Hill v. Barnhart (410 F. Supp. 2d 195, 2006)

DECISION AND ORDER

CROTTY, District Judge.

Plaintiff, Martin Hill, brings this action to review a decision of the Commissioner of Social Security (the “Commissioner”), which denied his application for disability insurance benefits under the Social Security Act (the “Act”). The Commissioner moved and Hill cross-moved for judgment on the pleadings. This Court has jurisdiction over this action under 42 U.S.C. § 405(g). 'The question before the Court is whether substantial evidence supports the Commissioner’s decision that Hill was not disabled between May 15, 1996 and December 31, 2001, the last date plaintiff was insured for disability insurance benefits. The Court finds that substantial evidence supports the Commissioner’s denial of benefits and grants the Commissioner’s motion for judgment on the pleadings.

BACKGROUND

I. Procedural History / Administrative Proceedings

Plaintiff filed an application for disability insurance on November 5, 1996 in which he alleged that he became disabled on May 15, 1996 (Tr. at 114-17). The Social Security Administration (“SSA”) denied his application initially on February 14, 1997 (Tr. at 56-58) and on reconsideration on March 13, 1997 (Tr. at 60-62). Hill requested a hearing on March 11, 1998 (Tr. at 63-66) and a hearing was held before Administrative Law Judge (“ALJ”) Robin J. Arzt on July 7, 1998 (Tr. at 663-97). Hill was represented at that hearing. ALJ Arzt issued a decision on September 14, 1998 finding that Hill was not entitled to disability insurance benefits at any time since May 15, 1996 through the date of the decision (Tr. at 45-55). Hill requested a review of the hearing decision by the Appeals Council on September 29, 1998. On July 10, 2001, the Appeals Council remanded the claim back to ALJ Arzt for further proceedings (Tr. at 95-98). The Appeals Council found that ALJ Arzt’s decision did not adequately evaluate the opinion by Hill’s treating physician, Richard Memoli M.D., that ALJ Arzt had not contacted Dr. Memoli to clarify any inconsistencies pursuant to 20 C.F.R. § 404.1512, and that further consideration was warranted of new evidence that Hill had submitted to the Appeals Council (Tr. at 96). A second hearing was held before ALJ Arzt on June 12, 2002, at which hearing Hill once again appeared with counsel (Tr. at 698-731). On January 30, 2003, ALJ Arzt found Hill not disabled through December 31, 2001, the date he was last insured for disability insurance benefits (Tr. at 13-29). Hill requested a review of the January 30, 2003 decision by the Appeals Council (Tr. at 10-12). On February 11, 2004, the Appeals Council denied Hill’s request for review and ALJ Arzt’s decision became the final decision of the Commissioner (Tr. at 4-6). Hill commenced the instant action on April 9, 2004.

II. Statement of Facts

A. Claimant’s Testimony and Non-Medical Evidence

Hill was born on March 22, 1965 (Tr. at 672) and was 31 years old at the time he claimed he became disabled on May 15, 1996. Hill had a high school education (Tr. at 675) and had worked as a car mechanic for ten years (Tr. at 166) and, prior to this employment, as a cashier, stock clerk, and security guard for two- and-a-half years (Tr. at 166, 681). These jobs required heavy physical exertion (Tr. at 681-82). In October, 1994, Hill injured his left ankle and was out of work for a couple of months (Tr. at 678-79). Hill returned to work (Tr. at 679) and, on March 8,1995, Hill slipped on some oil and injured his left knee resulting in an “internal derangement” (Tr. at 239, 677). Hill worked “light duty” until May 15, 1996 (Tr. at 152, 678) when he stopped working.

1. Hill’s Testimony at the July 7, 1998 Hearing

Hill testified that he had seen Dr. Me-moli since 1994 and that he had last seen Dr. Memoli on June 4, 1998 (Tr. at 667). Hill had surgery on his left knee in October 1996 (Tr. at 670). Hill testified that he had been approved for further surgery but that no laboratory tests had been conducted prior to that approval (Tr. at 668). Hill further testified that he had trouble climbing flights of stairs, no longer drove a car, and had someone accompany him wherever he went (Tr. at 673). Hill noted that “[i]f I sit too long I can’t stand and if I stand too long my leg gets excruciating pain” (Tr. at 673). Hill testified that after the October 1996 surgery the knee starting “popping out of place” (Tr. at 682) and that he wore a brace to keep the knee from “buckling and locking up” (Tr. at 687). Hill testified that he took pain and anti-swelling medication (Tr. at 688). Hill also testified that he could only sit or stand for fifteen to twenty minutes at a time (Tr. at 690) and had fallen because of the buckling of the knee (Tr. at 693). Hill stated that he had pain in his ankle every day and that he had “constant, constant pain” in his left knee (Tr. at 689). Finally, Hill testified that he usually spent most of the day in bed with his legs elevated (Tr. at 694) and that he cried from the pain every day (Tr. at 695).

2. Hill’s Testimony at the June 12, 2002 Hearing

On remand from the Appeals Council, Hill testified at a second hearing before ALJ Arzt held on June 12, 2002. Hill stated he that he had had surgery on the left knee in October 1996 and in February 17, 1999 and surgery on the left ankle in April 2000 (Tr. at 702). Hill testified that he had physical therapy from October 1996 until July or August 2000 but stopped due to problems with his right knee (Tr. at 706). Hill testified that he had not had an MRI or a CAT scan of his knee or ankle after his last surgery in 2000 nor of his left knee after his surgery in 1999 (Tr. at 709). Hill once again testified that he experienced pain in his left knee and that he could not “sit too long or ... stand too long” (Tr. at 715). Hill noted that his left ankle was better than it had been in the past (Tr. at 716). Hill testified that he could walk for approximately half an hour before having to rest and that he could stand and sit for up to fifteen to twenty minutes (Tr. at 718).

When Hill was examined by his attorney he testified that, following his stopping work in May 1996, he was bedridden and that his legs had to be elevated all the time to reduce the swelling and the pain (Tr. at 728, 727) and that this condition continued in this way for four years (Tr. at 724). Hill also testified that he took and continued to take pain medication (Tr. at 727-38).

B. Medical Evidence

Hill complained of two accidents: the first occurred on October 12, 1994 and resulted in an injured left ankle; the second occurred on March 8, 1995 and resulted in an injured left knee. In total, Hill had three surgeries: an October 4, 1996 surgery on the left knee entailed an arthroscopic medial meniscectomy; a February 17, 1999 surgery to the left knee involved an arthroscopic lateral men-iscectomy and synovectomy; and, an April 5, 2000 surgery on the left ankle excised a calcified mass (Tr. at 244^45). Hill claimed disability insurance benefits beginning on May 15, 1996 through to December 31, 2001, his last date insured.

1. Regulatory Framework Regarding Medical Evidence

Implementing regulations carefully define and specify what constitutes medical evidence and how it is to be factored by the Agency in making disability determinations. For example, a treating source is defined as a claimant’s “own physician ... or other acceptable medical source who provides [the claimant], or has provided [the claimant], with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant].” 20 C.F.R. § 404.1502; see also id. (defining “nontreating source” as a physician who examines the claimant but does not have an ongoing treatment relationship and a “nonexamining source” as a physician who has not examined the claimant but provides a medical or other opinion regarding the claimant’s case). Claimants must submit evidence to demonstrate that they meet the statutory and regulatory definition of disability. § 404.1512(a). Such evidence includes, among other potential proof: medical evidence (i.e., medical signs and laboratory findings), § 404.1512(b)(1); and, evidence from medical sources regarding medical history, opinions, and statements about treatment. § 404.1512(b)(2). Section 404.1527 contains a detailed explanation of. how the Agency considers the evidence in making disability determinations. This provision provides that:

If [the Agency] find[s] that a treating source’s opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [the Agency] will give it controlling weight.

§ 404.1527(d)(2). If the treating source’s opinion is not afforded controlling weight, the Agency considers factors (among others) such as the length of treatment, § 404.1527(d)(2)(i), the nature and extent of the treatment relationship, § 404.1527(d) (2) (ii), whether relevant evidence supports the treating source’s opinion, § 404.1528(d)(3), and the degree to which that opinion is consistent with the record as a whole. § 404.1528(d)(4).

2. Treating Physicians

Dr. Memoli

During the period of time at issue, May 15, 1996 through December 21, 2001, Hill’s treating physicians included Dr. Memoli and Dr. Eial Faierman (“Faierman”), both orthopedic surgeons (Tr. at 83-88, 191). The medical records from the treating physicians include MRI reports, progress notes, operative reports, and post-surgery clinical notes.

Medical Records Related to Hill’s Left Ankle. The bulk of the medical records from Dr. Memoli, Hill’s principal treating physician, related to Hill’s left ankle are reports submitted to the Workmen’s Compensation Board comprised of an intake form (Tr. at 254), Attending Doctor’s Report forms (Tr. at 255-59), billing forms, brief two- to four-sentence progress notes attached to the billing forms, and requests for authorization for various types of therapies and tests. Workmen’s Compensation Board medical records related to Hill’s 1994 left ankle began on November 7, 1994 and ended on January 14, 2002 and indicated as a diagnosis “ligament sprain lateral” (Tr. 255-321). The record also contains a report dated April 15,1997 from Dr. Charles N. Barax who conducted an MRI of the left ankle. Dr. Barax’s report indicated that the MRI was negative (Tr. at 321), specifically stating “[n]o evidence of fracture or joint effusion,” “no evidence of ... bone bruise,” “[n]o osteochondral defects,” “no stress fractures” (Tr. at 321). Nevertheless, on April 5, 2000, Dr. Faier-man operated on Hill’s left ankle and removed a calcific mass (Tr. at 319).

Medical Records Related to Hill’s Left Knee. As with the medical records related to Hill’s left ankle, the bulk of the medical records from Dr. Memoli related to Hill’s left knee are reports submitted to the Workmen’s Compensation Board. These reports are comprised of an intake form (Tr. at 322), Attending Doctor’s Report forms (Tr. at 323-26), billing forms, brief two- to four-sentence progress notes attached to the billing forms, and requests for authorization for various types of therapies and tests. A progress note three months following surgery to the left knee notes “improvement” but continued “pain and weakness” (Tr. at 384). Dr. Memoli operated to correct the torn medial meniscus of the left knee on October 4, 1996 (Tr. at 429-30). Dr. Faierman conducted a follow up surgery on the left knee to correct a lateral meniscal tear on February 17,1999 (Tr. at 558).

During the entire period for which medical records are provided the record contains evidence of only one MRI conducted on Hill’s left knee, which occurred prior to his October 4, 1996 surgery. Dr. Memoli ordered an MRI of Hill’s left knee in August 1995, following the accident of March 1995. Dr. Jack L. Baldassare (“Baldas-sare”), a board-certified radiologist, reported that there was a tear of the posteri- or horn of the medial meniscus but that in all other regards the left knee was normal (Tr. at 202). Dr. Memoli did not requests any authorizations for an MRI of Hill’s left knee following the operation and Hill’s continued complaints although he did request authorization for additional arthroscopic surgery. See supra n. 9.

On July 31, 1998, Dr. Memoli completed a form letter provided by Hill’s attorney, in which he stated that Hill could not “stand, walk, ... climb, kneel, [or] sit for any period” (Tr. at 225). On the same date, Dr. Memoli also completed a form provided by Hill’s attorney related to Listing 1.03 (“arthritis of a major weight-bearing joint”) (Tr. at 227-28); see also Tr. at 247 (January 27, 1999 form from Dr. Me-moli to Hill’s attorney noting symptoms such as pain, swelling, and popping and Hill’s limitations (ie., that Hill could not stand, walk, bend, climb, kneel, or sit for any period)). In the form, Dr. Memoli noted “pain, swelling, and popping” of the left knee secondary to lateral subluxing patella and that Hill’s knee required further surgery (Tr. at 227). Dr. Memoli concluded that Hill was “[tjotally disabled and requires continued ongoing care and surgery to the left knee and left ankle” (Tr. at 227). Dr. Memoli did not reference any laboratory results, such as x-rays or MRIs, to support his conclusion. In both forms dated July 31, 1998 form and January 27, 1999, Dr. Memoli indicated that Hill had been disabled since October 1994, (Tr. 225, 247,) even though the billing records spanning a five-month period in 1995 reported that Hill was “working in spite of pain.” See, e.g., Tr. at 323 (March 15,1995 billing record), 324 (May 17, 1995 billing record), 325 (July 24, 1995 billing record).

Dr. Memoli provided Hill with letters, which were submitted to the Appeals Council, on December 8, 1999 (Tr. at 251) and January 21, 2000 (Tr. at 250), the latter of which listed the various diagnoses related to the left knee (ie., internal derangement, torn medial and lateral meniscus, post surgeries, lateral subluxinat patella, post surgery) and strained right knee. The January 21, 2000 letter noted that Hill had “complaints of pain and buckling” (Tr. at 250).

Following the Appeal Council’s remand to ALJ Arzt, Dr. Memoli prepared a letter dated May 29, 2002 regarding his treatment of Hill (Tr. at 229-35). Dr. Memoli first recounted the history behind Hill’s first injury to his left ankle and subsequent July 24, 2000 surgery and concluded that Hill “ha[d] continued to have persistent complaints of intermittent left ankle pain, swelling stiffness and weakness” (Tr. at 231). Dr. Memoli then provided an overview of the medical history related to Hill’s left knee. Following the October 4, 1996 surgery and up to July 14, 1997, Dr. Memoli wrote that Hill “continued to have persistent complaints as well as positive physical findings ... secondary to ... lateral subluxing patella” (Tr. at 232). The letter notes that Hill had regular visits with Dr. Memoli and that Hill “had” pain, swelling, intermittent locking, popping and buckling of the left knee (Tr. at 232). On February 17, 1999, a second surgery on the left knee was performed by Dr. Faier-man (Tr. at 233). Dr. Memoli stated that Hill, although improved, presented with pain and buckling in March 2000. Id. Dr. Memoli ended the letter by noting that an MRI of the right knee showed medial collateral ligament strain. Id.

Dr. Memoli stated that Hill could not sit or stand for any prolonged period of time, that he could not walk for any distance, and that he could not kneel, bend, or squat without “severe increased pain, swelling, locking and weakness related to all areas” (Tr. at 234-35). Referring to both “the duration of symptoms” and “persistent physical findings,” Dr. Memoli stated that Hill’s “condition is progressive, total and permanent” and that it prevents Hill from performing any type of occupation (Tr. at 235).

Dr. Faierman

Dr. Eial Faierman conducted the second operation to Hill’s left knee on February 17, 1999 (Tr. at 80) and the operation to Hill’s left ankle on April 5, 2000 (Tr. at 83). Dr. Faierman conducted a pre-surgery examination and report on January 11, 1999 (Tr. at 90). Examination of the left knee showed “full range of motion with tenderness over the medial and lateral joint space.” Id. Dr. Faierman noted “stability is full including a negative Lachman, anterior drawer and pivot-shift test” and that there was “no. varus or valgus instability.” Id. Dr. Faierman concluded that the course of treatment would involve “left knee diagnostic and operative arthrosco-py” (Tr. at 91).

Prior to the April 5, 2000 operation of the left ankle, Dr. Faierman prepared a report dated March 17, 2000, which stated that Hill had “no significant tenderness,” “full range of motion,” and “no pain on varus stress testing” (Tr. at 85). Dr. Fai-erman reported some moderate left ankle tenderness and a calcific mass. Id. In a post-surgery follow up examination, Hill reported feeling “110 percent better” (Tr. at 89).

3. Consultative Physicians

During the relevant period, a series of physicians examined Hill, including physicians who conducted examinations on behalf of The New York State Insurance Fund in relation to workmen’s compensation benefits and the Agency.

Nirou Examination — January 1996. Dr. Hadereh Nirou conducted an examination of Hill on behalf of the Workers’ Compensation Board on January 4, 1996 (Tr. at 488). Dr. Nirou concluded that Hill had a “partial disability” and that arthroscopic surgery of the left knee should be authorized. Id.

Mancheno Examination — December 1996. Dr. Mario Mancheno conducted an examination on behalf of the Agency on December 20, 1996, approximately three months following Hill’s first surgery (Tr. at 181). Dr. Mancheno described Hill’s prognosis as “fair,” id., and concluded that Hill had: moderate impairments with regard to lifting, carrying, pushing and pushing; mild impairment with regard to standing and walking; and no impairment with regard to sitting (Tr. at 182).

Cohen Examination — April 1997. Dr. Herbert G. Cohen (“Cohen”) conducted several examinations on behalf of The State Insurance Fund, including April 16, 1997 and November 17, 1997. On November 17, 1997, Cohen did not have any laboratory results, such as x-rays, to examine (Tr. at 203). A report of Cohen’s examination of Hill included the following observations: that there was a slight swelling of the left knee compared to the right knee; and that extension of the right and left knees was complete and that flex-ion of the left knee was limited by only 5 degrees (Tr. at 205). Cohen noted no weakness of the cruciate or collateral ligaments of either the right or the left knee but did report that Hill stated the motions caused discomfort of the left knee. Id. Cohen further reported that McMurray tests for medial meniscus injury of both knees were negative. Id. Cohen noted a slight swelling of the left ankle and a mass on that ankle that Hill stated caused discomfort. Id. However, dorsiflexion, plant flexion, inversion, eversion of both ankles and forefeet were “complete” (Tr. at 206). Cohen concluded that Hill had “a mild partial disability.” Id.

Bensam Examination — June 1999. Dr. Bensam conducted an examination of Hill on June 25, 1999, following both of Hill’s operations to his left knee, on behalf of The State Insurance Fund. Dr. Bensam noted that Hill was “quite obese” and that “at 6'1"” Hill weighed 230 pounds (Tr. at 570). Dr. Bensam noted that “[b]oth patellae track laterally, both knees are stable, the right knee has popping as well, [and] the McMurray tests are benign bilaterally.” Id. Dr. Bensam concluded that he “would not recommend surgery” on the left ankle but that it had already been authorized. Id. Dr. Bensam noted that due to Hill’s inability to fully extend the left knee, Hill was “at least temporary [sic] partially markedly disabled” (Tr. at 584). Dr. Bensam also suggested that Hill “should be encouraged to get an orthopedic consultation independent of the State Fund and his treating orthopedic physician.” Id.

Heyman Examination — October 1999. Dr. Norman M. Heyman, an orthopedic surgeon, conducted an orthopaedic consultation on October 28, 1999. In examining Hill’s left knee, Dr. Heyman concluded that it had a “full range of motion” (Tr. at 577). Dr. Heyman further noted that the left knee had “a negative anterior draw, negative posterior draw, negative Lehman, negative posteriolateral dropback” and “no sign of internal derangement and no sign of meniscal injury with a negative Stein-man test, negative McMurray est, negative Apley Grind test.” Id. Dr. Heyman concluded that Hill had a “mild/partial disability” with respect to his knee and that Hill could “return to normal daily activities and perhaps even return to work at this time with some restrictions” (Tr. at 578). Dr. Heyman further opined that Hill could “return to full work in 6 weeks without restriction.” Id.

Margulies Examination — September 2000. Dr. Joseph Margulies, an orthopedic surgeon, conducted an independent medical evaluation of Hill on September 7, 2000. Dr. Margulies’s examination of the left knee “reveal[ed] full, active and painless range of motion” (Tr. at 597). Dr. Margulies reported that Hill had “[n]ormal quadriceps and hamstring strength” and thighs that were “normal and equal in size.” Id, The examination showed “no evidence of instability,” “[n]egative McMurray’s test,” “no areas of tenderness, heat, swelling, erythema or effusion.” Id. An examination of the left ankle likewise “reveal[ed] full, active, painless range of motion with normal muscle strength in all directions of motion.” Id. The left ankle showed “no areas of tenderness, heat, swelling, erythema or effusion” and Hill’s gait was normal. Id. Dr. Margulies opined that “[fjrom an orthopedic point of view there is no need for further treatment including physical therapy.” Id. Dr. Mar-gulies further concluded that “[b]ased on orthopedic evaluation, [Hill] revealed no functional disability at the present time” and that Hill could “continue with activities of daily living as well as with present employment.” Id.

Heyman Examination — March 2001. Dr. Heyman conducted a second independent medical evaluation on behalf of the Agency on March 20, 2001. Hill reported that following the second left knee operation, this knee no longer popped, locked or gave way (Tr. at 603). At this examination, Hill was able to walk on his heels and toes without difficulty and to do a deep knee bend. Id. Hill was able to “almost completely bend on the left knee” and had full range of motion of the left and right knee with full extension. Id. Although Dr. Heyman diagnosed Hill with an “[a]cute sprain and strain of the left knee,” he concluded that Hill did not have a disability but merely had “mild residuals” (Tr. at 605). Dr. Heyman further reported that “[flurther treatment is not reasonable, not related and not necessary, as treatment to this date has been excessive.” Id.

Epstein Examination — December 2001. Dr. Menachem Epstein, an orthopedic surgeon, conducted an independent medical examination on behalf of The New York State Insurance Fund on December 17 2001. Dr. Epstein noted that Hill was “an immensely heavy man, weighing at least 280 pounds” and that he was “obese” (Tr. at 625). Dr. Epstein reported that “[t]he left knee show[ed] signs of post arthroscopy with good range of motion, no local effusion and no instability” and that Hill “did not complain of pain while moving the left knee” (Tr. at 626). Dr. Epstein wrote that in his opinion “no further medical treatment is reasonable, related or necessary” and that Hill’s prognosis was “excellent.” Id. Dr. Epstein concluded that “the degree of disability for the left knee [was] mild” and that “there [was] no disability to the right knee.” Id.

Epstein Examination — April 2002. Dr. Epstein examined Hill once again on April 9, 2002. On this day, among other negative observations, examination of his knees showed “no instability,” “no tenderness, heat, swelling, erythema, or effusion,” (Tr. at 641,) and an examination of Hill’s ankles “revealed normal ranges.of motion bilaterally.” Id. With regard to Hill’s prognosis, Dr. Epstein wrote that Hill “is able to work full-time and perform his normal activities” and that he should however “avoid any kneeling or bending.” Id. Dr. Epstein concluded that based on the Workers’ Compensation Board guidelines, Hill had a mild orthopedic disability to his left knee and none to his right knee (Tr. at 642). Dr. Epstein ended by stating that “no future orthopedic treatment is reasonable, related, and necessary.” Id.

Mesnick Examination — July 2002. ALJ Arzt requested a consultative examination on June 24, 2002 (Tr. at 648-49). Dr. Neal Mesnick, an orthopedist, conducted an examination on July 8, 2002 (seven months following Hill’s date last insured of December 31, 2001). With regard to both Hill’s knees and ankles, Dr. Mesnick reported that “[a]ll ranges of motion [we]re normal” and that “[t]here is no pain on movement and no evidence- of swelling, redness or tenderness around the joints” (Tr. at 652-53). An x-ray of the left knee showed “mild joint space narrowing” and Hill had “soft tissue swelling” in his left ankle (Tr. at 653). Dr. Mesnick concluded that Hill “[w]as mildly limited in lifting, carrying, pushing and pulling heavy objects, long distance ambulation and standing for prolonged periods of time” and that his prognosis was “good.” Id.

Liebman X-Ray Examination — July 2002. ALJ Arzt also requested an x-ray of the left ankle and the left knee. Dr. Lawrence S. Liebman, a certified radiologist, read the x-rays. With regard to Hill’s left knee, Dr. Liebman reported that “[t]here was no evidence of acute fracture, dislocation or destructive bony lesion,” that the “joint spaces are relatively well maintained,” and that there was “[s]oft tissue swelling” (Tr. at 654). With regard to Hill’s left knee, Dr. Liebman reported that there was “no evidence of acute fracture, dislocation or destructive bony lesion” and that there was “mild narrowing of the medial compartment.” Id. Dr. Liebman’s impression with regard to Hill’s knee was that it was a “suboptimal study” and that there was “mild joint space narrowing.” Id:

C. Administrative Decisions Rendered Below

The ALJ’s September 1998 Decision. On September 14, 1998, ALJ Arzt denied Hill’s claim for disability insurance benefits. In a seven-page decision, ALJ Arzt found that Hill had “severe” impairments of the left ankle and left knee, but that these impairments did not meet or equal any listed impairment (Tr. at 54). ALJ Arzt further found that Hill’s statements of disabling symptoms and limitations were not supported by the objective medical record, and that objective medical evidence showed that Hill had a residual functional capacity to engage in sedentary work and was thus not disabled as defined under the applicable statute and regulations. Id.

The Appeals Council’s July 2001 Remand. On July 10, 2001, the Appeals Council’s remanded the case back to the ALJ to comply with 20 C.F.R. § 404.1512 by conducting an “adequate evaluation” of Dr. Memoli’s finding that Hill was totally disabled and could not “stand, walk, bend, climb, kneel or sit for any period” (Tr. at 96). The Appeals Council’s decision noted that ALJ Arzt should have recontacted Dr. Memoli to clarify inconsistencies in the record and instructed ALJ Arzt to consider new additional evidence Hill had submitted to the Appeals Council regarding his left ankle. Id.

The ALJ’s Second January 2003 Decision. On January 30, 2003, ALJ Arzt issued a thirteen-page decision following a hearing conducted on June 12, 2002 (Tr. at 16). The ALJ found Hill not to be disabled under the Act and implementing regulations (Tr. at 29). More particularly, ALJ Arzt found that Hill’s “statements throughout the record regarding his disabling symptoms and functional limitations are generally credible, but do not support a finding that the claimant is disabled” (Tr. at 28). ALJ Arzt noted that Dr. Memoli’s clinical notes from 1996 to May 2002 contained “sparsely written” notations containing “usually mild objective clinical findings” (Tr. at 24). In addition, ALJ Arzt found that, although “[a]ll of Dr. Memoli’s reports stated that [Hill] [wa]s disabled,” there “is no evidence that the claimant is not fully weight-bearing on his left leg or has significant range of motion deficits of hi's left knee since recovery from surgery.” Id. The ALJ concluded that “[t]he mild findings since [Hill’s] recovery from the knee surgery in Dr. Memoli’s and the other physician’s [sic] reports do not support Dr. Memoli’s opinion that the claimant is disabled.” Id.

DISCUSSION

I. Applicable Law

A. Determination of Disability

“To be ‘disabled’ under the Act and therefore entitled to benefits, a claimant must demonstrate 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’.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (citing 42 U.S.C. § 423(d)(1)(A)). Furthermore, an individual’s 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.” 42 U.S.C. § 423(d)(2)(A).

The Social Security Administration has promulgated a five-step procedure for evaluating disability claims. 20 C.F.R. § 404.1520. The five-inquiry entails the following steps. At the first step, the Agency considers the claimant’s work activity, if any, and if the claimant is engaged in substantial gainful activity, the Agency will find that the claimant is not disabled. § 404.1520(a)(4)(I). At the second step, the Agency considers the medical severity of the claimed impairments. If the claimant does not have a severe medically determinable physical or mental impairment that meets the duration requirement in 20 C.F.R. § 404.1509, or a combination of impairments that is severe and meets the duration requirement, the Agency we will find that the claimant is not disabled. § 404.1520(a)(4)(ii). At the third step, the Agency also considers the medical severity of the claimed impairment. If the claimed impairments “meet[] or equal[] one of [the] listings in appendix 1 of this subpart and meet[ ] the duration requirement,” the Agency will find that the claimant is disabled. § 404.1520(a)(4)(iii). At the fourth step, if the claimed impairments do not meet or equal a listing, the Agency considers its assessment of the claimant’s residual functional capacity and his past relevant work. If the claimant can still do his past relevant work, the Agency will find that the claimant is not disabled. § 404.1520(a)(4)(iv). At the fifth and last step, the Agency considers its assessment of the claimant’s residual functional capacity and his age, education, and work experience to see if the claimant can make an adjustment to other work. If the claimant can make an adjustment to other work, the Agency will find that the claimant is not disabled. If the claimant cannot make an adjustment to other work, the agency will find that the claimant is disabled. § 404.1520(a)(4)(v).

B. Standard of Review

“It is not [the court’s] function to determine de novo whether [a plaintiff] is disabled.” Rosa, 168 F.3d at 77. “[An] ALJ’s decision [is set aside] only where it is based upon legal error or is not supported by substantial evidence.” Id. (citing Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998)). “Substantial evidence is ‘more than a mere scintilla[;][i]t means 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) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks omitted)). “To determine whether the findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Snell v. Apfel, 177 F.3d 128, 132 (2d Cir.1999) (citation omitted). Moreover, “[w]here the Commissioner’s decision rests on adequate findings supported by evidence having rational probative force, [the courts] will not substitute [their] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002).

II. Application

A. The ALJ Complied with the Treating Physician Rule and § 404.1527(d)

Hill argues that the ALJ’s decision-is not supported by substantial evidence because the ALJ did not comply with various aspects of the treating physician rule, which are governed by regulation, including 20 C.F.R. .§§ 404.1512 and 404.1527.

1. Compliance with 20 C.F.R. § 404.1512

Hill argues that ALJ Arzt violated 20 C.F.R. § 404.1512 anew by failing to recontact Dr. Memoli a second time following the remand and that the ALJ had an affirmative duty to contact Dr. Memoli yet again after the ALJ determined that Dr. Memoli’s records were “sparse.” Memorandum of Law in Support of Plaintiffs Cross-Motion for Judgment on the' Pleadings 17-18 [hereinafter PL’s Mem. Supp. J. Pleadings]. Neither the regulations nor the Appeals Council’s Order provide a basis for a third bite of the apple. The ALJ considered Dr. Memoli’s records in the first decision. Following the- Appeals Council’s remand, the ALJ subpoenaed Dr. Memoli’s records (Tr. at 30). As noted more fully below, the ALJ’s decision reflects that the ALJ considered Dr. Memoli’s records and reports (Tr. at 21-24). In view of Dr. Memoli’s records — ie., that they contained “usually mild objective clinical findings” and were “sparsely written” (Tr. at 24) — and especially in light of the entire record in the case and all of the conflicting nontreating medical source opinion, the ALJ was justified in not affording Dr. Memoli’s opinion controlling weight. Moreover, having complied with both the regulation and the remand order, the ALJ did not have to re-contact Dr. Memoli yet again and provide him with still another opportunity to submit additional information.

The Appeals Council Order remanded the case back to ALJ Arzt pursuant to § 404.1512. Under this provision, the Agency has a “responsibility” to develop a “complete medical history.” 20 C.F.R. § 404.1512(d). When the information received from a treating source is insufficient for the Agency to make a determination, the Agency has an affirmative duty to recontact medical sources. 20 C.F.R. § 404.1512(e). In this Circuit, “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 v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (citations omitted); see also Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000) (same).

When gaps in the medical record exist, implementation regulations explain that:

(1) [The Agency] will first recontact [the claimant’s] treating physician ... to determine whether the additional information we need is readily available. We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. We may do this by requesting copies of your medical source’s records, a new report, or a more detailed report from your medical source, including your treating source....

(2) We may not seek additional evidence or clarification from a medical source when we know from past experience that the source either cannot or will not provide the necessary finding.

§ 404.1512(e)(1) & (2). Further, if the information the Agency requires in order to make the determination is not readily available from the records of the treating source, or the Agency is unable to obtain clarification from the treating source, the Agency can require the claimant to undergo a consultative examination. § 404.1512(f).

The Order of the Appeals Council remanded the case to the ALJ because ALJ Arzt “did not recontact the treating physician to clarify any inconsistency” (Tr. at 96). The Order further instructed the ALJ to “consider the new evidence” Hill submitted to the Appeals Council and “[a]s appropriate” to “obtain updated medical records from the claimant’s treating and other medical sources” (Tr. at 97). The Order stated that “[i]f the evidence does not adequately clarify the record, the [ALJ] may wish to recontact the medical sources for further information.” Id. (emphasis added). The Order further indicated that “[i]f the additional evidence does not clearly depict the claimant’s limitations, the [ALJ] may obtain a consultative examination, including a medical source statement about what the claimant can do despite his ... impairments.” Id.

The ALJ below fully complied both with § 404.1512 and with the Appeals Council Order. Following the remand, the ALJ subpoenaed Hill’s treating physician, Dr. Memoli (Tr. at 30). The subpoena required Dr. Memoli’s appearance at the Hearing held on June 12, 2002 and his submission of “all clinic notes since January 1, 1996 and any other evidence in [his] possession relating to the above matter” (Tr. at 30). Dr. Memoli did not appear at the Hearing but did submit a full copy of the medical records related to Hill, most of which, as stated before, comprised of workmen’s compensation reports, billing records, and progress notes. In addition, Dr. Memoli submitted a six-page letter dated May 29, 2002, which provided a medical history of Hill’s and a summary of his examinations of Hill’s left ankle and left knee, his diagnosis, and his prognosis (Tr. 229-35).

Subpoenaing Dr. Memoli’s records responded fully to the Appeal Council’s Order to recontact the treating source (Tr. at 96) and, “as appropriate,” to obtain “updated medical records from the claimant’s treating ... sources” (Tr. at 97). Obtaining the treating source’s medical records is also fully compliant with § 404.1512(e)(l)’s statement that “requesting copies of [the] medical source’s records” is one way to “seek additional evidence or clarification from [the] medical source” when recontacting that source. 20 C.F.R. § 404.1512(e)(1).

Moreover, the Order specifically states that “[i]f the evidence does not adequately clarify the record, the [ALJ] may wish to recontact the medical sources for further information” or “obtain a consultative examination.” Id. (emphasis added). Following the subpoenaing of Dr. Memoli’s records and receipt of Dr. Memoli’s May 29, 2002 letter, the ALJ chose not to recontact Dr. Memoli a second time and, instead, ordered two consultative examinations. See, e.g., Tr. at 648-49 (ALJ Arzt’s order of an orthopedic consultative examination by Dr. Mesnick); Tr. at 654 (ALJ Arzt’s order of an x-ray of Hill’s left ankle and left knee, which Dr. Liebman read and interpreted); see also 20 C.F.R. § 404.1512(e)(2) (“We may not seek additional evidence or clarification from a medical source when we know from past experience that the source either cannot or will not provide the necessary finding.”). In sum, “[t]he ALJ had before him a complete medical history, and the evidence received from the treating physicians was adequate for him to make a determination as to disability,” Perez v. Chater, 77 F.3d 41, 48 (2d Cir.1996), and the ALJ was not required to re-contact Dr. Memoli anew.

2. Compliance with 20 C.F.R. § 404.1527 Generally

Hill further argues that ALJ Arzt improperly reviewed the medical evidence and failed to observe the treating physician rule. Pl.’s Mem. Supp. J. Pleadings 15-17. The treating physician rule is implemented by 20 C.F.R. § 404.1527(d)(2). This provision provides as follows:

Generally, we give more weight to opinions from [the claimant’s] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source’s opinion on the issue(s) of the nature and severity of your impairments) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.

Id. (emphasis added). Where however, the treating source’s opinion is either not supported by medically acceptable clinical and laboratory diagnostic techniques or conflicts with other substantial evidence in the case record, the Agency does not give the treating source’s opinion controlling weight. Snell v. Apfel, 177 F.3d at 133 (“When other substantial evidence in the record conflicts with the treating physician’s opinion, ... that opinion will not be deemed controlling.”). Moreover, “the less consistent that [a treating source’s] opinion is with the record as a whole, the less weight it will be given.” Id. (citation omitted); see also § 404.1527(d)(4) (“Generally, the more consistent an opinion is with the record as a whole, the more weight [the Agency] will give to that opinion.”).

As the following analysis shows, Dr. Me-moli’s own opinion at times reflected inconsistencies with his own medical records. Dr. Memoli’s opinion was also inconsistent with that of the other treating medical source, Dr. Faierman, and with Hill’s own statements to nontreating medical sources and at the hearings. Moreover, the record, which spans a period of eight years (ie., from November 7, 1994 (Tr. at 255) to April 1, 2002 (Tr. at 305)), contains very little in the way of medical evidence in support of Dr. Memoli’s opinion that stems from “medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1527(d)(2). Further, Dr. Memoli’s opinion was strikingly and repeatedly inconsistent with that of numerous nontreat-ing medical sources over almost the entire period reflected in the ease record. This case, thus, presents a record where the substantial evidence in the record overwhelmingly supported the ALJ’s determination that Hill did not qualify for disability benefits.

Treating Sources — Dr. Memoli and Dr. Faierman. As mentioned previously, the record contains instances when Dr. Memoli expressed an opinion that conflicted with his own prior observations or reports. For instance, in forms provided by Hill’s counsel dated July 31, 1998 and January 27, 1999, Dr. Memoli indicated that Hill had been disabled since October 1994 (Tr. 225, 247). Dr. Memoli, however, submitted workmen’s compensation billing records spanning a five-month period in 1995 in which he reported that Hill was “working in spite of pain.” See, e.g., Tr. at 323 (March 15, 1995 billing record), 324 (May 17, 1995 billing record), 325 (July 24, 1995 billing record).

Dr. Memoli’s more extensive May 29, 2002 letter is either internally contradictory or conflicts with other substantive evidence in the record. For example, Dr. Memoli wrote that following the injury to the left ankle Hill “remained totally disabled from work” (Tr. at 230), yet — as noted above — Hill returned to work within a month. Id. Many of the physical findings that Dr. Memoli cited in his letter are contradicted either by Hill’s own statements or other substantive evidence. Dr. Memoli stated that Hill “cannot ambulate for any distance without increased symptoms related to all areas” (Tr. at 234), but Hill himself testified at the second hearing that he could walk for half an hour before having to rest (Tr. at 718). Dr. Memoli opined that Hill was unable to “bend or squat without severe increased pain, swelling, locking and weakness related to all areas” (Tr. at 235). The record, however, contains evidence that Hill could “almost completely bend the left knee” and, as well, do a “deep knee bend” (Tr. at 603). Several examining physicians further noted that Hill could move without pain (see, e.g., Tr. at 626, 652-53).

In addition, the great majority of Dr. Memoli’s medical records are comprised of workmen’s compensation billing records, which contain very brief descriptions primarily of Hill’s symptoms — ie., invariably complaints of pain — without any mention of any medically acceptable clinical and laboratory diagnostic techniques. Unlike the nontreating examining medical reports in the record, which detailed the clinical diagnostic techniques utilized and physical findings found during various examinations of Hill (see, e.g., Tr. at 181, 205-06, 577, 597, 603), Dr. Memoli almost invariably failed to report any clinical diagnostic techniques utilized to examine Hill or to describe what the physical findings were that such techniques revealed upon examination. Only two exceptions exist. Dr. Me-moli did specify both techniques and physical findings in a number of progress notes submitted to the Workmen’s. Compensation Board early on after Hill’s injuries (Tr. at 255, 324, 325, 330, 333, 337). For the remainder of the time and over the eight years covered by the case record, this Court uncovered only one instance when a progress note indicated a physical finding — i.e., popping of the knee — which Dr. Memoli specified occurred upon examination (Tr. at 355 “loud popping, left knee, secondary to on exam, lateral subluxing patella”).

The remainder of the time, Dr. Memoli simply noted “examination” (Tr. at 256, 257, 258, 259, 265, 268, 271, 274, 277, 349, 352, 358, 362, 365, 368, 370, 374; see also 260, 261, 263, 360 (“exam”)). In many of these progress notes, Dr. Memoli stated “no change in patient’s complaints and physical findings” but provided no further information such as, for example, what the physical findings were or the clinicál diagnostic techniques that revealed those physical findings (Tr. at 277; see also Tr. at 280, 282, 283, 284, 289, 293, 295, 299, 301, 305, 358, 360, 362, 365, 368, 370, 374, 377, 387, 403, 405, 408, 410, 416, 418, 420, 422, 424). The physical finding Dr. Memoli would most frequently noted was “swelling” of either the left ankle (Tr. at 255, 256, 258, 259, 274, 277, 287, 291, 295,) or the left knee (Tr. at 352, 362, 365, 368, 370, 374, 377, 390). And, as noted previously, over an eight-year period, the record contains a total of three laboratory findings for three separate joints, none of which were conducted after surgery and Hill’s continued complaints (Tr. at 202 (left knee, August 1995), 321 (left ankle, April 1997), 432 (right knee, May 2001)).

Dr. Memoli’s medical records also conflict with those of Dr. Faierman, Hill’s other second treating physician and orthopedic surgeon. On June 2, 2000, during a post-operative examination following surgery to the left ankle, Dr. Faierman reported that Hill “fe[lt] 110% better” and that Hill “wishes to return to work” (Tr. at 89). On July 24, 2000, Hill returned to Dr. Memoli and, although Dr. Memoli noted that Hill returned “with improvement” (Tr. at 287), he indicated in the billing record that Hill had a “total” disability (Tr. at 288).

Hill’s own statements to nontreating medical sources further undercut Dr. Me-moli’s opinion. For example, in March 2001, Hill reported to Dr. Heyman that following the second left knee operation, this knee no longer popped, locked or gave way (Tr. at 603) — yet Dr. Memoli’s progress notes for January, and April for that year state that there was “no change” regarding Hill’s “complaints” and “physical findings” (Tr. at 408,410). .

In addition, Dr. Memoli continually sought further authorizations alternately for physical therapy, medication, and follow up care during periods of time when other examining medical sources opined that further treatment was not necessary. Compare Tr. at 597 (on September 7, 2000, stating that “[f]rom an orthopedic point of view there is no need for further treatment including physical therapy”), 605 (on March 20, 2001, stating “[fjurther treatment is not reasonable, not related and not necessary, as treatment to this date has been excessive”), 625 (on December 17, 2001, stating “no further medical treatment is reasonable, related or necessary”), with Tr. at 598 (on September 26, 2000, Dr. Memoli prescribing continued medication and requesting authorization for physical therapy three times weekly), Tr. at 615 (on April 23, 2001, same), Tr. at 638 (on April 1, 2002, Dr. Memoli ordering that Hill “continue with medication and follow up care”).

Finally, Dr. Memoli frequently mentioned that HOI remained disabled (Tr. at 232, 233, 235). Implementing regulations specifically provide that the Agency, and the Agency alone, makes the determination whether a claimant meets the statutory definition of disability. 20 C.F.R. § 404.1527(e). For example, § 404.1527(e) expressly provides that “statements by a medical source that [the claimant] [is] ‘disabled’ or ‘unabled to work’ does not mean that [the claimant is] disabled.” § 404.1527(e)(1). Other determinations that are reserved to the Commissioner include whether a claimant’s impairments meet or equal a listed impairment and a claimant’s residual functioning capacity. § 404.1527(e)(2). Thus, Dr. Memoli’s repeated statements that Hill was disabled, by themselves, do not factor at all into the disability determination. Snell, 111 F.3d at 133 (“A treating physician’s statement that the claimant is disabled cannot itself be determinative.”).

í¡5 •]*

As shown below, Dr. Memoli’s opinion repeatedly and strikingly conflicted with that of nontreating medical sources throughout the period in the case record.

Dr. Mancheno. Following Hill’s October 4, 1996 surgery on his knee, Dr. Me-moli’s progress note indicated “[s]till pain and swelling” two-weeks following surgery (Tr. 340) and “persistent pain, swelling and intermittent locking of the left knee” five months following surgery (Tr. 343). During this examination, Dr. Memoli also noted “[s]till diffuse pain and quad atrophy and swelling on exam.” Id. On March 17, 1997, six months following the surgery, Dr. Memoli noted “still persistent pain, popping and buckling of the left knee” and “[s]till persistent restricted range of motion” (Tr. at 346).

By contrast, Dr. Mancheno’s examination on December 20, 1996, almost three months following surgery, showed “[n]o signs of effusion” (ie., no inflammation) (Tr. at 181). Moreover, Dr. Mancheno indicated “[t]here is crepitation, no swelling, tenderness in medial aspect.” Id. (emphasis added). With regard to muscle atrophy, Dr. Mancheno noted “[n]o signs of asymmetry, muscle wasting or atrophy.” Id. Dr. Mancheno did report, however, that the left knee did not have a full range of motion. Id. Dr. Mancheno concluded that Hill’s impairments were as follows: moderate impairments with regard to lifting and carrying; mild impairments with regard to standing and walking; moderate impairments with regard to pushing and pulling; and no impairments with regard to sitting (Tr. at 182). Unlike Dr. Manche-no, Dr. Memoli had characterized Hill’s disability as “total” in his February 3, 1997 billing form (Tr. at 344).

Dr. Cohen. Dr. Cohen examined Hill on behalf of The New York State Insurance Fund on November 17, 1997, over two years after the first surgery (Tr. at 203-06). Dr. Cohen reported as follows:

There was a slight swelling noted of the left knee, in comparison to the right knee. There was no atrophy and no discoloration of the right and left knees.... Extension of the right and left knees were complete. Flexion of left knee was limited by 5 degrees. Flexion of the right knee was complete. The claimant stated the motions cause discomfort of the left knee but not of the right knee. There was no weakness of the cruciate or collateral ligaments noted of the right and left knee. McMur-ray tests for medial meniscus injury of the right and left knees were negative .... There was slight swelling noted of the left ankle.... There was no atrophy and no discoloration noted fo the right and left ankles.... Dorsiflex-ion, plant flexion, inversion, eversion of the right and left ankles ... were complete (Tr. at 206).

Dr. Cohen concluded that Hill had “a mild partial disability” (Tr. at 206).

Dr. Memoli’s opinion conflicts directly with that of Dr. Cohen. On November 11, 1997, Dr. Memoli examined Hill and reported “still persistent lateral subluxing left patella, continue physical therapy [twice] weekly, [patient] requires surgery to the left knee” (Tr. at 360). Moreover, Dr. Memoli checked off Hill as having a “total” disability (Tr. at 360).

Dr. Bensam. The next consultative examination in the record was conducted by Dr. Bensam on June 25, 1999, following both of Hill’s operations on his left knee (Tr. at 570). With regard to Hill’s knees, Dr. Bensam wrote that “[b]oth patellae track laterally, both knees are stable, the right knee has popping as' well, the McMurray tests are benign bilaterally.” Id. Dr. Bensam further noted that Hill could extend his right knee fully and that he lacked ten degrees of active extension of his left knee but that passive extension was complete. Id. With regard to Hill’s left ankle, Dr. Bensam noted that he would not recommend surgery but that it had already been authorized. Id. Dr. Bensam did not note complaints of pain, buckling, locking or any other problem with Hill’s left knee. In addition, while Dr. Bensam mentioned that the left ankle had areas of tenderness; he did not report any swelling, tenderness or effusion of the left knee. Id. Dr. Bensam concluded that, based on Hill’s inability to fully extend the left knee, Hill was “at least temporary [sic] partially markedly disabled” (Tr. at 584).

During the same period, in a July 6, 1999 progress note, Dr. Memoli reported “[s]till persistent complaints and positive physical findings” (Tr. at 568). Dr. Me-moli failed to note what those physical findings were, but dutifully noted Hill’s continued complaints of “[s]till pain and weakness and now also pain in the right knee from favoring the left.” Id. Based on the continuing complaints of pain, Dr. Memoli indicated that Hill had a “total” disability, as opposed to Dr. Bensam’s opinion that Hill had a “partial” disability (Tr. at 567).

Dr. Heyman — 1999 Examination. Dr. Heyman, an orthopedic surgeon, conducted an orthopedic consultative examination on October 28, 1999. Dr. Heyman’s report concluded the following regarding Hill’s left knee: that, it had a “full range of motion” (Tr. at 577), that it had “a negative anterior draw, negative posterior draw, negative Lehman, negative poster-iolateral dropbaek,” and “no sign of internal derangement and no sign of meniscal injury with negative Steinman test, negative McMurray test, [and] negative Apley Grind test.” Id. Dr. Heyman further opined that “[t]here is no need for [Hill’s] crutch” and that he “did not believe [Hill] requires surgery on his left foot and left ankle” (Tr. at 578). Dr. Heyman concluded that Hill had:

a mild/partial disability with respect to his knee and his major difficulty is muscle function, which is decreased on the left side. Attention' needs to be directed to quadricepts, hip flexor and knee flex- or functioning. If physical therapy is to be continued, emphasis should be made on exercises [sic] these muscles against progressive resistance. Primary attention to muscle strengthening should be done at home rather than in therapy. He should have 3 weeks minimum and 6 weeks maximum of therapy and be reexamined at the end of that time.... I believe that he can return to normal daily activities and perhaps even return to work at this time with some restrictions and should be able to return to full work in 6 weeks without restriction.

(Tr. at 577-78.)

Dr. Memoli’s progress note for an examination conducted six days prior to Dr. Heyman’s, on October 22, 1999, states that Hill’s “left knee [is] improving with physical therapy,” but noted that Hill still had “clicking, buckling and pain,” and that Hill should continue physical therapy three times a week (Tr. at 393). Notably, Dr. Memoli did not identify any medically acceptable clinical technique to indicate that he had observed the physical findings himself versus simply noting Hill’s subjective complaints and symptoms. On that day, Dr. Memoli also requested authorization for physical therapy three times weekly, hospitalization, and surgery (Tr. at 392). Moreover, billing reports for the months during that period of time — submitted on September 16, 1999 (Tr. at 391), on October 22,1999 (Tr. at 394), and on December 13, 1999 (Tr. at 397) — each describe Hill’s disability as “total” — in stark contrast to Dr. Heyman’s assessment.

Dr. Margulies. Dr. Margulies, an orthopedic surgeon, conducted an independent medical examination on September 7, 2000. Dr. Margulies’s report stated as follows:

Examination of the left knee reveals full, active and painless range of motion. Normal quadricepts and hamstring strength. The thighs are normal and equal in size. There is no evidence of instability. Negative McMurray’s test. There are no areas of tenderness, heat, swelling, erythema or effusion. The apprehension test is negative.

Examination of the left ankle reveals full, active, painless range of motion with normal muscle strength in all directions of motion. There are no areas of tenderness, heat, swelling, erythema or effusion. The gait is normal. Neurovas-cular status of the foot is intact ... There is no evidence of nerve damage. There is a small area of swelling around the lateral malleolus.

From an orthopedic point of view there is no need for further treatment including physical therapy.

Based on orthopedic clinical evaluation, the claimant revealed no functional disability at the present time. The claimant may continue with activities of daily living as well as with present employment.

(Tr. at 597.)

During the same period, Dr. Memoli’s progress notes and billing reports are in direct conflict with Dr. Margulies’s opinion. With regard to Hill’s left knee, Dr. Memoli’s brief progress note for September 26, 2000 — three weeks after Dr. Mar-gulies’s independent, orthopedic examination — states en toto as follows: “No change both in patient’s complaints [and] physical findings. Still pain. Continue medication. Requesting authorization for physical therapy [three times] weekly [and] MRI right knee as feel right knee is consequential” (Tr. at 598). With regard to Hill’s left knee, Dr. Memoli describes Hill’s disability as “moderate partial disability” and that the “condition [is] permanent and ongoing” (Tr. at 404 (left knee)). With regard to Hill’s left ankle, Dr. Memo-li wrote on September 18, 2000, that Hill had a total disability (Tr. at 290), that there was “no change both in patient’s complaints [and] physical findings,” “still pain,” and that Hill should “continue soaks, exercises and medication as needed” (Tr. at 289).

Dr. Heyman — 2001 Examination. Two years after his first examination, Dr. Hey-man conducted a second independent medical evaluation on behalf of the Agency on March 20, 2001. Hill reported that following the second left knee operation, this knee no longer popped, locked or gave way (Tr. at 603). At this examination, Hill was able to walk on his heels and toes without difficulty and to do a deep knee bend. Id. Hill was able to “almost completely bend on the left knee” and had full range