Rivera v. Commissioner of Social Security (728 F. Supp. 2d 297, 2010)

ORDER

RICHARD J. SULLIVAN, District Judge:

Plaintiff Ernesto Rivera commenced this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (the “Commissioner”) denying his application for Disability Insurance Benefits and Supplemental Security Income. Plaintiffs complaint was filed on February 21, 2006. The case was originally assigned to the Honorable Kenneth M. Karas, District Judge and reassigned to the docket of the undersigned on September 4, 2007.

On January 4, 2008, Defendant filed a motion and Plaintiff filed a cross-motion for judgment on the pleadings pursuant to Federal Rule 12(c) of Civil Procedure. On January 8, 2009, the Court referred this case to Magistrate Judge Henry B. Pitman for a Report and Recommendation (the “Report”).

On June 21, 2010, Judge Pitman issued the Report recommending that Defendant’s motion be denied and Plaintiffs motion be granted to the extent of remanding the action to the Commissioner “for the limited purpose of developing the record regarding the quantitative results of Plaintiffs January 26, 2005 pulmonary function test.” (Report at 330.) In the Report, Judge Pitman advised the parties that failure to file timely objections within fourteen days from the date of the Report would constitute a waiver of those objections. (Report at 332.) See 28 U.S.C. § 636(b)(1)(C); Fed R. Civ. P. 72(b). No party has filed objections to the Report, and the time to do so has now expired.

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. See 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 thorough review of the record, the Court finds that Judge Pit-man’s well-reasoned and persuasive Report is not facially erroneous. Accordingly, the Court adopts the Report in its entirety. For the reasons set forth therein, IT IS HEREBY ORDERED THAT Defendant’s motion for judgment on the pleadings is denied and that Plaintiffs motion for judgment on the pleadings is granted to the limited extent of remanding the matter to the Commissioner for further administrative proceedings consistent with Judge Pitman’s Report. The Clerk of the Court shall terminate the motions located at Doc. Nos. 12, 14, and 17 and close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

PITMAN, United States Magistrate Judge.

TO THE HONORABLE RICHARD J. SULLIVAN, United States District Judge,

I. Introduction

Plaintiff Ernesto Rivera brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Both plaintiff and defendant have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items 14 and 17). For the reasons set forth below, I respectfully recommend that defendant’s motion be denied and that plaintiffs motion be granted to the extent of remanding the matter to the Commissioner for further proceedings consistent with this Report and Recommendation.

II. Facts

A. Procedural Background

Plaintiff filed an application for DIB and SSI on October 31, 2003, alleging that he had been disabled since June 1, 2001 (Tr. 17A, 44, 64, 73, 440, 447). In his initial application, plaintiff alleged that he was disabled due to liver disease (hepatitis C), a hernia, diabetes and asthma (Tr. 63; see Tr. 23, 452), and he later also alleged that he was disabled due to high blood pressure (Tr. 24-25, 453). The Social Security Administration denied plaintiffs application for benefits on December 26, 2003, finding he was not disabled (Tr. 17A, 18, 20). Plaintiff timely requested (Tr. 24-25) and was granted a hearing before an Administrative Law Judge (“ALJ”) (Tr. 26, 39). The ALJ, Mark D. Newberger, conducted a video hearing on April 12, 2005 at which plaintiff was represented by attorney Erik Schryver (Tr. 10, 40, 444). Richard Baine, a vocational expert, also testified (Tr. 444, 464-68; see Tr. 31). The ALJ kept the record open after the hearing to allow plaintiff and his attorney to provide additional medical evidence, but they did not provide any such evidence (Tr. 10, 469-70). In a decision dated August 31, 2005, the ALJ found that plaintiff was not disabled at any time between June 1, 2001 and the date the opinion was issued (Tr. 7, 10, 17). Plaintiff requested review of the decision on October 28, 2005 (Tr. 6), and the ALJ’s determination became the final decision of the Commissioner on January 3, 2006, when the Appeals Council denied plaintiffs request for review (Tr. 3).

Plaintiff commenced this action challenging this decision on January 27, 2006 (Compl. at 3). He alleged in his complaint that he was disabled due to “asthma, hepatitis, high blood [pressure], diabetes, [and] lung disease” (Compl. ¶ 4). The parties cross-moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items 14 and 17). Plaintiff requests a remand for further administrative proceedings pursuant to 42 U.S.C. § 405(g), arguing that the ALJ violated the treating physician rule, failed to develop the medical record, failed to consider plaintiffs obesity and erroneously found that plaintiff could perform other jobs that existed in the national and regional economies (Amended Memorandum of Law in Support of Plaintiffs Motion for Judgment on the Pleadings (“Pl.’s Mem. in Support”) at 1,14-25).

Defendant argues that the Commissioner’s decision complied with applicable laws and regulations and was supported by substantial evidence (Answer ¶ 12; Def.’s Mem. in Support at 15-25; Def.’s Mem. in Opp. at 2-8). Specifically, defendant argues in response to plaintiffs contentions that the ALJ’s rejection of the opinions of two treating physicians in favor of the opinion of a consultative physician was justified, that it was appropriate for the ALJ to reject plaintiffs subjective reports of his limitations, that the ALJ fulfilled his obligations with regard to developing the medical record, that the ALJ considered plaintiffs obesity as required and that the ALJ properly concluded that there were other jobs plaintiff could perform in the national and regional economies (Def.’s Mem. in Opp. at 2-8).

B. Plaintiff’s Social Background

Plaintiff was born on April 24, 1963 (Tr. 17A, 44, 440, 448). He is separated from his wife, though still living with her (Tr. 86, 127, 448). Plaintiff has two children, who were 16 and 23 when the ALJ hearing occurred (Tr. 45, 449). Plaintiff attended school through either the ninth or tenth grade and does not have a G.E.D. (Tr. 67, 127, 449, 450). Plaintiff testified that his reading abilities are extremely limited and that he has a low I.Q. (Tr. 450). As of the time of the ALJ hearing, plaintiff was receiving public benefits in the amount of $68 every two weeks as well as $140 a month in food stamps (Tr. 449; see Tr. 441). Plaintiff is covered by Medicaid (Tr. 449).

Plaintiff worked full-time as a sanitation laborer, picking up garbage in Manhattan’s Bryant Park, from January 1 to March 1, 2001 (Tr. 64, 69, 451). Plaintiff also states that he worked full-time as a laborer in a “shade warehouse” for Microshade Corp. from January 1, 2001 to June 2001 (Tr. 64-65, 69-70, 78). In this position, he measured and cut shades (Tr. 451). This job involved the use of “machines, tools, or equipment,” but no writing, technical knowledge or technical skills (Tr. 64-65, 70-71). At this job, plaintiff spent about four hours a day walking and five hours standing, lifted a maximum of fifty pounds and frequently lifted ten pounds (Tr. 65, 71).

Plaintiff also worked as a construction laborer for a construction company called Procida in 1994 (Tr. 78, 451). On a work history report he completed for the Social Security Administration, plaintiff reported that this job involved carrying equipment and picking up cement, bricks and wood; that he walked or stood for seven hours a day; that he sat for one hour a day; that he stooped for seven hours a day; that he kneeled for two hours a day; that he crouched for two hours a day and that he lifted 100 pounds or more occasionally and 50 pounds frequently (Tr. 79; see Tr. 87, 452).

Finally, plaintiff worked “off the books” for seven or eight months in 2000 and 2001 as a security guard at a clothing store (Tr. 452-53). This job involved both sitting and standing, as well as being both indoors and outdoors (Tr. 454).

C. Plaintiff’s Medical Background

1. Information Reported by Plaintiff

Plaintiff reported that he lost his breath quickly and that he frequently experienced dull aching pain in his back, legs and stomach (Tr. 91, 94). In November 2003 plaintiff stated that he had been experiencing pain for almost two years and that it had been affecting his activities for about one- and-a-half years (Tr. 94). He reported that the pain increased when he was moving a lot or walking too much, and in general was brought on by walking, bending, sitting too long, or going up and down stairs (Tr. 87, 95). He stated that his pain affected walking and bathing but no other activities (Tr. 96). It typically lasted fifteen to twenty minutes and he took Codeine and aspirin to treat it (Tr. 95). He also wore an “Icy Hot” patch against his back, secured by a corset (Tr. 96).

Plaintiff reported that he could walk 100 yards without having to stop and rest, but that he would need to rest for 10 minutes before he continued walking (Tr. 92). He stated that he had asthma attacks about twice a month, brought on by heat, stress and walking too fast (Tr. 76). He stated that he went to the hospital frequently because of his illness (Tr. 97).

Plaintiff reported that his medications caused him to feel drowsy sporadically and that he had problems paying attention in general (Tr. 87, 92-93). Specifically, he asserted that he could not follow instructions and that he had trouble remembering things because his mind would “blank[] out” (Tr. 92-93).

Although plaintiff was able to iron and shop (Tr. 89-90), he reported that he generally did not do much house or yard work because of dizziness, weakness and shortness of breath (Tr. 89). His wife helped him with housework, cooking and cleaning (Tr. 88, 457). She also helped him bathe and dress after his umbilical hernia surgery (Tr. 87). Plaintiff stated that his conditions prevented him from going out with his family frequently and from playing sports (Tr. 91). He commented that he did go outside daily, that he could use public transportation, and that he attended his Methadone program daily (Tr. 89, 91). He indicated that his activities included crafts, chess, reading, taking naps, attending church, walking forty minutes per day at the recommendation of his doctor, doing chores and watching television (Tr. 87, 90-91, 96,127).

2. Treatment Records

a. Lincoln Hospital

Plaintiff has visited several physicians and clinics, as well as the emergency room (“ER”) at Lincoln Medical and Mental Health Center (“Lincoln Hospital”). When visiting the clinics, he “kind of rotate[d] through and he [did not] see the same doctors every time” (Tr. 469).

i. Dr. Mogbonjubola Adeyemo

The record contains notes from several visits with Dr. Mogbonjubula Adeyemo at Lincoln Hospital. The notes from the first visit are undated, but it appears to have occurred sometime prior to plaintiffs October 2003 umbilical hernia repair (Tr. 119 (noting “umbilical hernia — ref surg”)). Although a substantial portion of the notes from this visit is illegible, Dr. Adeyemo noted that plaintiff was obese, that his chest was clear and that he had an umbilical hernia, hepatitis C, uncontrolled diabetes mellitus and uncontrolled hypertension (Tr. 119). The notes indicate that plaintiff occasionally choked at night and had been referred to a sleep study at Kings County Hospital but never went (Tr. 118-19). Dr. Adeyemo counseled plaintiff on diet, exercise and medication (Tr. 119).

Plaintiff saw Dr. Adeyemo for another visit on December 15, 2003, at which she noted plaintiffs obesity, diabetes mellitus, hypertension, “status post umbilical hernia” (repaired on October 23, 2003) and mild bronchial asthma (Tr. 298).

Plaintiff saw Dr. Adeyemo for another visit sometime after plaintiffs October 2003 umbilical hernia repair (Tr. 290 (noting status post umbilical hernia)). The record of this visit notes plaintiffs diabetes mellitus, hypertension, hepatitis C, dyslipidema and Methadone dependence (Tr. 290).

On May 26, 2004, Dr. Adeyemo completed a medical assessment of plaintiffs physical ability to do work-related activities (Tr. 141-44). She stated that she had seen plaintiff every two or three months and that his last visit had been on May 17, 2004 (Tr. 141). She gave treating diagnoses of morbid obesity, hypertension, umbilical hernia repair, hepatitis C and Methadone dependence (Tr. 141). Dr. Adeyemo found that plaintiffs symptoms at the time were chest tightness most nights and days and commented that he had recently started using Singulair and Advair (Tr. 141). She found that he was limited to carrying a maximum of five pounds occasionally and that he could stand or walk for a total of one hour in an eight-hour day (Tr. 142). She stated that she was “not sure” how long he could walk or stand without interruption (Tr. 142). She found that plaintiffs ability to sit was not affected by his impairments, that he could sit for six hours in an eight-hour day and that he could climb, stoop, kneel, balance, crouch and crawl occasionally (Tr. 143). In Dr. Adeyemo’s opinion, plaintiff had no limitations in reaching, handling, seeing, speaking, feeling or hearing due to his impairments, but his conditions did limit his ability to push and pull (Tr. 143). She also found that plaintiff had no restrictions related to heights, moving machinery, vibration or noise, but that he was restricted from exposure to temperature extremes, fumes, chemicals, dust and humidity because they could aggravate his bronchial asthma (Tr. 144). Dr. Adeyemo indicated that all of these findings were supported by plaintiffs moderate bronchial asthma and that plaintiffs “[illegible] tolerance [was] limited by bronchial asthma symptoms” (Tr. 142-44). She stated that plaintiff “may do high activity as tolerated” (Tr. 144).

Plaintiff saw Dr. Adeyemo again on June 11, 2004, at which time she noted his diabetes mellitus, Methadone treatment, hepatitis C, status post umbilical hernia and bronchial asthma (Tr. 289). She also noted potential dyslipidema (Tr. 289). She reported that he was recently seen in the ER for pain in his left groin which was probably the result of a strain (Tr. 289).

ii. Dr. Robert Lee

On September 17, 2002, plaintiff saw Dr. Robert Lee, a pulmonary specialist (Tr. 447), in the pulmonary clinic at Lincoln Hospital (Tr. 124, repeated at Tr. 333). Dr. Lee noted plaintiffs bronchial asthma, hepatitis C and obesity and observed bilateral pedal edema (Tr. 124). Dr. Lee noted three to four ER visits per year due to asthma, with plaintiffs last admission in 2001 (Tr. 124). Plaintiff reported that he had lived with cats and dogs since childhood, but did not have carpets in his home (Tr. 124). On examination of plaintiffs lungs, Dr. Lee found no wheezing or crackling (Tr. 124). On a “flow sheet” completed during that visit, plaintiff reported that he sometimes wheezed, that he coughed at night, that he had trouble breathing on exertion and that he sometimes experienced tightness in his chest (Tr. 334). However, he stated that he did not experience fever or chest pain (Tr. 334).

Plaintiff denied nighttime symptoms but reported significant snoring which had increased over the two preceding years (Tr. 124). He stated that he occasionally choked in his sleep and his wife would wake him up (Tr. 124). He often fell asleep during the day but not while driving (Tr. 124). Dr. Lee’s impressions were mild persistent asthma and potential obstructive sleep apnea (Tr. 124). He advised plaintiff to lose weight to participate in a sleep study at Kings County Hospital (Tr. 124). At this visit plaintiff was also given educational information concerning asthma, including instructions on how to medicate himself in various circumstances and on techniques for using his inhaler and flowmeter (Tr. 335-38).

The only other visit notes corresponding to Dr. Robert Lee are from March 10, 2005 (Tr. 100). At this visit Dr. Lee appears to have given plaintiff an instructional sheet on how to self-treat his asthma, including various combinations of an Advair inhaler, Singulair, an Albuterol inhaler, a nebulizer and prednisone depending on the situation and the severity of the symptoms (Tr. 100).

On March 19, 2005, Dr. Lee completed a pulmonary residual function capacity questionnaire for plaintiff (Tr. 434-36). He stated that he had started seeing plaintiff on September 17, 2002, although he did not mention how frequently he saw plaintiff after that (Tr. 434). He indicated diagnoses of diabetes mellitus, hepatitis C and bronchial asthma (Tr. 434). In the field where Dr. Lee was asked to describe the “clinical findings, laboratory and pulmonary function test results that show [the] patient’s medical impairments,” Dr. Lee referred to a pulmonary function test conducted on January 26, 2005 which showed “severe obstruction with bronchodilator response” (Tr. 434). Dr. Lee also noted blood gas study results from November 20, 2001 that indicated arterial PC02 of 65 and arterial P02 of 138 (Tr. 434). He opined that plaintiffs impairments were “likely to produce ‘good days’ and ‘bad days’ ” (Tr. 435).

Dr. Lee found that plaintiff could only walk three city blocks without needing rest or experiencing severe pain and that he could only stand for fifteen minutes at a time (Tr. 435). Dr. Lee stated that in an eight-hour workday, plaintiff could sit for a maximum of two hours, stand or walk for a maximum of two hours and lift ten pounds occasionally (Tr. 435-36). He found that plaintiff had no restrictions with regard to high humidity or “wetness” but that he should “avoid even moderate exposure” to extreme temperatures and dust, and that he should “avoid all exposure” to cigarette smoke, perfumes, soldering fluxes, solvents or cleaners, fumes, odors, gases and chemicals (Tr. 436). He opined, overall, that plaintiffs intermittent asthma and shortness of breath would “affect [his] ability to work at a regular job on a sustained basis” (Tr. 436). Despite these limitations, Dr. Lee’s “Prognosis/Impressions” were “good” (Tr. 435).

in. Other Providers at Lincoln Hospital

Plaintiff made several visits to Lincoln Hospital’s infectious disease clinic in 2000. At his first visit, on February 28, 2000, he underwent various types of hepatitis tests and tested positive for hepatitis C (Tr. 365-66). He also received the first vaccination for hepatitis B (Tr. 365). Plaintiff visited the infectious disease clinic again on April 10, 2000, at which time he received another hepatitis B vaccination (Tr. 363-64). At this visit plaintiff complained of drowsiness and stated he wanted to decrease his dose of Methadone (Tr. 363). Plaintiff visited the clinic again on May 22, 2000 (Tr. 360). The notes from this visit indicate that plaintiff had hepatitis C and was in a Methadone program (Tr. 360). The plan outlined for plaintiff involved followup on his umbilical hernia, a gastroenterology referral, administration of the third dose of the hepatitis B vaccination by August 2000 and discontinuation of his visits to the infectious disease clinic (Tr. 360). Plaintiffs final documented visit to the infectious disease clinic was on July 3, 2000 (Tr. 356). It was noted that a hepatitis profile taken at his May 22, 2000 visit was within normal limits (Tr. 356). The notes also state that an HIV test done on January 19, 2000 was negative and that plaintiffs previous anemia had resolved (Tr. 356). Plaintiff was given a referral for “medicine” and a referral to the gastroenterology clinic (Tr. 356).

Plaintiff visited the dermatology clinic on July 6, 2000 where it was noted that he had a history of hepatitis B and C and had had an itchy rash on both his feet for six months (Tr. 359). The provider also reported that he had scaley plaques on the plantar surface of his toes on both sides (Tr. 359). The provider prescribed plaintiff a cream for his feet (Tr. 359).

Plaintiff saw Dr. Anita Alvarez, a resident in internal medicine, on July 5, 2002 (Tr. 342). She noted plaintiffs hepatitis C, his umbilical hernia, that he was a former IV drug user and that he attended a Methadone clinic (Tr. 342). Plaintiff complained of back pain and fatigue when walking, blaming his weight (Tr. 342). Dr. Alvarez observed bilateral expiratory wheezing and noted that plaintiff had had a bronchial asthma attack two weeks prior for which he was seen in the ER (Tr. 342). She noted that plaintiff was obese and referred him to a dietician (Tr. 342). She also ordered labs to check his hepatitis C viral load and to conduct certain liver tests (Tr. 342).

On August 16, 2002 plaintiff saw Dr. Anna-Maria Assevero, who noted that his problems included hepatitis C (with no detected virus at the time, however), bronchial asthma, Methadone dependence and an umbilical hernia (Tr. 126, repeated at Tr. 341). Plaintiff opined that his biggest issue was his weight (Tr. 126). He reported that he could not sleep at night, that he was tired during the day and that his father had sleep apnea (Tr. 126). It was noted that plaintiff had an appointment with a dietician the following week; he was also referred to the obesity clinic (Tr. 126).

On October 10, 2002, plaintiff visited the endocrine/obesity clinic, referred by Dr. Alvarez, who noted in the referral that plaintiff had hepatitis C but no viral load and was morbidly obese at 322 pounds (Tr. 339). Dr. Tasneen Zehra at the clinic stated that plaintiff weighed 185 pounds in 1990 and had gained weight since starting a Methadone program in 2000 (Tr. 339). She discussed diet, activity, lifestyle, medication and surgery options with plaintiff and stated that he opted to try medication (Tr. 339A). Dr. Zehra also referred plaintiff to a dietician (Tr. 339A).

Plaintiff saw Dr. Chung Kim, the attending physician in infectious disease, on June 30, 2003 (Tr. 120, repeated at Tr. 321; see Tr. 121). The notes from this visit state that plaintiff had asthma, an umbilical hernia, “new onset” diabetes mellitus and hypertension (Tr. 120). It was also noted that plaintiff tested positive for “HCV RIBA” (hepatitis C) in 2000, but that no viral load was detected in 2002 (Tr. 120-21).

Plaintiff saw another provider, unidentified in the notes, at Lincoln Hospital on September 15, 2003 (Tr. 294). The record from this visit notes plaintiffs hypertension, diabetes mellitus, obesity and umbilical hernia (Tr. 294). The provider indicated that plaintiff had stable bronchial asthma and that he had been referred to the Kings County Sleep Study because of nighttime choking episodes, but that he had not complied with the referral (Tr. 294).

Plaintiff underwent a nutritional assessment by Monica Punohil, a certified dietician/nutritionist at Lincoln Hospital, on October 9, 2003 (Tr. 314). She noted morbid obesity reflected by plaintiffs Body Mass Index of 46.8 and the fact that he weighed 184% of his “Desirable Body Weight” (Tr. 314). She recommended that plaintiff avoid sweetened beverages and sugary fried foods (Tr. 314). She also advised plaintiff to increase his physical activity level and lower the amount of salt and fat in his diet (Tr. 314). She noted that plaintiff had high cholesterol, diabetes mellitus, bronchial asthma, a hernia, hepatitis C, anemia and hypertension (Tr. 314).

Dr. Adeyemo referred plaintiff to a podiatrist, whom he saw on January 6, 2004 (Tr. 299; see Tr. 300). The podiatrist noted plaintiffs asthma, hepatitis C, diabetes mellitus type II and hypertension and reported that he had elongated, dystrophic toenails, that the bottoms of his feet were extremely dry and that he was experiencing itching between his toes (Tr. 299).

Plaintiff saw Dr. Sanjay A. Dhar on July 29, 2004 (Tr. 292). Dr. Dhar noted plaintiffs diabetes mellitus, asthma and hepatitis C and commented that his lungs were clear (Tr. 292). He referred plaintiff to a dietician and to hepatitis and asthma clinics (Tr. 292).

On September 10, 2004, plaintiff saw Dr. Jerzy Sikora for followup on his asthma (Tr. 283). The record from the visit notes plaintiffs moderate persistent bronchial asthma, which was controlled with medications, his diabetes mellitus, hypertension, hepatitis C and obesity, and that he was previously an intravenous drug user and quit in 1999 (Tr. 283). There was no shortness of breath, cough, phlegm or fever noted at the time (Tr. 283).

The record also contains undated notes from a visit with Dr. Adisa Dzudza Sunjic (Tr. 122-23, repeated at Tr. 325-325A). Although much of the notes are illegible (Tr. 122-23), Dr. Dzudza Sunjic states that plaintiff was referred by the ER with newly diagnosed hyperglycemia and metabolic syndrome (Tr. 122). She observed his obesity, noting that he had gained 100 pounds the previous year, and recommended that he see a dietician and visit an obesity clinic (Tr. 122-23). She also noted hepatitis C, depression and impotence and stated that plaintiff was unemployed (Tr. 123). The record also contains referrals from this visit to “urology,” the obesity clinic, the hepatitis clinic and the “eye” department or clinic (Tr. 326-29).

Plaintiff also saw Dr. Tranice D. Jackson on an unspecified date for a followup on his hepatitis C and obesity (Tr. 343). Plaintiff had no complaints other than his umbilical hernia and Dr. Jackson noted that his asthma was stable without any increase in exacerbation (Tr. 343). Dr. Jackson recommended that plaintiff exercise more and moderate his diet (Tr. 343).

iv. Umbilical Hernia Repair

On June 14, 2002, plaintiff had an appointment with Dr. Kigongo in the surgery department after having been referred by the ER for his umbilical hernia (Tr. 348). The notes from the visit indicate plaintiffs morbid obesity, hepatitis C, asthma, chronic bronchitis and reducible umbilical hernia (Tr. 348). Dr. Kigongo stated that a surgical solution “carrie[d] an unacceptable risk of failure and complication” at that time and plaintiff was referred to primary care for his asthma and obesity (Tr. 348).

On September 26, 2003, plaintiff saw Dr. Kigongo again for evaluation of his umbilical hernia, which had been worsening (Tr. 117, repeated at Tr. 318). Diabetes mellitus, hypertension, obesity and hepatitis were noted (Tr. 117). Plaintiff reported that the hernia caused mild pain when lying on his stomach (Tr. 117). Dr. Kigongo recommended repair at that time because of the high risk of strangulation given the small size of the defect (Tr. 117). Plaintiff was examined on October 20, 2003 by an unidentified provider who cleared him for surgery (Tr. 312). Notes from this visit indicate that plaintiff suffered from hypertension, diabetes mellitus and “mild intermittent bronchial asthma” (Tr. 312).

Dr. Kigongo performed outpatient surgery to repair plaintiffs umbilical hernia at Lincoln Hospital on October 23, 2003 (Tr. 103, 105, 307-08). A pre-surgery examination the day of the surgery noted that plaintiff previously had surgery to repair an inguinal hernia on the right side (Tr. 310). The notes of the examination also indicate that plaintiff suffered from diabetes mellitus, bronchial asthma, hepatitis C and obesity (Tr. 310). The notes state that the umbilical hernia was reducible and that plaintiff was an acceptable risk for umbilical hernia repair (Tr. 310-11). His umbilical hernia was repaired with mesh while plaintiff was under general anesthesia (Tr. 307). After the surgery plaintiff was discharged with instructions to limit heavy lifting and to take Tylenol # 3 every four hours for pain (Tr. 103).

At a followup visit on November 18, 2003, plaintiff denied any nausea, vomiting, chills or pain but had mild serous drainage from the incision area (Tr. 116, repeated at Tr. 303). Plaintiff was advised not to lift more than thirty or forty pounds for another two weeks (Tr. 116).

v. Emergency Room Visits

Plaintiff visited the ER at Lincoln Hospital for exacerbation of his asthma on May 23, 1995 (Tr. 278-81), April 30, 1998 (Tr. 271, 276), September 10, 1999 (Tr. 273-75), September 23, 1999 (Tr. 268-70), October 15, 1999 (Tr. 263-66), October 17, 1999 (Tr. 257, 261-62, 267), November 16, 1999 (Tr. 253-56), December 8, 1999 (Tr. 248-51, 353), December 12, 1999 (Tr. 252, 258-60, 353), March 26, 2000 (Tr. 243-46, 353), April 7, 2000 (Tr. 240-42; see Tr. 239), April 30, 2000 (Tr. 235-39), June 5, 2000 (Tr. 231-34), June 15, 2000 (Tr. 225-27, 353), August 11, 2000 (Tr. 212, 353), August 18, 2000 (Tr. 208-09, 353), December 26, 2000 (Tr. 196-97, 205, 353), July 14, 2001 (Tr. 198, 201-02), July 24, 2001 (Tr. 192-93), August 5, 2001 (Tr. 190-91), August 11, 2001 (Tr. 185-87, 214-15), August 25, 2001 (Tr. 180-81), August 27, 2001 (Tr. 176-77), September 23, 2001 (Tr. 170-71), October 1, 2001 (Tr. 166-67), October 11, 2001 (Tr. 164-65), November 20-21, 2001 (Tr. 412, 413-17) and June 21, 2002 (Tr. 112, repeated at 158). The exacerbations for which plaintiff visited the ER were “acute” on May 23, 1995 (Tr. 280), September 23, 1999 (Tr. 269), March 26, 2000 (Tr. 244), April 7, 2000 (Tr. 240), June 15, 2000 (Tr. 226), August 11, 2001 (Tr. 214), August 25, 2001 (Tr. 181) and October 1, 2001 (Tr. 167). At one visit, on August 5, 2001, the exacerbation was described as “mild” (Tr. 191).

Plaintiffs symptoms were typically some combination of wheezing, shortness of breath, coughing, production of white and/or yellow sputum and chest tightness (Tr. 113, 177, 181, 191, 193, 197-98, 201, 207, 214, 225-26, 231-32, 234-36, 238-40, 242-44, 246, 248-49, 256-58, 260, 262-65, 266-69, 273-74, 414-15). Frequently, ER staff would complete an “asthma flow sheet,” tracking plaintiffs plaintiffs blood pressure, pulse rate, respiratory rate, temperature, oxygen saturation, peak flow, distress and wheezing over time while he was being treated with various medications (see Tr. 168, 174-75, 178-79, 182-83, 187-88, 194-95, 198, 203-04, 207, 211-12, 217, 225, 228-29, 231, 234-35, 238, 278, 279-80). On at least ten of plaintiffs twenty-eight visits to the ER for asthma, he walked out before treatment was complete, often against medical advice (Tr. 179, 181, 188, 192, 208-09, 215, 217, 264-65, 272, 276, 278, 280-81, 414-15, 417). Plaintiff was frequently instructed to lower his activity level for a few days following the exacerbation, to return to the ER if symptoms worsened and to visit the outpatient asthma clinic for followup (Tr. 112, 164, 166, 170, 189, 200, 237, 241, 250, 259, 261, 265, 270, 276, 355, 367, 369-71).

On November 20, 2001, plaintiff visited the emergency room for an exacerbation of his asthma and was admitted overnight (Tr. 412-17). He was experiencing wheezing, shortness of breath and high carbon dioxide levels (Tr. 414-15; see Tr. 420). Plaintiff was treated with a nebulizer and Atrovent (Tr. 416). Arterial blood gas testing during this visit showed that plaintiffs PC02 level was 65 and his P02 level was 138 — both of which are above normal (Tr. 420). A chest X-ray was performed with normal results- (Tr. 418, 422). Various other tests were also performed at this visit, including an ECG test, an arterial blood glucose level test, a “urinalysis with reflex to microscopy,” a basic metabolic panel and a hemogram (Tr. 419-21, 424-25). Plaintiff went home against medical advice on November 21, 2001 (Tr. 415, 417).

Plaintiff also made several visits to the ER for reasons unrelated to his asthma. On June 20, 2000 he visited the ER for unspecified reasons, but was advised at this visit to take an antibiotic and Motrin for pain (Tr. 223, 353). On June 26, 2000, plaintiff went to the emergency room and received stitches for a laceration to his lip sustained as the result of a fall while “play fighting” with a friend (Tr. 218-20, 222, 353). On June 10, 2002, plaintiff went to the ER because he had experienced sharp, radiating abdominal pain at the site of his umbilical hernia the previous day, possibly as the result of a tight strap used during an MRI (Tr. 160-62). On April 14, 2003, plaintiff visited emergency services because at a recent physical his blood work revealed “high sugar” and he tested positive for diabetes (Tr. 110, repeated at 157; see Tr. 331). At this visit plaintiff was diagnosed with hyperglycemia (Tr. 110) and advised to avoid sugar and soda, drink plenty of water and return for a followup with the diabetic nurse in two days (Tr. 109, repeated at 156). On August 6, 2003, plaintiff visited the ER for right thigh/ groin pain that began when he squatted to wash his dog (Tr. 106-07). The notes state that he had an inguinal hernia and was improving by the time of the visit (Tr. 107). Plaintiff visited the ER on June 1, 2004 for pain in his left groin that started after he stood up from a seated position (Tr. 148-50). Finally, he visited the ER on June 5, 2004 for musculoskeletal back pain that had lasted for five days (Tr. 145-47).

vi. Medical Tests

In July 2002 plaintiff underwent an abdominal sonogram for evaluation of the upper right quadrant of his abdomen (Tr. 410). The examination found “hepatomegaly and increased echogenicity of the liver ... compatible with hepatocellular disease or fatty infiltration” as well as an eehogenic pancreas, “indicating fatty infiltration or chronic pancreatitis” (Tr. 410). The record also contains notations of periodic lab tests of plaintiffs blood and urine, but the records generally do not contain the results or their significance (see Tr. 432-33).

b. Methadone Program at Albert Einstein College

Plaintiff began participating in a substance abuse program at Albert Einstein College of Medicine on August 9, 2001 (Tr. 437-38). As of April 11, 2005, he was attending the clinic five days a week for oral Methadone (Tr. 437). Dr. Jose Arroyo administered plaintiffs "Methadone program and saw him daily (Tr. 98). Physician’s Assistant Nancy Pagan completed a “Report on Substance Abuse” for plaintiff on March 7, 2005 (Tr. 438-39). She stated that she had been treating plaintiff since he was admitted to the program and that she saw him once a year for a physical exam and otherwise as needed (Tr. 438). She stated that plaintiff had no ongoing substance abuse issues and that substance abuse played no role in plaintiffs current diagnoses of diabetes, hypertension, asthma, hepatitis C, a history of umbilical hernia and a history of depression (Tr. 438-39). She noted that he was “doing well in treatment” (Tr. 438).

3. Medications

As of his hearing on April 12, 2005, plaintiff was taking Glipizide, Metformin (a/k/a Glucophage), Prednisone, Pseudoephedrine and Methadone (Tr. 455-56). The record indicates that plaintiff took numerous other medications at various times, including: Advair, Albuterol (a/k/a Proven-til or Ventolin), aspirin for his heart, Biaxin, Codeine Three, Metroprolol, Monopril, Motrin, Singulair, “TX” for hepatitis C, Vaneeril and Viagra (Tr. 66, 67, 76, 98,100, 111, repeated at 159, 118, 120, 124-27, 141, 167, 172, 181, 193, 289, 292, 294, 299, 310, 342, 360, 414, 435, 454). Plaintiff reported that his Methadone made him dizzy and that his Monopril caused a frequent need for urination (Tr. 67).

4. Consultative Physicians

a. Dr. Stephen Rocker

On December 3, 2003, Dr. Stephen Rocker, an internist, performed a consultative examination of plaintiff (Tr. 127-29). Plaintiff reported that his asthma started at age 28 and that his last wheezing episode was two months prior to the examination (Tr. 127). He stated that he experienced wheezing, sometimes lasting for one to two weeks, when exposed to cold weather or fumes (Tr. 127). Plaintiff complained that, due to his obesity and asthma, he could only walk two or three blocks before getting tired and short of breath (Tr. 127). Plaintiff did not need to go to the ER frequently (Tr. 127). At the time of the examination plaintiff had been diagnosed with diabetes for five months (Tr. 127). He took an oral hypoglycemic and performed self-administered blood sugar tests at home, with results ranging from 180 to 230 milligrams per deciliter (Tr. 127). Plaintiff did not have polyphagia, polyuria, polydipsia, visual impairment, paresthesias or renal disorder (Tr. 127). Plaintiff had been diagnosed with hepatitis C for three years and experienced fatigue but had never had jaundice, abdominal distension, encephalopathy or hematemesis (Tr. 127). Plaintiff experienced knee pain when walking and standing and had experienced occasional swelling in his leg, but had never been treated for it (Tr. 127). Dr. Rocker also noted plaintiffs recent umbilical hernia repair (Tr. 127).

Dr. Rocker stated that plaintiff had a history of heroin use between the ages of 28 and 37 in the quantity of “one bundle” per day (Tr. 127). However, plaintiff denied any current drug use, alcohol use or cigarette smoking (Tr. 127). Plaintiff reported that he lived in an apartment with his ex-wife and spent his time doing chores and watching television (Tr. 127).

Dr. Rocker noted generally that plaintiff was “in no distress” and that he was not short of breath after walking to the examination room (Tr. 128). Dr. Rocker’s physical examination revealed that plaintiffs lungs were “clear to percussion and auscultation” with “[n]o wheezes, rhonchi or rales” (Tr. 128). A chest exam was negative and an X-ray revealed no acute lung pathology (Tr. 128, 133). Plaintiff underwent pulmonary function testing on the same day as Dr. Rocker’s examination (Tr. 130). Dr. Rocker stated that “[e]ffort [wa]s good” and that the tests showed a “moderate obstructive and/or restrictive deficit with response to bronchodilator” (Tr. 128). Specifically, total forced vital capacity (FVC) was predicted at 4.61 liters and observed at 2.80/61 liters before bronchodilators and 3.12/68 liters after bronchodilators, and one second forced expiratory volume (FEV) was predicted at 3.80 liters per second and observed at 1.77/47 liters per second before bronchodilators and 2.16/57 liters per second after bronchodilators (Tr. 130). The notes indicate that the claimant was not in acute respiratory distress; neither was any wheezing evident on auscultation of the chest (Tr. 130).

An examination of plaintiffs heart showed a regular rhythm with no murmur or gallops (Tr. 128). Dr. Rocker commented that plaintiffs abdomen was soft and non-tender with no masses or organomegaly and noted the scar from his recent umbilical surgery (Tr. 128). Dr. Rocker found no “clubbing, cyanosis or edema” in plaintiffs extremities and stated that “peripheral pulsations” were intact (Tr. 128). With regard to plaintiffs musculoskeletal system he found plaintiffs station and gait normal and observed that plaintiff had no problem standing up or getting on and off the examination table (Tr. 128). Plaintiff was able to use both hands and arms fully when dressing and undressing (Tr. 128). His knees and other joints had a full range of motion “without deformity [and] without swelling, warmth or tenderness” (Tr. 128). Plaintiff had no muscular atrophy and was able to heel walk, toe walk and tandem walk (Tr. 128).

Dr. Rocker’s impressions were obesity, history of asthma, history of diabetes mellitus (type II), no evidence of end organ damage, “hypertension noted today,” history of positive hepatitis C serology, status post recent surgical correction of umbilical hernia, arthralgia of knees and history of drug abuse with current Methadone maintenance (Tr. 129). Dr. Rocker gave plaintiff an overall prognosis of fair (Tr. 129). He stated that plaintiff had no limitations in his speaking, hearing, sitting or handling abilities and a slight limitation in his standing, walking, lifting and carrying abilities (Tr. 129).

b. Dr. Scott

On December 22, 2003, Dr. Scott, a disability claims adjudicator, completed a physical residual functional capacity assessment of plaintiff based on the evidence in the file (Tr. 134-39). Dr. Scott opined that plaintiff could lift or carry twenty pounds occasionally and ten pounds frequently and that plaintiff could stand, walk or sit for about six hours in an eight-hour workday (Tr. 135). Dr. Scott found that plaintiffs ability to push and pull was unlimited and that he had no postural, manipulative, visual or communicative limitations (Tr. 135-37). Dr. Scott opined that plaintiff was not limited with regard to extreme cold or heat, “wetness,” humidity, noise, vibration, or hazards such as machinery or heights, but that he should avoid concentrated exposure to fumes, odors, dust and gases and should avoid poor ventilation (Tr. 137).

Dr. Scott noted that plaintiff had a metered-dose inhaler and that he alleged pain, shortness of breath and fatigue (Tr. 137). Dr. Scott stated, however, that plaintiffs claimed limitations were only “partially credible and not wholly supported by objective medical findings” (Tr. 137-38). Dr. Scott also indicated that treating or examining source statements in the file were not significantly different from his or her findings (Tr. 138). Dr. Scott’s “explanation of determination” stated that plaintiffs past relevant work was medium under the classifications in the Dictionary of Occupational Titles and that the severity of his impairments precluded him from performing any of his past relevant work (Tr. 140). However, Dr. Scott stated that the severity of plaintiffs impairments did “not preclude [him] from engaging in [substantial gainful activity] at a light level” (Tr. 140).

D. Proceedings Before the ALJ

The ALJ held a video hearing on April 12, 2005 at which plaintiff and Richard Baine, a vocational expert, testified (Tr. 444). Plaintiff first testified about his family situation and educational history (Tr. 448-50). He had been incarcerated in 1994 and again from 1995 to 1999 for selling drugs (Tr. 450-51, 460), and while in prison he was assigned to school rather than a job because of his low reading level (Tr. 460). He attended an “ADE” class which provided basic instruction in reading (Tr. 461). He stated that he could write his name and address but not a letter, but that his basic math and money handling skills were fíne (Tr. 461). Plaintiff testified that he had been excused from working since he had been on public benefits (Tr. 461).

Plaintiff also testified regarding his pri- or positions as a warehouse laborer, sanitation laborer, construction worker and security guard (Tr. 451-54). He reported that he left his position as a sanitation worker because of his umbilical hernia and asthma, stating “I started missing days because of my asthma, I started missing days, you know, on and off and basically they let me go” (Tr. 451-52). He left his position as a security guard at the clothing store because he was getting sick with asthma attacks “constantly” and his employer stopped tolerating his absences (Tr. 452, 454). Plaintiff stated that at this job he would sit when he grew tired from standing and would stand when sitting started to bother him (Tr. 454).

Plaintiff stated he was not able to work because he could not function, move around or walk very well (Tr. 453). He testified that when he bent over, he got dizzy due to his high blood pressure and that if he sat for over an hour his “right flank area” started hurting because of his hepatitis C (Tr. 453). Plaintiff stated he was “constantly]” bothered by his pain, for which he took Codeine # 3 and Motrin (Tr. 454). He stated that he had trouble carrying things because he would start wheezing and gasping for air (Tr. 453).

Plaintiff noted that he was on Glipizide and Metformin for his diabetes because he refused to take insulin due to his mother’s bad experience with it (Tr. 455, 459). He stated that he also took Prednisone and pseudoephedrine (Tr. 455). He testified that his medications generally relieved his symptoms (Tr. 455), but that they also made him drowsy in combination with his Methadone (Tr. 455-56). Plaintiff stated that he tossed and turned constantly at night, that he slept around five or six hours a night and that he fell asleep often during the day (Tr. 456). He also testified that he had a lot of memory problems, especially with regard to his medication (Tr. 457).

Plaintiff stated that he and his ex-wife were still legally married but that they intended to separate or divorce (Tr. 457). His ex-wife helped him with housework and cooking and when he was ill she helped him get dressed (Tr. 457). When plaintiff went out — for example, to his medical appointments — his daughter or stepson often accompanied him (Tr. 458). Plaintiff testified that he was able to use public transportation and took the bus or train to his appointments, except when they were at the clinic directly across the street from his residence (Tr. 457-58). Plaintiff explained that he visited the Methadone clinic five times a week and picked up his doses for the weekend on Fridays (Tr. 459).

Plaintiff testified that his asthma attacks occurred three or four times a month and that he had to use his Albuterol inhaler six times a day (Tr. 461-62). He had a nebulizer machine at home which he used about four times a month when he got a bad asthma attack (Tr. 462). He stated that he had not owned the machine when he went to the hospital for asthma attacks in the past (Tr. 462). Plaintiff testified that he went to the emergency room at Lincoln Hospital about two times a month (Tr. 462).

The ALJ asked plaintiff “[i]f there was a job, let’s say, an indoor job as a security officer in an office building where you’d, you’d be stationed generally behind a desk.... You could, you could be seated or standing at your own option, okay? ... And people would come in, they would show you their identification and then if they had any questions about where something was located in the building like you could tell them what floor the office is located on, could, could you do that type of job now?” Plaintiff answered “I guess so. I guess so.” (Tr. 462-63). When asked if he had looked for any position similar to that, plaintiff stated he had not because he had so many doctors appointments, sometimes as many as three a week (Tr. 463).

Mr. Richard Baine, a vocational expert, also testified at the hearing (Tr. 465). Mr. Baine began by classifying plaintiffs past relevant work according to skill level and exertional level (Tr. 465). He stated that plaintiffs position as a construction laborer was at the heavy to very heavy exertional level and unskilled to semi-skilled, that plaintiffs work collecting trash would be classified as cleaner II, which has a medium exertion level and is unskilled, that plaintiffs position working in a factory would be classified as “assembler, small products” which is light and unskilled, and that plaintiffs retail security guard position was light and semi-skilled (Tr. 465).

The ALJ asked Mr. Baine to consider an individual of plaintiffs age with a ninth grade education but who tests at a “marginal education level” and is “restricted totally from medium to heavy exertion work, can perform some range of sedentary and light exertion work but subject to [certain] limitations,” including being “restricted from high concentrations of gases, dust, fumes and similar pollutants” and that “[t]he person can only occasionally climb, balance, stoop, kneel, crouch and crawl” and is “restricted from temperature extremes and high humidity” (Tr. 665-66). Mr. Baine stated that this person would not be able to do any of plaintiffs past relevant work, either as he performed it or as those positions are performed in the national economy, although he qualified this by stating that if plaintiffs former security position was exclusively indoors and thus protected from temperature changes and fumes, the person would be able to perform that job (Tr. 466).

Mr. Baine noted that plaintiff had no skills that were transferable to sedentary or light work, but stated that there were sedentary and light unskilled positions that someone with of plaintiffs age, education, work background and RFC could do (Tr. 466). Such a person could not perform a “full range” of activities, but could perform packer, assembler or inspector positions, all of which existed in the regional and national economies (Tr. 467). The environmental limitations would limit somewhat the numbers of such positions that would be available, but there would still be 170,000 inspector positions nationally and 900 in the New York area that plaintiff could perform, 250,000 assembler positions nationally and 3,000 in the New York area that plaintiff could perform, and 250,000 packer positions nationally that plaintiff could perform (Tr. 467). If the person was limited to sedentary work, the numbers would go down to 1,500 packers locally, 60,000 inspectors nationally, 275 inspectors in the New York area, 80,000 assemblers nationally and 1,800 assemblers in the New York area (Tr. 467).

Mr. Baine stated that if plaintiffs testimony were found fully credible and consistent with the objective medical evidence in the record, he would not be able to perform these jobs, but that this was because he would be unemployable due to the number of doctors appointments he must attend (Tr. 468).

Mr. Baine also testified that if the residual functional capacity assessment completed by Dr. Lee were accurate, plaintiff would not be able to perform sedentary or light assembler, inspector or packer positions because he could not sit or walk for more than two hours or perform full-time work (Tr. 468).

At the conclusion of the hearing plaintiff noted that he also saw other doctors at the clinic and that one was completing additional forms that had not yet been submitted to the Social Security Administration (Tr. 469). The ALJ stated that he would give plaintiff three weeks to obtain and submit additional records (Tr. 469). The ALJ also instructed plaintiffs counsel to submit a letter brief on the issue of whether plaintiffs asthma met the relevant listings in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 469). No letter brief from plaintiff appears in the record, however.

III. Analysis

A. Applicable Legal Principles

1. Standard of Review

[2,33 The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is based upon an erroneous legal standard. 42 U.S.C. § 405(g); Burgess v. Astrue, 537 F.3d 117, 127-28 (2d Cir.2008); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.1999); Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir.1998). The Court first reviews the Commissioner’s decision for compliance with the correct legal standards; only then does it determine whether the Commissioner’s conclusions were supported by substantial evidence. Tejada v. Apfel, supra, 167 F.3d at 773; Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987); Ellington v. Astrue, 641 F.Supp.2d 322, 327-28 (S.D.N.Y.2009) (Marrero, D.J.); Santiago v. Barnhart, 441 F.Supp.2d 620, 625 (S.D.N.Y.2006) (Marrero, D.J.). “Even if the Commissioner’s decision is supported by substantial evidence, legal error alone can be enough to overturn the ALJ’s decision.” Ellington v. Astrue, supra, 641 F.Supp.2d at 327-28; accord Johnson v. Bowen, supra, 817 F.2d at 986 (“Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.”). However, “where application of the correct legal principles to the record could lead to only one conclusion, there is no need to require agency reconsideration.” Johnson v. Bowen, supra, 817 F.2d at 986.

2. Determination of Disability

Under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., a claimant is entitled to disability benefits if he or she can establish an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v. Walton, 535 U.S. 212, 217-22, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002) (both impairment and inability to work must last twelve months). The impairment must be demonstrated by “medically acceptable clinical and laboratory diagnostic techniques,” 42 U.S.C. § 423(d)(3), and it must be

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

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

The Commissioner must consider both objective and subjective factors when assessing a disability claim, including: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physicians; (3) subjective evidence of pain and disability to which the claimant and family or others testify; and (4) the claimant’s educational background, age and work experience. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999); Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983).

“In evaluating disability claims, the [Commissioner] is required to use a five-step sequence, promulgated in 20 C.F.R. §§ 404.1520, 416.920.” Bush v. Shalala, 94 F.3d 40, 44 (2d Cir.1996).

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where ... the claimant is not so engaged, the Commissioner next considers whether the claimant has a “severe impairment” that significantly limits his physical or mental ability to do basic work activities.... Where the claimant does suffer a severe impairment, the third inquiry is whether, based solely on medical evidence, he has an impairment listed in Appendix 1 of the regulations or equal to an impairment listed there.... If a claimant has a listed impairment, the Commissioner considers him disabled. Where a claimant does not have a listed impairment, the fourth inquiry is whether, despite his severe impairment, the claimant has the residual functional capacity to perform his past work.... Finally, where the claimant is unable to perform his past work, the Commissioner then determines whether there is other work which the claimant could perform.

Balsamo v. Chater, 142 F.3d 75, 79-80 (2d Cir.1998); see also Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003); Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004), amended on other grounds on rehearing, 416 F.3d 101 (2d Cir.2005); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003); Shaw v. Chater, supra, 221 F.3d at 132; Brown v. Apfel, supra, 174 F.3d at 62; Tejada v. Apfel, supra, 167 F.3d at 774; Rivera v. Schweiker, supra, 717 F.2d at 722.

Step four requires that the ALJ make a determination as to the claimant’s residual functional capacity (“RFC”). See Sobolewski v. Apfel, 985 F.Supp. 300, 309 (E.D.N.Y.1997). RFC is defined in the applicable regulations as “the most [the claimant] can still do despite [his] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). To determine RFC, the ALJ makes a “function by function assessment of the claimant’s ability to sit, stand, walk, lift, carry, push, pull, reach, handle, stoop, or crouch.” Sobolewski v. Apfel, supra, 985 F.Supp. at 309. The results of this assessment determine the claimant’s ability to perform the exertional demands of sustained work, and may be categorized as sedentary, light, medium, heavy or very heavy. 20 C.F.R. §§ 404.1567, 416.967; see Rodriguez v. Apfel, 96 Civ. 8330(JGK), 1998 WL 150981 at *7 n. 7 (S.D.N.Y. Mar. 31,1998) (Koeltl, D.J.).

The claimant bears the initial burden of proving disability with respect to the first four steps. Burgess v. Astrue, supra, 537 F.3d at 128; Green-Younger v. Barnhart, supra, 335 F.3d at 106; Balsamo v. Chater, supra, 142 F.3d at 80. Once the claimant has satisfied this burden, the burden shifts to the Commissioner to prove the final step — that the claimant’s RFC allows the claimant to perform some work other than the claimant’s past work. Balsamo v. Chater, supra, 142 F.3d at 80; Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986).

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

Gray v. Chater, 903 F.Supp. 293, 297-98 (N.D.N.Y.1995) (Koeltl, D.J.). When a claimant retains the RFC to perform at least one of the categories of work listed on the Grid, and when the claimant’s educational background and other characteristics are also captured by the Grid, the ALJ may rely exclusively on the Grid in order to determine whether the claimant retains the RFC to perform some work other than his or her past work. Butts v. Barnhart, supra, 388 F.3d at 383 (“In the ordinary ease, the Commissioner meets his burden at the fifth step by resorting to the applicable medical vocational guidelines (the [Grid]).”) (internal quotation and citation omitted).

However, “exclusive reliance on the [Grid] is inappropriate” where nonexertional limitations “significantly diminish [a claimant’s] ability to work.” Butts v. Barnhart, supra, 388 F.3d at 383, quoting Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir.1999) (internal quotation omitted); Bapp v. Bowen, supra, 802 F.2d at 603. When a claimant suffers from a non-exertional limitation such that she is “unable to perform the full range of employment indicated by the [Grid],” Bapp v. Bowen, supra, 802 F.2d at 603, or the Grid fails “to describe the full extent of [the] claimant’s physical limitations,” the Commissioner must introduce the testimony of a vocational expert in order to prove “that jobs exist in the economy which the claimant can obtain and perform.” Butts v. Barnhart, supra, 388 F.3d at 383 (internal quotation and citation omitted from first quotation); see 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(e); see also Heckler v. Campbell, 461 U.S. 458, 462 n. 5, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (“If an individual’s capabilities are not described accurately by a rule, the regulations make clear that the individual’s particular limitations must be considered.”).

3. Treating Physician Rule

When considering the evidence in the record, the ALJ is required to give deference to the opinions of a claimant’s treating physicians. Under the regulations’ “treating physician rule,” a treating physician’s opinion will be given controlling w