Correale-Englehart v. Astrue (687 F. Supp. 2d 396, 2010)

ORDER ADOPTING REPORT AND RECOMMENDATION

RICHARD J. SULLIVAN, District Judge:

On April 18, 2007, Plaintiff Ann Correale-Englehart commenced this suit against Defendant Michael J. Astrue, in his capacity as the Commissioner of Social Security. (Doc. No. 1.) Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks review of the Commissioner’s denial of her application for disability insurance benefits. The case was originally assigned to the Honorable Kenneth M. Karas, United States District Judge, who granted Defendant’s request for an extension of time to submit an answer. (Doc. No. 2.) Defendant filed his Answer on August 24, 2007. (Doc. No. 3.) On September 4, 2007, this case was reassigned from Judge Karas to the undersigned. (Doc. No. 4.) The parties then submitted cross-motions for judgments on the pleadings (Doc. No. 5; Doc. No. 8), which the Court referred to the Honorable Michael H. Dolinger, United States Magistrate Judge, for a Report and Recommendation (Doc. No. 12).

On September 10, 2009, Judge Dolinger issued a Report and Recommendation recommending that Plaintiffs motion be granted in part, Defendant’s cross-motion be denied, and that the case be remanded for further proceedings. (Doc. No. 14.) In an Order dated September 23, 2009, this Court granted Defendant’s request for an extension to file an objection to the Report and Recommendation. (Doc. No. 15.) No party has filed objections to the Report, and the time to do so has expired. Cf. Frank v. Johnson, 968 F.2d 298 (2d Cir.1992).

When no objections to a Report and Recommendation are made, the Court may adopt the Report if there is no clear error on the face of the record. Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y.2005); La Torres v. Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y.2000). After conducting a review of the record, the Court finds that Judge Doling-er’s thorough Report and Recommendation is not facially erroneous. Accordingly, the Court adopts the Report and Recommendation in its entirety. For the reasons set forth in the Report and Recommendation, the Court grants in part Plaintiffs motion for judgment on the pleadings, denies Defendant’s cross-motion for judgment on the pleadings, and remands the case for further proceedings to develop a comprehensive administrative record. The Clerk of the Court is respectfully directed to close the case.

SO ORDERED.

REPORT AND RECOMMENDATION

MICHAEL H. DOLINGER, United States Magistrate Judge.

Plaintiff Ann Correale-Englehart commenced this action pursuant to Title II of the Social Security Act, to challenge a June 2006 decision by the Commissioner of the Social Security Administration (the “SSA”), denying her disability insurance benefits under the Social Security Act (the “Act”). Both parties have moved, pursuant to Fed.R.Civ.P. 12(c), for judgment on the pleadings. Plaintiff seeks an order reversing the Commissioner’s determination that she is not disabled and remanding for an award of benefits or at least for reconsideration of the agency decision. Defendant seeks dismissal of the complaint based on the contention that his denial of benefits to Mrs. Correale-Englehart is supported by substantial evidence and is otherwise in accordance with applicable laws and regulations. For the reasons set forth below, we recommend that the plaintiffs motion be granted in part and the case remanded for further administrative consideration.

PROCEDURAL HISTORY

Plaintiff filed an application for disability insurance benefits under Title II of the Act on June 14, 2004. (Admin.R. Tr. (“Tr.”) 19-21, 50). In plaintiffs Disability Report, dated July 20, 2004, she reported that she suffered from cervical and lumbar disk injuries with nerve impingement, a torn right rotator cuff with nerve damage, a leg injury and bilateral carpal tunnel syndrome, all as a result of a motor vehicle accident that occurred on August 15, 2003. (Id. at 72, 75).

The SSA initially denied her application on December 6, 2004. (Id. at 22-25). It found that the “medical evidence show[ed] [plaintiff has] had stiffness with some restriction of [her] activities, headaches and some difficulty in stressful situations,” but concluded that she could still perform her usual duties as a secretary and office manager at her prior job. (Id.). Plaintiff then requested a hearing on her application. (Id. at 31). The hearing was initially scheduled for October 20, 2005, but was postponed until December 8, 2005. (Id. at 37-40, 44).

On December 8, 2005, plaintiff appeared with counsel before Administrative Law Judge (“ALJ”) Dennis G. Katz. (Id. at 332). On June 15, 2006, ALJ Katz issued a decision finding that plaintiff was not disabled. (Id. at 8). In short, the ALJ found that plaintiff suffered from a severe back impairment and could not perform her past relevant work, but that there were alternate job opportunities, involving restricted sedentary work, that she could perform with certain limitations. (Id. at 13,17).

Plaintiff filed a request for review of the ALJ’s decision with the SSA Appeals Council on June 27, 2006. (Id. at 7). That request was denied on December 8, 2006. (Id. at 5).

Plaintiff then filed this lawsuit pursuant to 42 U.S.C. § 405(g) on April 18, 2007, seeking review of the SSA’s decision. (Compl. 1-2).

She filed a motion for judgment on the pleadings on November 1, 2007, seeking a reversal of the SSA’s decision with remand solely for the calculation of benefits. (Pl.’s Mem. of Law (“Pl.’s Mem.”) 11). The Commissioner responded by filing a cross-motion for judgment on the pleadings on December 14, 2007. (Def.’s Mem. of Law in Supp. of Mot. for J. on the Pleadings (“Def.’s Mem.”) 25). He seeks an order affirming his decision that plaintiff is not disabled. (Id.).

FACTUAL BACKGROUND

I. Non-Medical Evidence

Plaintiff submitted several disability reports during the course of her application for disability insurance benefits that provided information regarding her background, work history and claimed medical and psychiatric conditions. (Tr. 50, 71, 89, 106). She was born in the United States on February 18, 1963. (Id. at 50). She speaks English. (Id. at 71). She has a high school diploma and has completed three years of college, but did not receive a college degree. (Id. at 78, 210). She is married, has no children other than a 17-year-old step-daughter, and lives with her husband. (Id. at 52, 343).

Plaintiffs work history included employment as a secretary and office manager of Glass Company, a company that repairs windows. (Id. at 73, 334-35). She began working at Glass Company in 1985 and worked there until she sustained injuries in a motor vehicle accident on August 15, 2003.(Id). As a secretary and office manager, plaintiff stated that she earned $18.00 per hour and worked approximately an eight-hour day, five days a week. (Id. at 73). She subsequently was laid off because she could not work, and was receiving no-fault insurance payments as a result of the motor vehicle accident. (Id. 338).

Plaintiff described her typical work duties at Glass Company as consisting of answering phones, negotiating sales, accepting deliveries, placing orders, data entry, performing administrative duties and walking customers into the building. (Id. at 73, 92). She also stated that she lifted approximately ten to twenty-five pounds frequently during the workday. (Id.) In plaintiffs Function Report, dated August 21, 2004, she listed her daily activities pri- or to the motor vehicle accident as consisting of sitting, bending, carrying, pulling, writing, using the computer, bowling, coaching Softball, working at her desk, standing and sleeping. (Id. at 96).

Since the motor vehicle accident, plaintiff reported in her Function Report that she experienced difficulties with these daily activities because of pain in her right shoulder, right arm, right hip, right leg, neck and back. (Id. at 103). She also reported headaches, resulting in attention problems. (Id. at 101). She described the following abilities as “very limited” since the motor vehicle accident: lifting, standing, walking, sitting, climbing stairs, kneeling, squatting, reaching and using her hands. (Id. at 100). She also reported that she has difficulty sleeping because she must bend her knees; she cannot sleep on her back, right side or stomach; and she wakes up approximately every two hours due to pain. (Id. at 96). She stated that she uses a sleeping pillow wedge for her head, back and knees and a lumbar pillow for sitting. (Id. at 101).

Plaintiff listed limitations on various household activities in her Function Report. (Id. at 96-99). She reported experiencing difficulty with cooking, and as a result, she orders out and rarely makes anything other than a sandwich or a salad. (Id. at 96). She generally no longer does the shopping, and if she does, she needs assistance. (Id. at i99). She also reported that she is unable to clean her home, and instead hired household help, as recommended by her doctors. (Id. at 98).

Plaintiff described a typical day after the motor vehicle accident as consisting of waking up, taking her medication, going to medical appointments and undergoing physical therapy as well as home exercise. (Id. at 96). Initially after the motor vehicle accident, she stated that she could not bathe and dress without assistance. (Id.). She indicated, however, that she could now do these things without assistance, but that it takes more time and she needs to sit more often. (Id.). In addition, plaintiff reported not being able to blow-dry her hair and experiencing difficulty brushing it. (Id. at 97).

Regarding plaintiffs post-accident social life, she reported that she no longer goes out to dinner or the movies with her friends because she cannot sit or stand for long periods of time. (Id. at 100). She said that she could only walk one to two blocks before needing to take a break when walking downhill, and that she needed to rest more frequently when walking uphill. (Id. at 101). As a result of not being able to lead the life that she once led, plaintiff stated that she felt depressed. (Id. at 102). She stated that she is never able to finish what she starts due to pain. (Id. at 101). She also reported that she can drive, but only for a limited time due to pain. (Id. at 98).

Lastly, plaintiff reported in her Function Report and Disability Report that she took various pain medications, including Vicodin, Celebrex, Ambien, amitriptyline and tizanidine daily. (Id. at 104, 77). She described the side effects from these medications as light-headedness, dizziness and lethargy. (Id.).

Plaintiff had surgery on her right shoulder in January 2004. She testified, however, that her pain had not improved. (Id. at 345).

II. The Medical Evidence Before the ALJ

The record reflects a voluminous history of treatment for a variety of physical ailments resulting from the motor vehicle accident, as well as an assessment of psychological impairments that are attributed to those physical ailments. We first summarize plaintiffs physical conditions, including her orthopedic and neurological history, and then turn to her mental-health history.

A. Physical Conditions

1. Treating Physicians

On August 15, 2003, plaintiff sought emergency treatment at Jacobi Medical Center after being involved in a motor vehicle accident. (Id. at 117-20). Plaintiff was a passenger in a car that was struck on the passenger side by another car, which reportedly ran a red light. (Id. at 119). She was thrown and struck her head, suffering neck, low-back, right-shoulder, right-elbow and right-knee injuries. (See id. at 117, 264). According to plaintiff, X-rays taken at Jacobi Medical Center were negative for fractures or dislocation. (Id. at 264).

Dr. Jane S. Bennett, of New Rochelle Radiology, took X-rays of plaintiffs cervical spine, lumbar spine, right knee and right elbow on September 10, 2003. (Id. at 121-24). These preliminary X-rays were normal. (Id). However, subsequent magnetic resonance imaging studies (“MRI”) taken in September 2003 by Dr. Timothy J. Greenan and Dr. Steven W. Winter, of Open MRI of Eastchester, indicated a series of spinal problems. (Id. at 125-29). The MRI of the cervical spine showed “C4-C5 and C5-C6 central and right predominant posterolateral disc protrusions associated with right greater than left foraminal narrowing.” (Id. at 129). It also showed “straightening of the cervical lordosis[,] which may be attributed to muscular spasm.” (Id.) The MRI of the lumbar spine showed an “L4-L5 central [herniated nucleus pulposus] right predominant associated with a radial annular tear,” an “L4-L5 moderate right lateral recess stenosis and mild central and left lateral recess stenosis” and a “right L5 descending nerve root [that was] deviated posteriorly at the L4-L5 level.” (Id. at 127). The MRI of the right shoulder showed an “anterior supraspinatus tendinosis without tear” and a “slight type II configuration of the anterior acromion without overt impingement.” (Id. at 126). Finally, the MRI of the right knee showed a “joint effusion,” but no evidence of a “meniscal tear.” (Id. at 125).

Dr. Barry Sloan, of Metro-Med, conducted a nerve test on plaintiff on October 2, 2003. (Id. at 132-38). Dr. Sloan concluded that plaintiff had “bilateral L4[-]L5 and/or L5[-]S1 radiculitis” and “C5-C6 radiculitis.” (Id. at 138). His report also mentioned that plaintiff had “bilateral carpel tunnel syndrome.” (Id.). At this time, plaintiff complained that she was experiencing “neck pain to right upper extremity,” that her right upper extremity and right hand felt “weak [and] numb ... with tingling” and that she had “low back pain [in her] right lower extremity to [her] knee with intermittent weakness, numbness, and tingling of her right lower extremity.” (Id.).

Dr. Stanley Holstein, a neurologist, conducted a comprehensive neurological consultation of plaintiff at the request of Vito Guarino, a chiropractor who had seen plaintiff a handful of times in September 2003. (Id. at 139). Dr. Holstein reported that plaintiff had “cervical and lumbar radiculopathy and concussion secondary trauma” due to the motor vehicle accident. (Id. at 140). Dr. Holstein also noted right-arm weakness, reduced pin sensation on the right side, reduced reflexes, impaired gait on her toes and heels, cervical and lumbar muscle spasms, weakness of the right lower limb, straight-leg raising directed to sixty degrees forward and bending only to forty-five degrees. (Id.). He recommended that plaintiff undergo physical therapy with cervical and lumbar traction. (Id.). At this time, plaintiff complained of tingling parasthesias, neck pain, arm pain, back pain and leg pain. (Id. at 139). Plaintiff also complained of stiffness in her spine and reported that she was having difficulty sleeping. (Id.).

Dr. Michael Palmeri, an orthopedic surgeon, evaluated plaintiff twenty-five times from September 9, 2003 to June 27, 2006. (Id. at 267-314, 359). Dr. Palmeri also performed surgery on plaintiffs right shoulder on January 16, 2004. (Id. at 287-89).

On September 9, 2003, Dr. Palmeri described plaintiff as a “pleasant 40-year-old right hand dominant female,” who suffered from headaches and injuries to her neck, lower back, right shoulder, right elbow and right knee. (Id. at 313). He noted an antalgic gait pattern. (Id.). He also documented a positive Spurling’s sign for the cervical spine and a positive Speed’s test for the right shoulder. (Id.). His diagnoses consisted of “post-concussive syndrome,” “cervical strain with herniated disc and radiculopathy,” “right shoulder impingement syndrome with possible rota-tor cuff tear,” “right elbow contusion with olecranon bursitis and lateral epicondylitis,” “lumbosacral strain with possible herniated nucleus pulposis” and “right knee sprain with possible meniscal tear.” (Id. at 314).

Dr. Palmeri examined plaintiff four times in September 2003, three times in October 2003, two times in November 2003, two times in December 2003, three times in January 2004 (including performing right shoulder surgery), once a month until September 2004, one time in November 2004, one time in May 2005, one time in June 2005, and one time in June 2006. (Id. at 267-314, 359). Dr. Palmeri’s findings remain virtually the same for plaintiff over this span of visits. (Id.).

Dr. Palmeri noted an antalgic gait pattern in plaintiff most months. (Id.). He cited a limited range of motion in her cervical spine in virtually each report, sometimes reporting it as a mild restriction in range of motion. (Id.). He also noted that plaintiff experienced “moderate paralumbar spinal tenderness” in every report. (Id. at 267-314, 359). For example, in a report dated May 6, 2004, Dr. Palmeri reported that plaintiff experienced a mild restriction in range of motion of the lumbar spine. (Id. at 279).

Regarding plaintiffs right shoulder, Dr. Palmeri noted in every report prior to the arthoscopic surgery performed on January 16, 2004 that she experienced either a mild or a moderate restriction in range of motion. (Id. at 290-314). In addition to confirming plaintiffs “partial rotator cuff tear,” the surgery also revealed a “tear of [the] superior labrum,” a “partial tear of the biceps tendon” and “acromiclavieular arthrosis.” (Id. at 287). After the surgery. Dr. Palmeri noted an improving range of motion, but still continuing weakness as compared to her left shoulder. (Id. at 267-89, 359).

As for plaintiffs right knee, Dr. Palmeri noted persistent “tenderness” until approximately August 18, 2004, one year after the accident. (Id. at 267-74). He did not report tenderness in her right elbow after September 2003. (Id. at 306-14).

Beginning in October 2003, Dr. Palmeri noted that plaintiff experienced in her right hip a “persistent tenderness over the area of the greater trochanter.” (Id. at 267-303, 359). As late as June 2006, he noted that plaintiff may need to undergo hip surgery. (Id. at 267-303, 359).

In all but three of the reports, Dr. Palmeri recommended that plaintiff “remain out of work.” (Id. at 267-314, 359). In every report, Dr. Palmeri noted that plaintiff complained of persistent pain without relief. (Id.). In every report, Dr. Palmeri recommended a follow up visit and some type of physical therapy, pain management and/or medication. (Id.).

Dr. Steven Huish, with Physicians Medical Rehabilitation Associates, PLLC, treated plaintiff with physical therapy from October 2003 to August 2004 at the request of Dr. Palmeri. (Id. at 190-205, 247-66). Dr. Huish, board-certified for physical Medicine and rehabilitation, made the following diagnostic impressions in his initial consultation of plaintiff on October 6, 2003: “cervical sprain/rule out radiculopathy,” “lumbosacral sprain/strain, rule out radiculopathy,” “right knee contusion/sprain, rule out internal derangement,” “right shoulder sprain/contusion, rule out internal derangement” and “right elbow post-traumatic lateral epicondylitis.” (Id. at 265).

Dr. Huish’s later reports note that plaintiff still complained of persistent pain, sleeping difficulties, and restrictions on “virtually all activities of daily living.” (Id. at 247-66). His reports also recite that plaintiff experienced a restricted range of motion in her neck and back, a restricted range of motion in her right hip due to “tenderness over the greater trochanteric region,” an improving range of motion in her right shoulder after surgery but persistent weakness of the rotator cuff and a restricted range of motion in her cervical and lumbar spine. (Id.). He also noted that plaintiffs elbow had improved significantly and that its range of motion was within normal limits as of February 2004. (Id. at 258, 262).

On April 26, 2004, Dr. Huish noted that plaintiff “is unable to work at this point and continues to be temporarily totally disabled.” (Id. at 256). On June 7, 2004, Dr. Huish recommended acupuncture, and plaintiff received treatments on two occasions, later declining to continue these treatments. (Id. at 248, 251, 253). On July 29, 2004, Dr. Huish noted that plaintiff “is still having some pain over the AC joint of the right shoulder, especially with lifting, carrying, pushing, pulling, etc.” (Id. at 248).

Dr. Huish also recommended physical therapy over the approximately one-year period that he examined and treated plaintiff. He suggested treatments for her right shoulder, right knee, spine, lower back, right hip and neck. (Id. at 247-66).

Dr. Ognian Bouhlev, a pain management specialist at South Shore Medical Center, treated plaintiff from November 2003 to November 2005. (See id. at 354). In November 2003, Dr. Bouhlev noted that plaintiff was suffering from “symptoms of neck pain radiating to [her] shoulder and upper extremities” attributable to “cervical radiculopathy.” (See id. at 354). He also noted “symptoms of low back pain radiating to [her] lower extremities[,] due to lumbar radiculopathy.” (Id.).

Plaintiff received steroid injections of the cervical spine to deal with “cervical radicular pain” on December 2, 2003 and March 2, 2004. (Id. at 151-52, 186-88). She also received steroid injections of the lumbar spine to deal with “lumbar radicular pain” on December 11, 2003, August 17, 2004, and November 3, 2005. (Id. at 167-68, 206-07, 354). While Dr. Bouhlev reported some improvement in plaintiffs pain after the injections, he noted that it was not enough to keep her symptoms under control. (Id. at 322, 327).

In May and June 2004, plaintiff also received a “right-sided greater trochanteric bursa steroid injection” to treat “severe nonradiating pain overlying [the] right lateral side of [her] upper thigh,” “multiple trigger point injections” to treat “severe muscle spasm and pain involving neck and shoulder gridle” and a “right-sided occipital nerve block” to treat intractable headaches. (Id. at 324-26). Dr. Bouhlev also stated that “[regarding plaintiffs condition,] straight leg raise is positive on [her] right lower extremity and [has been] aggravated by dorsiflexion of the right foot.” (Id. at 322).

Dr. Bouhlev described plaintiffs treatment in his updated report dated March 9, 2006 as consisting of “pain medications, physical therapy ... and minimally invasive procedures in the form of blocks and epidural steroid injections in addition to trigger points [injections].” (Id. at 354). He also noted that plaintiff suffered “with antalgic gait” and had “profound muscle spasm in neck and lower back.” (Id.). Dr. Bouhlev’s reports also document plaintiffs complaints of persistent pain and recite that as recently as November 3, 2005, he had administered a lumbar epidural steroid injection. (Id. at 141-73, 183-89, 319-27, 354).

2. Non-Physician Treating Sources

Vito Guarino, a chiropractor, saw plaintiff five times during September 2003. (Id. at 130). He reported that he could not comment on plaintiffs disability status based upon the number of times he had examined her, presumably as they were too few. (See id.).

3. Examining Consulting Physicians

The record also contains a number of reports by consulting doctors retained by the SSA. We summarize their results below.

a. Orthopedic Surgeon

Dr. John King, an orthopedic surgeon, performed a consultative examination of plaintiff for SSA on September 29, 2004. (Id. at 215). According to Dr. King, she reported experiencing pain in her right hip, her low back, her cervical spine and her right shoulder after being involved in a motor vehicle accident. (Id.). Plaintiff also reported that she had undergone surgery for her right shoulder, had been receiving post-operative treatment for her right shoulder, had been to pain management, had been prescribed medications and had received physical therapy. (Id.).

At the consultation, plaintiff complained of constant pain increased by walking, low back pain, frequent numbness and tingling in her right lower extremity. (Id. at 216). She reported having difficulty sleeping and said that she could no longer drive or take walks. (Id.). She also reported taking Vicodin, Celebrex, Ambien, amitriptyline and tizanidine for increased pain. (Id.).

Dr. King’s examination of plaintiff revealed “[straight leg raising supine 60 degrees.” He mentioned that her “right side cause[d] low back pain ... [while her] left side eause[d] no pain.” (Id.). He also noted that plaintiff had better sensation to a pinprick on her left lower extremity than on her right. (Id.). Her left upper extremity also experienced better generalized sensation than her right upper extremity. (Id.). Dr. King stated that her gait pattern was normal and that she was able to toe and heel walk. (Id.). He reported that “patient’s forward flexion of the lumbar spine was 50 degrees, extension was 10, right and left bend 25 degrees” and that “patient’s forward flexion of the cervical spine was 2 fingerbreadths to the wall, extension was full, right and left turn 35 degrees.” (Id.).

Though Dr. King found that plaintiff did not experience a restriction in the range of motion of her hips, he found that her right hip did cause her pain in the area of the greater trochanter. (Id.). He also found that plaintiffs left shoulder had “180 degrees of forward flexion [and] 180 degrees of abduction,” while her right shoulder had “130 of forward flexion [had] 130 of abduction.” (Id. at 217).

Dr. King’s diagnostic impression, more than one year after the accident, consisted of “sprain cervical spine, sprain lumbar spine, bursitis of the right hip and tendinitis and bursitis right shoulder, rule out impingement.” (Id.). Dr. King opined that plaintiff should avoid working at or above shoulder level on the right side and not engage in repetitive bending and stooping. (Id.). He further opined that plaintiff should avoid standing or walking for more than four hours in an eight-hour period. (Id.).

b. Neurologist

Dr. Joseph Schneider, a neurologist, performed a consultative examination of plaintiff for SSA on October 11, 2004. (Id. at 218). According to Dr. Schneider, from a neurological point of view plaintiff had been experiencing “paresthesia in the right hand” and headaches since the motor vehicle accident. He reported that in that accident, plaintiff “first fell to the left and afterwards to the right, striking her right shoulder and right thigh on the right side of the car.” (Id.). At the examination, plaintiff noted that in the wake of the accident, she had complained of pain in the right shoulder, of numbness in the right fingers and of cervical and lumbar pain radiating to the lower extremity. (Id.). Dr. Schneider also noted that plaintiff was undergoing physical therapy, attending pain-management sessions, and had received steroid injections to the cervical and lumbar regions with “good response.” (Id. at 219).

According to Dr. Schneider, at the time of the consultation, plaintiff complained of a “nagging” cervical pain that radiated to her right shoulder, intermittent lumbar pain that often radiated to her right lower extremity as far distal as her toes, and intermittent headaches, which occurred once or twice a week. (Id.).

Dr. Schneider described plaintiff as a 41-year-old woman who is “well developed” and “well nourished,” and “who seemed to be in good physical health.” (Id. at 219-20). Though she complained of numbness in her right fingers, Dr. Schneider observed that plaintiff “did not seem to be in discomfort.” (Id. at 220). He reported that plaintiffs “gait was characterized by a somewhat decreased range but not [the] frequency of the associated movements on the right [though there is] pain in the shoulder joint.” (Id.). He also reported that plaintiffs alternating hand movements were normal, and he detected no motor instability. (Id.). Dr. Schneider did note decreased sensation to touch in the right thumb, right ring and little fingers, but also noted minimal impairment in the index and middle fingers. (Id.). He found her speech and language skills to be normal. (Id. at 221).

Dr. Schneider did not detect paravertebral muscle spasm in plaintiffs cervical and lumbar spine, and found no evidence of tenderness. (Id.). He also found that plaintiff registered no pain in sciatic distribution on straight-leg raising, (Id.).

Dr. Schneider’s diagnostic impression consisted of a neurological examination that was normal except for “a mild sensory impairment (decreased sensation to touch) in the distribution of the distal aspect of the radial, ulnar, and to a lesser extent in the median nerve, on the right, affecting only the sensory function.” (Id.). He did not find evidence of cervical radiculopathy, lumbar radiculopathy or carpal tunnel syndrome. (Id.). He also did not find that plaintiffs headaches needed any treatment other than over-the-counter analgesics on an as-needed basis. (Id.). He opined that his findings were consistent with a “mild and resolving neuropathy” that would be resolved in three to six months. (Id. at 221-22).

4. Non-Physician “Reviewer"

Elizabeth Turner, a non-physician serving as a state agency “reviewer,” completed a Physical Residual Functional Capacity (“RFC”) Assessment of plaintiff on November 23, 2004, apparently based solely on her review of plaintiffs SSA file. (Id. at 223-28). Ms. Turner, whose medical expertise — if any — is entirely undocumented on the current record, listed plaintiffs exertional limitations as being lifting and/or carrying on occasion up to twenty pounds, lifting and/or carrying frequently up to ten pounds, standing and/or walking with normal breaks up to six hours in an eight-hour workday and sitting with normal breaks up to six hours in an eight-hour workday. (Id. at 224). She opined that plaintiffs postural limitations allowed her to engage “occasionally” in climbing up ramps and stairs, balancing, stopping, kneeling, crouching and crawling. (Id. at 225). She further opined that plaintiff did not have visual, communicative or environmental limitations. (Id. at 225-26). According to Ms. Turner, plaintiffs only manipulative limitation was reaching in all directions, including overhead. (Id.).

Ms. Turner listed the primary diagnosis of plaintiff as “right shoulder rotator cuff,” the secondary diagnosis was “cervical and lumbar sprain”, and other alleged impairments included hip bursitis and headaches. (Id. at 223). In Ms. Turner’s explanation of her finding of plaintiffs residual functional capacity, she recited that plaintiffs gait pattern was normal, her heel and toe were intact, her muscle tone and strength were normal, her coordination was normal, and her headaches were mostly resolved. (Id. at 224). Ms. Turner did note, however, that plaintiff experienced a mild decrease to touch in her right hand, C4-C5 and C5-C6 disc protrusions and decreased range of motion in her right shoulder, resulting from tendinosis without tear. (Id.).

Ms. Turner also concluded that though plaintiffs complaints of pain were previously credible, those complaints were no longer credible in view of improvement documented by exam results. (Id. at 226-27). In apparent support of her observation, she noted that plaintiff drives, walks, rides, shops with help, watches television and listens to music. (Id.).

Ms. Turner declined to give Dr. Huish’s statement that plaintiff was “temporarily totally disabled” dispositive weight because she stated that the opinion was old, not explained well, and unsupported by a more recent opinion by either Dr. Huish himself or another physician regarding plaintiffs medical condition. (Id. at 227). Instead, Ms. Turner parroted the finding of Dr. King that plaintiff could work, with certain limitations. (Id.). Those limitations included avoiding repetitive stooping and bending, as well as avoiding standing and walking more than four hours in an eight-hour workday (Id.).

B. Mental Conditions

1. Treating Physicians

There is nothing in the record indicating that plaintiff has been examined by a treating physician or a treating non-physician regarding psychological impairments. (Id. at 210).

2. Examining Consulting Psychologist

Dr. Leslie Helprin, a psychologist at Industrial Medicine Associates, P.C., completed a psychiatric evaluation of plaintiff for the SSA on September 21, 2004.(M). Dr. Helprin described plaintiff as being 41 years old, married and living with her husband. (Id.). Dr. Helprin noted that plaintiff was driven to the consultative examination that day by her mother-in-law. (Id.). She also noted that plaintiff had a high school degree, but not a college degree, notwithstanding her completion of three years of college. (Id.). Plaintiff reported to Dr. Helprin that she had not been able to work since being involved in a motor vehicle accident on August 15, 2003 because she “cannot stand or sit long, bend, or hold her pen long.” (Id.). Plaintiffs job history consisted of secretarial and computer work as well as working as a fast food manager. (Id.). Plaintiff reported no history of drug or alcohol use. (Id. at 211).

According to Dr. Helprin, plaintiff stated that she had not received any past treatment for a psychiatric condition. (Id. at 210). Plaintiff further stated that she was not receiving any current treatment for a psychiatric condition. (Id.).

Dr. Helprin noted that plaintiff had not been hospitalized for physical injuries following the motor vehicle accident, but that she reported that she was undergoing physical therapy three times a week and taking Vicodin, Celebrex, amitriptyline, Baclofen and Ambien. (Id.). Plaintiff also complained of having difficulty sleeping and of waking up through the night “about 10 times due to pain.” (Id.). She reported loss of appetite since approximately January 2004, weight loss of about ten to fifteen pounds, occasional crying spells when she is not able to do what she wants to do, and sometimes a desire not to get out of bed. (Id.). Plaintiff denied, however, any suicidal thoughts or suicide attempts. (Id.). She also denied suffering from anxiety, mania, and thought disorder. (Id.). Plaintiff did report concentration difficulties. (Id.).

Dr. Helprin concluded that plaintiffs manner of relating, social skills and overall presentation were adequate. (Id. at 211). There was no evidence of hallucinations, delusions or paranoia in her thought processes. (Id.). However, Dr. Helprin did note that plaintiffs attention, concentration, and recent and remote-memory skills were “mildly impaired.” (Id.). Thus, she concluded that plaintiff had cognitive functioning with intellectual skills in the below-average range. (Id. at 212).

Dr. Helprin noted that plaintiff is able to “dress, bathe and groom herself.” (Id.). She also noted that plaintiffs husband cooked, helped with the shopping and did laundry due to plaintiffs difficulties with holding heavy items. (See id.). Plaintiff reported that she had hired a cleaning person to maintain the house. (Id.).

Plaintiff stated to Dr. Helprin that she could manage her own money and drive locally, but did not take public transportation because she had no need. (Id.). Plaintiff also reported socializing with friends and having “good” family relationships. (Id.).

Prior to the motor vehicle accident, plaintiff was active, engaging in such activities as bowling, Softball, swimming, going out to dinner and attending card parties. (Id.). At the time of the consultation, plaintiff reported spending her days since the motor vehicle accident doing limited chores, watching television, listening to music and visiting the doctor approximately four times a week. (Id.).

Dr. Helprin concluded that plaintiff was “able to follow and understand simple directions and instructions, perform simple rote tasks and others, and deal appropriately with her stress.” (Id.). She further concluded that “examination results are inconsistent with allegations”, but did not identify the “allegations” to which she referred. (See id.). She diagnosed plaintiff along Axis 1 as suffering from an “adjustment disorder with depressed mood, moderate episodic,” noted on Axis 2 to “rule out borderline intellectual functioning”, and on Axis 3 noted that plaintiff suffered from “bulging disks [and] body pains.” (Id. at 212-13). Dr. Helprin recommended that plaintiff seek individual psychological therapy for pain management purposes and that she continue medical follow-ups to determine whether her medical conditions precluded her from working. (Id.).

3. Noiu-Examining Psychological Consultant

Michelle Marks, Ph.D., a state agency psychological consultant, evaluated the record and completed a Mental Residual Functional Capacity Assessment and a Psychiatric Review Technique of plaintiff for the SSA on November 24, 2004. (Id. at 229-46).

In the Mental Residual Functional Capacity Assessment, Dr. Marks found plaintiff to be “not significantly limited” in all but two categories out of the twenty listed on the form. (Id. at 229-31). The twenty categories listed abilities within the following four functional areas: “understanding and memory,” “sustained concentration and persistence,” “social interaction” and “adaptation.” (Id.). Dr. Marks listed plaintiff as “moderately limited” in both “the ability to maintain attention and concentration for extended periods” and “the ability to respond appropriately to changes in the work setting.” (Id. at 229-30).

Dr. Marks concluded that plaintiff suffered from “adjustment disorder with depression, moderate, episodic, and [rule out] borderline IQ.” (Id. at 231). Plaintiffs Mental Status Examination (“MSE”) was positive for dysphoric affect, dysthymic mood, and mildly impaired attention, concentration, and recent and remote memory. (Id.). Dr. Marks did find, however, that plaintiff was able to understand and follow directions, sustain a reasonable pace, relate and respond in a socially appropriate manner, make decisions and adapt to changes in routine. (Id.).

Dr. Marks listed plaintiffs condition on the completed Psychiatric Review Technique as “adjustment disorder.” (Id. at 236). Again, she noted that plaintiff suffered “moderate” functional limitations in regard to “difficulties in maintaining concentration, persistence, or pace.” (Id. at 243).

III. The Hearing Before the ALJ

A. Plaintiffs Testimony

Plaintiff testified that she had not worked since her motor vehicle accident in August 2003, when she was serving as an office manager at Glass Company. (Id. at 334-35). She described the accident as occurring at an intersection, where another car ran a red light and “just wiped us out.” (Id. at 335).

Plaintiff testified that she earned a yearly salary of approximately $32,000-$33,000 at the Glass Company and that her job was held open for a short period after the motor vehicle accident but could no longer be held after a certain point. (Id. at 338).

Describing her physical ailments, plaintiff testified that she had to undergo rota-tor-cuff surgery on the right shoulder and described herself as suffering from nerve, cervical and lumbar damage on the right side. (Id. at 335-36). She testified that it was difficult for her to get around, that she could not perform the same daily activities as before the accident and that she could no longer play or coach sports. (Id.).

Plaintiff explained that she and her husband did not drive far, and that she had to get out of the car and stretch every half-hour. (Id.). She also explained that her husband did most of the driving. (Id.). The ALJ elicited from plaintiff the fact that she traveled approximately fifty minutes to her medical appointments in New Rochelle. (Id. at 348). However, he did not ask whether she needed to stop and stretch during the trip. (See id.). She also testified that she could sit no more than ten to fifteen minutes in her car after getting out to stretch because the pain “feels like a knife” in her neck. (Id.).

Plaintiff also testified that she was having a problem sitting at the hearing bécause of numbness in her neck, her right leg and her right thigh. (Id.). Regarding the numbness in her leg, plaintiff said: “you can’t feel it and you can’t, you can’t use it. Like I can’t cross my legs, I can’t do anything like that.” (Id. at 337). Because of her physical ailments and resulting pain, plaintiff stated that she could not walk far; after a block, she would need to stop. (Id.).

Plaintiff testified that she took Vicodin for pain about two to three times a day depending on the severity of the pain. (Id. at 338). She also testified that she had received epidural injections to her neck and back, as well as other injections in other parts of her body. (Id.). Plaintiff also testified that since the accident she had been treated by Dr. Palmeri for her shoulder and back and by Dr. Bouhlev for pain management. (Id. at 339).

Plaintiff testified that the medication prescribed by her physicians helped “a little,” but that any relief was only “temporary.” (Id. at 339-40). She stated that the medication just allows her to “function.” (Id.). The ALJ asked plaintiff where her pain would fall on a scale of one to ten when the medication would wear off, and plaintiff responded that her pain was approximately a seven or an eight. (Id. at 340). The ALJ then asked where her pain would fall on that scale while under the effect of medication, and plaintiff responded that her pain was approximately a five. (Id.). She indicated that activities that involved her moving a lot, such as driving, could push her pain up to a ten. (Id.).

Plaintiff described the pain in her back as radiating toward the right side and down her right leg. (Id. at 340-41). She testified that sometimes the pain is so severe that it feels as if she is “paralyzed.” (Id. at 341). She stated that she felt “paralyzed” on one or two occasions. (Id.). Plaintiff indicated that the medication would sometimes makes her feel incoherent. (Id. at 342). Plaintiff also reported difficulties concentrating. (Id.).

Plaintiff testified that she goes to the market, but that she cannot lift or carry anything because it causes pain in her right arm, and someone has to assist her. (Id. at 341). She also stated that she had switched from glass pots, pans and dishes to plastic ones in order to avoid dropping them because she had difficulty gripping items with her right hand. (Id.). Plaintiff also testified that she could not hold a pen and write steadily for more than ten to fifteen minutes because her arm would go numb. (Id. at 341).

Plaintiff testified that she took Ambien to help her sleep, but that she would nonetheless wake up in the middle of the night several times due to pain. (Id. at 342). She stated that her daily routine included principally watching television and walking back and forth. (Id. at 343). She reported that she could not do the things she used to do prior to the accident, such as socializing and even talking on the phone. (Id.). She testified that because of difficulty with her arm and hand, she does not wear pullover sweaters or shoes that have to be tied and even has to have someone else wash her hair for her. (Id. at 344).

Plaintiff testified that her physicians said that she would improve after surgery, but that she did not feel better. (Id. at 345-46). Plaintiff also testified that she moved from an apartment to a condominium in part because of difficulty with steps. (Id. at 346-47).

B. Conclusion of the Hearing

During the hearing, the ALJ noted that plaintiffs pain-management physician, Dr. Bouhlev, had provided a series of complete reports, but that none had been received since 2004, with the later treatment records being confined to handwritten notes. (See id. at 347). Plaintiffs counsel responded that he had been attempting to obtain a more comprehendible summary of later treatment by Dr. Bouhlev, for which the ALJ left the record open until January 2006. (Id. 347, 349). As reflected in the record, Dr. Bouhlev prepared and transmitted a detailed report to plaintiffs attorney on March 9, 2006, in which he confirmed his continued treatment of plaintiff (Tr. 354-55), and the attorney sent it to the ALJ the same day. (Pl.’s Mem. at 6-7).

C. The ALJ’s Decision

ALJ Katz issued his decision on June 15, 2006. (Tr. 18). He applied the five-step evaluation process required under 20 C.F.R. § 404.1520 in evaluating plaintiffs disability claim, and found her not disabled. (Id at 12-13).

1. Overview of the ALJ’s Application of the Five-Step Evaluation Process Required Under 20 C.F.R. § I0L1520

At the first step, the ALJ found that plaintiff met the disability insured status requirements of the SSA’s Title II on her onset date of August 15, 2003, and continued to meet them. (Id. at 13). Further, he found that plaintiff had not engaged in any substantial gainful activity since being involved in the motor vehicle accident on August 15, 2003. (Id.).

At the second step, he found that plaintiff was suffering from cervical and lumbar strain with radiculopathy, as well as an adjustment disorder with depressed mood. (Id.). Of these conditions, and as defined by C.F.R. § 404.1520(c), he concluded that the back impairment was “severe” while the depression was not. (Id.).

At the third step, the ALJ concluded that neither plaintiffs back impairment nor her depression met the criteria for impairments listed in 20 C.F.R. Part 404, Subpart P., App. I. (Id.). Accordingly, he found that plaintiff was not per se disabled. (Id.).

At the fourth step, the ALJ began by considering plaintiffs RFC to perform her past relevant work. (Id. at 13-17). The ALJ found that plaintiffs testimony about the severity of her symptoms and the degree of her functional limitations did not appear to be consistent with the medical evidence in the record. (Id. at 16). He concluded, rather, that plaintiffs RFC allowed her to perform sedentary work, as defined in SSA regulations, but with certain physical limitations. (Id. at 16-17).

The ALJ stated that plaintiff could sit for a total of eight hours and stand or walk for a total of four hours in an eight-hour workday on a sustained basis in a work environment. (Id. at 16). In addition, he found that she was able to lift or carry objects weighing a total of ten pounds. (Id.). According to the ALJ, plaintiffs limitations in performing sedentary work include working at or above shoulder level on the right side more than seventy percent of the time during a typical workday and performing repetitive bending or stooping more than fifty percent of the time during a typical workday. (Id.).

The ALJ found that plaintiffs past relevant work consisted of secretarial duties that involved a light level of exertion, and that since she was restricted to sedentary work, she was unable to perform her past relevant duties. (Id. at 17) (citing 20 C.F.R. § 404.1565).

At the fifth step, the ALJ determined that plaintiff was a “younger individual,” age 40 on her onset date, that she had a high school education and that she is sufficiently literate and able to communicate in the English language. (Id. at 17-18); See 20 C.F.R. §§ 404.1563 and 404.1564. He further found that although plaintiffs exertional limits did not allow her to perform her past relevant work, a significant number of jobs existed in the national and local economies that she could perform. (Id.). Accordingly, he concluded that she had not been under a disability at any time from the August 2003 accident through June 15, 2006, the date of his decision. (Id. at 18).

D. The Appeals Council Decision

Plaintiff sought review by the Appeals Council. (Tr. 7). The Appeals Council denied plaintiffs request for review without discussion of the merits, inviting her to file a civil action if she disagreed with the denial. (Id. at 5-5A). Plaintiff subsequently filed the present action.

IV. The Parties’Motions

A. Plaintiff’s Motion for Judgment on the Pleadings

In plaintiffs initial brief, she presses four major points. (Pl.’s Mem. 7). First, she contends that the ALJ failed to consider a 2006 report from Dr. Bouhlev that he had specifically requested at the hearing. (Id. at 6-7). That report listed multiple positive findings of severe impairments and referenced a November 3, 2005 epidural steroid injection to her lumbar spine. (Id. at 8). Plaintiff notes that this report is consistent with plaintiffs complaints of extreme pain and other reports of her treating physicians, and contradicts a finding by the ALJ that there was no evidence in the record demonstrating that plaintiff received treatment from Dr. Bouhlev after June 2005. (Id.; see also Tr. 8).

Second, plaintiff asserts that she testified that she suffered from difficulties with such activities as cooking, dressing and washing her hair, and that this testimony refutes the ALJ’s statement that the record shows no deficits in her ability to perform the activities of daily living. (Id.).

Third, plaintiff contends that the ALJ did not properly apply the treating-physician rule because he did not provide an explanation for rejecting the opinions and findings of plaintiffs treating physicians and, instead, favoring a one-time evaluation by Dr. King. (Id. at 9). Specifically, plaintiff points to Dr. Palmeri’s repeated statements that plaintiff should remain out of work, which the ALJ did not mention in his opinion. (Id.). Plaintiff also notes that her treating physicians’ reports spoke to her extreme pain on a consistent basis, thus refuting the ALJ’s contention that she did not relate severe pain to her treating physicians. (Id. at 9).

Lastly, plaintiff contends that the ALJ’s findings as to her RFC are unsupported. (Id. at 10). She notes that the record is silent regarding whether she has the ability to sit for extended periods of time and that the ALJ inferred from that absence of medical evidence that she could sit for up to eight hours. (Id.). However, she argues that because there must be positive evidence to support an RFC, the ALJ’s determination that a silence in regard to her ability to sit supported the finding that she could perform sedentary work was improper. (Id.). Plaintiff also points to her pain as a non-exertional limitation, arguing that it adversely impacts her ability to do any work and diminishes her capacity to perform the threshold activities specified for sedentary work. Therefore, the ALJ was required to evaluate her abilities on an individual basis rather than rely on “the Grids”. (Id.).

B. Defendant’s Motion for Judgment on the Pleadings

The Commissioner responds by contending that his determination of non-disability is supported by substantial evidence. (Def.’s Mem. 1). The Commissioner argues five major points.

First, he contends that the record, including records of plaintiffs treating physicians, supports the conclusion that plaintiff is restricted only with respect to working at or above shoulder level and repetitively bending and stooping. (Def.’s Mem. 17-19). The Commissioner points to Dr. Schneider, who concluded that plaintiff was normal in every respect except for a mildly decreased sensation to touch on her right side that would resolve within three to six months. (Id. at 17-18). The Commissioner also points to reports of Dr. Palmeri and Dr. Huish, arguing that their notations that plaintiffs right shoulder improved after undergoing arthoscopic surgery in January 2004 support the ALJ’s conclusion. (Id). He finally cites Dr. King’s report that plaintiff had only a mild restriction in range of motion in the end ranges of the cervical spine and that she could heel and toe walk without significant difficulty despite a moderate paralumbar spinal tenderness. (Id.).

Second, the Commissioner contends that the ALJ is not required to accord any weight to conclusory statements about a plaintiffs disability status made by treating physicians, and therefore the ALJ properly refused to give controlling weight to Dr. Palmeri’s recommendation that plaintiff remain out of work. (Id. at 19-20). He further argues that Dr. Palmeri’s findings that plaintiff showed improvement contradicted his recommendation that she remain out of work and supported the opinions of the consulting physicians. (Id.); see also 20 C.F.R. §§ 404.1512(b)(6), 404.1527(e)(2) & (f)(2), 416.912(b)(6), 416.927(e)(2) & (f)(2).

Third, the Commissioner contends that it is within the ALJ’s discretion to evaluate the credibility of plaintiffs statements regarding subjective pain, and that the ALJ properly determined in this case that plaintiffs testimony was not credible. (Id. at 20-22). Specifically, he insists that plaintiffs complaints were not supported by the medical evidence in the record, which demonstrated improvement after her surgery, her physical therapy and the epidural injections. (Id.). He further argues that the medical evidence contradicts certain statements made by plaintiff regarding her disabling symptoms, and states that while plaintiff testified to having extreme pain, she never reported such disabling symptoms to her physicians. Specifically, with regard to her ability to sit, the Commissioner suggests that there is no indication in the record that she has difficulty with sitting and that plaintiff herself testified that she can sit in a car for approximately an hour while driving to her medical appointments. (Id.).

Fourth, the Commissioner contends that the ALJ properly decided that there were a significant number of jobs in the national economy that the plaintiff could perform. (Id. at 22). He asserts that based on plaintiffs vocational factors, including age and education and an RFC for sedentary work, the medical-vocational guidelines direct a finding that she is not disabled. (Id.). He argues that plaintiffs limitations in reaching, unlike limitations in manual dexterity, do not narrow the sedentary range of work that an individual can perform, and therefore she could perform the full range of sedentary jobs. (Id.) (citing SSR 85-15, 1985 WL 56857, at *7 (1985); SSR 96-9p, 1996 WL 374185, at *6, 8 (1995)). Defendant also argues that the ALJ properly determined that plaintiffs subjective symptoms of pain did not cause limitations or restrictions, either exertional or non-exertional. (Id. at 23).

Lastly, the Commissioner contends that there is no indication that the ALJ received the updated narrative from Dr. Bouhlev, which plaintiff asserts was submitted on March 9, 2006, before the ALJ issued his decision. (Id. at 23-24). He argues that the record shows that plaintiff submitted the updated report, along with one from Dr. Palmeri, to the Appeals Council after receiving an unfavorable determination. (Id.). Further, he asserts that he was not required to accord any weight to the updated report, nor to an updated report submitted by Dr. Palmeri to the Appeals Council, as Dr. Bouhlev’s report did not render the ALJ’s decision contrary to the weight of the evidence and Dr. Palmeri’s report regarded a period of time following the ALJ’s decision, and was therefore irrelevant to his consideration. (Id.).

C. Plaintiff’s Reply

In reply, plaintiff first argues that the Commissioner refers only to the substantiality of the record evidence and has thus ignored the requirement that the agency demonstrate that the record reflects no error of law. (PI. Reply Mem. of Law (“PI. Reply Mem”) 1). Plaintiff reiterates contentions made in her first brief that the ALJ committed a number of legal errors. (Id.; see Def.’s Mem 14-16). These legal errors include (1) the failure of the ALJ to address or consider in his decision an updated report from Dr. Bouhlev, which he received months before issuing his decision on June 15, 2006 (id. at 2), (2) the failure to accord weight to Dr. Palmeri’s opinion or explain why he rejected his opinion (id.), (3) the failure to address plaintiffs complaints of pain (id. at 3), and (4) the failure to complete a “function by function analysis” to support his determination of plaintiffs RFC, and develop evidentiary support for his finding that plaintiff had the capacity to complete sedentary work. (Id.). In regard to the last point, plaintiff argues that the ALJ, when determining an RFC, must support his determination with acceptable medical evidence and that his finding that she could sit for long periods is unsupported by the record, which is silent on the matter. (Id.).

ANALYSIS

I. Standard for Benefits Eligibility

For purposes of eligibility for benefits, an applicant is “disabled” within the meaning of the Act, if she is unable “ ‘to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which lasted or can be expected to last for a continuous period of not less than 12 months.’ ” Carroll v. Sec. of Health and Human Servs., 705 F.2d 638, 641^2 (2d Cir.1983) (quoting 42 U.S.C. § 423(d)(1)(A)). The Act requires that the impairment be “‘of such severity that [plaintiff] is not only unable to do [her] previous work but cannot, considering [her] age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy.’ ” Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004) (quoting 42 U.S.C. § 423(d)(2)(A)). If the claimant can perform substantial gainful work existing in the national economy, it is immaterial, for purposes of the Act, that an opening for such work may not be found in the immediate area where she lives or that a specific job vacancy may not exist. 42 U.S.C. § 423(d)(2)(A). Lastly, in assessing a claim of disability, the Commissioner must consider: “(1) objective medical facts; (2) diagnoses or medical opinions based on those facts; (3) subjective evidence of pain and disability testified to by claimant and other witnesses; and (4) the claimant’s background, age, and experience.” Williams v. Bowen, 859 F.2d 255, 259 (2d Cir.1988).

The SSA regulations set forth a five-step sequential process to evaluate disability claims. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v). The Second Circuit has described this sequential process as follows:

“First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If [she] is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits [her] physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider [her] disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, [she] has the residual functional capacity to perform [her] past work. Finally, if the claimant is unable to perform [her] past work, the Secretary then determines whether there is other work which the claimant could perform.”

Bush, 94 F.3d at 44-45 (emphasis in original) (quoting Rivera v. Schweiker, 717 F.2d 719, 722-23 (2d Cir.1983)).

Plaintiff bears the burden of proof on the first four steps, but the Commissioner bears the burden on the fifth step, that is, demonstrating the existence of jobs in the economy that plaintiff can perform. See, e.g., Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.2009). Normally, in meeting his burden on this fifth step, the Commissioner may rely on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as “the Grids.” Zorilla, 915 F.Supp. at 667. However, if plaintiff suffers from non-exertional limitations, exclusive reliance on the Grids is inappropriate. See Butts, 388 F.3d at 383 (citing Rosa, 168 F.3d at 78).

II. Standard of Review

When a claimant challenges the SSA’s denial of dis