RECOMMENDED RULING ON PENDING MOTIONS

JOAN MARGOLIS, Magistrate Judge

This action, filed under § 205(g) of the Social Security Act ["the Act"], 42 U.S.C. § 405(g) as amended, seeks review of a final decision of the Commissioner of Social Security ["the Commissioner"], which denied plaintiff Disability Insurance Benefits ["DIB"] and Supplemental Security Income ["SSI"] benefits.

I. ADMINISTRATIVE PROCEEDINGS

The plaintiff, Eddie Hilton ["Hilton"], filed applications for DIB and SSI Benefits on October 6, 1992. (See Certified Transcript of Administrative Proceedings, filed October 3, 2001 ["Tr."] 86-98, 127-29). The applications were denied initially on December 8, 1992, and Hilton did not seek reconsideration of the denials. (See Tr. 101-03, 133-35). Hilton filed a second set of applications for DIB and SSI Benefits on April 2. 1993. (See Tr. 104-16, 150-52). The applications were denied initially and upon reconsideration on August 6, 1993 and December 16, 1993, respectively. (See Tr. 119-21, 123-26, 176-79).

On February 23, 1994, Hilton filed a late request for a hearing before an Administrative Law Judge ["ALJ"]. (See Tr. 180-81). The agency determined that there was good cause for the late filing (See Tr. 182) and the hearing was held on October 2, 1995. (See Tr. 300-01, 305). On October 12, 1995, ALJ Michael A Marcionese issued a partially favorable decision. (See Tr. 302-08). ALJ Marcionese reopened the prior applications and granted Hilton SSI and DIB, each for a period of thirty-six months. (See Tr. 305-08, 313). He determined that Hilton met the requirements of Listing 12.09, Substance Addiction Disorders. (See Tr. 305-08) As a condition of receiving benefits, Hilton was required to seek treatment for alcoholism and make progress in the treatment program. (See Tr. 305-08).

On June 12. 1996. the Commissioner issued a Notice of Termination informing Hilton that his benefits would terminate on January 1, 1997 because a change in the law precluded payment of disability benefits based on drug addition or alcoholism. (See Tr. 324). Hilton responded with a claim that he was disabled even without consideration of his alcoholism. (See Tr. 325). The Commissioner denied benefits on November 8, 1996. and Hilton requested a hearing before an ALJ (See Tr. 349-51, 352-53).

The second hearing was held before ALJ Samuel Kanell on December 1, 1997. (See Tr. 29-82) Hilton was represented by counsel at the hearing. (See Tr. 29 31) On May 15, 1998, ALJ Kanell issued his decision, in which he found that Hilton would not meet the disability requirements If he stopped consuming alcohol and denied benefits. (See Tr. 8-18). Hilton filed a request for review of ALJ Kanell's decision on June 5, 1998. (See Tr. 6-7) On April 19, 2001, the Appeals Council denied Hilton's request for review. (See Tr. 2-3). Hilton commenced this action on June 20, 2001. (Dkt. #3).

Pending are Plaintiff's Motion for Order Reversing the Decision of the Commissioner or in the Alternative Motion for a Remand for a Rehearing, filed June 17, 2002 (Dkts. ##12-13), and Defendant's Motion for Order Affirming the Decision of the Commissioner, filed August 8, 2002 (Dkts. ##15-16). For the reasons stated herein, plaintiffs motion (Dkt. #12) isgranted in part and denied in part and defendant's motion (Dkt #15) is denied.

II. FACTUAL BACKGROUND

Hilton was born on July 4, 1946. (See Tr. 86, 104, 127, 150). Although he graduated high school, he has been described as functionally illiterate. (See Tr. 37, 43, 140, 191, 293, 360, 379). At the second hearing, Hilton testified that he loved to read and only sometimes had trouble understanding the words. He primarily read western novels and sometimes the newspaper. (See Tr. 43-44). Hilton has been separated from his wife for over twenty years and has a daughter in the Air Force. (See Tr. 64-65). He lives in a rooming house (See Tr. 37).

Hilton worked as a stock clerk in a factory for twenty-three years. He stopped working in 1991. (See Tr. 44. 45). In 1996. and at the second hearing, Hilton testified that he was laid off because the factory was relocating and downsizing. (See Tr. 44-45). Hilton opined that because he was a general supervisor, he would still be employed If the company had not relocated or downsized. (See Tr. 44-45, 360) In disability reports, however, Hilton indicated that he stopped working because of numbness in his lower legs and feet and a back injury he suffered twenty-five years earlier; he could not lift heavy items. (See Tr. 136, 162, 187, 201, 356). In 1993, Hilton indicated that his job required him to stock shelves up to 5'-6' high with cast iron parts weighing 25-35 pounds. (See Tr. 145). He spent the workday walking less than one hour, sitting less than one hour, standing between seven and eight hours, constantly bending, and lifting and carrying boxes of parts weighing 25-40 pounds a distance of ten-to-twenty feet. (Id.) Hilton indicated that he frequently lifted up to 50 pounds and never more that 50 pounds (Id) In 1996, and at the second hearing, Hilton altered the description of his previous job He stated that, in an average workday, he spent four hours standing and four hours walking (See Tr. 361). He frequently had to bend and reach. (Id.) He lifted over 50 pounds frequently and occasionally over 100 pounds. (See Tr. 48, 361) Occasionally, he operated a forklift and climbed a ladder. (See Tr. 48, 68, 360). He supervised four other employees and was responsible for completing forms and entering data into the computer system. (See Tr. 360). Hilton testified that he hurt his back in 1976 when he and several other employees were attempting to lift a pump weighing 200 pounds. (See Tr. 48).

In his most recent applications, Hilton described his impairments as numbness in his lower legs and feet, hypertension, right shoulder pain and lower back pain. (See Tr. 356). Hilton injured his back when he fell off a tank or truck when he was in the army in 1967, but did not seek medical attention at that time. (See Tr. 49, 356) Over the years. his injury worsened. (See Tr. 49). He sometimes lost his balance because of the numbness in his feet and legs (See Tr. 41-42, 61) He also felt dizzy nearly every day when he first woke up. (See Tr. 42) After he started moving around he felt all right (Id.) Hilton reported the dizziness to his doctor, but has received no answers (See Tr. 43). He received treatment at hospital clinics for hypertension and a skin rash. (See Tr. 38-41).

Hilton testified that he was too tired to walk around the neighborhood or the block (See Tr. 61). He could only walk for 11/2 blocks before experiencing discomfort and needing to rest. (See Tr. 61. 356). Sometimes he got tired, dizzy and lost his balance walking to the bathroom. (See Tr. 61). He could not run or stand very long because he had no feeling from the knees down. (Id.) Occasionally, he stumbled because he could not tell where his feet were. (See Tr. 356). Doctors advised him to watch the temperature of the water when bathing and to examine his feet for cuts or sores that might become infected without him feeling anything. (See Tr. 359). He could not lift more than 10-15 pounds and his back hurt when he lifted anything. (See Tr. 62-63) Hilton reported that he had taken Motrin for his back pain in the past, but stopped because the Motrin did not help. (See Tr. 63) He conceded that x-rays of his spine are negative. (See Tr. 63).

Hilton testified that he wakes up at 9:00 a.m. and watches television for a few hours. (See Tr. 52). Sometimes he required help dressing or putting on his shoes. (See Tr. 359). Although he had kitchen privileges with his room, his friend usually cooked for him. (See Tr. 53). He ate two meals per day. (See Tr. 56). Hilton's friend or brother shopped for him and his brother managed his money so Hilton would not buy alcohol. (See Tr. 53-54). Hilton still drank "[o]nce in a while" but had cut down his alcohol consumption because he was attending a program. (See Tr. 54-55). On some days, he drank nothing, on others between one pint and one fifth of liquor. (See Tr. 56). Hilton admitted drinking one-half pint before coming to the hearing, but stated that he drank nothing the day before. (See Tr. 56). Hilton did very little during the cold weather. (See Tr. 52). When it was warm, he would go fishing with a friend in the afternoons, in the cold weather, he sometimes played cards. (See Tr. 58-59). Hilton's covers' license was suspended in 1994 after he drove into the front window of a restaurant while he was intoxicated (See Tr. 59, 296-97). He could not take the bus because he could not get up the steps (See Tr. 359).

When Hilton filed his June 1996 disability report seeking reinstatement of benefits, the agency reviewer observed that Hilton had difficulty writing and walking. (See Tr. 363). Although the reviewer smelled liquor on his breath. Hilton appeared clear-minded and coherent. (Id.) His speech was not slurred and his memory seemed "pretty good." (Id.) Hilton walked and moved stiffly and slowly, but used no artificial support. (Id.) He shifted around in his seat periodically and his hand movements seemed slow and deliberate. (Id.)

Hilton testified that he last looked for work in October 1997, less than two months before the hearing, as a forklift driver for a brewery. (See Tr. 68). He did not pursue the position because the company moved and he could not drive to get to work. (See Tr. 68-69). He also sought a job as a stock clerk for a supermarket. (See Tr. 69). When asked whether he would be able to work If he found a job, Hilton stated that he did not know because he was unable to stand for more than a short period at a time. (See Tr. 70).

Hilton began drinking when he entered the military thirty years before the second hearing. (See Tr. 72-73). He stopped drinking periodically and had been through detoxification programs twice. (See Tr. 73). He said that he often began drinking again to ease his back pain. (Id) Hilton had been participating in the Norwalk Hospital Alcohol Rehabilitation Program for three or four years at the time of the second hearing. (See Tr. 71).

In July 1996, Hilton was admitted to the Norwalk Hospital for severe metabolic acidosis of an anion gap variety (See Tr. 366-69) The treating physician opined that this condition was probably secondary to alcoholic ketoacidosis with a likely component of starvation ketoacidosis and lactic acidosis and possibly renal failure. (See Tr. 368-69) In addition, Hilton was severely dehydrated. (See Tr. 369).

On August 29, 1996. Hilton was admitted to an alcohol detoxification program at Greenwich Hospital. (See Tr. 397-479) Although a temporary admission sheet noted alcoholic neuropathy (See Tr. 408). the final diagnosis was alcohol withdrawal syndrome, alcohol dependence. chronic obstructive pulmonary disease, hypertension and mild mycrocytic anemia and thrombocytopenia (See Tr 399, 404). Chest x-rays showed no acute pulmonary distress (See Tr. 419). Upon his discharge, on September 12. 1996. Hilton was advised to follow-up with outpatient alcoholism treatment at Norwalk Hospital (See Tr. 405).

In October 1996. Hilton underwent a psychological consultative examination by Arthur Salman, Ph.D. (See Tr. 375-80). This was the second time Dr. Salman examined Hilton, (See Tr. 375). Although Hilton reported that he was no longer drinking on a daily basis and he did not appear inebriated or show signs of impaired function, Dr. Salman detected alcohol on Hilton's breath. (See Tr 375-76). Testing revealed a verbal IQ of 65. a performance IQ of 68 and a full scale IQ of 64. (See Tr. 377). Dr. Salman concluded that Hilton was functioning within the mild range of mental deficiency with actual intellectual potential and a capacity for functioning independently with regard to activities of daily living. (See Tr. 379). Thus, Dr. Salman rated Hilton as within the lower reaches of the Borderline-Defective range (Id.) He also noted that Hilton was functionally illiterate and opined that he was at risk of relapse because of his long-standing chronic alcohol dependence, (Id.)

Also in October 1996, Hilton underwent a consultative physical examination with Dr. Nalini Anand. (See Tr. 381-84). Hilton reported drinking up to two quarts of vodka daily, but denied drinking at the time of the consultative examination. (See Tr 381). He reported a history of low back pain since 1966 without radiation to his legs or other related symptoms (Id. at 381-82). Hilton said that his back pain was relieved with Advil. (See Tr. 382). He also related an eight-year history of hypertension, a two-year history of numbness in his feet, alcohol abuse since 1966 and a laceration of the right eyebrow thirty-five years earlier. (See Tr. 381, 383). Hilton's personal hygiene was poor and, although he said he was not drinking, Dr. Anand detected alcohol on his breath. (See Tr. 382, 384). Hilton indicated that he could sit for one hour, stand for one-half hour and walk a distance of two blocks. (Id.) The consultative physician noted that Hilton's gait was normal and he needed no assistive devices to walk (See Tr. 382-83). Examination revealed no localized tenderness of the lumbosacral spine and flexion of 90°. (See Tr. 383). Hilton could touch his toes without problem and did not complain of back pain during the examination. (Id.) X-rays of the lumbosacral spine indicated some straightening of the normal curvature indicative of muscle spasm, but no evidence of degenerative disease. (Id.) Essentially, the x-rays were within normal limits. The consultative physician opined that Hilton suffered from hypertension that needed better control; numbness of both legs, probably secondary to alcohol-related neuropathy with no evidence of any acute lumbosacral problems; possible alcoholism since he denied drinking but had a strong smell of alcohol on his breath; and a well-healed laceration of the right eyebrow. (See Tr 381-84).

A physical residual functional capacity assessment, completed in November 1996, rated Hilton as able to lift twenty pounds occasionally and ten pounds frequently. (See Tr. 330) He could stand for six hours in an eight-hour workday sit for six hours and push or pull to an unlimited degree (Id.) This rating considered Hilton's history of alcohol abuse, leg numbness probably attributed to alcohol-related neuropathy and low back pain that did not cause his gait to be beyond normal limits or cause any loss of motor function.(Id.)Hilton was restricted to climbing: balancing, stooping, kneeling, crouching or crawling only occasionally. (See Tr. 331). The agency physician noted that Hilton had relapsed after completing the alcohol detoxification program. (See Tr. 333). All of Hilton's functional limitations were attributed to alcohol use. (Id.) His poor grooming and hygiene made Hilton unsuitable for work requiring public-contact. (Id.) Hilton seemed able to carry out simple instructions and sustain an ordinary work routine. (Id) The agency physician noted that Hilton had performed poorly on formal tests of intellectual functioning, but had been drinking both times. (Id.)

Also in November 1996, agency staff completed a psychiatric review technique form rating Hilton for a substance addiction disorder. (See Tr 339-48). The reviewer noted that Hilton did poorly on formal testing when he had been drinking. (See Tr 342) This impairment was rated as causing a moderate restriction on activities of daily living and moderate difficulties in maintaining social functioning. (See Tr. 347). It often caused deficiencies in concentration, persistence or pace resulting from a failure to complete tasks in a timely manner and once or twice caused Hilton to experience episodes of deterioration or decompensation in work or work-like settings. (Id.) None of these classifications were at the listing level of severity.

III. STANDARD OF REVIEW

Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. See 42 U.S.C. § 423(a)(1). Additionally, indigent individuals may be entitled to disability benefits under the Supplemental Security Income program. 42 U.S.C. § 1381-1383(c). "Disability" is defined as an "inability to engage in any substantial gainful activity by reason of any medically determinate 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." 42 U.S.C. § 423(d)(1), 1382c(a)(3).

Determining whether a claimant is disabled requires a five-step process. See 20 C.F.R. § 404.1520 First, the court must determine whether the claimant is currently working. See 20 C.F.R. § 404.1510(b), 404, 1572(b) If the claimant is currently employed, the claim is disallowed. See 20 C.F.R. § 404.1520(b). lf the claimant is not working as a second step, the agency must make a finding as to the existence of a severe mental or physical impairment; If none exists, the claim is denied See 20 C.F.R. § 404, 1520(c) Once the claimant is found to have a severe impairment the third step is to compare the claimant's impairment with those in Appendix 1 of the Regulations (the "Listings"). See 20 C.F.R. § 404, 1520(d): Bowen v. Yuckert, 482 U.S. 137. 141 (1987): Balsamo, 142 F.3d at 79-80. If the claimant's impairment meets or equals one of the impairments in the Listings, the claimant is automatically considered disabled. See 20 C F.R. § 404.1520(d); Balsamo, 142 F.3d at 80. If the claimant's impairment does not meet or equal one of the listed impairments, as a fourth step, he will have to show that he cannot perform his former work. See 20 C.F.R. § 404.1520(e), If the claimant cannot perform his former work, he must show, as a fifth and final step, that he is prevented from doing any other work. A claimant is entitled to receive disability benefits only If he cannot perform any alternate gainful employment See 20 C.F.R. § 404.1520(f).

The initial burden of establishing disability is on the claimant.See 42 U.S.C. § 423(d)(5). Once the claimant demonstrates that he is incapable of performing his past work, however, the burden shifts to the Commissioner to show that the claimant has the residual functional capacity to perform other substantial gainful activity in the national economy. See Balsamo, 142 F.3d at 80 (citing cases). This may require the application of the Medical-Vocational Guidelines ["the Grid"] which places claimants with severe exertional impairments who can no longer perform past work into grid categories according to their residual functional capacity, age, education and work experience, and dictates a conclusion of disabled or not disabled. See 20 C.F.R. § 404, 1520(f) A proper application of the Grid makes vocational testing unnecessary.

The Grid covers only exertional impairments; nonexertional impairments, including psychiatric disorders are not covered. See 20 C.F.R. § 200.00(e)(2). If the Grid cannot be used, i.e., when nonexertional impairments are present or when exertional impairments do not fit squarely within grid categories, the testimony of a vocational expert is generally required to support a finding of residual functional capacity for substantial gainful activity. See Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (citing Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986)).

IV. DISCUSSION

Following the five step evaluation process, ALJ Kanell found that, although Hilton alleged that he had not engaged in ongoing substantial gainful activity since June 30, 1991, he reported recent part-time work. (See Tr. 16). ALJ Kanell found that the medical evidence established that Hilton "has a long history of alcohol abuse. Degree of hypertension, numbness of the legs probably secondary to the use of alcohol, and degree of chronic obstructive pulmonary disease have also been diagnosed." (Id.) He determined, however, that these impairments, individually or in combination, did not meet or equal the requirements of any listed impairment. (Id.) ALJ Kanell did not reference Hilton's credibility in his Findings, described as "exaggerated and not credible" but characterized Hilton's subjective complaints as exaggerated in the body of the decision. (See Tr. 14). ALJ Kanell determined that Hilton retained the residual functional capacity for work at least at the light level of exertion, but noted moderate limitations in the ability to engage in activities of daily living, maintain social functioning and possible deficiencies in concentration. (See Tr. 16). ALJ Kanell found that Hilton's ability to work would increase and his restrictions would decrease If he stopped consuming alcohol; Hilton would be able to return to his past work or make a vocational adjustment to other work If he stopped drinking. (See Tr. 16-17). Thus, ALJ Kanell determined that Hilton was not under a disability at any time through the date of the decision and denied disability insurance and SSI benefits (See Tr 17-18).

Hilton seeks reversal of the Commissioner's decision and remand for further proceedings on multiple grounds. He asserts five grounds in support for his claim that he meets the standard of disability: (1) ALJ Kanell did not understand the issue he was supposed to decide, (2) ALJ Kanell failed to recognize the proper diagnosis of his impairments and substituted his own judgment for diagnoses contained in the record; (3) ALJ Kanell committed six factual errors; (4) Hilton meets the requirements of two listed impairments; and (5) vocational factors support a finding of disability. (Dkt #13, at 9-18). In addition, Hilton asserted twelve grounds in support of his argument that this case should be remanded for further proceedings; (1) ALJ Kanell committed numerous factual errors; (2) ALJ Kanell failed to recognize and evaluate the precise spinal and neurological impairments diagnosed by treating physicians: (3) ALJ Kanell failed to state specifically what illnesses and impairments affect Hilton; (4) ALJ Kanell failed to find that Hilton met the requirements for listings 12.02, 12 05B, 12.05C and 12.05D; (5) ALJ Kanell failed to accept the opinions of consulting psychologists; (6) ALJ Kanell failed to comply with Social Security Ruling ["SSR"] 96-6p; (7) ALJ Kanell failed to assess properly Hilton's residual functional capacity; (8) ALJ Kanell failed to follow the example in Grid rule 202.09; (9) ALJ Kanell erroneously used the Grids to deny disability despite the presence of exertional and nonexertional impairments; (10) a vocational expert did not testify at the hearing; (11) ALJ Kanell did not afford Hilton's testimony substantial credibility in light of his good work history; and (12) ALJ Kanell substituted his own judgment that Hilton's disorders were caused by alcoholism for the findings and conclusions of examining physicians. (Dkt. #13, at 18-21). Defendant argues that the decision is supported by substantial evidence. (Dkt. #16). In addition, If the court determines that the decision of the Commissioner should be reversed, defendant asks the court to remand rather than award benefits so that the Commissioner can consider Hilton's recent work history in determining whether he is disabled. (Dkt. #16, at 11-12) The Court considers these arguments below.

A. Misunderstanding of the Issue

Hilton first argues that ALJ Kanell failed to understand that the issue he had to decide was whether Hilton met the definition of disability contained in section 423(d)(1)(A). (Dkt #13, at 9-10) Instead, ALJ Kanell focused on whether Hilton was an alcoholic and whether alcoholism was a contributing factor material to his disability. Hilton contends that this misunderstanding prevented ALJ Kanell from fairly considering Hilton's non-substance-abuse impairments.

This case came before ALJ Kanell in response to Section 105(a)(1)(C) of the Contract with America Advancement Act, Pub.L. 104-121, 110 Stat. 847 (1996). That section, entitled "Denial of Disability Benefits to Drug Addicts and Alcoholics," amended the Social Security Act to provide that "[a]n individual shall not be considered to be disabled for purpose of this subchapter If alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C) 1382c(a)(3)(J). Because Hilton had been found disabled because of alcoholism, he was notified that his benefits would terminate unless he could demonstrate that he was disabled independent of alcoholism.

The agency regulation governing termination and reinstatement decisions made pursuant to the amendment provides:

(1) The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled If you stopped using drugs or alcohol.

(2) In making this determination, we will evaluate which of your current physical and mental limitations, upon which we based our current disability determination, would remain If you stopped using drugs or alcohol and then determine whether any or all of your remaining limitations would be disabling.

(i) If we determine that your remaining limitations would not be disabling, we will find that your drug addiction or alcoholism is a contributing factor material to the determination of disability

(ii) If we determine that your remaining limitations are disabling, you are disabled independent of your drug addiction or alcoholism and we will find that your drug addiction or alcoholism is not a contributing factor material to the determination of disability

20 C.F.R. § 404 1535(b). In making this analysis, the court must "distinguish between substance abuse contributing to the disability and the disability remaining after the claimant stopped using drugs or alcohol. The two are not mutually exclusive Just because substance abuse contributes to a disability does not mean that when the substance abuse ends, the disability will too" Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998) (emphasis omitted).

In his decision, ALJ Kanell noted a lack of persuasive medical evidence demonstrating that Hilton would be disabled without consideration of his alcohol abuse. He indicated that IQ scores all were influenced by Hilton's alcohol use. After reviewing the analysis performed by ALJ Kanell, the court concludes that ALJ Kanell understood and applied the proper test to determine whether Hilton's disability benefits should be reinstated. Whether the conclusions reached are supported by substantial evidence will be considered below.

B. Credibility

The function of the ALJ includes evaluating the credibility of all witnesses, including plaintiff. See Carroll v. Secretary of HHS, 705 F.2d 638. 642 (2d Cir. 1983). Although the ALJ is free to accept or reject the testimony of any witness, a "finding that the witness is not credible must nevertheless be set forth with sufficient specificity to permit intelligible plenary review of the record." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) (citing Carroll, 705 F.2d at 643) The ALJ's findings must be consistent with the other evidence in the case. Id. at 261

In evaluating subjective symptoms, a claimant must first demonstrate the existence of a medically determinable impairment that could reasonably be expected to produce the symptoms. After such an impairment has been identified, the intensity and persistence of the claimant's symptoms are evaluated based on all available evidence. The symptoms will not be rejected simply because the objective medical evidence does not support the claim. Other factors which will be considered include the claimant's medical history, diagnosis daily activities, prescribed treatments, efforts to work and any functional limitations or restrictions caused by the symptoms. See 20 C.F.R. § 404.1529. In addition,

[w]hen evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual's statements.

The finding on the credibility of the individual's statements cannot be based on an intangible or intuitive notion about an individual's credibility. The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision. It is not sufficient to make a conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.

SSR 96-7p, 1996 WL 374186, at *4 (S.S.A.).

Here, ALJ Kanell failed to reference Hilton's credibility in the Findings at the conclusion of his decision. In the body of the decision, however, he found:

The claimant's allegations as to the duration and frequency of alleged functional limitations, irrespective of his use of alcohol, are found to be exaggerated and not credible, since his allegations are not substantiated by probative medical evidence, and are not consistent with his reasonably wide range of daily activities including his current maintenance work.

(Tr. 14) The court concludes that ALJ Kanell set forth his credibility determination with sufficient specificity to permit judicial review.

ALJ Kanell found not credible Hilton's statements concerning his alleged functional limitations. He noted that Hilton's subjective complaints were not corroborated in the medical records and were not consistent with his admitted daily activities. (Id.) Although ALJ Kanell stated that "x-rays revealed no evidence of any acute lumbosacral problem" (Id.), the report noted some straightening of the normal curvature of the lumbosacral spine, possibly attributable to muscle spasm. (See Tr. 383). Hilton argues that the x-ray provides some objective medical evidence supporting his complaints of lower back pain (Dkt. #13, at 13). The x-rays were otherwise within normal limits.

Because the medical records provide some objective evidence to support a claim of lower back pain, ALJ Kanell could not reject this subjective complaint as unsupported. The court cannot consider the evidence de novo to determine whether Hilton's complaint of back pain was evaluated properly. Thus, the case must be remanded to enable the ALJ to consider whether the objective medical evidence in support of this claim, albeit slight, would affect the determination that Hilton's activities warrant complete rejection of any claim of disabling lower back pain.

In addition, the Court questions ALJ Kanell's interpretation of the report of the consultative psychologist Although the report references alcohol use, it is not clear that the test results were influenced by alcohol as determined by ALJ Kanell. If ALJ Kanell relied on his assumption that the IQ test scores were influenced by alcohol use in making his credibility determination and upon further review, or information from the consultative psychologist, that assumption is determined to have been incorrect, he should include any revised determination in the credibility finding upon remand.

Also, Hilton testified that he held the same job for twenty-three years before he was terminated when the company downsized and moved. A good work record is a factor frequently considered evidence of credibility See Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983) Upon remand, the ALJ should indicate the weight, If any, he afforded Hilton's work record in assessing his credibility.

C. Proper Diagnoses

Hilton next centends that ALJ Kanell substituted his judgment for that of his treating physicians when he stated that Hilton suffered from numbness of the legs, a symptom, and omitted the diagnosis of peripheral neuropathy (Dkt. #13, at 11-12). He argues that the ALJ must accept any diagnosis contained in the record and cannot alter a diagnosis to fit his personal opinion of a claimant's condition. (Id. at 12) He seeks a remand to enable the ALJ to assess the seventy and functional limitations caused by peripheral neuropathy.

First, the Court rejects Hilton's claim that ALJ Kanell failed to acknowledge a diagnosis of peripheral neuropathy. None of the relevant medical records reflect this diagnosis. The relevant medical records contain two references to neuropathy. One is a notation of alcoholic neuropathy on a temporary admission sheet from August 1996. (See Tr. 408). The records from this hospital admission indicate that the initial diagnoses were: (1) alcohol dependency, (2) alcoholic psychosis. (3) chronic airway obstruction and (4) hypertension. (See Tr. 398-99). The final diagnoses were: (1) alcohol withdrawal syndrome, (2) alcohol dependence, (3) chronic obstructive pulmonary disease, (4) hypertension and (5) mild mycrocytic anemia and thrombocytopenia. (See Tr 404). Thus, it appears that peripheral neuropathy was never considered a viable diagnosis in August 1996.

In addition, the consultative physician noted numbness of the legs without any evidence of acute lumbosacral problems and described the numbness as secondary to alcohol-related neuropathy. (See Tr. 383). ALJ Kanell merely repeated this characterization in his decision.

Plaintiff bears the burden of demonstrating that he suffered from a disabling impairment. See 42 U.S.C. § 423(d)(5); Bowen v. Yuckert. 482 U.S. 137, 147-48 (1987). Because Hilton did not provide any medical records containing a diagnosis of or treatment for peripheral neuropathy curing the relevant time period he cannot now fault ALJ Kanell for failing to find that this impairment would be disabling even If he stopped consuming alcohol

D. Factual Errors

In his argument for reversal and award of benefits, Hilton identifies six factual errors that allegedly deprived him of a full and fair hearing: (1) ALJ Kanell stated that Hilton did not test well when he had been drinking when several psychologists noted that he was not inebriated while being tested and attributed his poor performance to cognitive impairment, (2) ALJ Kanell attributed Hilton's low IQ scores to ongoing alcohol abuse rather than to cognitive impairment; (3) ALJ Kanell attributed improvement in test scores from 1994 to 1996 to detoxification; (4) ALJ Kanell misstated Hilton's 1996 full scale IQ to be 68 when it was 64 and incorrectly attributed the scores to alcohol use; (5) ALJ Kanell stated that x-rays revealed no evidence of any acute lumbosacral problems when the x-rays showed straightening of the normal spinal curve indicative of muscle spasm which is an acute and painful lumbosacral problem; and (6) ALJ Kanell minimized the consultative physician's findings that Hilton had decreased touch and pain sensation below the knees suggestive of alcohol-related neuropathy by stating that Hilton's gait and reflexes were normal. (Dkt. #13, at 12-14)

The ALJ must ensure that the record contains no gaps and that reports from treating physicians are included, and the ALJ must elicit adequate testimony at the hearing. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). Hilton has identified no treating physicians whose reports are not included in the record and no gaps in the record that ALJ Kanell neglected to correct. At counsel's request, ALJ Kanell left the record open following the hearing and accepted additional medical records obtained by counsel. (See Tr. 81-82, 394-479, 480-90, 491). In addition, ALJ Kanell permitted counsel to question Hilton on a variety of topics and ensured that the record contained testimony regarding Hilton's impairments, medical treatment, current abilities and limitations, previous work history and daily activities

Based upon us review of the record the Court concludes that Hilton was afforded a full and fair hearing. That he disagrees with ALJ Kanell's interpretation of the record evidence does not show that the hearing itself was flawed Instead, these alleged factual errors are applicable to an argument that the decision denying benefits is not supported by substantial evidence E. Listed Impairments

Hilton argues that his impairments meet the requirements of Listing 12.02, organic mental disorder and are equivalent to the requirements for Listing 12.05. mental retardation. (Dkt. #13. at 15-16). With regard to listing 12.05, Hilton asserts that his IQ falls within the identified range and his peripheral neuropathy satisfies the requirement in 12.05C for a second impairment. (Id.) Hilton also argues that his impairments are equivalent to listings 12.05B and 12. 05D. (Id.) Hilton contends that ALJ Kanell improperly disregarded the statements of the consultative psychologists that alcohol did not affect his performance on the IQ tests, (Dkt. #13. at 16).

As indicated above, the Court questions ALJ Kanell's interpretation of the consultative psychological reports. Without clarification, the Court cannot discern whether Hilton's mental impairment should be considered equivalent to one of the listed impairments. Because the court has determined that the case must be remanded for further proceedings, the ALJ is directed to clarify the consultative psychologists' opinions and re-evaluate Hilton's mental impairments in light of those opinions.

F. Vocational Factors

Hilton also contends that ALJ Kanell improperly used grid categories that applied to high school graduates when he is functionally illiterate and applied the Grid when he alleged non-exertional impairments. (Dkt #13. at 17) In addition. Hilton disputes the specific grid categories applied in this case. (Dkt. #13. at 17-18). He argues that Grid rule 203.21 assumes he can perform the full range of work at the medium level of exertion when ALJ Kanell determined that he retained the ability only for work at the light to medium level of exertion. (Dkt. #13, at 18). Hilton argues that he should have been rated, and found disabled, under Grid rule 202.09 as someone closely approaching advanced age, illiterate, having no skills and having the residual functional capacity only for light work. (Id.)

ALJ Kanell did not acknowledge the consultative psychological opinions regarding Hilton's diminished mental abilities in his decision or determine whether these limitations were linked to or independent of Hilton's alcohol use He merely recounted the indications in the record that Hilton graduated from high school and applied a grid category applicable to high school graduates. In light of the psychological reports suggesting that Hilton is functionally illiterate, reliance on statements that Hilton graduated from high school and evaluating him under a standard that presumes an ability to function commensurate with that educational level may not be warranted. Upon remand, If the ALJ determines that this case is properly resolved by application of the Grid, he is directed to determine whether the grid category applied by ALJ Kanell is warranted in light of the psychological reports.

G. Opinions of Consultative Psychologists

Hilton challenges ALJ Kanell's use of the opinions of consultative psychologists. (Dkt. #13. at 19-20). He argues that, pursuant to SSR 96-6p. ALJ Kanell should have accepted these opinions and found him disabled

Any licensed medical doctor's opinion is a "medical opinion," even If the doctor merely Consults, but does not treat, the claimant See Diaz v. Shalala. 59 F.3d 307 312. 313 (2d Cir. 1995); 20 C.F.R. § 404.1513(a)(1) (e) 404 1527(a)(2)) "[i]n evaluating a claimant's disability, a consulting physician's opinions or report should be given limited weight. This is justified because 'consultative exams are often brief, are generally performed without benefit or review of claimant's medical history and. at best, only give a glimpse of the claimant on a single day Often, consultative reports ignore or give only passing consideration to subjective symptoms without stated reasons.'"Simmons v. United States Railroad Retirement Board, 982 F.2d 49, 55 (2d Cir. 1995) (citing Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990) (citations omitted)).

Specifically, SSR 96-6p provides:

Because State agency medical and psychological consultants and other program physicians and psychologists are experts in the Social Security disability programs, the rules require administrative law judges and the Appeals Council to consider their findings of fact about the nature and severity of an individual's impairment(s) as opinions of nonexamining physicians and psychologists. Administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they may not ignore these opinions and must explain the weight given to the opinions in their decisions.

1996 WL 362203, at *2 (S.S.A.).

This record is unusual because it contains minimal relevant opinion evidence from treating sources. Regardless, ALJ Kanell still should have complied with SSR 96-6p and indicated in his decision the weight afforded the consultative opinions. If he did not fully accept the consultants' findings, he should have explained his reasons for that determination.

H. Assessment of Residual Functional Capacity

Hilton also argues that ALJ Kanell failed to conduct a proper residual functional capacity assessment because he did not consider all of the exertional and non-exertional limitations contained in the medical records (Dkt #13, at 20).

SSR 96-8p describes the process of determining residual functional capacity. Although the ruling requires the ALJ to assess each function associated with work at a certain exertional level to determine whether an individual can perform the full range of work at that exertional level, it provides that If no evidence is presented suggesting limitation of a particular function, the ALJ must assume that the individual is not limited with respect to that functional capacity. See SSR 96-8p. 1996 WL 374184, at *3, *1 (S.S.A.).

As discussed above, the Court has determined that ALJ Kanell may not have evaluated fully Hilton's mental impairments to determine whether these impairments are independent of his alcohol use. In addition, the Court has determined that the case should be remanded to enable the ALJ to perform a more complete credibility assessment. The ALJ is directed to reassess Hilton's residual functional capacity in conjunction with these findings.

I. Substantial Evidence in Support of Decision

The defendant argues that the Commissioner's decision is supported by substantial evidence. (Dkt. #15). In light of the Court's conclusion that the ALJ should reevaluate Hilton's mental impairments and reassess his credibility, the Court cannot conclude that the decision is supported by substantial evidence In conjunction with the revaluation suggested by this decision, the ALJ also should consider evidence of Hilton's recent work history in determining whether his non-alcohol-related impairments render him disabled within the meaning of the Act.

V. CONCLUSION

The parties are free to seek the district judge's review of this recommended ruling. See 28 U.S.C. § 636(b) ( written objection to ruling must be filed within ten days after service of same); Fed.R.Civ.P. 6(a), 6(e) 72; Rule 2 of the Local Rule for United States Magistrate Judges, United States District Court for the District of Connecticut; Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989) ( failure to file timely objection to Magistrate Judge's recommended ruling may preclude further appeal to Second Circuit).

Dated this 25th day of November, 2002, at New Haven, Connecticut.