WILLIAMS v. ASTRUE

d gotten worse over time, and that it was "unbearable." ( Id.)

After the initial denial of benefits, plaintiff filed another disability report sometime between July 25, 2007 and August 26, 2007 as part of her appeal that detailed changes to her medical condition. (Tr. 95-101.) Plaintiff stated in her disability report that the left side of her body swelled while she slept, and that she suffered from stress because of her "son's hyperactive behavior." (Tr. 96.)

Disability-Report-Appeal-Form SSA-3341

The form is not dated.

These were the only changes in her medical condition.

E. Hearing Testimony

1. Plaintiff's Testimony

At the hearing held July 21, 2008, plaintiff stated that she began to suffer from swelling in 1983 and stopped working as a result. (Tr. 24.) Plaintiff testified that she was subsequently diagnosed with arthritis, asthma, and high blood pressure. ( Id.) She said that she was currently not working because she had recently undergone iodine chemotherapy and was suffering from swelling in her feet and legs. (Tr. 25.) Plaintiff testified that the swelling caused her legs to become "hard," which made walking uncomfortable. ( Id.) She claimed that she could only walk one and a half blocks before she had to rest because her legs and feet would begin to swell, with her ankles becoming particularly swollen. (Tr. 26.) Plaintiff testified that she also would suffer from pain in her knees. ( Id.) When the ALJ asked plaintiff if there were any reasons why she could not sit for one hour at a time, she replied that she was also suffering from pain in her lower back and stiffness in her legs. ( Id.)

In response to the medical expert's testimony, plaintiff stated that she could not stand for one straight hour due to swelling in her ankles. (Tr. 31.) Plaintiff testified that her children helped her shop and cook. ( Id.) She also mentioned that her legs "lock a lot." ( Id.) Finally, plaintiff testified that she took Tylenol and Advil to relieve pain. (Tr. 32.)

2. Witness Testimony

Shamika Torres ("Ms. Torres"), plaintiff's sister, testified that, on occasion, plaintiff could not get out of bed because of "her back locking, and her legs." (Tr. 27.) Ms. Torres also stated that plaintiff had to be home to care for plaintiff's eight-year-old son who suffered from attention deficit hyperactive disorder and only attended school for part of the day. ( Id.)

3. Medical Expert Testimony

On July 21, 2008, Dr. Bernard Gustaf testified as a medical expert at plaintiff's hearing with regard to her SSI application. (Tr. 27-30.) Dr. Gustaf was present for the hearing testimony and had reviewed the exhibits submitted to the court. (Tr. 28.) Dr. Gustaf testified that plaintiff's asthma was under control, so her lung impairment was not severe enough to qualify as a disability listed in the Regulations. (Tr. 29.) He stated that she did not have a lung insufficiency problem. ( Id.) Dr. Gustaf stated that she could ambulate effectively despite her knee problems based on plaintiff's ability to walk her children to school. ( Id.) He opined that plaintiff's major health issue was thyroid cancer for which she received treatment. ( Id.) Dr. Gustaf stated that there was "no evidence of metastatic disease of even involvement of the regional lymph nodes," meaning plaintiff's thyroid condition did not meet the definition of a disability. ( Id.) Finally, Dr. Gustaf noted that plaintiff was obese. ( Id.) He testified that, even in combination, plaintiff's conditions did not rise to the level of a disability. (Tr. 29.) Dr. Gustaf opined that plaintiff could walk, stand, or perform some combination of the two for one hour at a time, and could do so for a total of six hours a day if she took intermittent breaks. (Tr. 29-30.) He also felt that she could lift items weighing up to 20 pounds. (Tr. 30.)

Metastatic refers to "the shifting of a disease or its local manifestations, from one part of the body to another. . . ." Stedman's at 250590.

DISCUSSION A. Standard of Review

1. The Substantial Evidence Standard

"A district court may set aside the [ALJ's] determination that a claimant is not disabled only if the factual findings are not supported by `substantial evidence' or if the decision is based on legal error." Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal citations omitted). "Substantial evidence" is "more than a mere scintilla and has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). An evaluation of the "substantiality of evidence must also include that which detracts from its weight." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

Accordingly, if there is substantial evidence in the record to support the Commissioner's factual findings, those findings are conclusive and must be upheld. See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999); see also 42 U.S.C. § 405(g). Moreover, the reviewing court "may not substitute its own judgment for that of the [ALJ], even if it might justifiably have reached a different result upon a de novo review." Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)).

2. The ALJ's Affirmative Duty to Develop the Record and the ALJ's Duty to Apply the Proper Legal Standard

Notwithstanding the substantial deference afforded to the ALJ's determination, remand is appropriate for further development of the evidence where there are gaps in the administrative record or where the ALJ has applied an improper legal standard. See Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999). "Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record." Burgess, 537 F.3d at 128; see Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009) ("[S]ocial security hearings are not [or at least are not meant to be] adversarial in nature.").

Remand may be required where the ALJ fails to discharge his or her affirmative obligation to develop the record when making a disability determination. See Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996); Echevarria v. Sec'y of Health Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (holding that in deciding whether the Commissioner's findings are supported by substantial evidence, courts must first ensure that claimant is afforded a full and fair hearing and a fully developed record). Indeed, when a claimant proceeds pro se, the ALJ has a "heightened duty to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (citing Echevarria, 685 F.2d at 755).

B. Legal Standards for Disability Claims

1. The Commissioner's Five-Step Analysis of Disability Claims

A claimant is disabled within the meaning of the Act if he or she has an "inability to engage in any substantial gainful activity ["SGA"] by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." U.S.C. § 423(d)(1)(A); see also 20 C.F.R. §§ 404.1572(a), 416.972(a) (defining "substantial gainful activity"). The impairment must be of "such severity that [the claimant] is not only unable to do [his or her] previous work but cannot, considering [his or her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).

The SSA has promulgated a five-step sequential analysis requiring the ALJ to make a finding of disability if he or she determines:

(1) that the claimant is not working, (2) that he [or she] has a `severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his [or her] prior type of work, the Commissioner must find him disabled if (5) there is not another type of work that claimant can do.

Burgess, 537 F.3d at 120 (internal citations omitted); see also 20 C.F.R. § 404.1520(a)(4).

The claimant must prove his case at steps one through four; thus, the claimant bears the "general burden of proving . . . disability." Burgess, 537 F.3d at 128. At the fifth step, the burden shifts from the claimant to the Commissioner, requiring the Commissioner to show that in light of the claimant's RFC, age, education, and work experience, he or she is "able to engage in gainful employment within the national economy." Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997). In making that determination, the Commissioner need not provide additional evidence about the claimant's RFC, but may rely on the same assessment that was applied in step four's determination of whether the claimant can perform his or her past relevant work. See 20 C.F.R. § 404.1560(c)(2); Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).

At the fifth step, under appropriate circumstances, the Commissioner may meet his burden "by rely[ing] on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as `the Grid.'" See Mejia v. Astrue, No. 09-CV-9656, 2010 WL 2572006, at *12 (S.D.N.Y. June 28, 2010) (quoting Zorilla v. Chater, 915 F. Supp. 662, 667 n. 2 (S.D.N.Y. 1996) (internal quotation marks omitted). The Grid accounts for a claimant's RFC, age, education, and work experience, and uses those factors to determine whether a claimant can engage in any other SGA that exists in the national economy. ( Id.)

The Grid classifies types of employment into five categories based on the exertional requirements of the jobs. Rosado v. Astrue, 713 F. Supp. 2d 347, 365 (S.D.N.Y. 2010) (quoting Zorilla, 915 F. Supp. at 667 n. 2); see also 20 C.F.R. § 404.1567(a). Specifically, it "divides work into sedentary, light, medium, heavy and very heavy, based on the extent of requirements in the primary strength activities of sitting, standing, walking, lifting, carrying, pushing, and pulling." Rosado, 713 F. Supp. 2d at 365 (quoting Zorilla, 915 F. Supp. at 667 n. 2) (internal quotation marks omitted). If a claimant has the RFC necessary to perform at least one category of work listed in the Grid, and if the claimant's education and other characteristics are reflected in the Grid, the Commissioner may rely solely on the Grid to determine whether the claimant has the RFC to perform "work other than his or her past work." Fortier v. Astrue, No. 09-CV-993, 2010 WL 1506549, at *13 (S.D.N.Y. Apr. 13, 2010) (citing Butts, 388 F.3d at 383).

"However, exclusive reliance on the [Grid] is inappropriate where the guidelines fail to describe the full extent of a claimant's physical limitations." Butts, 388 F.3d at 383 (quoting Rosa, 168 F.3d at 78) (internal quotation marks omitted). As will be explained below, if a claimant has nonexertional limitations in addition to exertional limitations, the Grid may not be dispositive of the disability determination. Bapp v. Bowen, 802 F.2d 601, 604-05 (2d Cir. 1986).

2. The Nonexertional Limitation Rule

"Limitations or restrictions which affect [the] ability to meet the demands of jobs other than the strength demands, that is, demands other than sitting, standing, walking, lifting, carrying, pushing or pulling, are considered nonexertional." Butts, 388 F.3d at 381 n. 1 (quoting 20 C.F.R. § 416.969a(a)) (internal quotation marks omitted). Nonexertional limitations include "difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching." Id. (quoting 20 C.F.R. § 416.969a(c)(vi)) (internal quotation marks omitted); see also Washington v. Bowen, 646 F. Supp. 1058, 1062 (S.D.N.Y. 1986) (referring to bending to be a nonexertional limitation). Nonexertional limitations also include "mental, sensory, or skin impairments," and environmental restrictions such as "difficulty tolerating dust or fumes" due to asthma. Burgos v. Barnhart, No. 01-CV-10032, 2003 WL 21983808, at *18 n. 8, 19 (S.D.N.Y. Aug. 20, 2003) (internal citation and quotation marks omitted).

As previously stated, where a claimant has both exertional and nonexertional limitations, the Grid may not be used as the "exclusive framework" for determining whether the claimant is disabled according to Agency regulations. Johnston v. Astrue, No. 07-CV-5089, 2008 WL 4224059, at *11 (E.D.N.Y. Sept. 8, 2008) (citing Bapp, 802 F.2d at 605); see also 20 C.F.R. § 404.1569(d) (stating that the Grid will not be directly applied when the claimant's impairments hinder his or her ability to satisfy the exertional and nonexertional requirements of a job unless "there is a rule that directs a conclusion that [the plaintiff] is disabled based upon his [or her] strength limitations. . . ."). This is because "if a claimant's nonexertional impairments significantly limit the range of work permitted by his exertional limitations, then the [Grid] obviously will not accurately determine disability status because [it] fail[s] to take into account claimant's nonexertional impairments." Bapp, 802 F.2d at 605 (internal citation and quotation marks omitted).

The introduction to the Grid likewise states:

Where any one of the findings of fact does not coincide with the corresponding criterion of a rule, the rule does not apply in that particular case and, accordingly, does not direct a conclusion of disabled or not disabled. In any instance where a rule does not apply, full consideration must be given to all of the relevant facts of the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations.

20 C.F.R. § 404, Subpt. P, App. 2.

Accordingly, the "ALJ must consider and address on the record the combined effects of the claimant's exertional and non-exertional limitations and the advisability of additional testimony before resorting to the [Grid]." Nigino v. Astrue, No. 04-CV-3207, 2009 WL 840382, at *5 (E.D.N.Y. Mar. 30, 2009) (citing Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)). If the ALJ finds the nonexertional limitations significantly diminish the range of work the claimant can perform, the ALJ must hear testimony from a vocational expert or seek out similar evidence that there are jobs "in the national economy which the claimant can obtain and perform." Id. at *6 (citing Rosa, 168 F.3d at 78). The range of work is significantly restricted by nonexertional limitations when a claimant suffers an "additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive him [or her] of a meaningful employment opportunity." Bapp, 802 F.2d at 606; see also Baldwin v. Astrue, No. 07-CV-6958, 2009 WL 4931363, at *27 (S.D.N.Y. Dec. 21, 2009). Whether a claimant's nonexertional limitations significantly diminish the range of work a claimant can perform may be decided without the assistance of a vocational expert. See, e.g., Bapp, 802 F.2d at 606.

3. The Treating Physician Rule and the Commissioner's Duty to Give "Good Reasons" for the Weight Given to Physicians' Opinions

Under the Commissioner's regulations, the medical opinion of a treating source "on the issue(s) of the nature and severity of [the] impairment" will be given controlling weight if such opinion "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); see also Burgess, 537 F.3d at 128. Medically acceptable clinical and laboratory diagnostic techniques include consideration of a "patient's report of complaints, or history, [a]s an essential diagnostic tool." Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (internal citation and quotation marks omitted). According to the Commissioner's regulations, the opinions of treating physicians deserve controlling weight because "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations . . ." Balodis v. Leavitt, No. 08-CV-3422, 2010 WL 1328943, at *8 (E.D.N.Y. Mar. 31, 2010) (quoting 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)).

Furthermore, when a treating physician's opinion on the nature and severity of a claimant's disability is not afforded "controlling" weight, the ALJ must "comprehensively set forth [his or her] reasons for the weight assigned to a treating physician's opinion." Burgess, 537 F.3d at 129 (quoting Halloran, 362 F.3d at 33) (internal quotation marks omitted). Although the regulations do not explicitly or exhaustively define what constitutes "good reasons" for the weight given to a treating physician's opinion, the regulations provide the following enumerated factors that guide an ALJ's determination when declining to afford controlling weight to a treating physician on the issue of the nature and severity of a disability: (1) the length of the treatment relationship and the frequency of examination, (2) the nature and extent of the treating relationship, (3) the supportability of the treating source opinion, (4) the consistency of the opinion with the rest of the record, (5) the specialization of the treating physician, and (6) any other relevant factors. 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6); see also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).

Although the SSA also considers opinions from treating physicians regarding the RFC, disability, and employability of a claimant, the final responsibility for determining these matters is reserved to the Commissioner, not to physicians; therefore, the source of an opinion on those matters is not given "special significance" under the regulations. Francois v. Astrue, No. No. 09-CV-6625, 2010 WL 2506720, at *6 (S.D.N.Y. June 21, 2010) (citing 20 C.F.R. § 404.1527(e)(3)); see also 20 C.F.R. § 416.927(e)(1) ("A statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled."); Snell, 177 F.3d at 133 ("A treating physician's statement that the claimant is disabled cannot itself be determinative."). In fact, "[t]he Commissioner is not . . . even necessarily permitted, to accept any single opinion, even that of a treating physician, as dispositive on the determination of disability." Francois, 2010 WL 2506720, at *5 (citing Green-Younger, 335 F.3d at 106).

Despite the fact that the disability determination is reserved for the Commissioner, the Second Circuit has held that ALJs are not exempt "from their obligation, under Schaal and § 404.1527(d)(2), to explain why a treating physician's opinions are not being credited." Snell, 177 F.3d at 134 ("The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases, even — and perhaps especially — when those dispositions are unfavorable."); see also 20 C.F.R. § 404.1527(d)(2) (the SSA "will always give good reasons in [its] notice of determination or decision for the weight [given to the claimant's] treating source's opinion"); Martinez v. Astrue, No. 06-CV-6219, 2010 WL 331694, at *9 (S.D.N.Y. Jan. 28, 2010) ("If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." (quoting Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *7 (July 2, 1996))) (internal quotation marks omitted).

Schaal v. Apfel, 134 F.3d 496 at 505 (2d Cir. 1998)

An ALJ's failure to explicitly state "good reasons" for declining to adopt a treating source's opinion, even on issues that are determined by the Commissioner, is a ground for remand. Snell, 177 F.3d at 133-34 (remanding for a statement of the reasons why a treating source's finding of disability was rejected by the ALJ). An ALJ's failure to reconcile materially divergent RFC opinions of medical sources is also a ground for remand. Caserto v. Barnhart, 309 F. Supp. 2d 435, 445-46 (E.D.N.Y. 2004) (remanding, in part, where the ALJ failed to reconcile the conflicting RFC determinations made by plaintiff's treating physician and consulting physician and failed to specify why the consulting physician's conclusion was entitled to more weight than that of the treating physician.); see also see also Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ("We of course do not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do believe that the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.") (internal citation omitted).

4. The Determination of Plaintiff's Credibility

Plaintiff's statements of pain or other symptoms cannot alone serve as conclusive evidence of disability. See Francois, 2010 WL 2506720, at *7 (citing 42 U.S.C. § 423(d)(5)(A)). The regulations therefore create a two-step process to evaluate a claimant's assertions about symptoms such as pain. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). First, the ALJ must determine if a claimant has a medically determinable impairment that "could reasonably be expected to produce the symptoms alleged." Id. (citing 20 C.F.R. § 404.1529(b)). If an impairment of that nature is present, the ALJ must then determine "`the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence'" in the administrative record. Id. (quoting 20 C.F.R. § 404.1529(a); see also Brown v. Astrue, No. 08-CV-3653, 2010 WL 2606477, at *6 (E.D.N.Y. June 22, 2010) ("If the ALJ finds such impairments, he then evaluates the intensity and persistence of the symptoms to determine how they limit the claimant's functioning."); cf. Simmons v. U.S. R.R. Retirement Bd., 982 F.2d 49, 56 (2d Cir. 1992) ("[A] claimant's subjective evidence of pain . . . is entitled to great weight where . . . it is supported by objective medical evidence.") (internal citation and quotation marks omitted). If plaintiff offers "statements about her symptoms that are not substantiated by objective medical evidence, the ALJ must make a finding as to the claimant's credibility." Alcantara v. Astrue, 667 F. Supp. 2d 262, 277 (S.D.N.Y. 2009) (citing SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996)). Because an ALJ has "the benefit of directly observing a claimant's demeanor and other indicia of credibility," his decision to discredit subjective testimony may not be disturbed on review if his disability determination is supported by substantial evidence. Brown, 2010 WL 2606477, at *6; see Aponte v. Sec'y, Dep't of Health Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) ("If the Secretary's findings are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain.") (internal citations omitted); Alcantara, 667 F. Supp. 2d at 277 ("[A]n evaluation of a claimant's credibility is entitled to great deference if it is supported by substantial evidence.").

When a claimant's symptoms indicate "a greater severity of impairment than can be shown by the objective medical evidence alone," the ALJ must consider these factors in making a credibility determination: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) any precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken; (5) other treatment received; (6) other measures taken to relieve symptoms; and (7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii); see Alcantara, 667 F. Supp. 2d at 277-78. The ALJ is required to "consider all of the evidence in the record and give specific reasons for the weight accorded to the claimant's testimony," taking into account the factors enumerated in 20 C.F.R. § 404.1529(c)(3). Alcantara, 667 F. Supp. 2d at 277-78 (citing SSR 96-7p, 1996 WL 374186, at *3).

C. The ALJ's Decision

Applying the five-step sequential analysis for disability claims outlined above, the ALJ concluded at step one that plaintiff "has not engaged in substantial gainful activity since January 26, 2007," the date of plaintiff's alleged disability onset date. (Tr. 14). At step two, the ALJ found that the plaintiff suffered from the severe medically determinable impairments of "arthritis of the knees, asthma, hypertension, obesity[,] and residuals of thyroid cancer." ( Id.) At step three, the ALJ determined that the medical record failed to support a finding that plaintiff had "an impairment or combination of impairments that meets or medically equals one of the listed impairments" in Appendix 1 of the regulations. ( Id.) In support of the determination at step three, the ALJ noted that the plaintiff could "ambulate effectively," that "she has not had chronic asthmatic bronchitis or attacks" that required a physician's intervention "at least once every two months or at least six times a year." ( Id.) The ALJ stated that the plaintiff had "no pulmonary function tests" that rose to the level of a listed impairment. ( Id.) The ALJ also found that the claimant's hypertension was "fairly well controlled," and that her thyroid cancer was not anaplastic and had not spread. ( Id.)

Before proceeding to steps four and five, the ALJ evaluated the entire record in order to determine the claimant's RFC. The ALJ considered all symptoms and the extent to which those symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence in the record. (Tr. 14). Following the two-step standard, the ALJ found that plaintiff's "medically determinable impairments could reasonably be expected to produce the alleged symptoms; however, the [plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the" RFC assessment in the record. (Tr. 15-16.)

In order to support his determination, the ALJ reviewed the relevant medical evidence in the record beginning with the plaintiff's history of bronchial asthma. (Tr. 15.) According to the ALJ, there was no evidence that the plaintiff "sought or received any further treatment [for asthma] until 2005." ( Id.) The ALJ next discussed x-rays of plaintiff's knees from March 2005, x-rays of her lumbar spine and sacroiliac joints from June 2005, and MRIs of plaintiff's knees. ( Id.) The ALJ noted that the plaintiff neither sought nor received any orthopedic treatment from June 2005 until August 2006, when plaintiff went to Kings County Hospital because of knee pain. ( Id.) Next, the ALJ noted plaintiff's return visit to KCHC on October 3, 2006, where she complained of persistent pain in both knees that began after walking two blocks, as well as difficulty climbing stairs. ( Id.) Although the ALJ noted that the examination performed at KCHC revealed swelling in both knees and resulted in a diagnosis of osteoarthritis, he emphasized that plaintiff had full range of motion of her knees. ( Id.) The ALJ noted that the orthopedist stated that the results of the examination were otherwise unremarkable. (Tr. 15.)

The ALJ next discussed plaintiff's January 31, 2007 visit to the KCHC's cardiovascular clinic, where a physician noted that a recent stress test had normal results, and that her "exercise tolerance was two to three blocks." (Tr. 16.) The ALJ mentioned that the plaintiff was diagnosed with benign essential hypertension. ( Id.) The ALJ stated that the results were otherwise unremarkable. ( Id.)

The court notes that, unlike the visit to the KCHC orthopedic clinic, the report of the January 31, 2007 visit did not contain a statement by a physician that the visit was "otherwise unremarkable."

The ALJ's discussion then moved on to the report of Dr. Salon, and a review of the medical record by Mr. Ramos, a state disability examiner. ( Id.) The ALJ next mentioned that plaintiff "underwent a thyroidectomy and was diagnosed with thyroid cancer in March 2008. ( Id.)

The ALJ then reviewed an April 25, 2008 assessment of plaintiff's RFC by Dr. Kundu, her treating physician. ( Id.) The ALJ noted that Dr. Kundu made a similar RFC assessment on July 17, 2008. (Tr. 16.) The ALJ also addressed a May 27, 2008 examination of the plaintiff by Dr. David Guttman on behalf of the SSA. (Tr. 16-17.) The ALJ then noted that plaintiff "underwent a whole body scan which showed no evidence of functional thyroid metastases" in June 2008. (Tr. 17.) Finally, the ALJ reviewed the hearing testimony of Dr. Bernard Gustaf. ( Id.)

The ALJ then went on to determine the weight to be given to medical opinions in the record. ( Id.) The ALJ gave "little weight" to the disability examiner, reasoning that the examiner is not a medical professional. ( Id.) The ALJ found Dr. Guttman's opinion to be well supported by the objective medical evidence and accordingly gave it "significant weight." ( Id.) The ALJ gave Dr. Kundu's opinion "substantial weight" based on the fact that Dr. Kundu had examined plaintiff on "numerous occasions" and because his opinion was well supported by the objective medical evidence. ( Id.) The ALJ also gave Dr. Gustaf's opinion "substantial weight" based on the fact that Dr. Gustaf had examined the record, was present during plaintiff's testimony, and because the ALJ determined that Dr. Gustaf's opinion was well supported by the objective medical evidence. (Tr. 17.) The ALJ determined that Dr. Salon's opinion was not fully supported by the objective medical evidence, because the objective medical evidence pointed to "somewhat more severe limitations" that Dr. Salon believed existed. ( Id.) The ALJ then stated that Dr. Salon's opinion was outweighed by the opinions of Dr. Kundu, Dr. Guttman and Dr. Gustaf. ( Id.) The ALJ opined that RFC assessment in his decision was supported by the medical record and by the opinions of Dr. Kundu, Dr. Gustaf, and Dr. Guttman. ( Id.)

After determining that plaintiff's RFC enabled her to do "light work," the ALJ proceeded to step four and concluded that the plaintiff was unable to perform her past relevant work, which included jobs as a clerk, customer service representative, and babysitter. ( Id.) However, at step five, the ALJ ruled that, considering plaintiff's age, education, work experience, and RFC, there were "jobs that exist in significant numbers in the national economy that the claimant can perform." (Tr. 18.) The ALJ's ruling was based on Medical-Vocational Rule 202.17, which states that a younger individual of age eighteen to forty-nine, who is literate and able to communicate in English, and is unskilled, and retains the capacity to perform limited to light work, is considered not disabled under the regulations due to the individual's ability to find a job in the national economy. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.17. Although the ALJ mentioned that if a claimant has nonexertional limitations, the Grid can only be used as a framework, plaintiff's nonexertional limitations documented by Dr. Kundu and Dr. Guttman were not discussed. (Tr. 18.) The ALJ denied plaintiff's SSI claim under the last step of the five-step sequential analysis. ( Id.)

Dr. Guttman's report noted that plaintiff suffered from asthma and had limitations on bending and squatting. (Tr. 184-87.) Dr. Kundu's report also stated that plaintiff had asthma. (Tr. 155, 159, 193.) Furthermore, Dr. Kundu opined that she should never have to balance, stoop, kneel, crouch, crawl, or be exposed to unprotected heights, moving mechanical parts, humidity, wetness, pulmonary irritants, extreme temperatures, or vibrations, and that plaintiff should never operate a motor vehicle. (Tr. 157-59, 191-93, repeated at Tr. 211-14.)

D. Analysis

The ALJ's denial of plaintiff's SSI claim hinged primarily upon his determination that plaintiff retained the RFC to perform the full range of light work and that there were a significant number of jobs in the national economy that plaintiff could perform. (Tr. 14, 18.) At step four of the five-step sequential analysis, the ALJ accepted certain physicians' opinions and discredited the opinions of others, including the RFC opinion of plaintiff's treating physician, and discredited plaintiff's testimony regarding her subjective complaints of pain. (Tr. 14-15, 17.) At step five, the ALJ relied on the Grid to determine that plaintiff could perform other work in the national economy, without first making an on-the-record determination about what effects, if any, plaintiff's nonexertional limitations, such as her environmental limitations, had on her ability to perform the full range of light work. ( See Tr. 17-18.)

The defendant argues that the ALJ correctly concluded that, despite plaintiff's impairments, she was able to perform light work existing in significant numbers in the national economy, and was, thus, not disabled. (ECF No. 11, Mem. of Law in Supp. of Def.'s Mot. for Judgment on the Pleadings ("Def.'s Mem.") at 3.) Specifically, the defendant argues that the ALJ correctly: (1) determined that plaintiff retained the residual functional capacity to perform light work; (2) accepted the portions of plaintiff's treating physician's opinion that were consistent with and supported by the record; (3) concluded that plaintiff's subjective complaints were not credible to the extent alleged; and (4) met his burden at step five by relying on the Grid. (Def.'s Mem. at 11-17.)

Liberally construed, plaintiff's complaint can be read to give rise to three separate but interrelated arguments with regard to the ALJ's disability determination. See Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (holding that courts must liberally construe pleadings and briefs submitted by pro se litigants and read such submissions so as to give rise to the strongest arguments that they suggest). First, plaintiff's complaint explicitly challenges the ALJ's failure to explain why he declined to credit the opinion of plaintiff's treating physician in determining plaintiff's RFC. (ECF No. 1, Compl. at 2) ("I have been under my doctor's care for over ten years. I do not feel that a doctor that doesn't know my medical history and [has] only [seen] me for one checkup can determine how my body feels and what I am able to do and what length of time I can do it for.") Second, the plaintiff disputes the ALJ's finding that her statements about her symptoms were not entirely credible. ( See id.) Third, plaintiff's complaint implicitly contests the ALJ's failure to consider her nonexertional limitations when making his disability determination at step five. ( See id.) Therefore, the critical questions upon review are whether or not the ALJ appropriately explained his RFC determination, whether the ALJ properly found that plaintiff's complaints were not credible, and whether the ALJ properly considered the existence of nonexertional limitations in light of the evidence in the administrative record.

1. The ALJ's RFC Determination

The ALJ failed to explain why he did not credit Dr. Kundu's RFC determination as it pertained to the plaintiff's ability to perform a full range of light work and failed to perform a function-by-function analysis.

a. The ALJ Failed to Explain Why He Credited Dr. Gustaf's RFC Opinion Over Dr. Kundu's RFC Opinion

In determining plaintiff's RFC, the ALJ afforded "substantial weight" to the opinion of plaintiff's treating physician, Dr. Kundu, and to the opinion of Dr. Gustaf, and assigned "significant weight" to the opinion of Dr. Guttman. (Tr. 17.) The ALJ found that all three of these doctor's opinions were "well supported by the objective medical evidence." ( Id.) The ALJ afforded "little weight" to the opinion of Mr. Ramos, the state disability examiner, because he was not a medical professional. ( Id.) Finally, the ALJ held that the opinion of Dr. Salon was "not fully supported by the objective medical evidence which indicate[d] somewhat more severe limitations" and accordingly found that the opinions of Dr. Kundu, Dr. Guttman, and Dr. Gustaf outweighed the opinion of Dr. Salon. ( Id.) The ALJ then stated that his RFC assessment that plaintiff could engage in a full range of light work was supported by the opinions of Dr. Kundu, Dr. Gustaf, and Dr. Guttman. ( Id.)

There is nothing in the opinion to the indicate whether, by assigning Dr. Kundu's opinion "substantial weight," the ALJ intended to or declined to give Dr. Kundu's opinion "controlling weight" as to the nature and severity of plaintiff's impairments. However, considering that the ALJ agreed with Dr. Kundu's assessment of plaintiff's severe medically determinable impairments, it appears that, in practice, the ALJ afforded controlling weight to Dr. Kundu's opinion on the nature and severity of plaintiff's medically determinable impairments. (Tr. 14.) Nevertheless, on remand, the ALJ shall state whether he gave controlling weight to Dr. Kundu's opinion as to the nature and severity of the impairments, and if he declines to do so, he must provide good reasons for assigning Dr. Kundu's opinion "substantial" instead of "controlling" weight. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see also Burgess, 537 F.3d at 128-29.

However, a plain reading of the ALJ's opinion makes clear that he rejected Dr. Kundu's RFC determination without setting forth good reasons for doing so, as the ALJ is required to provide. See Snell, 177 F.3d at 133. Dr. Kundu and Dr. Gustaf provided conflicting opinions regarding plaintiff's exertional capacities that lead to opposite conclusions about her ability to engage in light work. In order to meet the exertional requirements for the full range of light work, a person must be able to stand, walk, or do some combination of both for approximately six hours in an eight-hour work day. Mancuso, 361 Fed. Appx. at 178 (citing 20 C.F.R. § 404.1567(b) and SSR 83-10, 1983 WL 31251, at *5-6 (1983)); see also 20 C.F.R. § 416.967. Twice, Dr. Kundu opined that plaintiff could stand for approximately two hours at a time, walk for approximately one hour at a time, and do both for the same total amount of time in an eight-hour work day, for a combined total of three hours in an eight-hour work day. (Tr. 156, 190, repeated at Tr. 211.) Dr. Gustaf, meanwhile, testified at plaintiff's hearing that, in his opinion, plaintiff could walk or stand in some combination for an hour at a time and for six hours total in an eight-hour work day. (Tr. 30.) Thus, Dr. Gustaf's conclusion that plaintiff could walk or stand for a total of six hours was in direct conflict with Dr. Kundu's conclusion that plaintiff could walk or stand for a total of three hours. By determining that plaintiff could perform a full range of light work, the ALJ concluded that plaintiff could stand or walk in some combination for at least six hours in an eight hour work day. The ALJ's determination on this point apparently is based upon Dr. Gustaf's conclusions, but is inconsistent with Dr. Kundu's opinion about plaintiff's RFC. ( See Tr. 18.) Had the ALJ's RFC determination been consistent with Dr. Kundu's RFC opinion, the ALJ would not have decided that plaintiff could perform the full range of light work.

Dr. Guttman, in his consultative examination, opined that plaintiff had "moderate restrictions to walking, bending, lifting, squatting, and carrying because of patellofemoral syndrome with knee pain," but he did not give an estimate of the number of hours plaintiff could sit, stand, or walk, and did not estimate the amount of weight she could lift. (Tr. 186.) Therefore, the record contains no guidance as to whether Dr. Guttman's RFC opinion comports with an ability to perform light work.

Moreover, a finding that a claimant is able to perform the full range of light work necessarily encompasses the finding that the claimant can do sedentary work, "unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." Casino-Ortiz v. Astrue, No. 06-CV-0155, 2007 WL 2745704, at *5 n. 13 (S.D.N.Y. Sept. 21, 2007) (citing 20 C.F.R. § 404.1567(b)); see also SSR 83-10, 1983 WL 31251, at *3. The Commissioner's regulations state that sedentary work requires sitting for approximately six hours total and standing or walking for about two hours in an eight-hour work day. See Rosa, 168 F.3d at 78 n. 3; see also 20 C.F.R. § 404.1567(a). A claimant who is only able to sit up to five hours is not capable of performing sedentary work. See, e.g., Miceli v. Chater, No. 95-CV-3763, 1996 WL 370161, at *1 (E.D.N.Y. June 24, 1996). Here, Dr. Gustaf offered no testimony addressing the amount of time plaintiff could sit. On the other hand, Dr. Kundu opined that plaintiff could only sit for five hours in an eight-hour work day. (Tr. 190, 211.) Meanwhile, plaintiff stated in a March 29, 2007 disability report that sitting "for too long" caused her to experience pain. (Tr. 115.) Thus, the ALJ's implicit finding that plaintiff could perform sedentary work also indicates that Dr. Kundu's RFC opinion was not credited.

Although the ALJ was not required to adopt Dr. Kundu's RFC opinion in making the RFC determination nor required to credit Dr. Kundu's RFC opinion over Dr. Gustaf's, see Francois, 2010 WL 2506720, at *6, the ALJ was required to explain why he chose not to credit Dr. Kundu's RFC opinion, as plaintiff's treating and medical source. See Snell, 177 F.3d at 133; Martinez, 2010 WL 331694, at *9. Furthermore, the ALJ was required to reconcile the conflicting RFC opinions of Dr. Kundu and Dr. Gustaf. See Caserto, 309 F. Supp. 2d at 445.

Here, however, instead of setting forth "good reasons" for failing to credit Dr. Kundu's opinion of plaintiff's RFC, the only remarks made by the ALJ with regard to Dr. Kundu's RFC determination suggest that Dr. Kundu's opinion should have been credited. For example, the ALJ pointed out that Dr. Kundu examined plaintiff many times, and that his opinion was "well supported by the objective medical evidence." (Tr. 17.)

The regulations referenced in Snell provide the ALJ with several enumerated factors to guide the ALJ's determination of how much weight a treating physician's opinion should receive if such an opinion is not afforded controlling weight. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Snell, 177 F.3d at 133 ("Under the applicable regulations, the Social Security Administration is required to explain the weight it gives to the opinions of a treating physician.") (citing 20 C.F.R. § 404.1527(d)(2)). On remand, the ALJ shall provide clear reasons for the decision not to credit Dr. Kundu's RFC opinion, considering the length, nature and extent of the treatment relationship, the frequency of examination, the degree to which Dr. Kundu's opinion was consistent with the record as a whole, including the fact that it was inconsistent with Dr. Gustaf's RFC opinion, whether Dr. Kundu was a specialist in an area of medicine that related to one of plaintiff's impairments, and whether there were any other factors that "support or contradict" Dr. Kundu's opinion. See 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6). The ALJ may also consider Dr. Kundu's "understanding of [SSA] disability programs and their evidentiary requirements . . . and the extent to which [Dr. Kundu was] familiar with other information in [plaintiff's] case record." Id.

The regulations do not explicitly require the ALJ to consider these five factors when determining the weight afforded to a treating physician's opinion on disability or employability. See 20 C.F.R. §§ 404.1527(d), 404.1527(e) (requiring consideration of the factors only when evaluating a treating source's medical opinion on issues not reserved to the Commissioner). However, the Second Circuit in Snell made clear that the ALJ's obligation to give "good reasons" for the weight afforded to treating physicians even on issues of disability and employability arises out of 20 C.F.R. § 404.1527(d)(2). See Snell, 177 F.3d at 133-34. Accordingly, the court considers each of the five factors articulated in 20 C.F.R. § 404.1527(d)(2) not as requirements but as a guide in evaluating whether or not the ALJ gave adequate reasons in determining the weight given to Dr. Kundu's opinion on plaintiff's RFC. See id.

Based on defendant's contention that the ALJ only "gave substantial weight to Dr. Kundu's opinion to the extent that it was supported by the record" (Def.'s Mem. at 13), the ALJ shall make such findings explicit on remand. Furthermore, the ALJ shall attempt to reconcile the conflicting RFC opinions of Dr. Kundu and Dr. Gustaf. See Caserto, 309 F. Supp. 2d at 445. Finally, if the ALJ finds plaintiff incapable of the full range of light work, he shall make a determination as to whether plaintiff is capable of sedentary work. If the ALJ finds plaintiff capable of sedentary work, he shall identify evidence in the record demonstrating that plaintiff can sit for at least six hours in an eight-hour work day, and explain the reasons for discrediting Dr. Kundu's opinion that plaintiff is not capable of sitting for more than five hours of an eight-hour work day. See 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6).

b. The ALJ Failed to Make a Function-by-Function Assessment of Plaintiff's Abilities

Although not specifically raised by the plaintiff, the court finds that the ALJ did not conduct a function-by-function assessment of plaintiff's ability to sit, stand, walk, lift, carry, push, pull, reach, handle, stoop, or crouch, based on medical source opinions of plaintiff's ability to perform each activity, as required by the regulations. See Yannone v. Astrue, No. 06-CV-15502, 2010 WL 743963, at *6 (S.D.N.Y. Mar. 3, 2010) (citing 20 C.F.R. § 404.1513(c)(1)); S.S.R. 96-8p, 1996 WL 374184, at *7 ("In assessing RFC, the [ALJ] must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing bases (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record.)

At step four, the ALJ referred to the opinions of Dr. Salon, Dr. Kundu, Dr. Guttman, and Dr. Gustaf, and summarized each of those physicians' findings as to these aforementioned functions. (Tr. 16.) However, the ALJ never stated, for example, how long he determined plaintiff could sit, stand, or walk in an eight-hour work day or how many pounds plaintiff could lift. Nor did the ALJ's RFC assessment include a narrative discussion describing how the medical and nonmedical evidence supported conclusions about plaintiff's ability to perform each function. See Yannone, 2010 WL 743963, at *6. The ALJ was required to complete such an analysis before expressing RFC in terms of an exertional level of work, which, the ALJ determined to be light work. Id. On remand, the ALJ shall conduct such an assessment. See Mardukhayef v. Comm'r of Soc. Sec., No. 01-CV-1324, 2002 WL 603041, at *5 (E.D.N.Y. Mar. 29, 2002) (remanding so that the ALJ could assess plaintiff's ability to perform the functions in paragraph (b), (c), and (d) of 20 C.F.R. § 404.1545 and 416.945).

2. The ALJ Failed to Adequately Detail the Basis for His Assessment of Plaintiff's Credibility

The ALJ failed to detail the basis for his credibility assessment of plaintiff's subjective statements about her symptoms with enough specificity for the court to determine whether the assessment was supported by substantial evidence. See Alcantara, 667 F. Supp. 2d at 278 (remanding where an ALJ did not explain how the factors in 20 C.F.R. § 404.1529(c)(3) impacted her assessment of plaintiff's credibility); see also Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) ("A finding that the witness is not credible must . . . be set forth with sufficient specificity to permit intelligent plenary review of the record."). Here, the ALJ stated that plaintiff's "medically determinable impairments could reasonably be expected to produce" the symptoms she alleged; however, the ALJ found plaintiff's claims about "the intensity, persistence and limiting effects" of her impairments were "not credible to the extent they are inconsistent with the [RFC] assessment for the reasons explained below." (Tr. 15.) The ALJ's statement that plaintiff's claims were inconsistent with the RFC assessment appears to refer to the requirement that the ALJ determine the degree to which plaintiff's claims are consistent with the evidence in the record. See Genier, 606 F.3d at 49; C.F.R. § 404.1529(b)). However, the regulations require the ALJ to make a credibility determination based on a consideration of six specific factors, and to give reasons for his determination based on these factors that are sufficiently specific for a reviewing court to decide whether that determination was based on substantial evidence. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(i)-(vii); see Alcantara, 667 F. Supp. 2d at 277-78. The ALJ did not explicitly address the relevant factors and give specific reasons for his credibility determination based on those factors. Instead, the ALJ summarized the medical record. (Tr. 15-17.)

As defendant argues, the ALJ's medical summary does address evidence related to some of the factors enumerated in 20 C.F.R. § 404.1529(c)(3). (Def.'s Mem. at 15.) For example, the ALJ references a discussion of claimant's daily activities, the location of her symptoms, and treatments she received. (Tr. 15-17.) However, the ALJ did not address and explain how the duration, frequency, or intensity of plaintiff's symptoms, the precipitating and aggravating factors regarding her symptoms, or the medications she takes factored into his credibility assessment. See 20 C.F.R. § 404.1529(c)(3); (Tr. 15-17.) The court cannot perform a meaningful review of the ALJ's credibility determination based on a single statement summarizing the credibility finding, followed by a brief review of the record, where the ALJ failed to set forth the factors with sufficient specificity to enable the court to decide whether the ALJ's credibility determination was supported by substantial evidence. See Alcantara, 667 F. Supp. 2d at 278 (finding that the court could not perform a meaningful review of an ALJ's credibility determination where the ALJ stated that the plaintiff's "`allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision,'" but never explained how the factors she discussed impacted the ALJ's determination.)

The court notes that although the ALJ stated that Dr. Gustaf testified that plaintiff was "able to perform activities of daily living such as cooking and cleaning" (Tr. 17), when Dr. Gustaf addressed the plaintiff at the hearing, he stated she was "presumably" cooks and cleans. (Tr. 31.) In response, plaintiff clarified that she required assistance completing these tasks. (Tr. 31.) Moreover, there are examples throughout the record of other statements by plaintiff and by Dr. Guttman that plaintiff required assistance with these tasks and other routine household chores. ( See Tr. 107-10, 185 (Plaintiff "does no cooking, cleaning or laundry.").)

For instance, the ALJ mentioned that plaintiff was treated for complaints of knee pain in 2006. (Tr. 15.)

3. The ALJ Failed to Address Whether Plaintiff's Nonexertional Limitations Significantly Limited Her Employment Options

At the fifth step of the Commissioner's disability evaluation process, the ALJ failed to explicitly consider whether plaintiff's nonexertional limitations significantly diminished the range of work that plaintiff could perform. See Nigino, 2009 WL 840382, at *5-6. Furthermore, to the extent that the ALJ found that plaintiff's nonexertional limitations diminished her range of work, he erred by failing to identify or include evidence in the record, via testimony from a vocational expert or a similar source, that a significant number of jobs that plaintiff could perform exist in the national economy.

Because the ALJ reached the fifth step of the five-step statutory analysis, the burden shifted from the claimant to the Commissioner to show that there were a significant number of jobs in the national economy that plaintiff was able to perform. See Butts, 388 F.3d at 381. The ALJ made that showing by referring to the Grid. See Mejia, 2010 WL 2572006, at *12. Based on the ALJ's RFC determination that plaintiff was able to perform the full range of light work, and considering plaintiff's age, education, and work experience, the ALJ found that plaintiff was "not disabled" based on Medical-Vocational Rule 202.17. (Tr. 18); see 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 202.17.

However, plaintiff's nonexertional limitations were well-documented in the record. Plaintiff's treating physician and two examining physicians each submitted reports to the Commissioner listing a number of nonexertional limitations. ( See Tr. 129, 157-59, 184-87, 191-93, repeated at 211-14). Specifically, Dr. Guttman listed asthma and limitations on bending and squatting. (Tr. 184-87 ("The claimant should avoid exposure to smoke, dust, and other known respiratory irritants.").) Dr. Kundu listed asthma and opined that plaintiff should never have to balance, stoop, kneel, crouch or crawl, or be exposed to unprotected heights, moving mechanical parts, humidity, wetness, pulmonary irritants, extreme temperatures, vibrations, or operate a motor vehicle. (Tr. 157-59, 191-93, repeated at Tr. 211-14.) Dr. Salon, as well as Mr. Ramos, advised that plaintiff should avoid respiratory irritants because of her history of asthma. (Tr. 129, 150.) Notably, Dr. Gustaf never specifically opined about plaintiff's nonexertional limitations. ( See Tr. 27-30.)

The ALJ noted that, where nonexertional limitations exist, the Grid is to be used as a framework for the disability determination, rather than to direct a conclusion as to whether the individual is disabled. (Tr. 18.) Had the ALJ determined, after examining the record, that substantial evidence supported the position that the nonexertional limitations did not significantly narrow plaintiff's employment options, reliance on the Grid would have been appropriate. See Bapp, 802 F.2d at 605. However, the ALJ did not make such a determination. ( See Tr. 18.)

Defendant argues that Dr. Kundu's opinion of plaintiff's environmental limitations was not supported by the record because Dr. Gustaf opined that her asthma was not severe enough to meet the criteria for a listed disability. (Def.'s Mem. at 13-14.) However, the fact that a medical problem does not rise to the level of a listed disability does not preclude it from being a severe impairment, as the ALJ correctly noted. (Tr. 14); see generally Burgos, 2003 WL 21983808 (remanding with instructions to introduce testimony from a vocational expert as to whether jobs existed in the national economy that plaintiff, who suffered from asthma that was considered "severe" but did not rise to the level of a listed disability, could perform).

Defendant argues, in the alternative, that plaintiff's asthma "would have a minimal impact on the range of available light work." (Def.'s Mem. at 17.) However, whether plaintiff's asthma significantly diminished her employment opportunities is a determination that must be made on the record by the ALJ. See Nigino, 2009 WL 840382, at *6 (remanding because the ALJ failed to consider whether the range of work the plaintiff could perform was significantly diminished by her nonexertional limitations). Finally, even if the ALJ had determined on the record that plaintiff's asthma did not significantly diminish her employment opportunities, the defendant's argument ignores the other nonexertional limitations detailed in the record, which the ALJ also failed to consider on the record before relying to the Grid. ( See Tr. 129, 157-59, 184-87, 191-93, repeated at Tr. 211-14).

On remand, the ALJ shall determine on the record, in light of any change to the ALJ's RFC finding based on a reevaluation of Dr. Kundu's opinion, and in light of any changes to the ALJ's determination of the credibility of plaintiff's statements about her symptoms, whether the effects of all of plaintiff's nonexertional limitations preclude reliance on the Grid. To the extent the ALJ determines that the nonexertional limitations significantly diminish plaintiff's employment opportunities, the ALJ shall introduce evidence into the record, via testimony from a vocational expert or a similar source, that a significant number of jobs that plaintiff could perform exist in the national economy.

CONCLUSION

For the foregoing reasons, the court denies defendant's motion for judgment on the pleadings and remands this case for further proceedings consistent with this opinion, specifically:

(1) If the ALJ declines to credit Dr. Kundu's opinion of plaintiff's RFC, he shall provide explicit reasons for doing so, in accordance with Snell, 177 F.3d at 134, and shall apply and reference the statutory factors listed in 20 C.F.R. §§ 404.1527(d)(2)-(6) and 416.927(d)(2)-(6) in his reasoning. If the ALJ finds that Dr. Kundu's opinion is inconsistent with substantial evidence in the record, he shall explain why he believes that to be the case, citing evidence from the record. This is especially important in order to reconcile the ALJ's previous finding that Dr. Kundu's opinion was well-supported by the objective medical evidence. Further, the ALJ shall specifically reconcile the conflicting RFC determination of Dr. Kundu and Dr. Gustaf. Finally, if the ALJ finds that plaintiff is not capable of the full range of light work, he shall make a determination as to whether plaintiff is capable of sedentary work.

(2) The ALJ shall perform a function-by-function assessment of plaintiff's ability to sit, stand, walk, lift, carry, push, pull, reach, handle, stoop, or crouch, based on medical and nonmedical evidence in the record.

(3) The ALJ shall give specific reasons for the credibility assigned to plaintiff's statements about the severity of her symptoms, taking into account the relevant factors enumerated in 20 C.F.R. § 404.1529(c)(3), and set forth his determination with sufficient specificity so that the court can determine whether the credibility determination is supported by substantial evidence.

(4) The ALJ shall determine on the record whether plaintiff's nonexertional limitations, including those listed by Dr. Kundu and by Dr. Guttman, significantly limit the work available to plaintiff, so that the court can determine whether the decision is supported by substantial evidence. Specifically, the ALJ shall determine whether plaintiff's nonexertional limitations exclude her from particular occupations or kinds of work that fall within the level of work her RFC dictates she is able to do. If the ALJ finds that plaintiff's nonexertional restrictions significantly limit plaintiff's employment options, the ALJ shall seek out the testimony of a vocational expert or evidence of a similar nature as part of his affirmative duty to develop the record.

The Clerk of the Court is respectfully requested to close this case. The defendant shall serve a copy of this Memorandum and Order on the plaintiff and file a declaration of service by ECF no later than December 13, 2010.

SO ORDERED.

Dated: December 9, 2010

Brooklyn, New York