Norman v. Astrue (912 F. Supp. 2d 33, 2012)

OPINION & ORDER

ANDREW L. CARTER, JR., District Judge.

Plaintiff Nelson Norman brings this action pursuant to Section 205(g) of the Social Security Act (“SSA”), as amended, 42 U.S.C. §§ 405(g), 1383(c)(3), to seek review of a final decision of the Commissioner of Social Security (“defendant”) denying his application for Social Security Income (“SSI”) benefits. Both plaintiff and the defendant have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF ## 12 and 14.) In his report and recommendation (the “Report”), Magistrate Judge Henry B. Pitman concluded that the plaintiffs motion should be granted and that defendant’s motion should be denied, and recommended that the case be remanded for further proceedings. Specifically, Magistrate Judge Pitman recommends that on remand: (1) the Administrative Law Judge (“ALJ”) consider whether plaintiff meets the requirements of Listing 1.04A and explain his reasoning for his ultimate determination; (2) the ALJ confirm that all relevant medical records from Dr. Beale have been provided to the SSA and specify the weight ultimately given to Dr. Beale’s opinion, consistent with the rules governing a “treating physician”; and (3) the ALJ reassess plaintiffs credibility and clearly set forth the support for his ultimate determination. Defendant was granted an additional thirty days to object and filed timely objections to the Report on April 11, 2012. Defendant objects to the Report on four grounds: (1) Judge Pitman erred in referencing a previous ALJ decision rather than solely the final ALJ decision; (2) the ALJ’s evaluation of plaintiffs impairments at step three of the sequential evaluation was supported by substantial evidence; (3) the ALJ’s evaluation of Dr. Beak’s assessment was correct under the applicable rules; and (4) the ALJ properly assessed plaintiffs credibility.

The court has reviewed the issues de novo and reached the same conclusions as did Judge Pitman as expressed in his well-reasoned Report. As such, Judge Pit-man’s Report is adopted in full. I will address defendant’s specific objections, herein.

BACKGROUND

The Court assumes familiarity with the background and procedural posture of this case, and incorporates fully the description contained within Magistrate Judge Pit-man’s thorough and detailed Report.

DISCUSSION

I. Standards of Review

A. Review of the Magistrate Judge’s Report

A district court may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motions. See 28 U.S.C. § 636(b)(1). Within fourteen days of service of the recommendation, any party may file written objections to the magistrate’s report. Id. In evaluating the report, the court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id. Where a party submits timely objections to a report and recommendation, the district court reviews de novo the parts of the report and recommendation to which the party objected. See id.; Fed.R.Civ.P. 72(b); see, e.g., Eisenberg v. New England Motor Freight Inc., 564 F.Supp.2d 224, 226-27 (S.D.N.Y.2008). Where no “specific written objection” is made, the district court may adopt those portions “as long as the factual and legal basis supporting the findings and conclusions set forth ... are not clearly erroneous or contrary to law.” Eisenberg, 564 F.Supp.2d at 226.

B. Review of the Administrative Law Judge’s Decision

When a claimant seeks review of a Social Security hearing regarding disability benefits, the Court’s function is not to determine de novo whether the claimant is disabled, but rather to determine only “whether the correct legal, standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004); see also Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998) (“[I]t is not our function to determine de novo whether plaintiff is disabled.”). The Supreme Court has defined “substantial evidence” as “more than a mere scintilla” of evidence, and means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks omitted); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002) (internal quotation marks omitted); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996). Review of the ALJ’s application of legal principles is de novo. Pollard v. Halter, 377 F.3d 183, 188 (2d Cir.2004).

II. Defendant’s Objections

A. Consideration of a Non-Final Decision

Defendant argues that the Report repeatedly “considers” an ALJ decision issued on December 28, 2005, which was vacated by the Appeals Council, and that such consideration is prohibited by sections 405(g) and (h) of the Social Security Act. “It is well settled” that these provisions of the Social Security Act provide that “judicial review of Social Security benefit determinations is limited to ‘final’ decisions of the Commissioner made after a hearing, that available administrative procedures must be exhausted and that a final decision is a prerequisite for subject matter jurisdiction in the District Court.” Mathews v. Chater, 891 F.Supp. 186, 188 (S.D.N.Y.1995) (citing Califano v. Sanders, 430 U.S. 99, 103 n. 3, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). .

In this case, three ALJ decisions Were issued rejecting the plaintiffs disability claim,- including one issued in December 2005. The plaintiff requested review of each decision, and each time the Appeals Council granted review and remanded the case for further consideration. 'Finally, in a decision dated May 29, 2008, the ALJ rejected the plaintiffs disability claim for -a fourth time.' This determination becalne the final decision of the Commissioner on June 10, 2010, upon the Appeals Council’s denial of plaintiffs request for review. Shortly thereafter, plaintiff commenced the present action with this Court. It is not disputed that plaintiff exhausted his available administrative procedures or that this Court has subject matter jurisdiction over this case. Rather, defendant argues that Judge Pitman’s various references to the December 2005 throughout his Report are “plainly erroneous” because- the May-2008 decision is the only final decision.' (Objection at 4.)

This Court disagrees. The requirements of 42 U.S.C. §§ 405(g) and (h) are prerequisites for subject matter jurisdiction, which plaintiff satisfied once he exhausted his administrative procedures and obtained a final decision after being denied review from the Appeals Council. See Stoothoff v. Apfel, No. 98-cv-5724 (JGK), 1999 WL 493356, at *2 (S.D.N.Y. July 12, 1999) (citing Sanders, 430 U.S. at 103 n. 3, 97 S.Ct. 980); see also Ryan v. Bentsen, 12 F.3d. 245, 247 (D.C.Cir.1993) (“The Secretary’s ‘final decision’ is a prerequisite to subject matter jurisdiction in the district court and consists of two components, a presentment requirement and an exhaustion requirement.”). Defendant cites no support for the proposition that once the Appeals Council vacates and remands a decision, all that was included in the administrative record ceases to be relevant such that a reviewing court cannot refer to parts’ of prior ALJ decisions. Arguing that a district judge cannot “review” a non-final decision for jurisdictional purposes is quite different than arguing that a judge cannot reference' relevant facts contained within a prior, albeit vacated, ALJ decision. While the former is plainly erroneous, the latter is what the Magistrate Judge did here. Accordingly, this objection is overruled.

1. Listing Requirement

Defendant next argues that Judge Pitman erred in requiring the ALJ to explain his reasoning for concluding that the' plaintiff did hot have an impairment that meets any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, because the ALJ’s decision was nonetheless supported by substantial evidence. See Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir.1982) (affirming ALJ’s determination at step three even though it did not contain an express rationale, “siiice portions of the ALJ’s decision and the evidence before him indicate that his conclusion was supported by substantial evidence”); see also Sava v. Astrue, No. 06-(GAY), 2010 WL 3219311, at *4 (S.D.N.Y. Aug. 12, 2010) (affirming determination of ALJ that step three was hot met even though the ALJ did not give an express rationale where there was “sufficient uncontradicted evidence in the record to provide substantial evidence for [that] conclusion”). In Berry, the- Second Circuit was careful to circumscribe the precedent it was setting:

[I]n spite of the ALJ’s failure to explain his rejection of the claimed listed impairments, we were able to look to other portions of the ALJ’s decision and to clearly credible evidence in finding that his determination was supported by substantial evidence. Cases may arise, however, in which we would be unable to fathom the ALJ’s rationale in relation to evidence in the record, especially where credibility determinations and inference drawing is required of the ALJ. In such instances,’we would not hesitate to remand the case for further findings or a clearer explanation for the decision, [citations omitted] Thus, in future cases in which the disability claim is premised upon one or more listed impairments of Appendix 1. the Secretary should set forth a sufficient rationale in support of his decision to find or not to find a listed impairment.

Id. at 469 (emphasis added). Here, it is unclear from the ALJ’s decision which criteria of Listing 1.04A, which is the relevant listing for spinal disorders, the plaintiff failed to meet — or, for ' that matter, whether the ALJ even applied Listing 1.04A to the plaintiffs impairments. By contrast, in Berry, for example, the court was able to “reasonably infer”’the particular criteria the ALJ found lacking. See Berry, 675 F.2d at 468-69. The Court agrees with those portions of Judge Pit-man’s opinion detailing that the medical evidence in the record demonstrates that plaintiffs impairments do in fact meet each of the requirements of Listing 1.04A-even if some of the evidence, particularly with respect to the criteria of muscle weakness, was not overwhelming. (Report at 91-98.) In light of the ALJ’s failure to explain his reasoning and the conflicting medical evidence in the record, this Court cannot conclude by looking at “sufficient uncontradicted evidence” that the ALJ’s decision was supported by substantial evidence. See Sava, 2010 WL 3219311, at *4. Accordingly, this objection is overruled, and the Report’s recommendation on this point is adopted.

2. Treating Physician Rule

Defendant also objects to Judge Pit-man’s recommendation that on remand the ALJ should confirm that all relevant medical records from Dr. Beale have been provided to the SSA and that the ALJ should specify the weight ultimately given to Dr. Beale’s opinions. Defendant argues that re-contacting Dr. Beale is unnecessary and not required under the rules and regulations because the medical evidence of record was otherwise ' adequately developed for the ALJ to make his determination. Defendant also contends that the ALJ properly declined to assign Dr. Beale’s medical source statement significant weight.

As an initial matter, defendant does not object to (and the Court finds no error with) Judge Pitman’s determination that Dr. Beale is properly considered to be plaintiffs “treating physician.” The opinion of a treating physician must be given controlling weight if it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If a treating source’s opinion is not given controlling weight, the SSA must assess the following factors in determining how much weight to afford that opinion: (1) the frequency of examination and the length of the treatment relationship; (2) the evidence in support of the opinion; (3) the opinion’s consistency with the record as a whole; (4) whether .the opinion is from a specialist; and (5) other relevant factors. See Schaal v. Apfel, 134 F.3d 496, 503 (2d Cir.1998) (citing 20 C.F.R. § 416.927(d)(2)). “The Commissioner must set forth ‘good reasons’ for failing to accord the opinions of a treating physician controlling weight.” Pierre v. Astrue, No. 09-cv-1864 (JG), 2010 WL 92921, at *8 (E.D.N.Y. Jan. 6, 2010); 20 C.F.R. § 416.927(d)(2). The Second Circuit has instructed that remand is appropriate “when the Commissioner has not provided ‘good reasons’ for the weight given to a treating physician’s opinion,” and when “opinions from ALJs ... do not comprehensively set forth reasons for the weight assigned to a treating physician’s opinion.” See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.2004).

Here, the ALJ gave the medical opinion of Dr. Beale, plaintiffs treating physician, less than controlling weight but did not apply the factors set forth in 20 C.F.R. ■§ 404.1-527(d)(2)-(6). As noted by Judge Pitman, the ALJ discounted Dr. Beale’s opinion by stating that it could not “be afforded great weight,” but the ALJ did not explain why Dr. Beale’s opinion was not afforded great weight. The failure of the ALJ to provide “good reason” for not giving Dr. Beale’s opinions controlling weight, to mention, the .weight his opinions were given, and to apply the factors set forth in the regulations are sufficient grounds for remand. See Halloran, 362 F.3d at 33; see also Pierre, 2010 WL 92921, at *9 (concluding that the ALJ did not provide good reasons for not giving treating physicians’ opinions controlling weight and “failed even to mention the weight these opinions were given (except to say it was not ‘great’)”).

In addition, “an ALJ cannot reject a treating [source]’s diagnosis without first attempting to fill any clear gaps in the administrative record.” Rosa v. Callahan, 168 F.3d 72, 79 n. 5 (2d Cir.1999). The Social Security regulations require the ÁLJ to “seek additional evidence or clarification from [claimant’s] medical source when the report from [claimant’s] medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniqués.’ ” Calzada v. Asture, 753 F.Supp.2d 250, 277 (S.D.N.Y.2010) (quoting regulation formerly codified at 20 C.F.R. § 404.1512(e)(1)); see also Clark v. Comm’r of Social Security, 143 F.3d 115, 117-18 (2d Cir.1998).

Here, the treatment records do not contain Dr. Beale’s notes or findings from examinations purportedly conducted between November 2002 (when Dr. Beale stated that he had first examined plaintiff) through November 2005 (when Dr. Beale completed the questionnaire indicating that he examined plaintiff about every six months). 'Contrary to defendant’s assertion, the ALJ cannot conclude that the record was adequately developed without first confirming-that no such treatment records exist. Accordingly, these objections are overruled, and the Report’s recommendation on this point is adopted.

3. Plaintiffs Credibility

Finally, defendant objects to Judge Pitman’s finding that the ALJ failed to properly assess plaintiffs credibility. Defendant contends that the ALJ acknowledged plaintiffs symptoms and alleged limitations, carefully assessed, the medical evidence, and concluded that plaintiffs statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely credible. Defendant also argues that the ALJ’s credibility assessment was supported by substantial evidence.

While an ALJ has the discretion not “to credit [claimant’s] testimony about the severity of [his] pain and the functional limitations it caused,” Rivers v. Astrue. 280 Fed.Appx. 20, 22 (2d Cir.2008), the assessment must be made “in light of medical findings and other evidence.” Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984). However, “[e]ven if subjective pain is unaccompanied by positive clinical findings or other objective medical evidence, it may still serve'as the basis for establishing disability. If the claimant’s testimony as to pain is not fully supported by clinical evidence, the ALJ must consider additional factors in his assessment.’’ Urena-Perez v. Astrue, 06 CIV. 2589 JGK/MHD, 2009 WL 1726217 (S.D.N.Y. Jan. 6, 2009) report and recommendation adopted as modified, 06 CIV. 2589(JGK), 2009 WL 1726212 (S.D.N.Y. June 18, 2009). These factors include: (1) the claimant’s daily activities; (2) the location, duration, frequency, and intensity of symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and side effects of any medications taken; (5) other treatment received; and (6) other measures taken to relieve symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vi); 416.929(c)(3)(i)-(vi): see also Ortiz v. Astrue, 875 F.Supp.2d 251 (S.D.N.Y.2012). “This issue is not whether the clinical and objective findings are consistent with an inability to perform all substantial activity, but whether plaintiffs statements about the intensity, persistence, or functionally limiting effects of [his] ... back pain are consistent with the objective medical and other evidence.” Urena-Perez, 2009 WL 1726217, at *40 (quoting Schultz v. Astrue, 2008 WL 728925, at *12 (N.D.N.Y. March 18, 2008)). “If, after considering plaintiffs subjective testimony, the objective medical evidence and any other factors deemed relevant) the ALJ rejects [his] subjective testimony, he must explain that decision explicitly and with sufficient specificity that a reviewing court may be able to decide whether there are legitimate reasons for the AJL’s disbelief and whether his decision is supported by substantial evidence.” Id. (citing Schultz, 2008 WL 728925, at * 12). “Absent these findings, remand is appropriate.” Id. (citing Hardhardt v. Astrue, 2008 WL 2244995, at *10-11 (E.D.N.Y. May 29, 2008)); see also Fox v. Astrue, 2008 WL 828078, at *14 (N.D.N.Y. March 26, 2008) (remanding, in part, because the ALJ failed to discuss many of the factors).

In this case, the ALJ stated that the claimant’s allegations of his functional limitations were not credible principally because'the ALJ found that the claimant “has been capable ’ of performing light work since his alleged onset date.” The ALJ also concluded that “the claimant’s statements are not credible to the extent they are inconsistent with the residual functional capacity assessment.” This Court concludes that the ALJ committed legal error in evaluating the claimant’s credibility. First, the ALJ did not consider the additional factors required by 20 C.F.R. §§ 404.1529(c)(3)(i)-(vi) before rejecting plaintiffs subjective testimony, nor did he explain his “decision explicitly and with sufficient specificity that a reviewing court may be able to decide whether there are legitimate reasons for the AJL’s disbelief and whether his decision is- supported by substantial evidence.” See Urena-Perez, 2009 WL 1726217, at *40. Although the ALJ discussed how the medical evidence in the record, is inconsistent with an inability to perform light work, the ALJ did not properly question whether the “plaintiffs statements about.the intensity, persistence, or functionally limiting effects” of his pain are consistent with the objective medical evidence. See id. (emphasis added). The recitation of medical evidence, without more, is not a stand-in for a “meaningful analysis of how those factors detracted from [the plaintiffs] credibility.” See Kerr v. Astrue, No. 09-cv-1119 (GLS), 2010 WL 3907121, at *4 (N.D.N.Y. Sept. 7, 2010) report and recommendation adopted, 7:09-CV1119 GLS/VEB, 2010 WL 3893922 (N.D.N.Y. Sept. 30, 2010).

Furthermore, as noted in Judge Pit-man’s opinion, the ALJ’s credibility assessment was improperly performed to the extent that the ALJ first determined plaintiffs overall RFC and then used that RFC to discount plaintiffs non-conforming allegations and resulting limitations. What is missing from such an,analysis is “any explanation as to why [plaintiffs subjective complaints tyere found less than fully credible.” Id.; see also Meadors v. Astrue, 370 Fed.Appx. 179, 184 (2d Cir.2010) (“Because we agree that the ALJ did not properly evaluate the Appellant’s testimony regarding her pain, we are unable to give his calculation of Appellant’s RFC meaningful review.”). Accordingly, defendant’s objections are overruled, and the Report’s recommendation is adopted on this point.

CONCLUSION

For the reasons discussed above, judgmenton the pleadings is granted in favor of plaintiff and the case is remanded for further proceedings consistent with Judge Pitman’s report and recommendation.

SO ORDERED.

REPORT AND RECOMMENDATION

HENRY PITMAN, United States Magistrate Judge.

TO THE HONORABLE ANDREW L. CARTER, United States District Judge,

I. Introduction

Plaintiff, Nelson Norman, brings this action pursuant to Section 205(g) of the Social Security Act (“SSA”), 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. Both plaintiff and the Commissioner have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items 12 and 14). For the reasons set forth below, I respectfully recommend that judgment on the pleadings be granted in favor of plaintiff and the case be remanded for further proceedings consistent with this report and recommendation.

II. Facts

A. Procedural Background

Plaintiff filed an application for disability insurance benefits on October 25, 2000 alleging that he had been disabled since September 20, 2000 due to blindness in his right eye (Tr. 55, 100, 178, 276, 307). The SSA initially denied plaintiffs application for benefits on December 15, 2000 (Tr. 48, 68-71). Specifically, the SSA found that plaintiffs “poor eyesight” was not' severe enough to keep him from working (Tr. 71). Plaintiff requested. reconsideration of the SSA’s initial determination, which was denied on February 20, 2001 (Tr. 50, 73-75). In plaintiffs reconsideration request, he additionally alleged that he had been disabled ' due to “inflamed tissue in [his] right shoulder” (Tr. 321). In an undated Claimant Development questionnaire, plaintiff also listed a left shoulder injury and a lower back condition (Tr. 328).

Plaintiff timely requested (Tr. 76) and was granted a hearing before an Administrative Law Judge (“ALJ”) (Tr. 81-84). ALJ Dennis G. Katz conducted a hearing on December 12, 2001; plaintiff appeared pro se (Tr. 636-59). In a decision dated December 17, 2001, the ALJ found that plaintiff had not been under a disability within the meaning of the SSA from September 1, 2000 through the date of the decision (Tr. 100-07).

On December 31, 2001, plaintiff requested review of ALJ Katz’s' December 17, 2001 decision by the Appeals Council of the SSA Office of Hearings and Appeals (“Appeals Council”) (Tr. 113, 115-17). The Appeals Council granted review, and remanded the case for further consideration (Tr. 118-21). Specifically, the Appeals Council directed ALJ Katz to (1) develop the record to clarify the severity of plaintiffs low back and left shoulder impairments, (2) obtain additional evidence concerning plaintiffs orthopedic impairments, (3) re-evaluate plaintiffs subjective complaints in accordance with the applicable SSA rules and regulations, (4) re-evaluate plaintiffs residual functional capacity (“RFC”) by conducting a function-by-function assessment of his ability to do-work-related physical and mental activities in accordance with the applicable SSA rules and regulations and (5) obtain evidence from a vocational expert to clarify the effect of the assessed limitations on plaintiffs occupational base and to determine whether plaintiff has acquired any skills that are transferable to other occupations (Tr. 119-21).

ALJ Katz conducted a second administrative hearing on May 28, 2003; plaintiff was represented by an attorney, Tara Johnson, Esq. Amy Leopold, a vocational expert, also testified at this hearing (Tr. 660-94). In a decision dated June 6, 2003, the ALJ again found that plaintiff had not been under a disability within the meaning of the SSA from September 1, 2000 through the date of the decision (Tr. 178-88).

On June 13, 2003, plaintiff again requested review of ALJ Katz’s June 6, 2003 decision by the Appeals Council .(Tr. 154, 156-59, 161-62, 189-90). The Appeals Council granted review, and again remanded the case for further consideration (Tr. 191-94). Specifically, the Appeals Council directed the ALJ to (1) obtain all available updated treatment records, including treatment records from Dr. Steven Levine, (2) re-evaluate plaintiffs subjective complaints in accordance with the applicable SSA rules and regulations, (3) if necessary, obtain evidence from an orthopedist medical expert to clarify the nature and severity of plaintiffs orthopedic impairment, (4) re-consider plaintiffs maximum RFC in accordance with the applicable SSA rules and regulations and (5) if warranted, obtain supplemental. evidence from a vocational expert to clarify.the effect of the assessed limitations on plaintiffs occupational base (Tr. 192-93).

ALJ James B. Reap conducted the third administrative hearing on November 29, 2005; plaintiff-was again represented by an attorney, David Scott, Esq. Donald Slive, a vocational expert, and Ernest Abilees, a medical expert, also testified at this hearing (Tr. 695-733). At this hearing, plaintiff amended his alleged onset date to June 1, 2001 (Tr. 700-01). In a decision dated December 28, 2005, the ALJ again found that plaintiff had not been under a disability within the meaning of the SSA from June 1, 2000 through the date of the decision .(Tr. 55-64).

On January 30, 2006, plaintiff requested review of ALJ Reap’s decision by the Appeals Council (Tr. 209-10). The Appeals Council granted review, and again remanded the case for further consideration (Tr. 65-67). Specifically, the Appeals Council directed ALJ Reap to (1) re-con-’ sider plaintiffs maximum RFC, including non-exertional limitations, for the relevant time period, (2) re-evaluate the medical opinions of plaintiffs treating, examining, and non-examining physicians and explain what weight is given to each opinion and (3) obtain additional evidence from a vocational expert concerning the extent of plaintiffs non-exertional limitations and whether they further diminished the occupational base (Tr. 66).

ALJ Reap conducted the final administrative hearing on May 15, 2008; plaintiff wás represented by an attorney, Tamra Jones, Esq. Slive, the vocational expert who testified at the third administrative hearing, also testified at this hearing (Tr. 616-35). In a decision dated May 29, 2Ó08, the ALJ again found that plaintiff had not been under a disability within the meaning of the SSA from June 1, 2000 through the date of the decision (Tr. 39 — 47). This determination became the final decision of the Commissioner on June 10, 2010, when the Appeals Council denied plaintiffs request for review (Tr. 6-8).

Plaintiff commenced the present action on July 21, 2010. In the complaint, plaintiff alleges that he is disabled due to blindness in his right eye, “fracture pins” in his right wrist, a plastic tendon in his left finger, a “shoulder tear cuff,” a severe pinched nerve in his lower back, a fractured left toe, high blood pressure and restless leg syndrome (Complaint, dated July 21, 2010 (“Compl.”), (Docket Item 2), ¶ 4). Plaintiff .requests that “this Court ... modify the decision of the defendant ... retroactive to the date of the initial disability, or in the alternative, remand to the Commissioner ... for reconsideration of the evidence” (Compl. at VI). The parties now cross-move for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure (Docket Items 12 and 14).

The Commissioner argues that its decision was supported by substantial evidence and is in accord with applicable law and regulations (Answer, dated December 7, 2010 (“Answer”), (Docket Item 9), ¶ 9; see also Memorandum of Law in Support of the Commissioner’s Cross-Motion for Judgment on the Pleadings and in Opposition to Plaintiffs Motion for Judgment on the Pleadings, dated April 21, 2011 (“Def.’s Mem.”), (Docket Item 15), 15-28). Plaintiff argues that (1) the ALJ’s failure to consider whether plaintiff met the requirements of Listing 1.04 was erroneous, (2) the ALJ violated the treating physician rule, (3) the ALJ’s determination of plaintiffs RFC was erroneous, (4) the .ALJ’s evaluation of plaintiffs credibility was erroneous and (5) the vocational expert’s testimony did not provide substantial evidence to support the ALJ’s decision that plaintiff could perform jobs existing in significant numbers in the national economy (Plaintiffs Memorandum of Law, dated March 16, 2011 (“Pl.’s Mem.”), (Docket Item 13), 11-24).

B. Plaintiffs Social Background

Plaintiff was born on August 30, 1966 (Tr. 45, 61, 276, 617, 697). At the time of the first administrative hearing, plaintiff was 35 years old, lived by himself and had no children (Tr. 101, 649-50, 654, 701). Plaintiff completed high school (Tr. 313, 684, 697).

Plaintiff was last employed as a shipping clerk at “EEB Gift,” a company located in Mount Vernon, New York (Tr. 308, 343, 362, 369, 374-75, 650-51, 702-03). Plaintiff testified that he had not worked since approximately September 2000 (Tr. 640 — 41; 704). He was employed in the shipping clerk position at EEB Gift for approximately one year, from 1999 through 2000 (seé Tr. 308, 343, 369, 374). The reasons that plaintiff gave for leaving this position included that the season had ended and there was no further work (Tr. 307), that his eye condition interfered with his work (Tr. 315), that he or the company had moved (Tr. 374, 673-74) and that the problems with his left arm interfered with his work (Tr. 704).

Other than his position at EEB Gift, plaintiffs employment included (1) a warehouse clerk position at “Uniko MFG,” a company located in New Rochelle, New York, from approximately 1998 through 1999 and (2) a shipping clerk position at “Micro. Bio. Medics,” a company located in Pelham Manor, New York, from approximately 1992 through 1997 (Tr. 308, 343).

Plaintiffs primary duties as a shipping clerk consisted of stocking inventory, packing and shipping orders, unloading inventory with a forklift, using computers and other inventory-related duties (Tr. 308, see also Tr. 650-51, 702-04). He used machines, tools and equipment, as well as had technical knowledge or skills. Plaintiff also wrote, completed reports and performed similar duties, as well as supervised others (Tr. 308). He frequently lifted objects weighing fifty pounds or more, with the maximum weight lifted being one hundred pounds or more (Tr. 308; see also Tr. 702). In a typical workday, which for him consisted of seven .hours, plaintiff spent the entire day alternating among walking, standing, sitting, climbing; stooping, kneeling, crouching and crawling. He also spent the entire day handling, grabbing and grasping big objects, as .well as writing, typing or handling small objects.

C. Plaintiffs Medical Background

1. Information Reported by Plaintiff

In his initial disability report dated October 25, 2000, plaintiff reported that his ability to work was limited due to blindness in his right eye because this condition caused his left eye to tear and itch, and further, because his peripheral vision was “off.” Plaintiff also stated that his condition caused him pain (Tr. 307).

Plaintiff alleged that his condition began to bother him in 1985, that he became unable to work in May 2000, but that he continued to work until approximately September or October 2000 (Tr. 307, 640-41, 704). Plaintiff stated that when his eye began bothering him, he told his employer that he had to “take it easy” (Tr. 307). However, “the dust, strain, -[and] pressure” of his work was “not good for [his eye]” and plaintiff felt that his bosses were more concerned .about plaintiff completing his work than plaintiffs overall health. As a result, plaintiff reported that he was having issues coping with his condition and dealing with others (Tr. 315).

In this report, plaintiff also stated that he first discovered his right eye condition when he was sixteen years old. After noticing' that something was amiss, plaintiff underwent an eye examination and was informed that due to ah injury that he sustained when he was about eight or nine years old, his retina had become detached (Tr. 314; see also Tr. 378). Plaintiff then had a “cataract, retinal detachment” procedure (Tr. 314; see also Tr. 654). However, notwithstanding this procedure, plaintiff became legally blind in his right eye (Tr. 314).

In his request for reconsideration of his disability report filed with the SSA on January 20, 2001, plaintiff reported that he had become “upset and . stressed out,” especially as a result of the SSA’s denial of his disability insurance benefits. Plaintiff also reported that he had been advised by all of his physicians to “be careful” and “take it very easy.” Plaintiff then reported that, in addition to blindness in his right eye, he was suffering, from “inflamed tissue in [his] right shoulder” (Tr. 321). Finally, with respect to his ability to care for his personal needs, plaintiff stated that “due to [his] injury, [he could not] perform the duties as normal people would” (Tr. 323).

In a second request for reconsideration of his disability report filed with the SSA on March 2, 2001 in connection with plaintiffs first request for an administrative hearing, plaintiff reported that he was blind in- his right eye and that his daily activities were “limited.” Plaintiff again stated that his physicians advised him to be “very careful” and to “take it easy.” Plaintiff also reported suffering an injury to his left shoulder in July 2000 (Tr. 331).

With respect to. plaintiffs ability to care for his personal needs, he explained that it was “hard for [him] to focus [because] the operation [on his eye had not] been a success,” and further, that he experienced “eye aches, pain[,] [and] irritation.” Overall, plaintiff described daily life as a “struggle.” Plaintiff also stated that he tried not to’ lift, pull, stretch, or do anything that would cause pain in his shouldér and other parts of his body (Tr. 333). Finally, plaintiff again stated that he was frustrated with the SSA’s denial of his disability insurance benefits (Tr. 334).

2. Treatment Records.

a. Suma Medical Services, Inc.

Plaintiff was examined by various physicians of Suma Medical Services, Inc. (“Suma”) from approximately March 2001 through June 2001.

On March 16, 2001, plaintiff was first examined by Dr. Ranga Krishna, a neurologist, in connection with a work-related accident that occurred on July 12, 2000 (Tr. 469-72; - see also Tr. 562-63). Dr. Krishna noted that plaintiff reported injuring his neck, left shoulder and lower back “while, lifting heavy objects at work.” Plaintiff also reported that while he had not lost consciousness at the time of the injury, “he [had been] dazed, stunned and confused.” Plaintiff then went to Mount Vernon Hospital, but was released shortly after an evaluation. Plaintiffs complaints at the time of Dr. Krishna’s examination consisted of intermittent lower back pain, left-shoulder pain and neck pain (Tr. 469, see also Tr. 562). After examining plaintiff, Dr. Krishna noted “multiple areas of mild paraspinal tenderness along the lumbar spine especially at the L3-S1 levels on both sides,” as well as “paraspinal muscle spasm” and a “restricted range of motion in all planes” (Tr. 470). With respect to plaintiffs cervical spine, Dr. Krishna noted “moderate suboccipital tenderness and multiple areas of tenderness,” as well as “paraspinal muscle spasm” and a “restricted range of motion.” Overall, plaintiffs range of motion in the lumbosacral spine was 70 degrees and his range of motion in the cervical spine was 60 degrees. Additionally, plaintiffs foraminal compression test was positive, and there was 0-60 degrees straight leg raising bilaterally (Tr. 471). With respect to plaintiffs left shoulder, Dr. Krishna noted “positive tenderness on palpation of the left shoulder joint” (Tr. 470).

Dr. Krishna also made the following findings. Plaintiffs deep tendon reflexes were 2+, ie., normal, bilaterally. All sensation testing resulted in normal findings. His gait was normal (Tr. 470). Plaintiffs ability for immediate recall was “good” and his long-term memory was “preserved within normal limits.” His speech was “fluent,” and further, his spoken language comprehension was “intact.” Plaintiffs higher cognitive function was also “intact” and “compatible” with his level of education'. Plaintiffs visual acuity and hearing acuity weré also “normal” (Tr. 471).

On the basis of the foregoing, Dr. Krishna’s diagnosis was cervical post-traumatic sprain syndrome, lumbar post-traumatic sprain syndrome, and rule out internal derangement of the left shoulder joint (Tr. 471). Dr. Krishna also opined that plaintiff was “temporarily totally disabled at this time.” With respect to treatment of plaintiffs injuries, Dr. Krishna recommended that plaintiff (1) undergo physical therapy sessions four to five times per week, (2) take Naprosyn for pain, (3) refrain from strenuous physical activities, (4) undergo an orthopedic consultation, (5) undergo a pain management consultation and (6) undergo chiropractic treatment of his cervical spine. Dr. Krishna’s prognosis for plaintiff was “guarded.” He also opined that plaintiffs work-related injury-was “a competent provocative cause of [his] impairment and disability” (Tr. 472).

Plaintiff underwent electromyogram (“EMG”) and nerve conduction studies on April 4, 2001 and May 2, 2001 (Tr. 400-01). The April 2001 study revealed left C5-6 radiculopathy (Tr. 400) and the May 2001 study revealed left L5-S1 radiculopathy (Tr. 401). It was recommended that plaintiff (1) refrain from physically strenuous activities, (2) continue current therapy, (3) continue pain medications and (4) undergo a neurological follow-up examination (Tr. 400-01).

On May 24, 2001, Dr. Jatindgr Singh Bakshi, a neurologist, filled oút a form entitled “Physician Plan of Treatment and Care” (Tr. 395, 561). On this form, Dr. Bakshi indicated that plaintiff was temporarily unemployable due to blindness in his right eye, left shoulder derangement and lower back syndrome. Dr. Bakshi also noted that plaintiffs treatment plan consisted of physical therapy sessions three times per week, with an expected duration of approximately one year. Dr. Bakshi’s prognosis was “guarded” (Tr. 395, 561).

On May 25, 2001, Dr. Krishna completed a New York State workers’ compensation form for plaintiff (Tr. 397-98). On this form, Dr. Krishna stated that plaintiff had injured himself during work as a result of lifting overloaded boxes. Dr. Krishna also noted that a neurological consultation of plaintiff revealed that he was “temporarily totally disabled” and that he was authorized for physical therapy sessions four times per week. Dr. Krishna listed plaintiffs diagnosis as thoracic or lumbosacral neuritis (Tr. 397-98).

On June 13, 2001, Sadie Patel, a physical therapist, completed a second New York State workers’ compensation form for plaintiff (Tr. 399). Patel reported substantially the same information that had been reported on May 25, 2001. The only difference was that Patel listed plaintiffs diagnosis as lumbago, thoracic or lumbosacral neuritis and sprain of an unspecified site of the shoulder (Tr. 399).

b. Mount Vernon Neighborhood Health Center

Plaintiff was examined by physicians at the Mount Vernon Neighborhood Health Center (“Mount Vernon Center”) in, approximately May 1999, May 2001 and between January 2002 and March 2002 (see Tr. 377, 388-90, 480-99).

Plaintiff was first examined by- Dr. Michael Borone, an ophthalmologist, on May 3,1999 (Tr. 377, 388-90). Dr. Boron found that plaintiff was blind in his right eye and that he was at risk for glaucoma in his left eye (see Tr. 377, 388-90).

The treatment records show that plaintiff was next examined at Mount Vernon Center by Barry Leavelle, a physician’s assistant, on May 24, 2001 (Tr. 495). ’ Leavelle also noted that plaintiff was blind in his right eye and that he had injured his left shoulder and lower back at work in July 2000. In addition, he noted that plaintiff complained of (1) pain radiating to his left biceps and cervical spine and (2) sores on his head. Plaintiff was undergoing physical therapy three times per week (Tr. 495). After examining plaintiff, Leavelle noted “trapezius tenderness” on plaintiff’s right side and a decreased range of motion in his left shoulder with pain. Straight leg raising was positive bilaterally with pain. Specifically, plaintiff was limited to 45 degrees on the left side and 30 degrees on the right side. Leavelle’s assessment of plaintiff was injury to the left shoulder and lower back, as well as blindness in the right eye. On the basis of the foregoing, Leavelle opined that plaintiff was “temporarily unemployable [for] [six] months” (Tr. 495).

Leavelle examined plaintiff again on January 22, 2002 (Tr. 493). At this examination, plaintiff reported (1) left shoulder pain, with no pain radiating to his hand and (2) neck pain and back pain, which he had rated as an 9 out of 10. Plaintiff also described his back pain as a “shooting [and] sharp pain” felt while standing. 'At the time., plaintiff was taking Naprosyn (Tr. 493). With respect to plaintiffs back, the examination revealed “lumbar tenderness to palpation.” Straight leg raising was positive bilaterally with pain. Specifically, plaintiff was limited to 30 degrees on the left side and 20 degrees on the right side. Leavelle’s assessment was injury to plaintiffs left shoulder and lumbar spine, as well as blindness in the right eye. On the basis of the foregoing, Leavelle again opined that plaintiff was “temporarily unemployable [for] [six] months” (Tr. 493).

On January 28, 2002, plaintiff was examined by Dr. Sreenivasa Patibandla, an internist (Tr. 494). While the handwritten report from this examination is extremely difficult to read, it appears that part of plaintiffs assessment was “back pain.” Additionally, it appears that Dr. Patibandla prescribed some medication for plaintiff to take for his pain (Tr. 494).

Plaintiff was next examined by Dr. Steven Levine, an internist, on February 1, 2002 (Tr. 491; see also Tr. 570). During this examination, Dr. Levine noted that plaintiff complained of (1) lower back pain radiating to his right leg, which he had rated as an 9 out of 10 and (2) left shoulder pain, which he had rated as an 10 out of 10. Plaintiff also stated that he had been experiencing pain in his lower back and in his left shoulder since his work-related injury in July 2000. In addition, ,Dr. Levine noted that plaintiff underwent an EMG, which revealed a pinched nerve (Tr. 491). After examining plaintiff, Dr. Levine noted that straight leg raising was positive on the right side. Specifically, plaintiff was limited to 45 degrees on the right side only. Plaintiffs deep tendon reflexes were 3/4 in the patella bilaterally and 1/4 in the Achilles tendon bilaterally. On the basis of the foregoing, Dr. Levine’s assessment was lumbar radiculopathy and rule out left shoulder rotator cuff injury. Dr. Levine recommended that plaintiff continue taking Naprosyn (Tr. 491).

Dr. Levine examined plaintiff again on February 8, 2002 (Tr. 492;' see also Tr. 570). Dr. Levine first noted that while plaintiff had experienced a day or two of relief from pain, his left shoulder pain was presently an 10 out of 10 and his lower back pain was presently an 9 out of 10. After examining plaintiff, Dr. Levine found tenderness to palpation in his left shoulder, as well as a questionable range of motion because plaintiff moved his shoulder “very slowly.” Dr. Levine also found tenderness in plaintiffs lower back at L2-Sl. Dr. Levine’s assessment was' lower back pain and left shoulder pain (Tr. 492).

On February 11, 2002, plaintiff was examined by Dr. Bentley Patterson, a dermatologist (Tr. 490). At this time, plaintiff complained of a rash on his scalp that sometimes bled. He stated that the rash developed approximately twice a year. Dr. Patterson’s assessment of plaintiffs condition was folliculitis of the 'scalp and acne keloid. He prescribed antibiotics and topical solutions (Tr.- 490).

On February 11, 2002, plaintiff was also examined by Dr. Boron (see Tr. 489, 564). Dr. Boron noted that plaintiff was blind in his right eye, as well as that plaintiff had filed for disability insurance benefits on the basis of a back problem (Tr. 489).

On February 13, 2002, plaintiff- underwent an x-ray of his left shoulder (Tr. 491, 498). This x-ray revealed no abnormal findings (Tr. 498).

On February 19, 2002, plaintiff underwent a magnetic resonance imaging (“MRI”) scan of his left shoulder and. of his lumbar spine (Tr. 438-41, 497). The scan of plaintiffs left shoulder revealed mild subcoracoid bursitis, no rotator cuff tear and a mild impingement on the rota-tor cuff (Tr. 438-39, 497). The scan of plaintiffs lumbar spine revealed pain and L4-5 left ligamentum flavum.hypertrophy with mild postero lateral thecal sac narrowing (Tr. 440).

. Plaintiff was last examined by Dr. Levine on February 22, 2002 (Tr. 488). Dr. Levine first noted that plaintiff had returned for further acupuncture treatment. Dr. Levine then noted that plaintiff reported slight relief in his shoulder. with this treatment, though the pain had worsened again with lifting. Plaintiff rated the pain in his left shoulder and lower back as an 9 out of 10. Dr. Levine also noted that plaintiff was taking Naprosyn and Vioxx for pain, but that he reported experiencing “little, if any,” relief (Tr. 488). After examining. plaintiff, Dr. Levine noted tenderness in plaintiffs left shoulder at the bursa, as well as tenderness in his lower back at L3-L4 and L4-L5. Based on the foregoing, Dr. Levine’s assessment was lumbar radiculopathy and shoulder pain. He reeommended that plaintiff continue taking pain medication (Tr. 488).

Dr. Levine'also wrote a letter dated February 22, 2002 concerning plaintiff’s treatment (Tr. 435). In this letter, Dr. Levine stated that he had been treating plaintiff for pain in his left shoulder and lower back since February 1, 2002. Dr: Levine then summarized his findings to date and stated that he had referred plaintiff to an orthopedist for a surgical evaluation. It was Dr. Levine’s opinion that plaintiff was “currently totally disabled” (Tr. 435).

Plaintiff was examined by Dr. Patterson again on February 22, 2002 and February 25, 2002 (Tr. 486-87). Dr. Patterson’s records show that plaintiff continued to suffer from folliculitis and acne keloid. Dr. Patterson also noted that plaintiff was not experiencing pain in his scalp as of February 25, 2002, though mild scabs had formed (Tr. 486-87).

On February 26, 2002, plaintiff underwent an x-ray of his left shoulder. (Tr. 486, 499). This x-ray revealed the following: (1) “left shoulder in several positions including west point, interior rotation and exterior rotation” and (2) “grossly negative study of the left shoulder girdle and osseous structures” (Tr. 499).

On February 28, 2002, plaintiff was again examined by Dr. Boron (Tr. 485, 564). Dr. Boron again found that plaintiff was blind in his right eye, had 20/20 vision in his left eye and was “glaucoma suspect” in.his left eye (Tr. 485, 564).

On March 1, 2002, Dr. Michael Palmeri, an orthopedist, conducted an orthopedic consultation of plaintiff (see Tr. 434, 483, 575). Dr. Palmeri noted that plaintiff had sustained injuries to his left shoulder and lower back, and that he was undergoing physical therapy and taking Vioxx for his pain. He also noted that plaintiff stated that the Vioxx did not relieve his pain (Tr. 434, 483, 575). After examining plaintiff, Dr. Palmeri found a decreased range of motion in plaintiffs shoulder, as well as paralumbar tenderness in his lumbar spine." Straight leg raising was negative. Dr. Palmeri’s assessment of plaintiffs condition was a shoulder impairment with a probable partial rotator cuff. He recommended physical therapy, as well as possible left shoulder arthoscopy (Tr. 434, 483, 575).

The treatment records show that plaintiff was next examined at Mount Vernon Center on March 7, 2002 (see Tr. 481-82, 573-74). The notes from this date appear to largely confirm the findings discussed above. The treatment records also show that plaintiff failed to appear for his scheduled appointments after this date (see Tr. 480, 484, 571, 576).

Dr. Boron completed a “Vision Impairment Questionnaire” on September 19, 2002 (Tr. 448-55; see also Tr. 480, 571). In this questionnaire, Dr. Boron stated that he had first treated plaintiff on May 3, 1999, that he had last treated plaintiff on February' 28, 2002 and that the frequency of treatment was approximately every six months. Dr. Boron’s diagnosis/prognosis for plaintiffs right eye was “blind[ness] ... secondary to old retinal detachment” with no improvement expected and his diagnosis/prognosis for plaintiffs left eye was “glaucoma suspect based on optic nerve exam” with a good prognosis (Tr. 448-49). Dr. Boron also noted the following with respect to plaintiffs left eye: (1) 20/20 vision without glasses, (2) full field of vision, (3) normal muscle function and (4) great visual efficiency. Finally, Dr. Boron recommended a follow-up examination because of plaintiffs risk for glaucoma (Tr. 450).

With respect to plaintiffs ability to function, Dr. Boron commented that while plaintiff has “some visual, field limitations on the right,” he “would be able to perform tasks well that do not demand stereoacuity” Dr. Boron also stated that plaintiffs pain and other symptoms (1) would “never” be severe enough to interfere with his attention and concentration and (2) would not be likely to produce “good days” and “bad days.” Additionally, plaintiff would not need to take unscheduled breaks throughout the workday (Tr. 452). Finally, Dr. Boron opined that plaim tiff had no other work-related limitations (Tr. 453).

Dr. Levine wrote a letter to the SSA dated March 22, 2005 (Tr. 570): In this letter, Dr. Levine stated that he was unable to describe plaintiffs then current exertional limitations because he had not examined him in over three years (Tr. 570).

c. Mount Vernon Hospital.

Plaintiff was also examined by various physicians at Mount Vernon Hospital. The treatment records indicate that plaintiff was first examined by Dr. Abdullah Mahdi, an internist, on August 18, 2001. This examination revealed normal findings, except for blindness in the right eye (Tr. 393-94).

Plaintiff was next examined by Dr. Karlene Chin, an internist, on July 20, 2002 because of a right wrist injury (see Tr. 427-30, 502). Plaintiff sustained this injury as a result of hitting his hand against a pole. Dr. Chin’s assessment was intraarticular fracture of the right distal radius. Plaintiffs wrist was tender and swollen (Tr. 427). He also had minimal mobility of his fingers. , Additionally, abnormalities in plaintiffs sensory/perception systems and musculoskeletal system were noted (Tr. 428). Plaintiff was instructed to follow up with Dr. John Mitamura, an orthopedist (Tr. 429-30).

Plaintiff was examined by Dr. Mitamura on July 29, 2002 (see Tr. 408-26, 504-06). Dr. Mitamura diagnosed plaintiff as suffering from a right wrist fracture of the carpal bone and he recommended that plaintiff undergo ah internal fixation procedure (Tr. 408). Dr. Mitamura’s report also indicated that (1) plaintiff was currently taking Naprosyn, (2) a review of plaintiffs pertinent systems was nonremarkable and (3) plaintiff was experiencing pain in his right lower extremities (Tr. 410-11). Dr. Mitamura’s post-operation notes indicate that a “closed reduction wrist fracture procedure and application of [an] external - fixation device” had been performed on plaintiff (Tr. 505-06, see also Tr. 417).

The treatment records for September 12, 2002 show that plaintiff was admitted to Mount Vernon Hospital to have the external fixation device removed from his right wrist (Tr. 523-33, 539-57). Dr. Mitamura noted that plaintiff had developed cellulitis in his right wrist, though swelling had diminished “significantly” (Tr. 523, 525-26, 533). Plaintiff also complained of worsening pain. A review of plaintiffs sensory/perception systems and musculoskeletal system again revealed abnormal findings (Tr. 528). _ However, the severity of plaintiffs pain was perceived to be an 3 out of 10, and plaintiff had a good range of motion in his lower extremities (Tr. 532). Plaintiffs reflexes were 2/4 in his biceps, triceps, plantar, patellar and ankle jerk (Tr. 532). Finally, the treatment records indicate that plaintiff was taking Naprosyn and Celebrex (Tr. 530).

On September 13, 2002, Dr. Mitamura removed the external fixator device from plaintiff s wrist and performed irrigation and debridement of the external fixator site (Tr. 507-09, 523-25, 534-40, 545-57). Plaintiffs pre- and post-operative diagnoses were “status post-right wrist fracture with external fixator with possible infection” (Tr. 508, 534).

On November 15, 2002, Dr. Jorge Beale, an internist, completed a “Physician’s Assessment of Client’s Employability’-’ form (Tr. 515). In this form, Dr. Beale noted that plaintiff had (1) lower back pain, which radiated to his right leg because of a pinched nerve, (2) a broken wrist for which he had surgery and. (3) ligamentum flavum hypertrophy. Dr. Beale’s diagnosis was blindness in the right eye, impingement of the left rotator cuff and lumbar left ligamentum flavum hypertrophy with mild posterolateral thecal sac narrowing. Dr. Beale opined that plaintiff was “permanently unemployable” due to the blindness in his right eye (Tr. 515)

Dr. Beale also wrote a letter dated September 21, 2005, stating that plaintiff was “under much stress” (Tr. 577). Dr. Beale noted that plaintiff’s problems included blindness in his right eye, shoulder pain and lower back pain. Dr. Beale also noted that surgery had been recommended, that plaintiff was taking pain medication and that plaintiff was “presently unable to hold a permanent job” (Tr. 577).

Dr. Beale subsequently completed a “Multiple Impairments Questionnaire” on November 5, 2005 (Tr. 578-85). In this questionnaire, Dr. Beale noted that he had first examined plaintiff on November 15, 2002, that he had last examined plaintiff on November 4, 2005 and that the frequency of treatment was approximately every six months. Dr. Beale’s diagnosis was blindness in the right eye, status post broken wrist with slight neuropathy and lower back pain. His prognosis for plaintiff was “guarded” (Tr. 578). He also noted that plaintiff reported pain in (1) his lower back, which radiated to his left lower extremity, (2) his right wrist and (3) his left shoulder (Tr. 579). The pain was intermittent, but constant (Tr. 580). Dr. Beale estimated that plaintiffs pain was an 8 out of 10, and he further estimated that plaintiffs fatigue was an 5 out of 10 (Tr. 580). With respect to medications, Dr. Beale noted that plaintiff was taking Motrin, Lexapro, Doxepin and other medications, as well as was using eye drops (Tr. 582).

With respect to plaintiffs ability to work, Dr. Beale opined that plaintiff could (1) sit for three hours out of an eight-hour workday and (2) stand or walk for one hour out of an eight-hour workday (Tr. 580). Plaintiff could only lift and carry objects weighing up to. ten to twenty pounds “occasionally.” Overall, plaintiff had “significant limitations” in “repetitive reaching, handling, fingering or lifting” (Tr. 581). Plaintiff also had “moderate” limitations in his right arm and hand with (1) grasping, turning and twisting objects, (2) using his fingers/hands' for fine manipulations and (3) using his arms for reaching, including overhead reaching. He had no limitations in his left arm and hand (Tr. 581-82). ... '

Dr. Beale also opined that plaintiffs symptoms were likely to increase if he were placed in a competitive work environr ment, though his condition was not likely to interfere with his ability to keep his neck in a constant position (Tr. 582). Plaintiff would, however, “frequently” experience pain, fatigue or other symptoms severe enough to interfere with his attention and concentration. Plaintiff would also need to take unscheduled breaks at unpredictable intervals during the workday and he would likely have to rest for approximately fifteen to thirty minutes before returning to work (Tr. 583). Dr. Beale predicted that plaintiff would likely miss more than three workdays a month. Finally, Dr. Beale opined that plaintiff had vision and psychological limitations, both of which would affect his ability to work (Tr. 584).

Thus, while Dr. Beale found plaintiff capable of handling a “low stress” work environment, he opined that plaintiff was unable tó do a full-time competitive job requiring. activity on a sustained basis. Dr. Beale explained that plaintiff was “very anxious” and had “persistent pain” (Tr. 583).

On July 28, 2006, Dr. Beale completed a “Medical Diagnosis/Verification Questionnaire” for the SSA (Tr. 594). In this questionnaire, Dr. Beale stated that plaintiff was suffering from blindness in his right eye, radiculopathy and depression. He- further opined that plaintiff was not employable (Tr. 594).

On October 11, 2006, a second questionnaire was completed (Tr.'598-99). In this questionnaire, plaintiffs “disabling factor[s]” were listed as blindness in the right eye and chronic pain. Plaintiff was again described as permanently unemployable (Tr. 598). This questionnaire also noted that plaintiff (1) was receiving treatment on a bi-monthly basis and (2) had been referred to an orthopedic specialist (Tr. 598-99). Finally, plaintiffs medications were listed as Naproxen, APAP/Codeine, Cephalexin, Ibuprofen and Lexapro (Tr. 599).

On November 20, 2006, a.third questionnaire was completed (Tr. 606-07). In this questionnaire,’ plaintiffs. medications were listed as Naproxen, Ibuprofen and Lexapro. Plaintiff was undergoing therapy twice a month. Plaintiff continued to be described as not employable (Tr. 606).

With respect to physical functioning, plaintiff was said to be limited in the following activities (limited to one and a half hours, respectively): walking, standing, sitting, lifting, carrying, pushing, pulling, bending, seeing, using his hands, using the stairs and engaging in other climbing activities. With respect to mental functioning, plaintiff was said to be limited 'in understanding and remembering instructions, maintaining attention and concentration, making simple decisions and keeping scheduled appointments (Tr. 607).

Lastly, with respect to relevant Mount Vernon Hospital treatment records, the administrative record contains Patient Progress Notes, which span from March 2006 through October 2006 and appear to be signed by Dr. Beale (see Tr. 590-91). These notes appear to confirm the complaints and findings already discussed above — namely that plaintiff (1) continued to complain of pain and (2) experienced decreased strength in his hands, as well as a- limited range of motion in his back (Tr. 590). In late July 2006, it was recommended that plaintiff undergo a psychiatric consultation (Tr. 591). As of October 2006, .plaintiffs diagnosis was cervical radiculopathy, lumbosacral strain and