Thomas Osika, a psychological consultant retained by the state agency. AT 178-81. Based on his evaluation, Dr. Osika diagnosed the plaintiff as suffering from a recurrent major depressive disorder of mild to moderate degree, without psychotic features, and assigned a global assessment of functioning ("GAF") score of sixty.[2] AT 180. In his report, Dr. Osika also noted that plaintiff suffers from "an ongoing history of problems with depression and anger management" and recommended that she become involved with out-patient counseling. AT 181.

*3 Dr. Richard Weiss, a state agency psychiatrist retained to review plaintiff's records, including the recorded notes of her interaction with agency evaluators, completed a mental RFC assessment on July 27, 2004, in which he found that plaintiff was moderately limited in her ability to understand or remember detailed instructions, the ability to carry out detailed instructions, and the ability to set realistic goals or make plans independently of others, but discerned no significant limitations imposed by her mental condition in other relevant domains. AT 221-24. In his written assessment, Dr. Weiss noted that plaintiff had no history of psychiatric hospitalizations and was not then undergoing psychiatric treatment, observing that the consultant examiner's perception was "positive for mildly depressed mood, " but that the remainder of the mental status examination "was unremarkable." AT 223.

Plaintiff was also examined by Dr. Michael G. Holland, an orthopedic consultant retained by the state agency, on June 11, 2004. AT 192-98. Based upon his examination, Dr. Holland observed that plaintiff's shoulders and hips revealed normal range of motion and that she showed positive Waddell signs throughout her low back, suggesting to the examiner the possibility of "symptom magnification". AT 193.

Plaintiff's physical condition was also the subject of a report issued on December 29, 2006 by Dr. Richard S. Goodman, a non-examining orthopedic consultant who conducted a review of plaintiff's medical records at the request of ALJ Zolezzi. AT 317-32. Based upon his review Dr. Goodman opined that plaintiff suffers from back pain, but found "no evidence of any other orthopedic condition." AT 318. In response to interrogatories requesting his opinion regarding the severity of any discerned impairment, Dr. Goodman characterized plaintiff's impairment as "mild" at one point and "mild-less than minimal" at another. AT 328, 330. In a written assessment of her RFC, Dr. Goodman opined that plaintiff is capable of lifting fifty pounds occasionally and up to twenty-five pounds frequently; can stand and/or walk six hours in an eight-hour work day; is not affected in her ability to sit, push, or pull less than one hundred pounds; and, suffers from occasional postural limitations in the areas of climbing, balancing, kneeling, crouching, crawling, and stooping. AT 323-26.

II. PROCEDURAL HISTORY

A. Proceedings Before The Agency

Plaintiff protectively filed an application for SSI benefits under the Act on March 26, 2004, alleging a disability onset date of December 1, 1997. AT 96-99. That application was denied on or about August 5, 2004. AT 26-29.

At plaintiff's request, on October 4, 2005, a hearing was conducted before ALJ Thomas P. Zolezzi to address plaintiff's application for SSI benefits. AT 354-83. Testifying at that hearing were the plaintiff, who was represented by counsel, as well as Salvatore Garozzo, a vocational expert retained by the agency. Id. Following the close of that hearing, after conducting a de novo review of the available evidence, ALJ Zolezzi issued a decision on November 30, 2005 concluding that plaintiff was not disabled during the relevant times and thus is ineligible to receive SSI benefits. AT 51-57. That determination was vacated on June 9, 2006, however, after review by the Social Security Administration Appeals Council, and the matter was remanded with instructions that the ALJ undertake a further evaluation of the plaintiff's subjective complaints of disabling pain and more fully explain his reasoning for discounting her statements. AT 62-64.

*4 Upon return of the matter to him, ALJ Zolezzi conducted a second hearing on November 20, 2006. AT 384-417. Ms. Ebert was the sole witness to testify at that proceeding, which focused principally upon plaintiff's contentions regarding the limitations experienced as a result of her conditions. Following the close of that hearing, ALJ Zolezzi issued a decision dated February 20, 2007. AT 14-22. After once again conducting a de novo review of available evidence as well as the testimony adduced at both hearings, and applying the now familiar five-step test for determining disability, the ALJ concluded that plaintiff was not disabled at any relevant time and thus not entitled to receive SSI benefits. Id. In arriving at that conclusion, ALJ Zolezzi first determined that plaintiff had not engaged in substantial gainful activity at any relevant time. AT 16. The ALJ next found that plaintiff suffers from several impairments of sufficient severity to impose significant restrictions upon her ability to perform basic work activities, including degenerative disc disease, disc protrusions, arthritis, and depression, but that those impairments do not, either individually or in combination, rise to a level sufficient to meet or equal any of the listed, presumptively disabling impairments set forth in the regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 1. AT 16.

Before proceeding to the next step of the disability algorithm, ALJ Zolezzi determined that despite her impairments the plaintiff retains the RFC to perform simple entry-level light work, further described by the ALJ as follows:

[s]he is able to lift 20 pounds occasionally and 10 pounds frequently. She is able to stand, walk, and sit for 6 hours each during an 8 hour work day with regular breaks. However, any job she does must be one where she can make simply decisions but no complex decision-making; (2) it must be low stress job which involves no planning, no scheduling, no report writing, no supervising, and no high production quotas; (3) there should be little or no change in the work setting or work environment; (4) she can have occasional but not frequent interaction with co-workers-she can work in proximity of co-workers but only occasionally in coordination or conjunction with them; (5) there should be no little or no interaction with the public; (6) there should be nothing requiring use of math skills; (7) there should be no concentrated fumes, gases, odors, smoke, dust, and poor ventilation.

AT 16-17.[3] In arriving at that conclusion the ALJ considered but rejected as not fully credible plaintiff's subjective complaints of disabling pain, including those associated with her migraine headaches, particularly in light of the extent of her daily activities and the lack of substantiating medical evidence. AT 17-18.

After determining at step four that plaintiff had no past relevant work experience of significance, the ALJ proceeded to step five of the disability analysis, looking first to the medical vocational rules set forth in the regulations (the "grid"), 20 C.F.R. Pt. 404, Subpt. P, App. 2 as a framework, noting that application of plaintiff's RFC and other relevant characteristics would direct a finding of no disability, based upon Rule 202.17 of the grid. AT 21-22. Observing, however, that plaintiff's nonexertional limitations could be viewed as significantly eroding the occupational base upon which the grid is predicated, in reaching his decision the ALJ relied upon responses to the hypothetical questions posed to the vocational expert during the first hearing closely approximating his finding regarding plaintiff's limitations, to the effect that plaintiff can perform the functions of a housekeeper, and that there are jobs in sufficient numbers in both the regional and national economy in that occupation available to the plaintiff. AT 22. The ALJ thus concluded that plaintiff is not disabled and, accordingly, not entitled to receive SSI benefits. Id.

*5 The ALJ's decision became a final determination of the agency on September 11, 2007, when the Appeals Council denied plaintiffs request for review of that opinion. AT 4-6.

B. This Action

Plaintiff commenced this action on November 1, 2007. Dkt. No. 1. Issue was joined by the Commissioner's filing of an answer on February 11, 2008, preceded by submission on December 28, 2007 of an administrative transcript of proceedings and evidence before the agency. Dkt. Nos. 7, 8. With the filing of plaintiff's brief on March 25, 2008, Dkt. No. 10, and that on behalf of the Commissioner on May, 8, 2008. Dkt. No. 12, the matter 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).[4] See also Fed.R.Civ.P. 72(b).

III. DISCUSSION

A. Standard 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 (citing Johnson, 817 F.2d at 986). 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, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (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 (quoting Consolidated Edison Co., 308 U.S. 229, 59 S.Ct. 219); 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, ___ L.Ed.2d ___, ___ (1951)).

*6 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., 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. See Parker, 626 F.2d at 235; see also 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 [s]he is not only unable to do [her] previous work but cannot, considering [her] 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 [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work. For the purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers in the region where such individual lives or in several regions of the country.

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).

*7 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(f), 416.920(f). 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(g), 416.920(g).

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

In support of her challenge to the Commissioner's determination, plaintiff essentially raises two arguments. First, she contends that the ALJ's decision failed to consider her condition as a whole and the cumulative, limiting affects of her mental and physical conditions upon her ability to perform work-related functions. Additionally, plaintiff asserts that she is incapable of meeting the exertional demands associated with the one occupation found by the vocational expert to be appropriate to her circumstances- working as a housekeeper.

During the two hearing sessions plaintiff testified to experiencing significant pain in her back, tail bone, shoulders, arms, hips, and legs. AT 360-61, 389, 407-09. Plaintiff stated that because of her physical impairments, she is limited in her ability to stand and/or walk to between five and fifteen minutes, or approximately one-half block; she can sit for only between ten and fifteen minutes; she lacks strength in her hands; and, she is able to lift only up to twenty pounds.[5] Plaintiff further testified that in light of her depression she finds it difficult to be around other people. AT 377, 405.

While ALJ Zolezzi found that plaintiff suffers from diagnosed medical conditions capable of producing such symptoms, considering the medical evidence in the record, he concluded that plaintiff's statements regarding the limiting effects of her conditions were not fully credible. AT 17-18. This portion of the ALJ's determination is at least partially supported by substantial evidence in the record. Objective findings regarding plaintiff's hip and spine conditions are for the most part benign. See, e.g., AT 193, 282, 285. Records of plaintiff's treatment over time with Dr. Thomas reveal only relatively modest treatment, with no suggestion of surgical intervention.[6] See AT 182-91, 227-47. A report of a consultive orthopedic examination by Dr. Holland, conducted in July of 2004, was relatively unremarkable, revealing normal range of motion in all directions in plaintiff's lumbar spine. AT 193. Based upon his examination and objective evidence, Dr. Holland characterized plaintiff's range of motion as normal and noted that there was indication of possible symptom magnification. Id.

*8 The evidence in the record regarding plaintiff's depression is similarly unremarkable. Plaintiff has never undergone hospitalization or sought psychiatric or psychological treatment, other than for an apparently brief period of time not specified in the record.[7] After conducting a consultative psychological evaluation in June of 2004, Dr. Thomas Osika opined that the plaintiff suffers from a major depressive disorder, recurrent, mild to moderate, though without psychotic features, but he did not indicate the existence of any significant resulting limitations and only recommended outpatient counseling to assist the plaintiff in dealing with anger management issues and symptoms of anxiety. AT 180-81. After reviewing available records Dr. Weiss, a psychiatric consultant, rendered an opinion and prepared a psychiatric review technique form with minimal findings. AT 221-23. These findings are corroborated by the notes of plaintiff's treating physician, Dr. Thomas, who on September 6, 2005 indicated that plaintiff's depression was stable with use of the prescribed Zoloft. AT 292.

While ALJ Zolezzi's analysis of the limitations resulting from plaintiff's back pain and mental condition are well supported, there nonetheless remains a conspicuous deficiency in his decision as it relates to his consideration of plaintiff's migraine headaches. Despite significant evidence of reports by the plaintiff of migraine and tension headaches extending over a period of many years, see e.g., AT 227-47, 290-315 and 408, the ALJ did not even include headaches among the impairments listed at step two of his decision.[8] AT 16. After discussing plaintiff's headaches briefly, the ALJ discounted her complaints, relying upon an office note from Dr. Muller, dated February 11, 2000, stating that after taking Elavil the symptomology associated with the plaintiff's headaches had improved to a point where she sustained an average of only three per month. See AT 18 (citing AT 241). That statement, however, ignores evidence in the record, particularly Dr. Thomas' notes, revealing that plaintiff's headaches persisted and became worse after she suffered abuse at the hands of her ex-husband, causing her to experience severe pain, aggravated by noise and light, and requiring the prescription of Fiorocet, which, in turn, has caused plaintiff to experience difficulty with concentration and memory. See AT 366-67; see also AT 227-47, 290-315.

In contrast to the ALJ's apparent minimization of the frequency and affects of plaintiff's headaches, she testified during the hearing to experiencing tension headaches and/or migraines on a daily basis and that her headaches may last anywhere from a few hours to an entire day. AT 366-67. Plaintiff stated that at times she goes to bed with a migraine, only to wake up with one in the morning. AT 366. Plaintiff described the pain associated with migraines as existing in the right side of her head, behind her eye, and radiating to the top of her head. Id. Plaintiff explained that both noise and light aggravate her headaches. AT 414. Efforts by the plaintiff to minimize the symptoms associated with her headaches have included the use of cold and heat packs and lying down, although she stated that those efforts are not always successful. AT 366-67, 395. Plaintiff also noted that while she has been prescribed Fiorocet for her headaches, she experiences side affects from that medication, including difficulty in concentration and memory loss. AT 366.

*9 It is well established that when assessing a claimant's RFC and determining whether he or she can perform either past relevant work or other available work within the national and regional economies, despite applicable limitations, an ALJ must consider all impairments, exertional and non-exertional, which limit the person's ability to perform work-related functions. Johnston v. Astrue, No. CV-07-5089, 2008 WL 4224059, at *9 n. 9 (E.D.N.Y. Sept. 8, 2008) (citing S.S.R. 96-8p at In this instance, when assessing her RFC the ALJ plainly failed to consider the cumulative impact of all of plaintiff's impairments, most notably the contributing affects of her headaches. In this regard, it is significant that when questioned by plaintiff's counsel the vocational expert, upon whose opinion the ALJ's finding is premised, acknowledged that the existence of migraines affecting plaintiff's ability to work could create concern for an employer. AT 381-82.

Having concluded that the Commissioner's determination cannot withstand judicial scrutiny as a result of this flaw in his decision, the next question to be addressed is the proper scope of the resulting remand. Stated differently, the issue becomes whether the court should direct a finding of disability and grant the plaintiff's request that the matter be remanded to the agency for the limited purpose of calculating benefits owing.

Section 405(g) of the Social Security Act contemplates two types of remands: remands pursuant to sentence four of that section, and those pursuant to sentence six. 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 97-98, 111 S.Ct. 2157, 2163, 115 L.Ed.2d 78 (1991) (citing Sullivan v. Finkelstein, 496 U.S. 617, 623-27, 110 S.Ct. 2658, 2662-66, 110 L.Ed.2d 563 (1990)). Sentence four provides that:

[t]he court shall have power 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). As this language plainly suggests, sentence four envisions the entry of judgment upon the pleadings based upon judicial review of a transcript of the record below.[9]

The court thus retains discretion to modify or reverse the decision below and, if deemed appropriate, to remand the matter to the agency in order to allow gaps in the evidentiary record to be filled, or identified errors to be addressed. E.g., Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir.1999); Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.1996). Alternatively, when there is no reason to believe that remand would serve any useful purpose the court may, in its discretion, remand solely for a calculation of benefits. Balsamo v. Chater, 142 F.3d 75, 82 (2d Cir.1998).

The court is not well positioned to make a determination of plaintiff's RFC in the first instance, taking into consideration the cumulative effects of her various conditions, including migraine headaches. For this reason, despite the unfortunate fact that there have already been two prior hearings in connection with plaintiff's application for SSI benefits, I am constrained to recommend that the court refer the matter back to the agency, considering its unique expertise, for further consideration of plaintiff's conditions and a determination regarding disability.

IV. SUMMARY AND RECOMMENDATION

*10 Plaintiff's application for SSI benefits has been the subject of two hearings and resulting ALJ determinations, both concluding that she is not disabled. The determination now before the court, however, gives short shrift to plaintiff's migraine headaches, and their impact, together with her other mental and physical conditions, upon her ability to perform work-related functions, thereby infecting the ALJ's RFC finding, and in turn the conclusion that plaintiff is not disabled. I therefore conclude that the Commissioner's determination cannot withstand judicial review, even given the modest, deferential standard of review to be applied, and recommend that the matter be remanded for further consideration of the impacts of that condition. Accordingly, it is therefore hereby respectfully

RECOMMENDED, that plaintiff's motion for judgment on the pleadings be GRANTED, the Commissioner's determination of no disability VACATED, and the matter REMANDED to the agency for further consideration consistent with this recommendation.

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 the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).

It is hereby 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.

*75 Appeal from the United States District Court for the Western District of New York (Telesca, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment is VACATED and the case is REMANDED to the district court with instructions to remand the case to the Commissioner of Social Security for further proceedings.

Attorneys and Law Firms

Howard D. Olinsky (Jaya A. Shurtliff, on the brief), Olinsky Law Group, Syracuse, NY, for Plaintiff-Appellant.

Katrina Lederer, Special Assistant United States Attorney (Mary Ann Sloan, Acting Regional Chief Counsel, Region II, and Tracy Udell, Special Assistant United States Attorney on the brief), for Kathleen M. Mehltretter, United States Attorney for the Western District of New York, Syracuse, NY, for Defendant-Appellee.

PRESENT: DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges and JOHN GLEESON, District Judge.[*]

Opinion

SUMMARY ORDER

Plaintiff-appellant Lenorris Sanders appeals from the district court's judgment entered May 6, 2011, dismissing his complaint. The judgment was based on the district court's May 3, 2011 order granting judgment on the pleadings in favor of defendant-appellee Commissioner of Social Security (the "Commissioner"). Sanders v. Astrue, No. 10-CV-6317T, 2011 WL 1672534, at *12 (W.D.N.Y. May 3, 2011). We assume the parties' familiarity with the underlying facts and procedural history of the case, as well as the issues presented for review.

*76 On October 30, 2007, Sanders applied for disability benefits under Title XVI of the Social Security Act (the "Act"), claiming impairment in his spine, lower back, and left leg. The application was denied initially and, following a de novo hearing before Administrative Law Judge ("ALJ") John P. Costello, denied again on November 3, 2009. The ALJ held that Sanders was not disabled within the meaning of the Act. On April 16, 2010, the Social Security Administration Office of Disability Adjudication and Review denied review of the ALJ's decision. The district court ruled in favor of the Commissioner below, and this appeal followed.

On appeal, Sanders argues (1) the ALJ erroneously held that he failed to meet Listing 1.04; (2) the ALJ's determination of his residual functional capacity ("RFC") was not supported by substantial evidence; (3) the ALJ erred by accepting the vocational expert's testimony as substantial evidence; and (4) the ALJ erred by failing to apply the proper legal standards in assessing his credibility.

We "conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied." Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.2008) (internal quotation marks omitted). "[I]t is not our function to determine de novo whether [a plaintiff] is disabled." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir.2012) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996)).

1. Listing 1.04

Listing 1.04 sets parameters for impairments involving a disorder of the spine that results in the compromise of a nerve root or the spinal cord. See 20 C.F.R. pt. 404, Subpt. P, App. 1, Section 1.04 (2006). Under Listing 1.04(A), such a disorder can be demonstrated by evidence of nerve root compression accompanied by sensory or reflex loss. Id. As the district court found, the ALJ's determination that Sanders failed to meet Listing 1.04 was supported by substantial evidence in the record.

Sanders essentially concedes that no doctor diagnosed him with nerve root compression. Nevertheless, he contends that the record contains evidence of nerve root compression. Even assuming that is true, the evidence also contains substantial evidence supporting the conclusion that there was no nerve root compression. For example, a January 8, 2008 orthopedic examination (with an x-ray of the spine) revealed "[n]o frank features of lower extremity radiculopathy." Although a March 3, 2008 examination noted "radicular symptoms in the left leg, " it also found:

The patient has good range of motion of the lumbar spine. Muscle strength is 5/5 in the bilateral upper and lower extremities. There is no atrophy or abnormal movements.

We conclude there is substantial evidence in the record supporting the Commissioner's decision that Sanders did not suffer from a listed impairment.

2. Residual Functional Capacity

Sanders argues that the ALJ's determination of his RFC was not supported by substantial evidence. The ALJ found that Sanders:

has the residual functional capacity to lift 20 pounds occasionally and 10 pounds frequently; sit, stand and/or walk... for a total of about 6 hours in an 8-hour workday;... and is precluded from overhead lifting.

Sanders claims that the ALJ failed to accord appropriate weight to the opinion of his treating physician, Dr. Bharat Gupta, *77 who reported that Sanders could lift no more than 10 pounds and stand for no longer than 1 hour. For the following reasons, we agree with Sanders.

First, the ALJ stated that the opinions of the treating source and examining sources, including that of the state agency examiner, "are generally consistent with each other." This was wrong.[2] Dr. Gupta, the treating source, opined in 2009 that Sanders could lift no more than 10 pounds. The state agency examiner, L. Patelunas, was of the opinion that Sanders could lift 20 pounds. These opinions are not consistent, compare 20 C.F.R. § 416.967(a) (defining sedentary work as lifting no more than 10 pounds at a time) with id. § 416.967(b) (defining light work as lifting no more than 20 pounds at a time), and the inconsistency cannot be dismissed as trivial. Indeed, it struck right at the heart of the decision denying benefits: the ALJ's finding that Sanders could perform a range of light work requires a rejection of the treating physician's opinion in favor of the consultative examiner's opinion. The ALJ's statement that these contradictory opinions are "generally consistent" is sufficient by itself to remand for an explanation.

Second, the ALJ did not follow the treating physician rule in assessing Sanders's exertional capabilities. In arriving at an RFC determination, an ALJ must assess a claimant's exertional capabilities-which includes the ability to stand and carry-based on "all of the relevant medical and other evidence, " 20 C.F.R. § 404.1545(a)(3). Dr. Gupta was Sanders's treating physician. He treated Sanders for back and neck pain on at least thirteen different occasions over three years beginning in July 2006.[3] Based on this treatment, Dr. Gupta concluded in July 2009 that Sanders should engage in "no lifting more than 10 [pounds]" and "no prolonged standing for more than 1 [hour] at a time." Despite this opinion, the ALJ concluded that Sanders had the RFC to "lift 20 pounds occasionally and... stand... for a total of about 6 hours...."

A treating physician's opinion must be given "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." Id. § 404.1527(c)(2). Where, as here, an ALJ gives a treating physician opinion something less than "controlling weight, " he must provide good reasons for doing so. This Court has consistently held that the failure to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand. Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir.1998); see also Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.2004) (per curiam) ("We do not hesitate to remand when the Commissioner has not provided good reasons' for the weight given to a treating physicians [sic] opinion and we will continue remanding when we encounter opinions from ALJs that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion.").

Here, the ALJ failed to provide good reasons for failing to give controlling weight to Dr. Gupta's opinion. Moreover,

*78 from our plenary review of the record, it is not possible to glean any "good reason" for deviating from Dr. Gupta's opinion on Sanders's exertional limits.[4] Accordingly, we hold that the Commissioner's determination that Sanders is capable of performing light work is not supported by substantial evidence.[5]

The judgment of the district court is VACATED and the case is REMANDED to the district court with instructions to remand the case to the Commissioner for further proceedings.

Attorneys and Law Firms

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

Michelle L. Christ, Social Security Administration, New York, NY, for Defendant.

Opinion

MEMORANDUM-DECISION and ORDER

LAWRENCE E. KAHN, District Judge.

I. INTRODUCTION

*1 Plaintiff Pamela J. Shepard ("Plaintiff) brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), for review of the final decision of the Commissioner of Social Security ("Commissioner") that Plaintiff is ineligible for Disability Insurance Benefits ("DIB") as well as Supplemental Security Income Benefits ("SSI").[1] Plaintiff argues that the decision of Administrative Law Judge ("ALJ") Thomas P. Tielens was against the weight of the substantial evidence and violates the Social Security Act. The Commissioner cross-moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and asserts that the ALJ's decision is supported by substantial evidence and was made in accordance with applicable law.[2]

For the following reasons, this matter is affirmed in part and remanded in part for proper consideration of Plaintiff's Residual Functional Capacity ("RFC") and reassessment of Plaintiff's credibility.

II. BACKGROUND

A. Procedural History

On November 29, 2006, Plaintiff protectively filed a Title II application for DIB and concurrently filed a Title XVI application for SSI. Dkt. No. 8-2 at 19.[3] Her applications were denied on June 8, 2007. Dkt. No. 8-4 at 2. Plaintiff requested a hearing, which was held on September 3, 2009, before the ALJ. Dkt. No. 18 ("Defendant's Brief') at 2. In his decision dated October 14, 2009, the ALJ found that Plaintiff was not disabled under §§ 216(i), 216(d), and 1614(a)(3)(A) of the Social Security Act. Dkt. No. 8-2 at 28. Plaintiff's timely request for review of the ALJ's decision was denied by the Social Security Appeals Council ("Appeals Council") on January 7, 2011, at which time the ALJ's decision became the final determination of the Commissioner. Dkt. No. 8-2 at 2. On February 23, 2011, Plaintiff filed the present action. Dkt. No. 1 ("Complaint") at 4.

B. Substantive Background

Plaintiff was born on April 30, 1961. Dkt. No. 12 ("Plaintiff's Brief) at 8. After graduating from high school, she received two associate's degrees and a welder's certification. Id. Plaintiff has worked as a packer on an assembly line and a machine operator. Dkt. No. 8-6 at 19. She testified that her job as a packer was "fast paced" and required her to stand in order to perform her duties. Dkt. No. 8-2 at 47-48. She further testified that her duties as a machine operator required her to lift 50 pounds or more and be on her feet, and that knee and back problems caused her to leave that job in January 2003. Id. at 48-49.

Plaintiff alleges that she has been disabled since September 1, 2006, due to a number of impairments including knee and back pain, drug abuse and alcoholism, morbid obesity, and various psychological disorders. Def.'s Br. at 5. A 2003 motor vehicle accident caused Plaintiff substantial injuries for which she underwent several right-heel surgeries in 2003 and 2005. Dkt. No. 8-2 at 66; Pl.'s Br. at 9-10. Plaintiff also had prior surgeries on her hand, knee, and both feet. Pl.'s Br. at 10. Furthermore, Plaintiff has been hospitalized for acute psychosis and has a history of asthma, anxiety, and panic attacks. Id. at 4. Plaintiff testified that she received mental-health counseling for a brief period when she was a teenager and that, beginning in 2003, she has received further counseling once a week or more frequently if needed. Dkt. No. 8-2 at 53. Plaintiff allegedly has a history of drug and alcohol abuse, and Plaintiff testified that she had used cocaine for "32 or 34 years, " but had been "clean and sober" since May 13, 2005. Id. at 45, 50.

*2 Moreover, Plaintiff testified about her Obsessive-Compulsive Disorder. Id. at 58-59. She engages in "checking" behaviors and other repetitive activities such as hand washing, checking to make sure that the stove is off, and checking if the refrigerator door is closed, over and over again. Id. Plaintiff reported having hallucinations during which she hears "unexplained" sounds and sees "the bad man." Id. at 59.

Plaintiff attributes her ability to successfully obtain a two-year degree in chemical dependency counseling with a 3.79 grade-point average to her anxiety medication and the breaks between classes, during which she did not have to be on her feet or in a chair that hurt her back. Id. at 63. In order to obtain her degree, Plaintiff worked approximately 24 hours per week, interned, performed research, and wrote papers. Id. at 64-65.

Plaintiff briefly worked at Burger King before quitting due to alleged back and knee pain. Dkt. No. 8-6 at 66. She then worked for Kelly Services Marietta Corporation as a packer, where she "couldn't tolerate standing" and was consequently terminated in July 2003. Id. She has not worked since. Id.

C. The ALJ's Decision

Plaintiff's hearing was held in September 2009. Def.'s Br. at 2. The ALJ made the following findings and conclusions, as set forth in his October 14, 2009 decision.

First, the ALJ held that Plaintiff met the insured-status requirement of the Social Security Act through September 30, 2008. Dkt. No. 8-2 at 21. In addition, he held that Plaintiff has not engaged in substantial gainful activity since September 1, 2006, the alleged onset date of her disability. Id. Moreover, the ALJ found that Plaintiff had the following "severe" impairments: mild asthma, knee pain, foot surgeries, morbid obesity and related back pain, as well as depressive affective disorder, obsessive-compulsive disorder, personality disorder not otherwise specified, and a history of drug addiction, alcoholism, or other substance-abuse disorders. Id.

Furthermore, the ALJ held that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled a listed impairment. Id. at 23. The ALJ also determined that Plaintiff had the RFC to perform light (or sedentary) work, standing not more than approximately two hours per workday, with the mental capacity to meet the demands of simple, repetitive, entry-level work, and the ability to understand and follow simple directions, perform simple tasks, maintain a routine and schedule, to at least occasionally relate to and interact appropriately with others, and to deal with work related stress. Id. at 24. The ALJ further held that Plaintiff may have been unable to perform past relevant work. Id. at 27. He determined that, as of the alleged onset date, Plaintiff was 45 years old and therefore a "younger person" as defined in 20 CFR § 416.963(c). Id. at 27. Next, the ALJ determined that Plaintiff had at least a high school diploma and could communicate in English. Id. The ALJ then held that, whether or not she had transferable job skills, Plaintiff was not disabled based on the Medical-Vocational Rules. Id. Finally, the ALJ held that considering her age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. Id. at 28.

D. The Parties' Briefs

*3 Both parties have filed Briefs. In her Brief, Plaintiff argues that: (1) the Commissioner failed to properly evaluate the evidence; (2) the determined RFC was in error and not based on substantial evidence in the record; (3) the Commissioner failed to meet his burden because no vocational evidence or testimony were presented; and (4) the credibility determination was in error. See generally Pl.'s Br. Defendant contends that: (1) the ALJ's RFC finding is supported by substantial evidence; (2) the ALJ appropriately assessed Plaintiff's credibility; (3) the ALJ correctly determined that Plaintiff could perform work in the national economy; and (4) the Commissioner's decision should therefore be affirmed. See generally Def.'s Br.

III. LEGAL STANDARD

A. Jurisdiction and Scope of Review

Plaintiff resides in Cortland, New York, which sits in the judicial district in which the claim is brought. Compl. at 2. District courts have jurisdiction to hear claims based on denial of Social Security benefits pursuant to 42 U.S.C. §§ 405(g) and 1383(c) (3). A claimant may request review of the ALJ's decision by the Appeals Council, but "[t]he dismissal of a request for Appeals Council review is binding and not subject to further review"; thus, upon dismissal, the decision of the ALJ becomes the Commissioner's final decision. 20 C.F.R. §§ 404.972, 404.967. Furthermore, "[t]he Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless [an action is filed] in Federal district court, or the decision is revised." Id. § 404.981. Therefore, once the Appeals Council has acted the case is ripe for judicial review. See id.

In reviewing the Commissioner's decision regarding eligibility to receive Social Security benefits, a court must determine whether the Commissioner's findings are supported by substantial evidence in the record and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Featherly v. Astrue, 793 F.Supp.2d 627, 630 (W.D.N.Y.2011) (citations omitted). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). It must be "more than a mere scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co., 305 U.S. at 229); accord Featherly, 793 F.Supp.2d at 630.

A reviewing court may not affirm the Commissioner's decision if it reasonably doubts that the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986. The Commissioner's decision must be upheld if the evidence is deemed to be susceptible to more than one rational interpretation, and if supported by substantial evidence, 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]." See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982); Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y.1992). Moreover, 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). A 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).

B. Disability Benefits

*4 Disability is defined as 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). Moreover, 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. § 1382c(a)(3)(B).

To determine whether a claimant has a disability, the Commissioner applies a five-step process. See 20 C.F.R. §§ 404.1520, 416.920. Moreover, "[i]f at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003). The five-step process is as follows:

First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his 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 Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary 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 has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.

Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir.1996) (citations omitted). A claimant bears the burden of proof with regard to the first four steps, and, if the claimant satisfies this burden, the burden shifts to the Commissioner with regard to the fifth step to prove that there is other work that the claimant could perform. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir.2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996)).

IV. DISCUSSION

A. The ALJ's Analysis

At step one of the five-step process, the ALJ found that Plaintiff "had not engaged in substantial gainful activity since... the alleged onset date." Dkt. No. 8-2 at 21. At step two, the ALJ found that while some of Plaintiff's medical issues did not rise to the level of "severe, " Plaintiff did have severe impairments, specifically a "past history of mild asthma; history of knee pain; status-post right foot fusion surgeries; and morbid obesity with some related back pain; along with depressive affective disorder: obsessive-compulsive disorder (OCD); personality disorder NOS; and history of DA & A (drug addiction and/or alcoholism and/or related substance abuse disorders)." Id.

*5 At step three, however, the ALJ held that none of the above impairments or combinations of impairments "meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926)." Dkt. No. 8-2 at 23. The ALJ held at step four that Plaintiff was unable to perform past relevant work because her previous employment might call for more lifting and standing than she was able to perform. Id. at 27.

Finally, at the fifth step, the ALJ held that, subject to the limitation of standing not more than two hours per workday, "the claimant has the residual functional capacity to perform light (or sedentary) work as defined in 20 C.F.R. 404.1567(b) and 416.067(b)." Dkt. No. 8-2 at 24. In addition, Plaintiff is "able to meet the basic rudimentary demands of simple, repetitive, entry-level work" and is "able to understand and follow simple instructions and directions; perform simple tasks;... maintain attention/concentration for tasks; regularly attend to a routine and maintain a schedule; relate to and interact appropriately with others... and... to deal with work-related stress." Id. "Considering the claimant's age, education, work experience, and residual functional capacity, " the ALJ determined that "there are jobs that exist in significant numbers in the national economy that the claimant can perform." Id. at 28. The ALJ ultimately found that "the claimant has not been under a disability within the meaning of the Social Security Act from September 1, 2006 through the date of this decision." Id. at 19.

B. Plaintiff's Claims

1. Evaluation of Evidence

Plaintiff alleges that "[t]he ALJ must explain in his decision the weight given to medical providers, treating and nontreating physicians, and nonexamining sources." Pl.'s Br. at 20. "[T]he discussion as to the weight given, " Plaintiff argues, "allows a subsequent reviewer to follow the ALJ's reasoning." Id. at 21. Plaintiff also asserts that a treating physician's medical opinion must be given "controlling weight" when it is supported by the substantial evidence. Id. This is known as the "Treating Physician Rule, " which "mandates that the medical opinion of a claimant's treating physician is given controlling weight if it is well supported by medical findings and not inconsistent with other substantial record evidence." Shaw v. Carter, 221 F.3d 126, 134 (2d Cir.2000). She further contends that a physician's opinion, even when not controlling, may be entitled to significant weight based on the familiarity of the treating source with the claimant's medical conditions. Id. Finally, Plaintiff argues that the ALJ must explain the reasoning behind the weight given to a treating physician's opinion and that failure to do so is grounds for remand. Id. at 22.

Defendant contends that the ALJ properly cited the opinion of a consultative examiner and that such an opinion can constitute substantial evidence in support of the ALJ's decision. Def.'s Br. at 7. Defendant further asserts that the opinion of a nonexamining source may override the opinion of a treating physician when supported by the evidence in the record, and that the ALJ has the authority to weigh conflicting medical evidence and choose between medical opinions. Id. at 9-10. Defendant argues, in sum, that the ALJ's conclusions regarding the weight given to each source are supported by substantial evidence.

*6 The ALJ found that the case manager's testimony regarding Plaintiff's ability to work and the counseling program's lack of employment-related goals for Plaintiff was contradicted by the agency's apparently sending Plaintiff to college and Plaintiff's participation in a program, the aim of which is to promote workforce re-entry. Dkt. No. 8-2 at 26, 73-75.

Furthermore, the ALJ determined that Dr. Rahner's findings regarding the restrictions on Plaintiff's standing and walking were without evidentiary support and inconsistent with Dr. Ganesh's findings:

the summary conclusions... [of] Dr. Ganesh are consistent with the entire record.... The recent assessment from treating source Dr. Rahner is generally consistent with the herein determined capacity, though the drastic restriction on standing/walking is not explained or justified by any supportive clinical recitals, and so is considered conclusory and unpersuasive.

Dkt. No. 8-2 at 26-27. In general, such "[g]enuine conflicts in the medical evidence are for the Commissioner to resolve." Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.2002) (citing Richardson v. Perales, 402 U.S. 389, 399, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Thus, the ALJ was within his discretion to make such a determination and sufficiently stated his reasoning for the weight he gave to these opinions.

Regarding the opinions of consulting physician Dr. Shapiro and treating counselor Amy Walton, the ALJ noted that their findings

are inconsistent with the relatively benign mental status exam results obtained that same day by the examiner; and so are not granted any considerable evidentiary weight herein.... Likewise, the statements from treating counselor Amy Walton... cannot be granted any significant weight in these deliberations, since they are undermined at the outset by the claimant's very good performance in the school setting to date.

Id. at 27. The ALJ sufficiently explained his reasoning with regard to the weight he gave to the psychiatric evaluations.

Moreover, courts have upheld ALJ determinations according little weight to treatingphysician testimony when that testimony is contradicted by evidence of the claimant's success in higher education. See, e.g., Klett v. Barnhart, 303 F.Supp.2d 477, 484-85 (S.D.N.Y.2004). In Klett, the court upheld the ALJ's decision not to give controlling weight to a treating physician because the ALJ "determined that the treating source's... opinion[s are] contradicted by overwhelmingly compelling non-medical evidence, '" referring, in particular, to the plaintiff's "ability to graduate from Wesleyan in four years as an English major with a 3.3 grade point average" during the alleged period of disability. Id. at 483 (alteration in original). Thus, while Plaintiff is correct that school attendance is not conclusive evidence of the ability to engage in substantial gainful activity, scholastic performance may properly be considered when making such a determination.[4] In addition, at no point did the ALJ attempt to assert that Plaintiff's academic success was, itself, a substantial gainful activity; rather, he merely considered this as evidence in support of his determination that Plaintiff was capable of engaging in such activity. See Dkt. No. 8-2 at 25-26. Therefore, the ALJ properly considered Plaintiff's education and academic success in making his decision, and the Court finds that the ALJ sufficiently explained his reasoning behind the weight given to medical providers, treating and nontreating physicians, and nonexamining sources.

2. RFC Determination

*7 RFC describes the most work that a claimant can perform despite his or her limitations and is based on all relevant evidence in the record. 20 C.F.R. § 404.1545(a) (1). An ALJ "must make his own findings, specifying what functions plaintiff is capable of performing, and not simply make conclusory statements regarding plaintiff's residual functional capacity." Sullivan v. Sec'y of Health & Human Servs., 666 F.Supp. 456, 460 (W.D.N.Y.1987). An RFC determination must include "substantial evidence of each physical requirement listed in the regulations" and requires that the ALJ "specify the functions plaintiff is capable of performing." LaPorta v. Bowen, 737 F.Supp. 180, 183 (N.D.N.Y.1990); Sullivan, 666 F.Supp. at 460.

In this case, the ALJ found that Plaintiff's limitations are consistent with an ability to perform sedentary work, which

involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

20 C.F.R. § 404.1567(a). "Occasionally" has been defined as "occurring very little to up to onethird of the time." SSR 83-10, 1983 WL 31251, at *5. The sedentary level of exertion is said generally to involve periods of standing and walking not more than approximately two hours and sitting not more than six hours in an eight-hour work day. Id. The Court also notes that the ALJ refers to "light (or sedentary) work." See Dkt. No. 8-2 at 24. Defendant's brief, however, asserts that "the Commissioner maintains that Plaintiff can perform a range of sedentary-not light-work." Def.'s Br. at 5 n. 4. Plaintiff's ability to perform sedentary work could be established by her ability to perform light work. 20 C.F.R. § 404.1567(b) provides that "[i]f someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." However, to establish Plaintiff's capacity to perform either light or sedentary work, the ALJ must set forth a more detailed analysis. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.1984) ("[T]he crucial factors in any determination must be set forth with sufficient specificity to enable [a court] to decide whether the determination is supported by substantial evidence.") (citing Treadwell v. Schweiker, 698 F.2d 137, 142 (2d Cir.1983)).

Specifically, "[t]he RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis.... Only after that may RFC 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. Thus, in order to establish that Plaintiff is capable of performing light work, in an effort to establish that Plaintiff is capable of performing sedentary work, the ALJ would have to address, at a minimum, Plaintiff's abilities to lift up to 20 pounds, walk, stand, sit, push, and pull. 20 C.F.R. § 404.1567(b). Beyond Plaintiff's abilities to lift ten pounds and stand for a maximum of two hours per workday, the remaining abilities were not addressed.

*8 In terms of Plaintiff's ability to perform sedentary work, the ALJ found that Plaintiff "could lift/carry [ten] pounds; and certainly her testimony about carrying a back-pack and heavy load of books around the college campus suggests [the] ability to lift considerably more than that." Dkt. No. 8-2 at 25. He also stated that she is able to stand for a total of two hours per workday. Id. at 24. However, the additional exertional requirements of sedentary work are not addressed, and those that are addressed lack a sufficient explanation of the evidentiary basis for the ALJ's findings. For example, the ALJ in no way addressed or explained the evidentiary support for his findings (or lack thereof) regarding Plaintiff's sitting and walking abilities. Thus, the ALJ did not provide a sufficient explanation for his RFC determination, and "failure to explain the evidence relied upon in assessing RFC is grounds for a remand." Compo v. Comm'r of Soc. Sec., No. 05-CV-973, 2009 WL 2226496, at *9 (N.D.N.Y. July 23, 2009) (citation omitted).

Therefore, whether the ALJ was attempting to establish Plaintiff's ability to perform sedentary work by establishing Plaintiff's ability to do light work, or trying to establish Plaintiff's ability to perform sedentary work directly, the ALJ fails to describe, on a function-by-function basis, Plaintiff's capabilities in making his RFC determination. Defendant's Brief states that the record supports the ALJ's RFC finding. Def.'s Br. at 6-7. Defendant describes, in support of this proposition, the detailed findings of Dr. Ganesh, noting "no gross limitations to sitting or using her upper extremities" as well as "mild to moderate limitation to standing, walking and climbing." Id. at 7. These findings may support the ALJ's RFC finding, but the ALJ must specify in his decision the functions Plaintiff is capable of performing. This he did not do. The Court therefore remands on the issue of the determination of Plaintiff's RFC.

3. Requirement of Vocational Evidence or Testimony

Plaintiff argues that where the combination of a claimant's physical and nonexertional impairments further limits the range of work she can perform, "the Commissioner must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'" Pl.'s Br. at 29 (quoting Bapp v. Bowen, 802 F.2d 601 (2d Cir.1986)). However, the nonexertional impairments must "significantly diminish the ability to perform a full range of work" to require the testimony of a vocational expert. Melchior v. Apfel, 15 F.Supp.2d 215, 222 (N.D.N.Y.1998).

"Limitations or restrictions which affect [a claimant's] ability to meet the demands of jobs other than the strength demands, that is, demands other than sitting, standing, walking, lifting, carrying, pushing or pulling, are considered non-exertional." 20 C.F.R. § 404.1569a. Thus, Plaintiff's mental impairments are nonexertional. The ALJ considered these limitations and found that "the claimant indeed has some very real mental health issues, but that these vary widely in nature and severity over time, and have a less than drastic overall impact on normative functioning." Dkt. No. 8-2 at 25. The ALJ noted that Plaintiff has, at times, received a high Global Assessment of Functioning score and performed well in school as evidence to support his finding. Id. The ALJ further observed the correlation, acknowledged by Plaintiff, between her mental health and having structure in life, such as that offered by school or a job. Id. The ALJ had substantial evidentiary support in the record to support his determination. Therefore, the ALJ was entitled to rely on the Medical-Vocational guidelines in making his determination, and vocational expert testimony was properly excluded.

4. Credibility Determination

*9 Plaintiff contends that the ALJ incorrectly determined that Plaintiff's physical impairments primarily concern the ability to climb and descend stairs and were generally "mild, " because her physical evaluation indicated "significant exertional limitations due to back and knee pain and the need for breaks/rest." Dkt. No. 8-2 at 33. Plaintiff further asserts that the ALJ's opinion that Plaintiffs mental limitations "have less than a drastic overall impact on normative functioning" is "neither the standard, nor based on the substantial evidence." Id. at 34. Plaintiff alleges that her "description of the nature and intensity of her symptoms are credible and supported by consistent treating and reviewing medical and non-medical sources and consultative medical examinations." Id. Plaintiff therefore contends that "[t]he Commissioner's decision is not supported by the substantial medical and other evidence." Id.

Defendant contends that "the ALJ appropriately assessed Plaintiff's statements." Def.'s Br. at 11. Defendant argues that the ALJ properly concluded that Plaintiff's daily activities, such as dressing, bathing, and grooming herself, as well as cooking, doing laundry, and attending college, were not inconsistent with an ability to work. Dkt. No. 8-2 at 11-12.

While "an ALJ's credibility findings are entitled to deference by a reviewing court, " the reasoning behind the ALJ's credibility determination must be stated "explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief." Calvello v. Barnheart, No. 05 Civ. 4254, 2008 WL 4452359, at *12 (citing Tejada v. Apfel, 167 F.3d 770, 775-76 (2d Cir.1999)); Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y.1987). In this case, the ALJ found that Plaintiff's credibility "cannot be described as full." Dkt. No. 8-2 at 25. He found "the fact that a coalition of three separate agencies are in a process of sending [Plaintiff] through college" with the goal of making her "employable at a relatively high level" to contradict Plaintiff's testimony regarding her impairments and the accompanying symptoms. Id. He found that despite Plaintiff's physical and mental limitations, she has successfully worked in the past and performed well in school. Id. The ALJ concluded that while Plaintiff complains of depression, the record reflects that "she does best when given appropriate structure... the kind of structure which a regular job situation would give her." Id .; see also Dkt. No. 8-2 at 75-79.

These reasons are speculative, conclusory, and lack the specificity that would enable the Court to determine the legitimacy of the ALJ's credibility determination. Moreover, while the ALJ did find that Plaintiff's "medically determinable impairments could reasonably be expected to cause perhaps some of the alleged symptoms, " he held that her "statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent that they are inconsistent with the above [RFC] assessment." Dkt. No. 8-2 at 25. As the matter is remanded for clarification of the RFC determination, and the ALJ had questioned Plaintiff's credibility because her statements were inconsistent with the RFC determination, Plaintiff's credibility should also be reassessed on remand.

V. CONCLUSION

*10 Accordingly, it is hereby:

ORDERED, that the decision of the Commissioner is VACATED in part and REMANDED for clarification of the ALJ's RFC determination and reassessment of Plaintiff's credibility; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on the parties.

IT IS SO ORDERED.

Attorneys and Law Firms

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

Karla J. Gwinn, 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 January of 2004, Plaintiff Alonzo Stenoski filed an application for Supplemental Security Income ("SSI") benefits under the Social Security Act. Plaintiff alleges that she has been unable to work since August 1, 2001, primarily due to obstructive sleep apnea, depressive disorder, anxiety disorder, diabetes, asthma, arthritis, and morbid obesity. Plaintiff's application for benefits was denied by the Commissioner of Social Security.

Plaintiff, through her attorneys, Conboy, McKay, Bachman & Kendall, LLP, Lawrence D. Hasseler, Esq., of counsel, commenced this action on May 23, 2007, 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 denial of SSI benefits pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

On March 20, 2009, 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. 15).

For the reasons set forth below, this Court finds no reversible error and finds that substantial evidence supports the ALJ's decision. Thus, the Court recommends that the decision of the Commissioner be affirmed.

II. BACKGROUND

The relevant procedural history may be summarized as follows. Plaintiff applied for SSI benefits on January 20, 2004, alleging that she had been unable to work since August 1, 2001. (T.[1] at 72). The application was denied on March 22, 2004. (T at 33). Plaintiff filed an untimely request for a hearing, however, because she showed good cause for the untimely request, a hearing before an Administrative Law Judge ("ALJ") was granted and held on October 26, 2005. (T at 419). ALJ Lawrence E. Shearer conducted the hearing from Roanoke, Virginia. (T at 421). Plaintiff and her attorney appeared via videoconference from Watertown, New York. (T at 18, 420-21).

On December 12, 2005, ALJ Shearer issued a written decision denying Plaintiff's application for benefits. (T at 18-30). The ALJ's decision became the Commissioner's decision on May 14, 2007, when the Social Security Administration's Appeals Council denied Plaintiff's request for review. (T at 6).

Plaintiff commenced this action on May 23, 2007. (Docket No. 1). Plaintiff, through counsel, filed a supporting Brief on September 17, 2007. (Docket No. 8). The Commissioner filed a Brief in opposition on January 4, 2008. (Docket No. 13).

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.[2]

III. DISCUSSION

A. Legal Standard

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).

*2 "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, 1427, 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 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. Secy of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984).

The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. §§ 416.920, 404.1520. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity.
If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities.
If the claimant has 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 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 has the residual functional capacity to perform his past work.
*3 Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); 20 C.F.R. §§ 416.920, 404.1520.

While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984).

The final step of the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.920(g); 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).

B. Analysis

1. Commissioner's Decision

The ALJ concluded that Plaintiff had not engaged in substantial gainful activity since her alleged onset of disability date of August 1, 2001. (T at 24). The ALJ found that Plaintiff has the following "severe" impairments: sleep apnea with daytime fatigue, obesity, depressive disorder and anxiety disorder. (T at 25). However, the ALJ concluded that Plaintiff's impairments did not meet or equal the level of severity of any disabling condition set forth in Appendix 1 of the applicable Social Security Act Regulations (the "Regulations"). (T at 25).

After reviewing the medical evidence, the ALJ concluded that Plaintiff had the residual functional capacity to perform light and sedentary work. (T at 26). Specifically, the ALJ found that Plaintiff retains the residual functional capacity to "lift, carry, push and/or pull up to 20 pounds occasionally and 10 pounds frequently, stand and/or walk about four hours total in an 8-hour workday, and sit as needed approximately six hours in an 8-hour workday." (T at 28). The ALJ further found that Plaintiff can "climb stairs and ramps, but not ladders, scaffolds or ropes. She can occasionally kneel, crouch, stoop, bend, squat, and stoop." (T at 28). The ALJ stated that Plaintiff can use her hands, but because of psychological impairments, is limited to simple tasks. (T at 28).

The ALJ concluded that Plaintiff could return to her past relevant work as a binder operator and substitute bus aide. (T at 28). The ALJ found that given Plaintiff's residual functional capacity, age, work experience and education, there are a significant number of other jobs that also exist in the national economy that she can perform. (T at 28). Therefore, the ALJ determined that Plaintiff is not under a disability. (T at 28).

As noted above, the ALJ's decision became the Commissioner's final decision on May 14, 2007, when the Appeals Council denied Plaintiff's request for review. (T at 6).

2. Plaintiff's Claims

*4 Plaintiff contends that the Commissioner's decision should be reversed. Plaintiff offers five (5) principal arguments in support of her position. First, she argues that the ALJ failed to properly assess the severity of her diabetes mellitus, chronic obstructive pulmonary disorder, and arthritis. Second, Plaintiff contends that the ALJ did not follow the required steps when considering the extent and impact of her depression and anxiety. Third, Plaintiff asserts that the ALJ failed to properly assess her residual functional capacity. Fourth, Plaintiff argues that the ALJ erred by concluding that she can perform her past relevant work. Fifth and finally, Plaintiff contends that there is no substantial evidence to support the ALJ's conclusion that there is significant work in the national economy that Plaintiff could perform. This Court will address each argument in turn.

a. Severity Assessment

Step two of the five-step sequential evaluation process requires a determination as to whether the claimant has a severe impairment that significantly limits the physical or mental ability to do basic work activities.[3] An impairment is "severe" if it causes more than minimal functional limitations. 20 C.F.R. § 416.924(c). Age, education, and work experience are not evaluated in determining if the impairment or combination of impairments are severe. 20 C.F.R. § 416.920(c). The severity analysis does no more than "screen out de minimis claims." If the disability claim rises above the de minimis level, then further analysis is warranted. Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.1995).

Plaintiff asserts that the ALJ erred by failing to assess her diabetes mellitus, chronic obstructive pulmonary disorder, and arthritis as "severe" impairments.

i. Diabetes Mellitus

Plaintiff points to medical evidence indicating that she suffers from diabetes mellitus (T at 161, 179) with associated numbness and neuropathy (T at 319, 333-34). Nerve conduction studies showed "[c]ompressive neuropathy of the peroncal nerves bilaterally between the ankle and fibular head, " (T at 137) and "[m]ild to moderate compression of the motor nerves, " (T at 295), which Plaintiff contends are related to her diabetes. The record also indicates that Plaintiff complained of dizziness, vertigo, blurred vision, and eye floaters, which she also attributes to diabetes. (T at 171, 383, 447).

The ALJ reviewed the record and concluded that Plaintiff's diabetes mellitus was a "non-severe" impairment that "[did] not impose more than minimal restrictions on [Plaintiff's] ability to perform work-related activities." (T at 25). The Court finds that the ALJ's decision in this regard was supported by substantial evidence.

As the ALJ noted, the record indicates that Plaintiff's diabetes was well controlled when she complied with her treating physician's recommended treatment. When Plaintiff took her medications and watched her diet, as recommended by Dr. Shirley Tuttle-Malone (her treating physician), Plaintiff's blood sugar was noted to be "normal" and she was found to be in "overall good control of her diabetes" without the use of insulin (T at 385). Dr. Tuttle-Malone indicated that Plaintiff admitted to lacking willpower (T at 175) and was "poorly motivated in terms of diet and exercise, " which the physician had recommended as part of her treatment. (T at 396). The doctor also indicated that Plaintiffs neuropathy was caused by non-compliance with the treatment program. (T at 396). According to Dr. Tuttle-Malone, Plaintiff's complaints of dizziness were only "occasional" and likely caused by drops in blood sugar related to her poorly controlled diabetes. (T at 383). Dr. Tuttle-Malone opined that Plaintiff's vertigo was not disabling and also only occasional. (T at 383).

*5 Pursuant to 20 C.F.R. § 416.930, which the ALJ referenced in his decision, non-compliance with prescribed medical treatment can be a basis for denial of benefits. See Feliciano v. Barnhart, No. 01 CV 5099, 2002 WL 32096586, at *3 (E.D.N.Y. July 1, 2002) ("The SSA Regulations provide that a claimant who fails to follow prescribed medical treatment which would restore her ability to work is typically ineligible for SSI benefits.") (citing Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir.1983) ("a remediable impairment is not disabling")).

Further, notwithstanding Plaintiff's claims of visual blurring and eye floaters, her visual examinations were generally unremarkable (T at 373, 375) and there is no indication that the alleged vision problems were either severe or, for that matter, causally related to diabetes. (T at 24).

The "mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment" is not, itself, sufficient to deem a condition severe. Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y.1995). "A finding of not severe' should be made if the medical evidence establishes only a slight abnormality' which would have no more than a minimal effect on an individual's ability to work.'" Rosario v. Apfel, 97-CV-5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar.19, 1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987)). In this case, the ALJ concluded that Plaintiff's diabetes was not severe because the condition was well controlled when Plaintiff complied with the prescribed treatment and was not disabling when controlled. For the reasons set forth above, the Court finds that the ALJ's decision in this regard was in accord with applicable law and supported by substantial evidence.

ii. Chronic Obstructive Pulmonary Disorder

Plaintiff argues that her chronic obstructive pulmonary disorder ("COPD") should likewise have been considered a "severe" impairment. She points to medical records showing symptoms such as chest tightness and intermittent pain across her chest. (T at 138, 157). In addition, Plaintiff complained of shortness of breath upon very little exertion. (T at 138, 151, 155, 157). Plaintiff characterizes several treatments (including a nebulizer, steroid therapy, medications, and inhalers) as unsuccessful.

The ALJ reviewed the record and concluded that Plaintiff's COPD was a "non-severe" impairment that "[did] not impose more than minimal restrictions on [Plaintiff's] ability to perform work-related activities." (T at 25). The Court finds that the ALJ's decision in this regard was supported by substantial evidence.

Plaintiff's breathing was reported as "excellent" by Dr. Tuttle-Malone in June 2005, with the notation that Plaintiff had "no problems" related to asthma. (T at 393). Plaintiff's symptoms were described as "mild" and "intermittent" and her asthma was generally considered "stable." (T at 394, 175). In June of 2003, Dr. Tuttle-Malone noted that Plaintiff was suffering from "acute bronchitis" and "sinusitis, " but opined that it was related to her "[n]oncompliance with asthma care." (T at 157). Clinical pulmonary function tests were unremarkable (T at 257-260) and a chest x-ray showed no evidence of active lung disease. (T at 261). Dr. Sushma Kaul examined Plaintiff in September of 2003 and characterized Plaintiff's lung issues as "mild." (T at 140).

*6 In sum, as with her diabetes, the ALJ concluded that Plaintiff's COPD was not severe because the condition was well controlled when Plaintiff complied with the prescribed treatment and was not disabling when controlled. For the reasons set forth above, the Court finds that the ALJ's decision in this regard was in accord with applicable law and supported by substantial evidence.

iii. Arthritis

Plaintiff contends that her arthritis should have been considered a "severe" impairment. She frequently complained of back pain, with associated "snapping, " "crackling, " and "popping" from her joints rubbing on one another when she moves. (T at 179, 253). Plaintiff describes her lower back pain as constant and worsened with prolonged sitting or standing. (T at 175, 319, 372). She wears a brace on her right ankle (T at 317), walks with a limp and slow gait (T at 264, 387), and complains of chronic knee pain, along with problems related to her neck and hands. (T at 165, 253).

The ALJ reviewed the record and concluded that Plaintiff's arthritis was a "non-severe" impairment that "[did] not impose more than minimal restrictions on [Plaintiffs] ability to perform work-related activities." (T at 25). The Court finds that the ALJ's decision in this regard was supported by substantial evidence.

Dr. Tuttle-Malone indicated that Plaintiff suffered from back pain "occasionally" (T at 319, 396). Plaintiff treated her pain with Tylenol and while the "popping" sounds may have bothered Plaintiff, Dr. Tuttle-Moore was unconcerned. (T at 179). X-rays of her knees and right ankle were generally unremarkable. (T at 228, 356).

In light of the foregoing, the Court finds that the ALJ's conclusion that Plaintiff's arthritis was not "severe" within the meaning of the Act was in accord with applicable law and supported by substantial evidence.

b. Consideration of Extent and Impact of Depression and Anxiety

When evaluating the severity of mental impairments, the regulations require the ALJ to apply a "special technique" at the second and third steps of the review, in addition to the customary sequential analysis. Kohler v. Astrue, 546 F.3d 260, 265-66 (2d Cir.2008) (citing 20 C.F.R. § 404.1520a).

The technique first requires a determination of whether the Plaintiff has a medically determinable mental impairment. 20 C.F.R. § 404.1520a(b)(1). Then, the ALJ must rate the degree of Plaintiff's functional limitation resulting from the impairment in four areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. See 20 C.F.R. § 404.1520a(c)(3).

These areas are rated on a scale of "none, mild, moderate, marked, and extreme." 20 C.F.R. §§ 404.1520a(c)(4); 416.920a(c) (4). A mental impairment is generally found not severe if the degree of limitation in the first three areas is mild or better and there are no episodes of decompensation. § 404.1520a(d)(1). The ALJ must document "a specific finding as to the degree of limitation in each of the functional areas." 20 C.F.R. § 404.1520a(e)(2).

*7 In this case, Plaintiff contends that the ALJ did not adhere to the special technique requirements. Specifically, Plaintiff described her symptoms as follows: chronic fatigue and sadness, with diminished energy and motivation; chronic irritability; fluctuating moods with tearfulness; feelings of hopelessness with occasional thoughts of suicide; distress and anxiety with increased heart rate; hyperalertness and psychomotor agitation; constricted affect; and diminished memory and concentration. Plaintiff provided supporting citations to the medical record, which document her complaints regarding these symptoms. (Plaintiff's Brief, Docket No. 8, at p. 11).

Plaintiff argues that the ALJ's analysis of the limitations that these conditions impose upon her activities of daily living was insufficiently detailed. Further, she points to portions of the Mental Residual Functional Capacity Assessment completed by Dr. Carlos Gieseken, a non-examining State Agency Physician. Dr. Gieseken opined that Plaintiff is moderately limited with respect to her ability to: understand and remember detailed instructions; carry out detailed instructions; perform activities with a schedule, maintain regular attendance, and be punctual within customary tolerances; complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; respond appropriately to changes in the work setting; and travel in unfamiliar places or use public transportation. (T at 273-74).

The ALJ noted that Plaintiff suffered from, inter alia, depressive disorder and anxiety disorder and concluded that those impairments were "severe" within the meaning of the Regulations. (T at 25). The ALJ found that Plaintiff's mental impairments satisfied the diagnostic listing criteria for depressive disorder and anxiety, which are set forth in paragraph "A" of §§ 12.04 and 12.06 of the Listings.[4] (T at 25). However, the ALJ determined that the record did not establish that Plaintiff's mental impairments satisfied the remaining requirements of those portions of the Listings. (T at 25). Although the ALJ's analysis regarding these issues is not as clear and organized as one would prefer, this Court finds that the ultimate conclusion is consistent with applicable law and supported by substantial evidence.

To have an impairment that meets or medically equals one of the Listings (in this case the applicable Listings are § 12.04 and § 12.06), the claimant must satisfy both Paragraphs A and B or Paragraph C of § 12.04 or, in the case of § 12.06, satisfy Paragraphs A and B or both paragraphs A and C. In this case, there is no evidence or argument that Plaintiff meets the Paragraph C criteria for either Listing. The Paragraph B criteria are the same under § 12.04 and § 12.06. Thus, even though the ALJ determined that Plaintiff satisfied the diagnostic listing criteria for Paragraph A, the ALJ determined that Plaintiff did not satisfy Paragraph B. (T at 25). The question for this Court is whether that conclusion is supported by substantial evidence.

*8 The Paragraph B analysis "requires the ALJ to rate the degree of the claimant's functional limitation in four specific areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation." Manning v. Astrue, No. 07-CV-0327, 2009 WL 604900, at *3 (W.D.N.Y. Mar. 9, 2009). "Simply stated, in order to satisfy the Paragraph B criteria, the claimant must demonstrate at least two of the following: marked restriction of activities of daily living; or marked difficulties in maintaining social functioning; or marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration." Id. (citing Paratore v. Comm'r of Social Sec. Admin., 05-C1356, 2008 WL 541156, at *5 (N.D.N.Y. February 25, 2008)).

With regard to activities of daily living, Plaintiff cared for family members, including grandchildren, and drove a car occasionally. (T at 26-27, 114, 116, 262, 428). She assisted with household chores such as cooking, cleaning, and laundry and was able to pay bills and manage funds. (T at 115, 117, 265). Dr. Gieseken opined that Plaintiff has "mild" limitation with respect to activities of daily living. (T at 287).

"Social functioning refers to an individual's capacity to interact appropriately and communicate effectively with other individuals." Bergman v. Sullivan , CIV 88-513L, 1989 WL 280264, at * 4 (W.D.N.Y. Aug.7, 1989). Plaintiffs family relationships were described as "fair to good, " but she was noted to lack friends, hobbies, or interests. (T at 265). Dr. Gieseken indicated that Plaintiff had "moderate" limitation with respect to social functioning. (T at 287). In particular, Dr. Gieseken opined that Plaintiff was moderately limited with regard to her ability to interact appropriately with the general public and accept instructions/respond appropriately to criticism from supervisors. (T at 274). Dr. Kristen Barry, who performed a consultative psychological examination, described Plaintiff's "overall manner of relating and social skills" as "adequate." (T at 264).

With respect to Plaintiff's ability to maintain concentration, persistence, or pace, Dr. Kristen Barry noted that Plaintiff's attention and concentration were "intact" and she was "able to recall 6-digit number forward and a 5-digit number backward." (T at 264). Plaintiff had the ability to "do counting, simple calculations, and serial 7s." (T at 264). Dr. Gieseken indicated that Plaintiff had only "mild" limitations with regard to maintaining concentration, persistence, or pace. (T at 287). Dr. Gieseken further opined that Plaintiff had no significant limitations with regard to carrying out very short and simple instructions; maintaining attention and concentration for extended periods; sustaining an ordinary routine without supervision; working in coordination with or proximity to others without being distracted by them; and making simple work-related decisions. (T at 273).

*9 There is no indication that Plaintiff had any repeated episodes of decompensation of an extended duration. The ALJ noted that the record "contained no treating physician opinion concerning the limitations or restrictions from any mental... condition." (T at 27). Although Plaintiff points to medical evidence documenting symptoms that she contends impose "moderate limitations, " there is no evidence that she suffers from "marked" limitations in at least two of the categories set forth under Paragraph "B."

Accordingly, the Court finds that the ALJ applied the appropriate legal standard in assessing the extent and impact of Plaintiff's mental impairments. Further, substantial evidence supports the ALJ's determination that Plaintiff's mental impairments did not render her disabled within the meaning of the Act.

c. Assessment of Residual Functional Capacity

Residual functional capacity ("RFC") is defined as: "what an individual can still do despite his or her limitations." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). "Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Id.

When making a residual functional capacity determination, the ALJ considers a claimant's physical abilities, mental abilities, symptomatology, including pain and other limitations that could interfere with work activities on a regular and continuing basis. 20 C.F.R. § 404.1545(a).

The ALJ determined that Plaintiff retained the RFC to lift, carry, push or pull up to 20 pounds occasionally and 10 pounds frequently; stand/walk for about 4 hours in an 8hour work day, and sit as needed approximately 6 hours in an 8-hour work day. (T at 28). The ALJ further found that Plaintiff can climb stairs and ramps, but not ladders scaffolds or ropes; and can occasionally kneel, crouch, bend, squat, and stoop. (T at 28). However, "[d]ue to her psychological impairments, " the ALJ concluded that Plaintiff was "limited to simple tasks." (T at 28).

The ALJ further determined that, based upon Plaintiff's RFC, she could return to her past relevant work as a binder operator and substitute bus aide. (T at 28). In addition, the ALJ noted that even if Plaintiff could not return to that past relevant work, she could perform light, unskilled work as a stock order clerk or security guard. (T at 29).

Plaintiff contends that the ALJ erred in determining her RFC. Specifically, Plaintiff points to the assessment of Dr. Tuttle-Malone, her treating physician, who opined that Plaintiff "certainly may not be able to stand for eight hours or do alot [sic] of lifting, stooping or bending (T at 175). Plaintiff further suggests that the ALJ did not account for her mental limitations, as noted by Dr. Gieseken and outlined above. (T at 273-74).

*10 The Court has no difficulty in finding that the ALJ's decision as to Plaintiff's RFC was supported by substantial evidence. Plaintiff points to the assessment of her treating physician, but fails to note that in the exact same report, Dr. Tuttle-Malone stated that she "doubt[ed]" that Plaintiff was "fully disabled" and opined that Plaintiff "could probably do at least sedentary work." (T at 175).

Dr. Gieseken did note some "moderate" limitations in certain areas related to Plaintiff's mental impairments, but the ALJ factored those limitations into his RFC determination when he concluded that Plaintiff was limited to simple tasks. Dr. Gieseken concluded that Plaintiff was not significantly limited with regard to her ability to understand, remember, and carry out very simple and short instructions; make simple work-related decisions; and ask simple questions or request assistance. (T at 273-74).

Dr. Barry, the physiological consultative examiner, also noted that Plaintiff was "able to follow and understand simple directions and instructions" and "appear[ed] to be a fairly intelligent individual." (T at 265).

The ALJ noted that the record did not contain any "treating physician opinion concerning the limitations or restrictions from any mental or physical condition." (T at 27). The only evidence offered by Plaintiff to the contrary is Dr. Tuttle-Malone's assessment. As discussed above, when the statement is placed in context, it is clear that Plaintiff's treating physician did not consider her fully disabled and, in fact, believed she could perform "at least" sedentary work.

Further support for the ALJ's RFC determination is found in the assessment of the State Agency Review physician, who indicated that Plaintiff had no exertional, postural, manipulative, visual, or communicative limitations. (T at 267-71). It is well settled that an ALJ is entitled to rely upon the opinions of both examining and non-examining State agency medical consultants, since such consultants are deemed to be qualified experts in the field of social security disability. See 20 C.F.R. §§ 404.1512(b)(6), 404.1513(c), 404.1527(f)(2), 416.912(b)(6), 416.913(c), and 416.927(f) (2); see also Leach ex. Rel. Murray v. Barnhart, No. 02 Civ. 3561, 2004 WL 99935, at 9 (S.D.N.Y. Jan.22, 2004) ("State agency physicians are qualified as experts in the evaluation of medical issues in disability claims. As such, their opinions may constitute substantial evidence if they are consistent with the record as a whole.").

In light of the above, the Court finds that the ALJ's determination with regard to Plaintiff's RFC was in accord with applicable law and supported by substantial evidence.

d. Ability to Perform Past Relevant Work

"[I]n the fourth stage of the SSI inquiry, the claimant has the burden to show an inability to return to her previous specific job and an inability to perform her past relevant work generally." Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir.2003) (citing SSR 82-62). A claimant is not disabled if she can perform her past relevant work, either as she actually performed it, or as it is generally performed in the national economy. See SSR 82-61; Jock v. Harris, 651 F.2d 133, 135 (2d Cir.1981) (noting that "the claimant has the burden to show an inability to return to her previous specific job and an inability to perform her past relevant work generally").

*11 "Determination of the claimant's ability to perform past relevant work requires a careful appraisal of (1) the individual's statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements; (2) medical evidence establishing how the impairment limits ability to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc., on the requirements of the work as generally performed in the economy." Speruggia v. Astrue, No. 05-CV-3532, 2008 WL 818004, at *12-*13 (E.D.N.Y. Mar.26, 2008).

The ALJ concluded that Plaintiff retained the RFC to perform her past relevant work as a binder operator and substitute bus aide. (T at 28). Plaintiff argues that consideration of her past work as a substitute bus aide[5] by the ALJ was an error because her earnings from that work did not rise to the level of "substantial gainful activity" within the meaning of the Act.[6] Defendant concedes this point. (Docket No. 13, at p. 16).

However, the ALJ also alternatively determined that Plaintiff could perform her past relevant work as a binder operator. This assessment was based upon Plaintiff's testimony concerning her job responsibilities (T at 430) and testimony from a vocational expert with respect to the skill and exertion level required to perform the job of binder operator. (T at 450). Specifically, the vocational expert noted that the job of binder operator was considered "light, " "unskilled" work. (T at 450). The ALJ presented the vocational expert with a hypothetical claimant having with the same age, education, experience, and RFC as Plaintiff (as determined by the ALJ) and inquired whether that claimant could perform the job of binder operator. (T at 451-52). The vocational expert indicated that the hypothetical claimant could perform that job. (T at 451).

Plaintiff argues that the hypothetical presented to the vocational expert was flawed because it ignored or understated the impact of Plaintiff's physical and mental limitations on her RFC.

Whether a hypothetical presented to a vocational expert is appropriate depends on whether the hypothetical fully encompasses the claimant's physical and mental limitations. Magee v. Astrue, No. 5:05-CV-413, 2008 WL 4186336, at *20 (N.D.N.Y. Sept. 9, 2008) (citing Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 799 (6th Cir.1987)). "If the factors set forth in the hypothetical are supported by substantial evidence, then the vocational expert's testimony may be relied upon by the ALJ in support of a finding of no disability." Id.

Here, the ALJ's hypothetical contained all of the limitations that he reasonably found to be present. For the reasons stated above, the ALJ's assessment as to Plaintiff's limitations was supported by substantial evidence. Thus, the Court finds no flaw with the hypothetical and the ALJ was entitled to rely upon the vocational expert's response in support of his determination that Plaintiff could perform her past relevant work as a binder operator.

e. Existence of Significant Work in the National Economy that Plaintiff can Perform

*12 Plaintiff argues that the ALJ erred in determining that there is significant work in the national economy that she can perform. The ALJ's finding in this regard was based, once again, upon the testimony of the vocational expert and the expert's responses to hypotheticals involving a claimant with the same age, education, experience, and RFC as the Plaintiff (as determined by the ALJ). Plaintiff's argument as to this issue restates the objection outlined above, namely, that the ALJ erred in assessing her RFC and thus presented an incomplete hypothetical to the vocational expert. As noted above, the ALJ's determination of Plaintiff's RFC was supported by substantial evidence and the ALJ could therefore properly rely upon the vocational expert's responses in support of his finding that there was significant work in the national economy that Plaintiff can perform.

IV. CONCLUSION

After carefully examining the administrative record, the Court finds substantial evidence supports the ALJ's decision, including the objective medical evidence and supported medical opinions. It is clear to the Court that the ALJ thoroughly examined the record, afforded appropriate weight to all the medical evidence, including Plaintiff's treating sources, and afforded Plaintiff's subjective claims of pain and other limitations an appropriate weight when rendering a decision that Plaintiff is not disabled. The Court finds no reversible error. Because this Court further finds that substantial evidence supports the ALJ's decision, it is respectfully recommended that Defendant's Motion for Judgment on the Pleadings be GRANTED, that Plaintiff's Motion for Judgment on the Pleadings be DENIED, and that the decision of the Commissioner be affirmed.

V. ORDERS

Pursuant to 28 USC § 636(b)(1), it is hereby ordered that this Report & Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report & Recommendation to all parties.

ANY OBJECTIONS to this Report & Recommendation must be filed with the Clerk of this Court within ten(10) days after receipt of a copy of this Report & Recommendation in accordance with 28 U.S.C. § 636(b) (1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as NDNY Local Rule 72.1(c).

FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN.

Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir.1995); Wesolak v. Canadair Ltd.., 838 F.2d 55 (2d Cir.1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c).

Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988).

*13 SO ORDERED.


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