Rockwood v. Astrue (614 F. Supp. 2d 252, 2009)

ORDER

NORMAN A. MORDUE, Chief Judge.

The above matter comes to me following a Report-Recommendation by Magistrate Judge Victor E. Bianchini, duly filed on the 15th day of April 2009. Following ten days from the service thereof, the Clerk has sent me the file, including any and all objections filed by the parties herein.

After careful review of all of the papers herein, including the Magistrate Judge’s ReporNRecommendation, and no objections submitted thereto, it is

ORDERED that:

1. The Report-Recommendation is hereby adopted in its entirety.

2. The Plaintiffs motion is granted in part, defendant’s motion is denied, and the action is remanded to the Commissioner for further proceedings.

3. The Clerk of the Court shall serve a copy of this Order upon all parties and the Magistrate Judge assigned to this case.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

Jurisdiction

1. This case was referred to the undersigned for Report and Recommendation, by the Honorable Norman A. Mordue on November 18, 2008, pursuant 28 U.S.C. § 636(b)(1)(B), and is presently before the Court on motions for judgment on the pleadings as supported by Plaintiffs Brief of August 31, 2007 and Defendant’s Brief of October 15, 2007. This Court has jurisdiction under 42 U.S.C. §§ 405(g), 1383(c)(3).

Background

2. Plaintiff Dianna Rockwood challenges an Administrative Law Judge’s (“ALJ”) determination that she is not entitled to supplemental security income (“SSI”) or disability insurance benefits (“DIB”) under the Social Security Act (“the Act”). Plaintiff alleges she has been disabled since February 26, 2002, because of a herniated disc, arthritis, depression and anxiety (R. at 42, 56, 96). Plaintiff has met the disability insured status requirements of the Act at all times on or before the date of the ALJ’s decision.

Procedural History

3. Plaintiff protectively filed an application for DIB and SSI on January 5, 2004 (R. at 53). Her application was denied initially on May 28, 2004 and, under the prototype model of handling claims without requiring a reconsideration step, Plaintiff was permitted to appeal directly to the ALJ (R. at 15-20, 103-09). See 65 Fed. Reg. 81553 (Dec. 26, 2000). Plaintiff filed a timely request for a hearing before an ALJ, and on April 14, 2005, Plaintiff and her counsel appeared before an ALJ (R. at 26-27, 29-32, 265-93). The ALJ held a supplemental hearing on August 19, 2005, at which Plaintiff, her attorney, and a vocational expert appeared (R. at 36-39, 41, 242-64). The ALJ considered the case de novo, and on September 23, 2005, issued a decision finding that Plaintiff was not disabled (R. at 6-14).

4. Plaintiff requested review by the Appeals Council, who denied Plaintiffs request on July 11, 2007 (R. at 3-5). The ALJ’s September 23, 2005 decision became the Commissioner’s final decision in this ease when the Appeals Council denied Plaintiffs request for review.

5. On December 7, 2006, Plaintiff filed a Civil Complaint challenging Defendant’s final decision and requesting the Court to review the decision of the ALJ pursuant to Sections 405(g) and 1383(c)(3) of the Act, reverse the decision of Defendant, and grant SSI and DIB benefits to Plaintiff. The Defendant filed an Answer to Plaintiffs Complaint on February 14, 2007, requesting that the Court dismiss Plaintiffs Complaint. Plaintiff submitted a Memorandum of Law on August 31, 2007. [hereinafter “Plaintiffs Brief’]. On October 15, 2007, Defendant filed a Memorandum of Law in Support of the Commissioner’s Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, [hereinafter “Defendant’s Brief’]. After full briefing, the Court deemed oral argument unnecessary and took the motions under advisement.

6. For the reasons set forth below, it is recommended that the Plaintiffs motion for judgment on the pleadings be GRANTED in part, and Defendant’s cross-motion for judgment on the pleadings be DENIED.

Facts

A. Treating Sources

1. Dr. Paul L. Penar, Fletcher Allen Health Care

7. On September 28,1998, Plaintiff was treated by Paul L. Penar, M.D., a neurosurgeon with Fletcher Allen Health Care at the University of Vermont (R. at 185-86). Plaintiff complained of sudden onset of low back pain beginning three to four months prior to the appointment, persisting since that time despite two courses of physical therapy (R. at 185). Plaintiff reported trying 800 mg of ibuprofen every eight hours, without significant relief. Id. Plaintiff denied pain, numbness, or weakness in her lower extremities. Id. Upon examination, Plaintiff had “5/5” muscle strength in all extremities and her sensation was intact. Id. Her ankle and knee reflexes were “1 + ” bilaterally and her back did not appear to have any scoliosis, kyphosis, or lordosis. Id. Plaintiffs lumbosacral spine was non-tender and she exhibited a normal degree of flexion, but extension limited to 30 degrees. Id. Dr. Penar stated that Plaintiffs MRI revealed a “probable central disc fragment which is mildly compressing the thecal sac and is abutting the left SI nerve root but not significantly compressing it.” Id. Dr. Penar opined that surgery was unlikely to significantly relieve Plaintiffs pain “because she has significant degenerative disease of the disc space and her primary problem is back pain and not radiculopathy.” Id. Dr. Penar suggested Plaintiff try a TENS units for pain control (R. at 185,187).

Dr. Penar examined Plaintiff again in June of 2004 (R. at 183-84). Upon examination, Dr. Penar found Plaintiffs strength intact in her lower extremities (R. at 183). He could not reproduce pain with straight leg raising, but did so with mild flexion and extension of the lumbar area. Id. Plaintiffs knee reflexes were “1 + ” but Dr. Penar could not obtain ankle reflexes. Id. Dr. Penar compared a 2004 MRI study to his 1998 study and concluded that Plaintiff still had “a left paracentral disc herniation at the L5-S1 which [was] displacing the left SI root.” Id. Dr. Penar noticed the herniation had “gotten very slightly more prominent” and the disc space at L5-S1 was darker than at L4-5. Id. Dr. Penar noted that Plaintiff was “fairly obese with a weight of 260 and a height of 5'9".” Id. Dr. Penar did not think that removing the disc herniation would vastly improve Plaintiffs pain, but was willing to consider the possibility (R. at 184). Dr. Penar sent Plaintiff for “an SI root block to assess her response” and noted, for a “more global surgical solution” the only treatment was “instrumented fusion” for which he did not feel she was a good candidate, but would refer her to the Spine Institute for an evaluation. Id. Dr. Penar finished by stating, “[c]ertainly weight loss and smoking cessation would be of benefit to her.” Id.

2. Dr. Alan Folsom, Urgicare

On August 27, 2001, Plaintiff was seen by Dr. Alan L. Folsom, M.D., at Urgicare (R. at 116). On a form entitled, “Return to Work or School,” Dr. Folsom noted that Plaintiff had been in his care for “lumbar muscle strain” and would need a “total disability recheck.” Id. On August 30, 2001, on a prescription pad, Plaintiff was ordered “off work X 5 days.” Id. On September 4, 2001, on a “Return to Work or School” form, Dr. Folsom indicated Plaintiff had been in his care for muscle strain and could return to “full duty” on September 5, 2001 (R. at 115).

3. Nurse Paula Covey, Lake City Primary Care

On February 22, 2002, family nurse practitioner, Paula Covey examined Plaintiff for thoracic pain, but most of her notes are illegible (R. at 112). On a prescription pad, Nurse Covey noted that Plaintiff was out of work that Friday and could return to work on the following Monday but was restricted to lifting only 20 pounds for two weeks (R. at 113-14). On February 26, 2002, Nurse Covey wrote on a prescription pad that Plaintiff was “out of work until further notice” (R. at 113).

4. Dr. Michael T. Borrello, Fletcher Allen Pain Management

On July 8, 2002, Plaintiff was given a medial branch block by Dr. Michael T. Borrello at Fletcher Allen Pain Management Center (R. at 117-18). Dr. Borrello noted that Plaintiff had a lumbar epidural steroid injection in September of 2001 that improved her lower extremity radicular pain at that time (R. at 117). Dr. Borrello administered a medial branch block to lumbar 4, lumbar 5, and the sacral ala, which Plaintiff tolerated without difficulty. Id.

5. Champlain Valley Physician’s Hospital (“CVPH”)

Dr. John H. Miller, M.D., began treating Plaintiff at CVPH Medical Center on February 5, 2004 (R. at 178-81). Upon examination, Plaintiff exhibited normal gait and station (R. at 179). She had “5/5” muscle strength and normal muscle tone throughout. Id. Straight leg raise testing was positive on both sides and Plaintiff lacked extension and was limited to fifteen degrees flexion in her back due to pain. Id. Plaintiffs reflexes were absent at the triceps, biceps and ankles, but “1 + ” at the brachioradialis and knees. Id. Plaintiffs sensation was intact and symmetric throughout. Id. Dr. Miller noted that Plaintiff had undergone epidural injections that worked only temporarily and were no longer an option (R. at 180). He noted that Plaintiff disliked drugs, finding muscle relaxers made her sleepy and she sometimes refused Percocet. Id. Dr. Miller noted Plaintiff had unsuccessfully tried physical therapy on at least two occasions. Id. He noted that Plaintiff would occasionally use a walker. Id. Plaintiff described her pain as progressively getting worse and reaching a constant eight on a ten point scale. Id. Dr. Miller ordered an MRI to look for neural impingement. Id. Additionally, Plaintiff complained of depression and anxiety, stating she would get angry over “stupid things.” Id. Dr. Miller found Plaintiff alert and appropriate, with good judgment and insight, normal memory, okay mood, and full affect (R. at 179). Dr. Miller noted that Zoloft seemed to control her symptoms “quite well” whereas other drugs, such as Paxil, caused adverse side-effects (R. at 180). Dr. Miller continued Plaintiff on Zoloft! Id.

Dr. Miller examined Plaintiff on March I, 2004 (R. at 176-77). Plaintiff complained of worsening back pain (R. at 176). Plaintiff exhibited no gait instability and Dr. Miller found no tenderness to palpation in her back. Id. Plaintiffs muscle tone was normal and her muscle strength was a “5/5.” Id. Plaintiffs left knee reflex was a two, the right knee reflex a one, and the ankle reflexes were both a one. Id. Plaintiffs sensation was intact and symmetrical. Id. After reviewing Plaintiffs latest MRI, Dr. Miller stated it was “remarkable only for left paracentral L5-S1 disc herniation with mild displacement of the left SI nerve root and abutting the right SI nerve root, but no displacement or impingement. No canal stenosis” (R. at 177). Dr. Miller characterized the MRI as “fairly unimpressive.” Id. Dr. Miller stated Plaintiff “may have some mild irritation of the left SI nerve root, which is the side she is more symptomatic on.” Id. Dr. Miller characterized Plaintiffs examination as “fairly unremarkable” noting she had some decreased reflexes, mostly on the right knee. Id. Dr. Miller ordered an electromyogram (“EMG”) of Plaintiffs lower extremities to determine “if the disk [sic] herniation truly is causing the patient’s symptoms.” Id. Dr. Miller noted that Plaintiffs depression was improved on Zoloft and continued her prescription. Id.

On April 23, 2004, Dr. Miller signed, dated, and returned a disability assessment form to the State agency, on which he indicated he could not provide a medical opinion regarding Plaintiffs ability to do work-related activities (R. at 137-38).

Dr. Miller treated Plaintiff on May 12, 2004 (R. at 174-75). Plaintiff continued to complain of low back pain but had no significant changes in her symptoms (R. at 174). Dr. Miller reviewed Plaintiffs EMG, which showed “denervation potentials in L5 with entrapment of the right posterior tibial nerve and the left posterior tibial nerve at the level of the tarsal tunnel.” Id. Dr. Miller assessed Plaintiff with “[c]hronic low back pain with some degenerative changes on exam” (R. at 175) Dr. Miller noted that Plaintiffs disc herniation displaced the left SI nerve root, but her symptoms were more on the right side than on the left side and in an L5 distribution. Id. Dr. Miller referred Plaintiff to Dr. Penar and aqua therapy. Id. Plaintiff reported that she stopped taking Zoloft three weeks prior because it caused her to grind her teeth. Id. Plaintiff complained of insomnia, stating she was sleeping soundly only one and a half to two hours each night. Id. Dr. Miller noted Plaintiff exhibited good judgment and insight, was alert and oriented, had normal memory, good mood, and full affect. Id. Dr. Miller prescribed a trial of Remeron. Id.

Dr. Miller treated Plaintiff again on June 9, 2004 (R. at 172-73). Plaintiff only attended the initial physical therapy appointment because the treatment caused a significant increase in her pain (R. at 172). Dr. Miller explained that her symptoms may initially worsen but would ultimately improve with physical therapy and recommended she continue the physical therapy. Id. Plaintiff complained of back pain, rating it a seven out of ten. Id. Plaintiff was still averse to pain medications because of their sedative qualities and her sensitive reactions to such medications. Id. On examination, Dr. Miller noted Plaintiff was tender to palpation over the sciatic notches bilaterally. Id. Plaintiffs range of motion in extension and flexion was limited due to pain. Id. Her muscle strength was “5/5” and her muscle tone was normal. Id. Plaintiff reported the Remeron left her very sedated into the next day and she ceased taking it. Id. At Plaintiffs request, Dr. Miller prescribed Zoloft again. Id.

On July 7, 2004, Plaintiff noted no significant changes (R. at 170). Plaintiff had not returned to physical therapy but had been examined by Dr. Penar. Id. On examination, Dr. Miller noted Plaintiff had good muscle strength and tone and tenderness over sciatic notches. Id. Dr. Miller reduced Plaintiffs Zoloft prescription because the higher dose was making her “spac[e]y” (R. at 171).

On October 8, 2004, Plaintiff reported to Dr. Miller that she completed physical therapy with no significant change in her level of pain (R. at 168). Plaintiff reported that she had not had the nerve block of the SI that Dr. Penar recommended because the test would assess her for surgery, and Plaintiff was unwilling to consider surgery unless her symptoms got much worse. Id. Plaintiff complained of bilateral hand numbness, which Dr. Miller noted was consistent with carpal tunnel syndrome (R. at 168-69). Dr. Miller prescribed wrist splints to be worn at night (R. at 169). Plaintiff reported seeing a Dr. Smith for therapy and “doing well with his help.” Id. Dr. Miller noted Plaintiff had no anhedonia or anorexia. Id. Plaintiff stated she found Zoloft helpful and Dr. Miller prescribed a low dose for one week. Id. The doctor then increased the dose. Id. Dr. Miller assessed Plaintiff as “doing fairly well at the moment.” Id.

Dr. Miller treated Plaintiff on February 9, 2005 (R. at 191-92). Plaintiff had received the SI nerve root block with no significant change in her symptoms (R. at 191). Dr. Miller noted Plaintiffs next option was to consider fusion at the Spine Institute, but she was unwilling to consider fusion at that point. Id. Dr. Miller noted that Plaintiff had tried Skelaxin with no relief and was still taking prescription strength ibuprofen. Id. Plaintiff complained of more upper back pain. Id. Dr. Miller noted that Plaintiff did “seem to have some component of muscle spasm in the erector spinae muscles of her lumbar and thoracic spine.” Id. Dr. Miller continued Plaintiffs prescriptions for ibuprofen and Flexeril. Id. Dr. Miller had taken Plaintiff off of Zoloft and tried Topamax, but Plaintiff stopped taking Topamax after two weeks because she experienced no positive effect (R. at 192). Plaintiff reported getting very frustrated with her boyfriend while playing cards, stabbing his hand with a pen, and then crying. Id. Dr. Miller found Plaintiff had no suicidal or homicidal ideation, no anorexia, but was experiencing insomnia and was “positive” for anhedonia. Id. Dr. Miller noted that Plaintiff had been on Ativan, Ambien, Celexa, and Prozac, which all either acted like “speed” or had no positive effect. Id. Dr. Miller observed Plaintiff had good judgment and insight, normal memory, was alert and oriented, had an okay mood, and full affect. Id. Dr. Miller prescribed Effexor. Id.

On March 21, 2005, Plaintiff reported that the Flexeril she was taking at night to help her sleep was working somewhat but she could not use it on a regular basis because it made her groggy (R. at 189). Dr. Miller observed Plaintiff had a normal station and gait and that her back pain was relatively unchanged. Id. Dr. Miller noted that Plaintiff had stopped taking Effexor because it made her feel “speedy.” Id. Plaintiff reported still getting angry very quickly. Id. Dr. Miller found Plaintiff did not have suicidal or homicidal ideations, anorexia, or anhedonia. Id. Dr. Miller observed Plaintiffs mood as good and her affect as full. Id. Dr. Miller prescribed a trial of Wellbutrin (R. at 190). At this visit, Plaintiff also complained of obesity, stating that she continued to gain weight. Id. Dr. Miller diagnosed Plaintiff with obesity and referred her to a dietitian. Id.

Dr. Miller treated Plaintiff on April 25, 2005 (R. at 239-40). Plaintiff complained of difficulty controlling her temper and in handling stressful situations (R. at 239). She noted that her father was in hospice care, which was stressful and required that she spend quite a bit of time helping care for him. Id. Dr. Miller noted that he had prescribed an increasing taper of Wellbutrin for Plaintiff at her last visit, but Plaintiff had not started it for fear it would be too sedating when she needed to be with her father. Id. Dr. Miller observed Plaintiff as alert and oriented, with good judgment and insight. Id. He observed her memory as normal, her mood “not great” and her affect full. Id. Dr. Miller explained that Wellbutrin should not have a sedating effect and once again prescribed the medication on an increasing taper. Id.

On June 1, 2005 and June 20, 2005, Plaintiff went to CVPH emergency room to treat pneumonia and an insect bite respectively (R. at 219-36).

On July 27, 2005, Plaintiff went to the CVPH emergency room complaining of back pain (R. at 213-17). Plaintiff described hearing a pop in her back that morning (R. at 216). Plaintiff was given Lorcet and sent home with instructions to follow up with Dr. Miller (R. at 216).

On July 28, 2005, Plaintiff returned to the CVPH emergency room via ambulance complaining of acute onset of back pain (R. at 199-212). Plaintiff described her symptoms as feeling like she would pass out, and feeling nauseated, dizzy, and sweaty (R. at 202). Plaintiff reported taking hydrocodone, ibuprofen 800 mg, and Flexeril. Id. The emergency room physicians ordered CT scans of Plaintiffs pelvis and abdomen (R. at 201, 208-11) and blood tests (R. at 201, 206-07). The pelvic scan revealed “sclerosis around the left SI joint suggesting sacroiliitis” (R. at 208). All other results were characterized as essentially negative (R. at 204). At the hospital, Plaintiff was given Dilaudid (R. at 202). Plaintiff was sent home "with short courses of Lorcet and Prednisone and advised to follow up with her doctor (R. at 204).

Dr. Miller treated Plaintiff on July 29, 2005 for an acute onset of low back pain (R. at 237). Plaintiff described her two visits to the emergency room. Id. On her visit to Dr. Miller, Plaintiff was ambulating with a walker and had taken Lorcet and Flexeril for pain relief. Id. Plaintiff denied radiation of pain into her legs. Id. On examination, Plaintiff was tender to palpation of L5-S1, but muscle strength and tone were normal. Id. Plaintiffs knee reflexes were “2 + ” in both knees. Id. Dr. Miller noted Plaintiffs pain was due to “muscular strain” and he advised her to continue the Flexeril, Lorcet, and Prednisone. Id. Dr. Miller offered Plaintiff a physical therapy referral, which she refused. Id.

6. Dr. Massoud Azar, Electrophysiology

At the request of Dr. Miller, Dr. Massoud Azar, M.D., performed an EMG on Plaintiff on May 5, 2004 (R. at 143). Dr. Azar noted that Plaintiff “declined needle EMG in the left lower extremity because of cramping in the right leg during the same procedure.” Id. Dr. Azar’s impression of the results was as follows:

1. Electrographic evidence of denervation potentials in the right L5 distribution.

2. Entrapment of the right posterior tibial nerve at the level of the tarsa [sic] tunnel.

3. Entrapment of the left posterior tibial nerve at the level of the tarsa [sic] tunnel.

4. No electrographic evidence of a systemic peripheral neuropathy.

Id.

B. Consultative Examiners

1. Dr. Nader Wassef, Orthopedic Examination

At the request of the State agency, Dr. Nader Wassef, M.D., examined Plaintiff on April 1, 2004 (R. at 119-22). Plaintiff described low back pain that was aggravated by moving, standing, sitting or lying down (R. at 119). Plaintiff also indicated moving, standing, sitting, and lying down could help the low back pain. Id. Plaintiff reported that pain radiated to both legs and was associated with numbness and tingling. Id. Plaintiff reported severe spasms in her neck and head. Id. Plaintiff reported she was able to cook four times a week, clean once a week, and shower and dress daily (R. at 120). Plaintiff reported sitting down to dress from the waist down. Id. Plaintiff reported she did laundry and shopping once a week and got help with other chores. Id. Plaintiff stated she liked to read and watch TV. Id.

Dr. Wassef observed Plaintiff was in no acute distress, had a normal gait, and could walk on heels and toes. Id. Plaintiff could squat fully but required Dr. Wassef s assistance to stand again (R. at 121). Plaintiff was able to get on and off the examining table and rise from a chair without assistance. Id. Dr. Wassef noted that his examination was limited because Plaintiff declined to undress for the examination. Id. Nonetheless, Dr. Wassef found that Plaintiff had full flexion, extension, lateral flexion, and rotary movements in the spine. Id. He detected no tenderness, no spasm, no scoliosis, and no trigger points. Id. Plaintiffs straight leg test was negative on both legs. Id. Dr. Wassef observed Plaintiff had “5/5” muscle strength and no muscle atrophy or sensory abnormality. Id. Plaintiffs reflexes were observed as physiologic and equal. Id. Dr. Wassef stated, “[Although I was not able to detect evidence of physical limitations, claimant indeed seems to be in pain” (R. at 122).

2. Dr. Brett T. Hartman, Psychiatric Evaluation

At the request of the State agency, psychologist Dr. Brett T. Hartman, Psy.D., examined Plaintiff on May 14, 2004 (R. at 123-27). Plaintiff complained of difficulty sleeping and an increased appetite (R. at 124). Dr. Hartman found Plaintiff to be “notably overweight.” Id. Plaintiff reported suffering from depressive episode throughout her life and endorsed the following symptoms: sadness, crying, social isolation, irritability, low energy, lack of motivation, hopelessness, loss of interest, and memory and concentration problems (R. at 125). Plaintiff reported that she was impatient, easily frustrated and easily overwhelmed. Id. Plaintiff reported getting along fairly well with her fiancé’s family, but having only one close friend and being in contact with only one of her four children (R. at 136). Plaintiff reported spending her days watching TV, napping and doing housework. Id.

Dr. Hartman observed that Plaintiff was alert and oriented, and her speech was fluent, but somewhat monotone (R. at 125). He noted her mood was dysphoric and her affect was “restricted yet pleasant.” Id. Dr. Hartman observed Plaintiffs attention and concentration were mildly impaired, noting she performed serial threes slowly (R. at 125-26). Plaintiffs memory appeared intact and her intellectual functioning was near average (R. at 126). Dr. Hartman found Plaintiff had fair judgment and insight. Id. Dr. Hartman opined that Plaintiff would be able to follow and understand simple directions and had a fair ability to learn new skills and make appropriate decisions. Id. Dr. Hartman opined that Plaintiff had mild attention and concentration problems, mild difficulty relating adequately to others, and mild-to-moderate problems dealing appropriately with the normal stressors of life. Id. Dr. Hartman found Plaintiffs limitations generally consistent with her allegations (R. at 127). Dr. Hartman diagnosed Plaintiff with major depressive disorder, moderate without psychotic feature. Id. He indicated the need to rule out dysthymic disorder and rule out pain disorder. Id.

C. Residual Functional Capacity (“RFC”) Analysis

On May 24, 2004, State agency psychiatrist, Mark Tatar, Ph.D. completed a psychiatric review technique form base upon a review of Plaintiffs records (R. at 144-57). Dr. Tatar indicated Plaintiff had major depressive disorder, which was a medically determinable impairment but did not precisely satisfy the Listing 12.04 criteria (R. at 147). Dr. Tatar found Plaintiff had mild restrictions in activities of daily living, moderate difficulties maintaining social functioning, moderate difficulties maintaining concentration, persistence or pace, and found no evidence of episodes of decompensation (R. at 154).

Also on May 24, 2004, Dr. Tatar completed a Mental RFC assessment (R. at 159-62). In the area of understanding and memory, Dr. Tatar found Plaintiff was not significantly limited (R. at 159). In sustaining concentration and persistence, Dr. Tatar indicated Plaintiff was moderately limited in carrying out detailed instructions, and maintaining attention and concentration for extended periods. Id. Dr. Tatar found Plaintiff was moderately limited in her ability to accept instructions and respond appropriately to criticism and in her ability to get along with co-workers (R. at 160). He also found Plaintiff moderately limited in her ability to respond appropriately to changes in a work setting. Id. Dr. Tatar concluded that Plaintiffs activities of daily living did “not appear significantly impaired by psychiatric factors” and she was able “to follow simple instructions, sustain pace and relate to others in a work situation” (R. at 161).

D. Mr. Salvatore Garozzo, Vocational Expert (“VE”)

On August 19, 2005, the ALJ held a supplemental hearing to elicit testimony from VE, Salvatore Garozzo (R. at 253). The ALJ asked Mr. Garozzo to assume the Plaintiff was 43 years old and had a GED (R. at 258). He asked Mr. Garozzo to further

... assume that she can do light work, but has the following nonexertional impairments. Any job that she does must be a simple entry level job. She could make a simple decision, but there should be no complex decision making involved. It has to be a low stress job, one that would not require her to do any planning, no scheduling, no report writing, no supervising, no high production quotas, one that would have little or no change in the work environment or setting. She could have occasional, but not frequent interaction with co-workers. She could work in proximity with coworkers, but only occasionally in coordination or conjunction with them and she should be able to change positions as needed using a sit/stand option about every 20 to 25 minutes.

Id. Based upon these restrictions, Mr. Garozzo testified that Plaintiff would not be able to do any of her past work. Id. Given the assumed limitations, Mr. Garozzo testified Plaintiff could work as a housekeeper (R. at 259). Mr. Garozzo testified there were 1,492,000 housekeeper jobs nationally and 1,640 regionally. Id. Mr. Garozzo stated there were no other jobs at the light level that a person with those limitations could perform. Id. Mr. Garozzo further explained that there were no jobs at the sedentary level that a person with the assumed restrictions could perform (R. at 260). Under questioning by Plaintiffs attorney, Mr. Garozzo testified that, if in addition to the assumed limitations Plaintiff could also not bend, push, pull or climb, it would affect Plaintiffs ability to be a housekeeper because occasional kneeling was required. Id. Mr. Garozzo testified that Plaintiff could not be a housekeeper if she could not lift over ten pounds. Id. If Plaintiff had to take four half hour breaks to lie down because of pain, then she could not be a housekeeper according to Mr. Garozzo. Id. However, Mr. Garozzo indicated that impaired concentration and memory due to narcotic pain killers would be less likely to impact a person’s ability to be a housekeeper. Id. Mr. Garozzo assured Plaintiffs counsel that a housekeeper position would allow a person to alternate between sitting and standing every 20 to 25 minutes, but that it required some walking and that taking some breaks after a period of walking would also be acceptable. Id. Mr. Garozzo indicating that climbing stairs was only occasionally required of a housekeeper, depending on whether a facility had an elevator (R. at 262). Mr. Garozzo testified that a housekeeper position would require gross handling abilities (R. at 262-63).

Discussion

A. Legal Standard and Scope of Review

8. 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 i’easonable 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).

9. “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 plaintiffs 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).

10. 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.

11.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. 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.

12. 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, 107 S.Ct. 2287; Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant’s job qualifications by considering his 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).

13. In this case, the ALJ made the following findings with regard to factual information as well as the five-step process set forth above:

1. The claimant meets the non-disability requirements for a period of disability and disability insurance benefits set forth in section 216(i) of the Social Security Act through December 31, 2007.

2. The claimant has not engaged in substantial gainful activity since February 26, 2002 (20 CFR §§ 404.1520(b) and 416.930(b)).

3. The claimant has the following severe impairments: arthritis and depression (20 CFR §§ 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment of combination of impairments that meets or medically equals one of the listed impairments in 20 CFR 404, Subpart P, Appendix 1, Regulations No. 4 (20 CFR §§ 404.1520(d) and 416.920(d)).

5. ... [T]he claimant has the residual functional capacity to [perform] simple entry-level light work that does not require complex decision making. She is able to make simple decisions. This position must be low stress work that requires no scheduling, no report writing, no supervision, and no high production quotas. She must have little to no change in the work environment or setting. She can have occasional but no frequent interaction with coworkers. She can work in proximity of co-workers but only occasionally in coordination or in conjunction with them. She must be able to change positions as needed using a siVstand option every twenty to twenty-five minutes.

6. The claimant is unable to perform any past relevant work (20 CFR §§ 404.1565 and 416.965).

7. The claimant was born on March 13, 1962 and was 39 years old on the alleged disability onset date, which is defined as a younger individual age 18-44 (20 CFR §§ 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR §§ 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability due to the claimant’s age (20 CFR §§ 404.1568 and 416.968).

10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant number in the national economy that the claimant can perform (20 CFR §§ 404.1560(c), 404.960(c), and 416966).

11.The claimant has not been under a “disability,” as defined in the Social Security Act, from February 26, 2002 through the date of this decision (20 CFR §§ 404.1520(g) and 416.920(g)).

(R. at 8-9, 13-14)

B. Plaintiffs Challenge

14. Plaintiff argues that (1) the ALJ violated the treating physician rule; (2) the ALJ erred in rejecting Plaintiffs credibility; (3) the ALJ erred in not finding Plaintiff disabled due to her spinal disorder and her mental impairment as required by Listings 1.04A and 12.04; (4) the ALJ erred in failing to properly consider Plaintiffs obesity; (5) the ALJ erred in concluding Plaintiff had the RFC to perform light work; (6) the ALJ improperly relied on the absence of prescribed therapy; (7) the ALJ improperly relied on the vocational expert’s testimony which depended upon an inaccurate RFC; and (8) the ALJ did not meet the Commissioner’s burden at step five.

1. Plaintiffs First Allegation: The ALJ Violated the Treating Physician Rule.

15. Plaintiff argues that the ALJ violated the treating physician rule in two ways. Plaintiffs Brief, pp. 14-17. First, Plaintiff argues that the ALJ held it against Plaintiff that Dr. Miller declined to offer his opinion. Plaintiffs Brief, p. 16. Second, Plaintiff argues that the ALJ improperly rejected the opinions of Dr. Penar, Dr. Folsom, and Nurse Covey. Plaintiffs Brief, pp. 16-17.

a. The ALJ “Held it Against” Plaintiff That Dr. Miller Did Not Offer an Opinion.

Plaintiff argues that “ALJ Zolezzi held it against [Plaintiff] that her treating physician, Dr. Miller did not offer an opinion regarding her ability to work.” Plaintiffs Brief, p. 16. Plaintiffs attorney alleges that Dr. Miller declined to provide an opinion “based upon the policy of the CVPH ‘Medicaid’ Clinic.” Plaintiffs Brief, p. 16.

First, even if the Plaintiffs allegations are assumed to be true, Plaintiff has not stated an issue reviewable by this Court under the Social Security Act. 42 U.S.C. § 405(g). Under the Act, the Court is empowered to modify or reverse an ALJ’s decision, if that decision is based upon legal error or not supported by substantial evidence. Id.; Berry, 675 F.2d at 467. Plaintiffs claim has not identified any legal error or substantial evidence failure.

Nor has the Plaintiff averred any facts to support her claim that the ALJ “held it against” her that Dr. Miller declined to provide an opinion. The Plaintiff points to no evidence in the record or transcript to support this contention. Furthermore, a careful review of the record reveals that the only source indicating that Dr. Miller or CVPH had a “policy” against filling out disability forms is Plaintiffs attorney’s statements, which are not reviewable by this Court as they are not part of the record or pleadings. 42 U.S.C. § 405(g) (“The 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.”) (emphasis added).

b. The ALJ Improperly Rejected Other Medical Conclusions

Plaintiff also argues that the ALJ improperly rejected the “medical conclusions” from Dr. Penar, Dr. Folsom, and Nurse Covey in violation of the treating physician rule. Plaintiffs Brief, pp. 16-17. However, Plaintiff incorrectly assumes that the treating physician rule applies to Dr. Penar, Dr. Folsom and Nurse Covey.

The Commissioner will give controlling weight to a “treating source’s opinion on the issue(s) of the nature and severity of your impairment(s)” if the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.” 20 C.F.R. § 404.1527(d)(2); see also Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir.1999). However, not all health care providers are treating sources. A treating source is Plaintiffs “own physician, psychologist, or other acceptable medical source who provides [Plaintiff], or has provided [Plaintiff], with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [Plaintiff].” 20 C.F.R. § 404.1502. The regulations specify that an ongoing treatment relationship is generally found where an acceptable medical source treats a claimant “with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for [the claimant’s] medical condition(s).” Id.; see, e.g., Shatraw v. Astrue, No. 7:04-CV-0510, 2008 WL 4517811, at *11 (N.D.N.Y. Sept. 30, 2008) (finding four physicians were not treating sources because they each only treated the Plaintiff once and therefore did not develop an ongoing treatment relationship with the Plaintiff). Thus, an acceptable medical source who has treated or evaluated a claimant only a few times, or only after long intervals, may still be considered a treating source “if the nature and frequency of the treatment or evaluation is typical for [the] eondition(s).” 20 C.F.R. § 404.1502; see, e.g., Fernandez v. Apfel, No. 97-CV-4083, 1998 WL 812591, at *3-4 (E.D.N.Y. Apr. 20, 1998) (finding that a physician the Plaintiff saw six to eight times over the course of one and a half to two years was not a treating source because the Plaintiff did not see the physician with a frequency consistent with the severe mental impairment he claimed).

In this case, Dr. Penar and Dr. Folsom did not have the required ongoing treatment relationship with Plaintiff. Dr. Penar saw Plaintiff on two occasions over a period of approximately five years to analyze her MRIs and advise Plaintiff of possible surgical interventions (R. at 183-86). Plaintiff saw Dr. Folsom at Urgicare three times over a period of nine days in 2001 and never saw him again (R. at 115-16). Each time, Dr. Folsom provided Plaintiff with a prescription pad doctor’s note excusing her from work for muscle strain (R. at 115-16). From these documents, it is not even clear that Dr. Folsom treated Plaintiffs back pain as no treatment notes or examination records are in the administrative transcript. Certainly neither Dr. Penar nor Dr. Folsom developed an ongoing treatment relationship with Plaintiff that was consistent with the constant back pain that she alleges. Similarly, Nurse Covey was not a treating source subject to the treating physician rule because a nurse practitioner is not an acceptable medical source. 20 C.F.R. §§ 404.1513(d), 416.913(d) (listing a nurse practitioner as an other source, and not an acceptable medical source). Instead, the record is replete with evidence that Dr. Miller regularly treated Plaintiff and formed an ongoing treatment relationship with Plaintiff that was consistent with the constant back pain that Plaintiff alleges (R. at 137-38, 168-69, 170, 172-81, 189, 191-92, 237, 239-40). As the ALJ recognized, Dr. Miller was Plaintiffs treating physician. Therefore, the ALJ did not err when he did not apply the treating physician rule to Dr. Penar, Dr. Folsom or Nurse Covey.

2. Plaintiffs Second Allegation:

The ALJ Erred in Assessing Plaintiffs Credibility.

16. Plaintiff argues that the objective medical evidence in the record supports Plaintiffs statements regarding pain caused by her back impairment. Plaintiffs Brief, pp. 22, 29-33. Plaintiff also argues that “[t]he record as a whole indicates that she credibly testified about her depression and anxiety.” Plaintiffs Brief, p. 33.

Courts in the Second Circuit have determined pain and other limiting symptoms are important elements in disability claims, and such evidence must be thoroughly considered. See Ber v. Celebrezze, 332 F.2d 293 (2d Cir.1964). “[A] claimant’s subjective evidence of pain is entitled to great weight where ... it is supported by objective medical evidence.” Simmons v. U.S. R.R. Retirement Bd., 982 F.2d 49, 56 (2d Cir.1992) (citations omitted). “However, the ALJ is ‘not obliged to accept without question the credibility of such subjective evidence.’ ” Martone v. Apfel, 70 F.Supp.2d 145, 151 (N.D.N.Y.1999) (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979)). When rejecting subjective complaints, an ALJ must do so “explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ’s disbelief.” Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y.1987); see SSR 96-7p, 1996 WL 374186, at *4. If the ALJ’s findings are supported by substantial evidence, “the court must uphold the ALJ’s decision to discount a claimant’s subjective complaints.” Aponte v. Sec’y of Dept. of Health & Human Servs., 728 F.2d 588, 591 (2d Cir.1984).

The “ALJ’s credibility assessment must be based on a two step analysis of pertinent evidence in the record.” Borush v. Astrue, No. 3:05-CV-361, 2008 WL 4186510, at *12 (N.D.N.Y. Sept. 10, 2008) (citing 20 C.F.R. §§ 404.1529, 416.929; Foster v. Callahan, No. 96-CV-1858, 1998 WL 106231, at *5 (N.D.N.Y. Mar. 3, 1998)); see S.S.R. 96-7p, 1996 WL 374186, at *2. First, the ALJ must determine whether the claimant has medically determinable impairments, “which could reasonably be expected to produce the pain or other symptoms alleged.” 20 C.F.R. § 404.1529(a); S.S.R. 96-7p, 1996 WL 374186, at *2. “This finding does not involve a determination as to the intensity, persistence, or functionally limiting effects of the claimant’s pain or other symptoms.” McCarty v. Astrue, No. 5:05-CV-953, 2008 WL 3884357, at *8 (N.D.N.Y. Aug. 18, 2008) (citing S.S.R. 96-7p, 1996 WL 374186). “If no impairment is found that could reasonably be expected to produce pain, the claimant’s pain cannot be found to affect the claimant’s ability to do basic work activities.” Id. Second, if medically determinable impairments are shown, then the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit the claimant’s capacity to work. S.S.R. 96-7p, 1996 WL 374186, at *2; 20 C.F.R. § 404.1529(c); Borush, 2008 WL 4186510, at *12. Because “an individual’s symptoms can sometimes suggest a greater level of severity of impairment than can be shown by the objective medical evidence alone,” S.S.R. 96-7p, 1996 WL 374186, at *3, an ALJ will consider the following factors in assessing a claimant’s credibility: (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. §§ 416.929(c)(3)(i)-(vii).

After reviewing the record, the Court is satisfied that the ALJ applied the proper legal standards in his analysis of Plaintiffs complaints of pain and other symptoms. Further, the Court concludes that substantial evidence supports the ALJ’s determination that Plaintiffs complaints were “not entirely credible.” The ALJ found that Plaintiffs “medically determinable impairments could reasonably be expected to produce the alleged symptoms” (R. at 11). “However,” the ALJ concluded that “the claimant’s statements concerning the intensity, duration and limiting effects of those symptoms are not entirely credible” (R. at 11). The ALJ considered Plaintiffs symptoms related to her back condition and her mental condition separately (R. at 11).

With respect to Plaintiffs back related pain, the ALJ found that the intensity, duration and frequency of Plaintiffs symptoms would not preclude work activities (R. at 11). The ALJ considered factors relevant to the second step of the credibility analysis (R. at 11-12). The ALJ noted that her daily activities were “not limited to the extent one would expect, given the complaints of disabling symptoms” (R. at 11-12). The ALJ also noted that Plaintiff did not give details about what precipitated her alleged symptoms (R. at 11).

In addition to the evidence the ALJ discussed, other substantial evidence supports the ALJ’s conclusion (R. at 62-83, 270-71, 274, 282-86). For example, Dr. Miller noted that the laboratory diagnostic tests showed Plaintiff had a herniation displacing the left SI nerve root, but that Plaintiff complained of more symptoms on the right (R. at 175). Additionally, the record reveals several instances in which Plaintiffs testimony before the ALJ was inconsistent with her statements to physicians. For example, Plaintiff told Dr. Miller that she was injured in February of 2002 while lifting a client as a home health aide, but she testified before the ALJ that her February 2002 injury stemmed from a slip (R. at 180, 274). Similarly, Plaintiff testified in April 2005 that Dr. Smith had been treating her depression with individual therapy every week or every couple of weeks, on and off for the past seven years (R. at 277-78). However, in May of 2004 Plaintiff told Dr. Hartman that she had not had psychiatric treatment for the past four or five years (R. at 123).

In his credibility assessment, the ALJ also noted that Plaintiff spent a “great deal of time” helping her ill father which “can be quite demanding both physically and emotionally” (R. at 12). While Plaintiff correctly points out that her testimony did not imply she did any physical work earing for her father, the ALJ’s unwarranted assumption does not mean that substantial evidence did not support the ALJ’s findings. See (R. at 279); see also Barringer v. Comm’r of Soc. Sec., 358 F.Supp.2d 67, 83 n. 26 (N.D.N.Y.2005) (noting that an ALJ’s incorrect rendition of facts in the record is nothing more than harmless error where his credibility assessment is amply supported by other substantial evidence).

With respect to Plaintiffs mental impairment, the ALJ concluded that the intensity, duration, and frequency of Plaintiffs symptoms “did not render her unable to perform basic work-related functions” (R. at 11). The ALJ considered that Plaintiff had “been maintained on medication” and was consistently evaluated by Dr. Miller to have a good mood and full affect (R. at 11). The ALJ also noted the Dr. Miller consistently found Plaintiff had normal memory and intact insight and judgment (R. at 11). Finally, the ALJ noted that Plaintiff was not advised to seek any other treatment (R. at ll). While the record indicates that Plaintiff had difficulty controlling her temper (R. at 189, 191) and felt anxious near people (R. at 287-88) it also indicates that she was able to “relate to others in a work situation” (R. at 161).

The Court finds that the ALJ used the correct legal standard in assessing Plaintiffs credibility and that substantial evidence supports his decision.

3. Plaintiffs Third Allegation: The ALJ Erred in Not Finding Plaintiff Met Listings 1.04A and 12.04.

a. Listing 1.04A

17. Plaintiff argues that the ALJ erred in failing to find that Plaintiff was disabled by her spinal impairment, pursuant to Listing 1.04A. Plaintiffs Brief, pp. 17-18.

Plaintiff has the burden of proof at step three to show that her impairments meet or medically equal a Listing. Naegele v. Barnhart, 433 F.Supp.2d 319, 324 (W.D.N.Y.2006). To meet a Listing, Plaintiff must show that her medically determinable impairment satisfies all of the specified criteria in a Listing. 20 C.F.R. §§ 404.1525(d), 416.925(d). If a claimant’s impairment “manifests only some of those criteria, no matter how severely,” such impairment does not qualify. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990) (citing S.S.R. 83-19, 1983 WL 31248).

In his decision, the ALJ did not specifically refer to either Listing 1.04A or Listing 12.04, but found that Plaintiffs impairments did not, individually or in combination, meet or medically equal one of the listed impairments (R. at 9). Courts have required an ALJ to provide an explanation as to why the claimant failed to meet or equal the Listings, “[w]here the claimant’s symptoms as described by the medical evidence appear to match those described in the Listings.” Kuleszo v. Barnhart, 232 F.Supp.2d 44, 52 (W.D.N.Y. 2002). However, if an ALJ’s decision lacks an express rationale for finding that a claimant does not meet a Listing, a Court may still uphold the ALJ’s determination if it is supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir.1982).

Listing 1.04A, of Appendix 1, Subpart P, Regulations No. 4, states:

Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine); ...

20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A, § 1.04.

In this ease, there is some medical evidence that Plaintiff may have “nerve root compression characterized by nueroanatomic distribution of pain,” “limitation of motion of the spine,” “reflex loss,” and a “positive straight leg raising test;” however, there is no evidence that Plaintiff has “motor loss.” Rather, Dr. Miller, Dr. Penar, and Dr. Wassef, all found Plaintiffs strength and muscle tone normal and intact (R. at 121, 137, 170,176,179,183,185). Furthermore, the evidence of nerve root compression, limitation of spine motion, reflex loss, and a positive straight leg raising test is all contradicted. Thus, while Dr. Miller and Dr. Penar noted mild displacement of the left SI nerve root (R. at 177, 185), Dr. Penar opined that it was “not radiculopathy” (R. at 185), and Dr. Miller characterized it as “mild irritation” and “fairly unimpressive” (R. at 177). Dr. Folsom characterized Plaintiffs injuries as “muscle strain” (R. at 116). Similarly, while Dr. Miller and Dr. Penar noted Plaintiffs flexion and extension were limited due to pain (R. at 172, 179, 183, 185), Dr. Wassef found Plaintiff had full flexion and extension (R. at 121). As for loss of reflexes, Dr. Penar, Dr. Miller, and Dr. Wassef generally found Plaintiffs reflexes normal, rating them a “1 -I-,” “2 +,” one, or two (R. at 176, 179, 183, 185, 237), noting Plaintiffs sensation was intact (R. at 121, 176), and finding “no sensory abnormalities” and reflexes “physiologic and equal” (R. at 121). Finally, although Dr. Miller found positive straight leg raising test results on both legs (R. at 179), Dr. Penar and Dr. Wassef found negative results in straight leg raising tests (R. at 121, 183).

Plaintiff cannot meet Listing 1.04A because there is no medical evidence that she experienced motor loss, a required criterion of Listing. See Zebley, 493 U.S. at 530, 110 S.Ct. 885; see, e.g., McKinney v. Astrue, No. 5:05-CV-0174, 2008 WL 312758, at *5 (N.D.N.Y. Feb. 1, 2008) (finding the ALJ’s decision that the Plaintiff did not meet Listing 1.04A supported by substantial evidence where the Plaintiffs did not satisfy all the criteria symptoms of the Listing). Therefore, the ALJ’s determination that Plaintiff did not meet Listing 1.04A was supported by substantial evidence. Furthermore, the ALJ’s failure to provide a specific rationale for finding Plaintiffs spinal impairment did not meet Listing 1.04A does not prevent this Court from upholding his determination because substantial evidence, as outlined above, supports the ALJ’s determination. See Berry, 675 F.2d at 468.

b.Listing 12.04

Plaintiff also argues that she was disabled by her mental impairment, pursuant to Listing 12.04. Plaintiffs Brief, pp. 23-25.

Listing 12.04 for Affective Disorders requires an impairment:

Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation.

The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.

A.Medically documented persistence, either continuous or intermittent, of one of the following:

1.Depressive syndrome characterized by at least four of the following:

a. Anhedonia or pervasive loss of interest in almost all activities; or

b. Appetite disturbance with change in weight; or

c. Sleep disturbance; or

d. Psychomotor agitation or retardation; or

e. Decreased energy; or

f. Feelings of guilt or worthlessness; or

g. Difficulty concentrating or thinking; or

h. Thoughts of suicide; or

i. Hallucinations, delusions, or paranoid thinking; or

2. Manic syndrome characterized by at least three of the following:

a. Hyperactivity; or

b. Pressure of speech; or

c. Flight of ideas; or

d. Inflated self-esteem; or

e. Decreased need for sleep; or

f. Easy distractibility; or

g. Involvement in activities that have a high probability of painful consequences which are not recognized; or

h. Hallucinations, delusions or paranoid thinking; or

3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes);

AND

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration;

OR

C. Medically documented history of a chronic affective disorder of at least 2 years’ duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or

3. Current history of 1 or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.

20 C.F.R. Pt. 404, Subpt. P, App. 1, Part A, § 12.04.

In this case, non-examining State psychiatrist, Dr. Tatar, found that Plaintiff had a major depressive disorder that did not meet the requirements of Part A (R. at 147). The record supports Dr. Tatar’s finding that Plaintiff did not meet the requirements of Part A. For example, Dr. Miller repeatedly recorded that Plaintiff suffered from disturbed sleep (R. at 169, 175, 189, 192), and on one occasion, noted Plaintiff had “positive anhedonia” (R. at 192). Plaintiff has endorsed other symptoms required for Part A depressive syndrome, such as low energy and concentration problems (R. at 125), but none of these other required symptoms have b