ANDREW J. PECK, United States Magistrate Judge

REPORT AND RECOMMENDATION ANDREW J. PECK, United States Magistrate Judge :

To the Honorable John G. Koeltl, United States District Judge:

Plaintiff Eric J. Karle, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying him Disability Insurance Benefits ("DIB"). (Dkt. No. 1: Compl.) Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. Nos. 7 & 14: Notices of Motion.)

For the reasons set forth below, the Commissioner's cross motion for judgment on the pleadings should be DENIED and Karle's motion for judgment on the pleadings should be GRANTED to the extent of remanding the case to the Commissioner for further proceedings.

FACTS

Procedural Background

On December 9, 2007, Karle filed for DIB, alleging that he was disabled since February 3, 2006. (Dkt. No. 5: Administrative Record filed by the Commissioner ("R.") 63-66, 141.) Karle claimed to suffer from thoracic radiculopathy. (R. 141.) Karle's application was initially denied on April 25, 2008. (R. 68-71.)

At Karle's request, Administrative Law Judge ("ALJ") Michael A. Rodriguez conducted a hearing on January 6, 2010, at which Karle appeared with counsel. (R. 29-62.) On March 24, 2010, ALJ Rodriguez issued a written decision finding Karle not disabled (R. 14-25), which became the Commissioner's final decision when the Appeals Council denied Karle's request for review on March 22, 2012 (R. 1-3).

The issue before the Court is whether the Commissioner's decision that Karle was not disabled between February 3, 2006 and March 24, 2010 is supported by substantial evidence. Non-Medical Evidence

Karle was born on July 6, 1958, and was fifty-one years old at the time of the hearing before ALJ Rodriguez. (Dkt. No. 5: R. 36-37, 126.) Karle has a doctorate degree and worked as a chiropractor from 1983 until February 3, 2006. (R. 37, 39, 142.) As a chiropractor, Karle had to walk, stand and stoop for two hours each, and sit for one hour in a seven-hour workday. (R. 142.) Karle also had to handle, grab, and grasp big objects, as well as reach for six hours. (R. 142.) Karle frequently lifted ten pounds, and the heaviest weight he lifted was one hundred pounds or more. (R. 142. )

Karle has not done any other work since February 3, 2006. (R. 38-40.) Karle alleges that he was disabled since February 3, 2006 due to thoracic radiculopathy, which caused him to feel "electrical shocks in [his] left arm/side" causing "extreme nerve pain." (R. 141.) Karle is right handed. (R. 37.)

Karle lives in a house with his wife and four children, one of whom is in college. (R. 36, 47, 147.) Karle takes care of his children's daily routines, including making and cleaning up breakfast, sending them to school, picking them up from the bus, making them snacks, and taking them to swimming classes. (R. 47-48, 148.) While the children are at school, Karle exercises and rests. (R. 148.) Karle shops for, prepares and cleans up dinner. (R. 148-49.) Karle does the laundry, cooking and cleaning. (R. 48, 150.) Karle needs help to move heavy objects and hired someone to mow the lawn. (R. 150.) Albeit at a slower pace, Karle takes care of his own personal needs and travels alone by walking or driving a car. (R. 148-50.) A few times each week, Karle shops for groceries and other necessities. (R. 151.) Karle's hobbies include reading, watching movies, and keeping in shape cardiovascularly. (R. 151.) On a daily basis, Karle communicates with others by telephone and email. (R. 152.) On a weekly basis, Karle attends church and school activities. (R. 152.) Karle continues his responsibilities on the local school board, but sometimes he has to get up during meetings when he has been sitting for long. (R. 38-40.)

Karle can sit for up to two hours, and after that he must change positions to avoid pain similar to electrical shocks in his side and the fifth finger on his left hand. (R. 40-41, 48, 155-56.) Karle experiences pain when twisting and turning, more than from heavy lifting. (R. 52, 157.) The electrical shocks take his breath away, but then quickly "dissipate[]." (R. 50-51.) Karle experiences these shocks each day, as many as twenty times. (R. 41, 51.) Karle sometimes experiences this pain when turning over in bed. (R. 44, 46.) Physical therapy and exercise did not ease Karle's pain. (R. 44-45.) Various medications made Karle feel "dopey," so he does not take them. (R. 45.) Nuerontin's and Cymbalta's side effects were too disruptive (R. 58, 156); Topomax made Karle feel groggy (R. 55-57). Karle agreed that "functionally in between this pain [Karle] may not be what [he] use[d] to be but [he] can do a lot of things. But then this pain kicks in and it makes and it virtually impossible to do a function over an extended period of time." (R. 48.) Karle added that it is "a nebulous T1/C8 radiculopathy but there's no motor component to it so it's all a dy[se]sthesic pain, which makes you feel, you know, as electricity." (R. 43-44.) Karle does not want to undergo epidural shots or x-rays. (R. 49-50.) Medical Evidence

Medical Evidence Prior To The February 3 , 2006 Onset Date

On September 12, 2003, Karle underwent a MRI of his thoracic and cervical spine. (Dkt. No. 5: R. 199, 201.) The thoracic spine impression revealed "multilevel disc degeneration with disc bulging. Small focal left disc herniation at T5-T6. Other disc bulges are asymmetric, left larger than right." (R. 199.) There was no "spinal cord compression," "spinal cord lesion" or "abnormal enhancement of cord or meninges." (R. 199.) The cervical spine impression showed a "[m]ild increase in size of small left foraminal focal disc herniation at C6-C7 since the previous study on September 2000," no "significant change in disc bulging with osteophyte formation at C5-C6," and small "new left paravertebral joint osteophyte at C4-C5 with mild foraminal narrowing." (R. 201.)

On October 13, 2005, Karle saw Dr. Albert Szabo of the Mount Kisco Medical Group for a follow-up appointment regarding his peripheral neuropathy. (R. 182.) Karle reported no change in his symptoms and stated that he was phasing out of his chiropractic practice and doing some Wall Street work. (R. 182.) Dr. Szabo's impression was "[l]eft-sided thoracic and arm dysesthesias possibly related to the thoracic disk, although no actual radicular symptoms." (R. 182.) Dr. Szabo again discussed treatment alternatives with Karle, including surgical reevaluation and medication treatment. (R. 182.) Dr. Szabo recommended "Lyrica 50 mg 1 tab po qd, increasing up to 2 tabs tid (300 mg a day)." (R. 182.) Karle stated that he likely would not take the medication as he was concerned about habituation. (R. 182.)

On January 12, 2006, Karle again saw Dr. Szabo and complained of parethesias radiating down into his left arm. (R. 181.) Dr. Szabo noted that Karle did "not want to take any medications." (R. 181.) Except "[l]eft lateral flexion of [Karle's] neck elicits some significant pain," Karle's examination was normal. (R. 181.) Dr. Szabo had reviewed Karle's MRI studies and noted "[n]eurologic compression, left-sided," and "[a]rm and thoracic dysesthesias possibly related to a thoracic disk herniation." (R. 181.) Dr. Szabo had no treatment plan because Karle did not want to attempt surgery or take any medication. (R. 181.)

Medical Evidence After The February 3 , 2006 Onset Date

Treating Physician Dr. Mark W. Green

On February 3, 2006, Karle saw neurologist Dr. Mark W. Green and complained of electrical-type pain on his left side, axilla and radiating to C7. (Dkt. No. 5: R. 179.) Dr. Green reported normal results on Karle's general and mental status examination: "alert, fully ambulatory and oriented in all spheres," "[o]riented to person, place, and date," "no evidence of sleepiness," and "[m]emory is grossly intact." (R. 179.) There were no abnormal findings in Karle's cardiovascular, cranial nerve, cerebellar, musculoskeletal, neuromuscular and sensory examinations. (R. 179.) Assessing "brachial plexitis on the left side," Dr. Green noted that it "has been protracted and appears to be a permanent disability." (R. 179-80.) Dr. Green opined that Karle "cannot function in his work as a chiropractor which increases his pain and may even enhance the deficit." (R. 180.) Dr. Green "strongly advised [Karle] to apply to permanent total disability, even though he has worked relentlessly for years with this pain." (R. 180.) Dr. Green would consider prescribing "Zonegran, which might [offer] some pain relief but would influence [his] recommendation of going on permanent disability," and noted that "all of these medications used for neuropathic pain have cognitive side effects and might impair [Karle's] professional judgments." (R. 180.)

On June 30, 2006, Karle saw Dr. Green and reported "nothing significantly new," that he had "stopped working as the physical work worsened his brachial plexitis," that he was on no medication, "[s]ymptoms worse with change of position," and "[d]ysesthetic pain left C7-T1." (R. 211.) Dr. Green reported normal results on Karle's general and mental status examination. (R. 211.) There were no abnormal findings in Karle's cardiovascular, cranial nerves, cerebellar, musculoskeletal, sensory and neuromuscular examinations. (R. 211.) Dr. Green noted normal posture, "[g]ood range of motion of the neck without tenderness," "[t]rapezii are normal," "[n]ormal gait, station and arm swing," and normal tone, power and reflexes. (R. 211.) Dr. Green assessed "brachial plexitis, stretch injury" and did not prescribe any medications or testing. (R. 211-12.)

On December 18, 2006, Karle saw Dr. Green and noted that the "[p]ain is same," "[s]till left C7-T1," and "he does not have all of the physical work in his new career." (R. 209.) Dr. Green reported normal results on Karle's examination. (R. 209.) Dr. Green noted normal posture, "[g]ood range of motion of the neck without tenderness," "[t]rapezii are normal," "[n]ormal gait, station and arm swing," and normal tone, power and reflexes. (R. 209.) Dr. Green again assessed "brachial plexopathy, stable" and did not prescribe any medications or testing. (R. 209-10.)

On March 29, 2007, Dr. Green completed an "Attending Physician's Statement" for Karle's disability insurance company, Northwestern Mutual. (R. 207-08.) Dr. Green diagnosed Karle with thoracic radiculopathy with a pain severity of five, on a scale of one to ten with ten being the most severe. (R. 207.) Treatment consisted of medication. (R. 206.) Dr. Green opined that Karle could not perform heavy lifting due to persistent cervical and throacic radiculopathy. (R. 207.) To Dr. Green's knowledge, Karle was performing office work but could not function as a chiropractor. (R. 206.) Dr. Green noted that Karle functions well in his work when it does not require lifting. (R. 206.)

On June 18, 2007, Karle returned to Dr. Green complaining that he had been doing better but minor physical activity involving the elevation of his left arm caused pain under his axilla extending to the left C7. (R. 204.) Upon adducting his left arm, Karle reported that he experienced very sharp pain, and upon neck flexion, Karle experienced electric shocks at the same location. (R. 204.) Dr. Green noted normal results on Karle's examination. (R. 204.) Dr. Green recorded good range of motion in Karle's neck, full strength, normal reflexes and tone, and normal gait, station and arm swing. (R. 204.) Assessing "brachial plexus stretch injury [versus] compressive lesion of posterior columns; not identified in past scans," Dr. Green recommended possible MRI testing if there was not any improvement. (R. 204-05.) Dr. Green did not prescribe any medication. (R. 205.)

On December 11, 2007, Karle saw Dr. Green and reported that "[s]acral numbness had improved[, p]robably had something to do with the seat on the spinning class"; "[r]adicular pain remains intermittent; often related to movement[; t]ouching 5th finger will trigger the electric shock like pain along left T1"; "[r]emains disabled as movement will trigger this pain"; and he is not taking any medication. (R. 202.) Dr. Green noted normal results in Karle's examination, including normal posture, good range of motion of the neck without tenderness, full strength and reflexes, and normal tone. (R. 202-03.) Assessing "central sensitization in the thoracic region as T1 stimulation triggers T7 pain," Dr. Green prescribed EMLA cream. (R. 203.)

On July 7, 2008, Karle saw Dr. Green and reported that Topamax helped somewhat but complained of electric shocks on T1 and across his left ribs, which worsened when he twisted or turned. (R. 240.) Dr. Green noted normal results on Karle's examination but noted decreased pin prick sensation at T1 on the left while thoracic sensation was normal. (R. 240.) Dr. Green noted normal posture, good range of motion in Karle's neck without tenderness, full strength and reflexes, and normal tone. (R. 240.) Diagnosing "thoracic radiculopathy on the left; unknown cause," Dr. Green opined that Karle "[r]emains disabled for his profession as the pain is triggered mechanically." (R. 240.) Dr. Green recommended a further thoracic and cervical MRI. (R. 241.)

On December 16, 2008, Karle saw Dr. Green and reported that Topamax was marginally helpful for pain but helped him sleep. (R. 243.) Karle complained of electric shocks with pain around T1, "eccentric to the left." (R. 243.) Dr. Green noted normal results in Karle's mental status, cardiovascular, musculoskeletal, neuromuscular and cerebellar examinations. (R. 243.) Karle's sensory examination was normal except for T1 hyperalgesia on the left. (R. 243.) Dr. Green also noted normal posture, good range of motion in Karle's neck without tenderness, full strength and reflexes, normal tone, and normal gait, station and arm swing. (R. 243.) Diagnosing thoracic radiculopathy on the left, Dr. Green opined that Karle could not work as a chiropractor and Karle "cannot remain in a single position for long." (R. 243.)

On April 6, 2009, Karle saw Dr. Green and noted that his symptoms "wax and wane." (R. 244.) Dr. Green noted normal results in Karle's mental status, musculoskeletal, neuromuscular, and cerebellar examinations. (R. 244.) Karle's sensory examination was normal except for "[v]ague hyperalgesia around T3 on the left." (R. 244.) Dr. Green noted normal posture, good range of motion in Karle's neck without tenderness, full strength and reflexes, normal tone, and normal gait, station and arm swing. (R. 244.) Dr. Green diagnosed "dyesthesic radicular pain, thoracic on the left, not identified on MRI." (R. 244.)

Consultative Physician Dr. Rose Chan

On March 25, 2008, Dr. Rose Chan performed a consultative orthopedic examination on Karle, who had been referred by the Division of Disability Determination. (Dkt. No. 5: R. 219-21.) Karle reported that he had worked as a chiropractor until February 2006. (R. 219.) Beginning in 1997, Karle had an electrical-type pain going down the inside of his left arm and just under the armpit. (R. 219.) Karle reported having MRI and CT scans, and being told that he had herniated discs in his neck and thoracic spine. (R. 219.) Karle had tried Neurontin and Topamax but had quit taking them when he thought they were not worth the side effects, and had also refused injections and surgery. (R. 219.) While Karle had never tried physical therapy, he exercised on his own. (R. 49, 219.) Karle reported that since he stopped working as a chiropractor and running, the electric pain had decreased. (R. 219.) Karle reported that he could climb three flights of stairs and walk twenty blocks. (R. 220.)

Dr. Chan reported that Karle's gait, station, appearance and behavior were normal. (R. 220.) Karle's hand and finger dexterity was intact and grip strength was full bilaterally. (R. 220.) Karle's cervical spine was normal, but Karle's left shoulder was slightly higher than his right. (R. 220.) Karle had full range of motion in his shoulders, elbows, forearms, wrists and fingers bilaterally. (R. 220.) Dr. Chan noted hypersensitivity to light touch stroking and pin prick on the inner aspect of the left upper extremity and also on the left side of the torso under the axilla, but reflexes were physiologic and equal. (R. 221.) Noting thoracolumbar scoliosis with the left shoulder being higher than the right, Dr. Chan reported that flexion and extension, lateral flexion, and rotary movements were full bilaterally. (R. 221.) Karle had no spinal, paraspinal, or sacroiliac tenderness; no spasms; and straight leg raise testing was negative bilaterally. (R. 221.) In his lower extremities, Karle had full range of motion in his hips, knees and ankles bilaterally; full strength in proximal and distal muscles bilaterally; no muscle atrophy; no sensory abnormality; reflexes were physiologic and equal; and no joint effusion, inflammation or instability. (R. 221.) Diagnosing "[l]eft upper extremity neuralgia," "[h]istory of cervicobrachial neuralgia" and "[s]coliosis," Dr. Chan recommended a neurological evaluation and review of Karle's prior electromagnetic ("EMG") testing. (R. 221.) Dr. Chan opined that Karle should avoid repetitive and heavy lifting with his left arm. (R. 221.)

Physical RFC Assessment By A. King

On April 24, 2008, disability examiner A. King completed a "Physical Residual Functional Capacity Assessment." (Dkt. No. 5: R. 223-28.) Due to Karle's thoracic radiculopathy, King determined that Karle had the following exertional limitations: (1) occasionally lift and/or carry up to 20 pounds; (2) frequently lift and/or carry 10 pounds; (3) stand and/or walk, with normal breaks, for a total of about six hours in an eight-hour workday; (4) sit, with normal breaks, for a total of about six hours in an eight-hour workday; and (5) push and/or pull without limitation. (R. 224.) King stated that the following evidence supported his conclusions:

MER in file indicates a diagnosis of thoracic radiculopathy. On examination Karle] has a normal gait and can walk on heels and toes without difficulty. [Karle] has moderately reduced ROM [range of motion] of the cervical spine. [Karle] has full ROM of the thoracic and lumbar spine with a thoracolumbar scoliosis. Strength is 5/5 in the upper and lower extremities. Ther[e] is a full ROM of all joints in the upper and lower extremities.

Vocational expert Donald Slive testified at Karle's hearing before ALJ Rodriguez. (Dkt. No. 5: R. 59-62.) Slive testified that Karle had worked as a chiropractor, which required medium exertion. (R. 59.)

Slive testified that Karle had skills "such as influencing, explaining, demonstrating, filing and comparing" that could be transferred to sedentary work. (R. 59.) ALJ Rodriguez asked Slive to discuss jobs assuming the following residual functional capacity:

sit for six hours out of an eight hour work day, standing and walking six out of eight; lifting and carrying . . . 50 pounds occasionally, 25 pounds more frequently; no push, pull activities involving the upper left extremity; no ropes, ladders or scaffolds; over head distance and directional reaching frequent on the right, occasional on the left; only occasional left-handed gross manipulation so obviously you're accommodating the left hand side symptoms that he has testified to[;] . . . avoid hazards such as moving machinery and heights.

I think that the hypothetical has to include the amount of time off task because most jobs that either the skills would transfer to or even unskilled task jobs are going to require at least the minimum of 90 percent time on task. If an individual has to be off task due to those impairments that were cited, then I would have great difficulty finding work for such an individual.

On March 24, 2010, ALJ Rodriguez denied Karle's application for DIB benefits in a written decision. (Dkt. No. 5: R. 14-25.) ALJ Rodriguez reviewed Karle's claim of disability resulting from his thoracic radiculopathy, considering both Karle's testimony and the medical record. (R. 19-21.)

ALJ Rodriguez found that Karle's "medically determinable impairments could somewhat reasonably be expected to cause the alleged symptoms; however, his statements concerning the intensity, persistence and limiting effects of these symptoms are not fully credible." (R. 23.) In particular, ALJ Rodriguez noted that:

[T]he evidence documents solely conservative treatment. The claimant [Karle] has never been hospitalized at any time for any condition. He is not taking any medication, other than Topamax which is taken only at night. Other than some diffuse sensory deficits of the left, non-dominant side, the claimant has consistently been shown as being fully neurologically intact. EMG testing has produced negative results. There is no indication of any muscle atrophy, an expected result of substantial non-use, even of the claimant's left, non-dominant extremity. Hence, the objective medical evidence does not corroborate allegations of total disability.

The evidence further documents that the claimant has remained fully functional with respect to his activities of daily living. He is fully independent in all aspects of his self-care, including showering, grooming and dressing. He is able to drive a car by himself. He cleans, cooks, does laundry on a daily basis, and he shops several times per week. He handles all of the daily childcare duties at home. He goes out and socializes with friends and family members. He can engage in such exercise activities as running and spinning. Such a level of functionality is clearly inconsistent with the magnitude of functional compromise purported.

It is also noted that there has been no worsening or progression of the claimant's condition shown between the time that he was engaging in substantial gainful activity to the present. Specifically, the cervical and thoracic disc herniations were indicated in September, 2003, when he was performing substantial gainful activity. Similarly, his scoliosis can be presumed to have been of long-standing duration.

. . . .

In this regard, it is noted that while the claimant reports pervasive grogginess which would affect his ability to work, every physical examination specifically chronicled that he exhibited no signs of sleepiness. The evaluations further noted that he was alert and fully oriented, observations which fail to support his contentions of frequently being off-task mentally due to his pain sensations.

while I can accept that the claimant's symptoms may have interfered with his ability to perform the full range of duties as a licensed chiropractor, the notion that such a highly educated and skilled individual is totally precluded from any and all manner of work-related activities is not objectively corroborated; particularly in light of his substantial activities of daily living.

ALJ Rodriguez concurred "with the assessments of Drs. Chan and Green to the extent that [Karle] is determined to be incapable of heavy lifting." (R. 23.) ALJ Rodriguez further opined that "Dr. Green's conclusion of the claimant being permanently and totally disabled appears to have been addressed within the context of his profession as a chiropractor, as his insurance assessment form cites an ability to engage in other work activity." (R. 23.) ALJ Rodriguez further concurred "with the assessment as reached at the previous stage of administrative review," but "the conclusion of the claimant having occasional postural restrictions is not found to be persuasive, given the multiple physical examinations which document full motor strength and intact range of motion of all body joints." (R. 23.)

ALJ Rodriguez applied the appropriate five step legal analysis, as follows: First, ALJ Rodriguez found that Karle had not "engaged in substantial gainful activity since February 3, 2006, the alleged onset date." (R. 21.) Second, ALJ Rodriguez determined that Karle had "severe impairments: disc herniations of the cervical and thoracic spine, and scoliosis." (R. 21.) ALJ Rodriguez added that the "evidence does not definitively substantiate any medically determinable impairment referable to thoracic radiculopathy and/or thoracic neuralgia[, and] . . . there has been no clinical evidence to document such a diagnosis, insofar as EMG testing adduced negative responses." (R. 21.) Third, ALJ Rodriguez found that Karle did "not have an impairment or combination of impairments that meets or medically equals one of the listed impairments." (R. 22.) ALJ Rodriguez determined that Karle retained "the residual functional capacity to perform light work" (R. 22), adding that:

[Karle] is therefore able to lift/carry objects that weigh up to 20 pounds occasionally and 10 pounds frequently. During the course of an 8-hour workday, he can sit for a total of 6 hours; and stand and/or walk for a total of 6 hours. This assessment is generally consistent with the opinions of Drs. Green and Chan, both of whom cited restrictions of heavy lifting. The conclusion is also based upon every physical examination within evidence that chronicled the claimant as being essentially fully neurologically intact.

On April 13, 2010, Karle requested review by the SSA Appeals Council. (R. 12.) On March 22, 2012, the Appeals Council denied Karle's request for review of ALJ Rodriguez's decision and it became the Commissioner's final decision. (R. 1-3.)

ANALYSIS

I. THE APPLICABLE LAW

A. Definition Of Disability

A person is considered disabled for Social Security benefits purposes when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which 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)(A), 1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23, 124 S. Ct. 376, 379 (2003); Barnhart v. Walton, 535 U.S. 212, 214, 122 S. Ct. 1265, 1268 (2002); Impala v. Astrue, 477 F. App'x 856, 857 (2d Cir. 2012).

An individual shall be determined to be under a disability only if [the combined effects of] his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

In determining whether an individual is disabled for disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).

B. Standard Of Review

A court's review of the Commissioner's final decision is limited to determining whether there is "substantial evidence" in the record as a whole to support such determination. E.g., 42 U.S.C. § 405(g); Giunta v. Comm'r of Soc Sec., 440 F. App'x 53, 53 (2d Cir. 2011); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). "'Thus, the role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision.'" Morris v. Barnhart, 02 Civ. 0377, 2002 WL 1733804 at *4 (S.D.N.Y. July 26, 2002) (Peck, M.J.).

The Supreme Court has defined "substantial evidence" as "'more than a mere scintilla [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971); accord, e.g., Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Rosa v. Callahan, 168 F.3d at 77; Teiada v. Apfel, 167 F.3d at 773-74. "[F]actual issues need not have been resolved by the [Commissioner] in accordance with what we conceive to be the preponderance of the evidence." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212, 103 S. Ct. 1207 (1983). The Court must be careful not to "'substitute its own judgment for that of the [Commissioner], 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).

The Court, however, will not defer to the Commissioner's determination if it is "'the product of legal error.'" E.g., Duvergel v. Apfel, 99 Civ. 4614, 2000 WL 328593 at *7 (S.D.N.Y. Mar. 29, 2000) (Peck, M.J.); see also, e.g., Douglass v. Astrue, 496 F. App'x 154, 156 (2d Cir. 2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Tejada v. Apfel, 167 F.3d at 773 (citing cases).

The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920; see, e.g., Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct. 2287, 2291 (1987). The Supreme Court has articulated the five steps as follows:

Acting pursuant to its statutory rulemaking authority, the agency has promulgated regulations establishing a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further. [1] At the first step, the agency will find nondisability unless the claimant shows that he is not working at a "substantial gainful activity." [2] At step two, the SSA will find nondisability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." [3] At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. [4] If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. [5] If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.

The claimant bears the burden of proof as to the first four steps; if the claimant meets the burden of proving that he cannot return to his past work, thereby establishing a prima facie case, the Commissioner then has the burden of proving the last step, that there is other work the claimant can perform considering not only his medical capacity but also his age, education and training. See, e.g., Barnhart v. Thomas, 540 U.S. at 25, 124 S. Ct. at 379-80.

II. APPLICATION OF THE FIVE-STEP SEQUENCE TO KARLE'S CLAIM

A. Karle Was Not Engaged In Substantial Gainful Activity

The first inquiry is whether Karle was engaged in substantial gainful activity after his application for DIB. "Substantial gainful activity" is defined as work that involves "doing significant and productive physical or mental duties" and "[i]s done (or intended) for pay or profit." 20 C.F.R. § 404.1510. ALJ Rodriguez's conclusion that Karle did not engage in substantial gainful activity during the applicable time period (see page 14 above) is not contested by the Commissioner (see Dkt. No. 15: Comm'r Br. at 14-15). The Court therefore proceeds to the second step of the five-step analysis.

B. Karle Demonstrated "Severe" Impairments That Significantly Limited His Ability To Do Basic Work Activities

The second step of the analysis is to determine whether Karle proved that he had a severe impairment or combination of impairments that "significantly limit[ed his] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521 (a). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "Basic work activities" include:

walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling . . . seeing, hearing, and speaking . . . [u]nderstanding, carrying out, and remembering simple instructions . . . [u]se of judgment . . . [r]esponding appropriately to supervision, co-workers and usual work situations . . . [d]ealing with changes in a routine work setting.

"A finding that a condition is not severe means that the plaintiff is not disabled, and the Administrative Law Judge's inquiry stops at the second level of the five-step sequential evaluation process." Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727 at *5 (E.D.N.Y. Mar. 19, 1999). On the other hand, if the disability claim rises above the de minimis level, then the further analysis of step three and beyond must be undertaken. See, e.g., Dixon v. Shalala, 54 F.3d at 1030.

"A finding of 'not severe' should be made if the medical evidence establishes only a 'slight abnormality' which would have 'no more than a minimal effect on an individual's ability to work.'" Rosario v. Apfel, 1999 WL 294727 at *5 (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n.12, 107 S. Ct. 2287, 2298 n.12 (1987)).

ALJ Rodriguez determined that the medical evidence indicated that Karle had "severe impairments: disc herniations of the cervical and thoracic spine, and scoliosis." (See pages 14-15 above.) ALJ Rodriguez stated that the "evidence does not definitively substantiate any medically determinable impairment referable to thoracic radiculopathy and/or thoracic neuralgia[, and] . . . there has been no clinical evidence to document such a diagnosis, insofar as EMG testing adduced negative responses." (See page 15 above.)

Karle asserts that the Commissioner has "failed to properly evaluate Plaintiff's disability at step two." (Dkt. No. 8: Karle Br. at 8.) Karle asserts that "in order to find that Plaintiff had a light RFC [residual functional capacity] and could be found not disabled under the grids, the ALJ found that Plaintiff's thoracic radiculopathy/thoracic neuralgia was not a severe impairment." (Karle Br. at 9.) Further, Karle states that while the "medical file contains no EMG (except for a reference to negative EMG done in 2004 . . . ), Dr. Chen specifically recommended EMG testing, and all of the aforementioned treating physicians have been satisfied that the MRI evidence was adequate to support their diagnoses of thoracic radiculopathy and left upper extremity neuralgia." (Karle Br. at 9.)

The Commissioner asserts that the "ALJ's finding at step two was proper." (Dkt. No. 15: Comm'r Br. at 14 n.5.) The Commissioner agrees that the record does not contain EMG test results, but states that the "ALJ is likely referring to Dr. Green's note that EMG testing was negative." (Comm'r Br. at 14 n. 5, citing R. 189.) Further, the Commissioner asserts that the "ALJ's finding of disc herniation is supported by MRI scans performed in 2003." (Comm'r Br. at 14 n.5, citing R. 19, 199-201.)

A review of the record establishes that Karle's September 2003 MRI revealed "multilevel disc degeneration with disc bulging. Small focal left disc herniation at T5-T6. Other disc bulges are asymmetric, left larger than right" of the thoracic spine; and "[m]ild increase in size of small left foraminal focal disc herniation at C6-C7," no "significant change in the disc bulging with osteophyte formation at C5-C6," and small "new left paravertebral joint osteophyte at C4-C5 with mild foraminal narrowing" of the cervical spine. (See page 4 above.) Prior to Karle's onset date, Dr. Szabo assessed "[l]eft-sided thoracic and arm dysesthesias possibly related to the thoracic disk, although no actual radicular symptoms." (See page 5 above, emphasis added.) Between February 3, 2006 and December 11, 2007, Dr. Green diagnosed: "brachial plexitis on the left side," "brachial plexitis, stretch injury," "brachial plexopathy, stable," "brachial plexus stretch injury [versus] compressive lesion of posterior columns," and "central sensitization in the thoracic region as T1 stimulation triggers T7 pain." (See pages 6-8 above.) On July 7, 2008, Dr. Green diagnosed: "thoracic radiculopathy on the left; unknown cause," thoracic radiculopathy on the left, and "dysesthesic radicular pain, thoracic on the left, not identified on MRI." (See page 9 above.) In a March 29, 2007 "Attending Physician's Statement," Dr. Green diagnosed Karle with thoracic radiculopathy (despite the fact that he had previously only diagnosed Karle with brachial pexitis). (See page 7 above.) Dr. Wolfson diagnosed "overweight, history of radiculopathy" on October 18, 2007. (See page 8 n.5 above.) On March 25, 2008, consulting physician Dr. Chan diagnosed left upper extremity neuralgia, history of cervicobrachial neuralgia and scoliosis. (See page 11 above.)

The record evidence is notably lacking beyond the diagnosis of thoracic radiculopathy, which was not diagnosed until more than a year after the alleged onset date. No clinical tests confirm the existence of thoracic radiculopathy. (See page 15 above.) Karle's 2003 MRI, however, did confirm disc herniations of the thoracic and cervical spine. (See page 4 above.) In addition, as ALJ Rodriguez found, "every physical examination within evidence . . . chronicled the claimant as being essentially fully neurologically intact." (See page 15 above.) Karle's own account of his daily activities and treatment plan, or lack thereof, belie his contention that his thoracic radiculopathy is a severe impairment. Karle conceded that he takes care of his children's daily routines, does the laundry, cooks, cleans, shops for groceries and other necessities, is able to take care of his own personal needs, and travels alone. (See page 3 above.) Karle has never been hospitalized, and has refused several medications, injections, x-rays, and surgery. (See pages 4-9 above.)

Based upon the medical evidence and Karle's subjective statements, there is substantial evidence supporting ALJ Rodriguez's conclusion that Karle's thoracic radiculopathy is not a severe impairment. See, e.g., Tilbe v. Astrue, No. 10-CV-910, 2012 WL 2930784 at *9 (N.D.N.Y. July 17, 2012) (dismissing plaintiff's objections at step two when the ALJ "found that plaintiff's back and shoulder impairments were not severe because there were no radiological reports in the record suggesting either impairment and plaintiff specifically told [his physician] that he had no back pain, joint pain, or joint swelling"); Swigonski v. Astrue, No. 07-CV-385, 2009 WL 3734845 at *3 (W.D.N.Y. Nov. 4, 2009) ("With respect to Plaintiff's carpal tunnel syndrome, the ALJ noted that the Plaintiff was not currently receiving treatment, other than from her chiropractor who is 'not a medically acceptable or authorized treatment source.' He acknowledged that she occasionally wore wrist splints, but that she has not had surgery or received other medical care for this problem. Medical examinations indicated that Plaintiff's 'hand dexterity [was] well preserved and she demonstrated normal gross and fine manipulation skills and a normal grip.' . . . Therefore, the ALJ's decision that this impairment was not 'severe' within[] the meaning of the Social Security Act, is supported by substantial evidence."); Meadors v. Astrue, No. 07-CV-0623, 2009 WL 1706580 at *6 (N.D.N.Y. June 16, 2009) ("[O]ther than the above-referenced study, Plaintiff's medical records do not contain any further reference to carpal tunnel syndrome or cervical radiculopathy. Further, [the consultative examiner] noted that Plaintiff's hand and finger dexterity were 'intact' and indicated that there was only 'some limitation of the neck.' . . . The record in the present case is notably lacking in evidence beyond the diagnoses of carpal tunnel syndrome and cervical radiculopathy and there are only minimal indications of any assessment of the severity of those conditions."), aff'd in part, rev'd in part, 370 F. App'x 179, 182 (2d Cir. 2010) ("And, with regard to Appellant's cervical radiculopathy, there is scant evidence in the record to support her claim that the condition is serious. Although a nerve conduction study from June of 2005 does indicate a pathology consistent with that condition, her medical records fail to discuss it at all. Indeed, Appellant herself testified that aside from her lower back pain and COPD, none of her conditions are serious enough to prevent her from working. Because there is substantial evidence in the record to support the ALJ's Step 2 determination with regard to those conditions, it will not be disturbed."); McConnell v. Astrue, No. 03-CV-0521, 2008 WL 833968 at *12 (N.D.N.Y. Mar. 27, 2008) ("Plaintiff's own account of her daily activities belie her contention that her CTS [carpal tunnel syndrome] is a severe impairment. Plaintiff reported that she cooked, washed dishes, dusted, made the beds, swept lightly, did laundry, performed minor household repairs such as changing a lightbulb, took care of her personal hygiene, and tended to her youngest child. Based upon the medical opinions and Plaintiff's subjective statements, the Court finds there is substantial evidence to support the ALJ's conclusion that [plaintiff's] CTS does not affect her ability to perform basic work activities and therefore is not a severe impairment." (record citation omitted)).

Moreover, at step two ALJ Rodriguez found that Karle had severe impairments of "disc herniations of the cervical and thoracic spine, and scoliosis" and accounted for his thoracic radiculopathy limitations in his residual functional capacity finding. (See pages 14-15 above.) ALJ Rodriguez noted that Karle is unable to do heavy lifting, which is consistent with the opinions of Drs. Green and Chan, who both cited restrictions of heavy lifting. (See pages 14-15 above.) Accordingly, even assuming arguendo that the impairment of thoracic radiculopathy should have been considered severe, any such error was harmless as ALJ Rodriguez included the limitations in his consideration of Karle's residual functional capacity and proceeded to step three. See, e.g., Rosa v. Colvin, No. 12-CV-0170, 2013 WL 1292145 at *7 (N.D.N.Y. Mar. 27, 2013) ("The ALJ's determination that Plaintiff's orthopedic conditions were not severe was based upon substantial evidence and therefore not error in this regard; even if it were error, however, the Commissioner is correct that it was a harmless error" because the ALJ "proceeded beyond step two of the analysis."); McDowell v. Colvin, 2013 WL 1337152 at *7 ("In addition, because the ALJ concluded that Plaintiff established other impairments considered severe under the Act (i.e. asthma, back pain, and depression) and continued with the sequential analysis, any errors in his findings at step two of the analysis were harmless."); Tilbe v. Astrue, 2012 WL 2930784 at *9 ("Even if the ALJ erred in failing to find plaintiff's back and shoulder impairments and sleep apnea, alone or in combination, to be severe impairments, such an error is harmless in this case. The ALJ did find a number of plaintiff's conditions to be severe impairments, and proceeded to step three. Further, notwithstanding his previous finding that these conditions were not severe, the ALJ considered their impact on plaintiff's residual functional capacity. Accordingly, the Court finds plaintiff's objection regarding step two is without merit."); Meadors v. Astrue, 2009 WL 1706580 at *6 ("[E]ven assuming arguendo that the impairments should have been considered severe, any such error was harmless as the ALJ included the impairments in his consideration of Plaintiff's residual functional capacity.").

C. Karle Did Not Have A Disability Listed In Appendix 1 Of The Regulations

The third step of the five-step test requires a determination of whether Karle had an impairment listed in Appendix 1 of the Regulations. 20 C.F.R., Pt. 404, Subpt. P, App. 1. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995).

ALJ Rodriguez found that while Karle's medical conditions were "severe," he did "not have an impairment or combination of impairments that meets or medically equals one of the listed impairments" in 20 CFR Part 404, Subpart P, Appendix. (See page 15 above.) ALJ Rodriguez elaborated that "there is no evidence of any significant motor, sensory or reflex deficits as required under medical listing 1.04A, which pertains to spinal disorders." (Dkt. No. 5: R. 22.) Appendix 1 provides a categorization of physical impairments, including musculoskeletal disorders. See 20 C.F.R., Pt. 404, Subpt. P, App. 1, §§ 1.00.

Section 1.04A outlines the conditions required to establish disorders of the spine. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.04. Specifically, an individual must have a disorder

(e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).

Because ALJ Rodriguez's determination that Karle's back impairment did not satisfy the Appendix 1 requirements is not contested by Karle or the Commissioner (see Dkt. No. 8: Karle Br. at 8; Dkt. No. 15: Comm'r Br. at 14), the Court proceeds with the five-step analysis. Before proceeding to step four, the Court will address ALJ Rodriguez's credibility and residual functional capacity determinations.

1. Credibility Determination

Because subjective symptoms like pain only lessen a claimant's residual functional capacity where the symptoms "'can reasonably be accepted as consistent with the objective medical evidence and other evidence,' the ALJ is not required to accept allegations regarding the extent of symptoms that are inconsistent with the claimant's statements or similar evidence." Moulding v. Astrue, 08 Civ. 9824, 2009 WL 3241397 at *7 (S.D.N.Y. Oct. 8, 2009) (citation & emphasis omitted); see, e.g., Campbell v. Astrue, 465 F. App'x 4, 7 (2d Cir. 2012) ("As for the ALJ's credibility determination, while an ALJ 'is required to take the claimant's reports of pain and other limitations into account,' he or she is 'not require[d] to accept the claimant's subjective complaints without question.' Rather, the ALJ 'may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.'" (citations omitted)); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) ("When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account, but is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record." (citations omitted)); Brown v. Comm'r of Soc. Sec., 310 F. App'x 450, 451 (2d Cir. 2009) ("Where there is conflicting evidence about a claimant's pain, the ALJ must make credibility findings.").

ALJ Rodriguez determined that Karle's "medically determinable impairments could somewhat reasonably be expected to cause the alleged symptoms; however, [Karle's] statements concerning the intensity, persistence and limiting effects of these symptoms are not fully credible." (See page 13 above.) Noting that Karle "has never been hospitalized at any time for any condition," Karle "is not taking any mediation, other than Topamax which is taken only at night," and there "is no indication of any muscle atrophy, an expected result of substantial non-use, even of the claimant's left, non-dominant extremity," ALJ Rodriguez concluded that "the objective medical evidence does not corroborate allegations of [pain-based] total disability." (See page 13 above.) ALJ Rodriguez further noted that Karle "has remained fully functional with respect to his activities of daily living" and that such "a level of functionality is clearly inconsistent with the magnitude of functional compromise purported." (See page 13 above.) While Karle reported "pervasive grogginess which would affect his ability to work," ALJ Rodriguez noted that "every physical examination specifically chronicled that he exhibited no signs of sleepiness" and the "evaluations further noted that he was alert and fully oriented." (See page 14 above.) ALJ Rodriguez also noted that he "personally observed that [Karle] evidenced no signs of pain or discomfort during the course of his hearing, and he retained the ability to focus and respond to all questions quickly and articulately without signs of any attention/concentration deficits." (See page 14 above.)

2. Residual Functional Capacity Determination

ALJ Rodriguez determined that Karle retained "the residual functional capacity to perform light work":

He is therefore able to lift/carry objects that weigh up to 20 pounds occasionally and 10 pounds frequently. During the course of an 8-hour workday, he can sit for a total of 6 hours; and stand and/or walk for a total of 6 hours. This assessment is generally consistent with the opinions of Drs. Green and Chan, both of whom cited restrictions of heavy lifting. The conclusion is also based upon every physical examination within evidence that chronicled the claimant as being essentially fully neurologically intact.

Similarly, consulting physician Dr. Chan opined that Karle should avoid repetitive and heavy lifting with his left arm, but offered no other limitations. (See page 11 above.) After two visits Dr. Szabo did not recommend any limitations and had no treatment plan because Karle did not want to attempt surgery or take any medications. (See page 5 above.) Noting that Karle was "somewhat limited in activities that he can do, but is able to do lower extremity activities and has done spinning with occasional running and manages to keep himself in shape that way," Dr. Wolfson recommended that Karle continue dieting and exercising with the goal of losing twenty to twenty-five pounds. (See page 8 n.5 above.) ALJ Rodriguez's determination that Karle could perform light work is also consistent with the findings of disability examiner A. King. (See page 11 above.)

Accordingly, the Court should find that ALJ Rodriguez's assessment that Karle is able to perform light work is based on substantial evidence.

D. Karle Did Not Have The Ability To Perform His Past Work

The fourth step of the five-step analysis asks whether Karle had the residual functional capacity to perform his past relevant work. (See page 15 above.) Karle previously worked as a chiropractor, requiring medium exertion. (See page 12 above.) Finding that Karle had "the residual functional capacity to perform light work," ALJ Rodriguez concluded that Karle was "unable to perform any past relevant work." (See page 15 above.) Because this finding favors Karle and is not contested by the Commissioner (see Dkt. No. 15: Comm'r Br. at 14-15), the Court proceeds to the fifth and final step of the analysis.

E. There Was Insufficient Evidence To Support The ALJ's Finding That Karle Could Perform "Light" Work In The Economy

In the fifth step, the burden shifts to the Commissioner, "who must produce evidence to show the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical capability, but as well his age, his education, his experience and his training." Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).

In meeting his burden under the fifth step, the Commissioner:

may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as "the Grid." The Grid takes into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience. Based on these factors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Generally the result listed in the Grid is dispositive on the issue of disability.

However, "relying solely on the Grids is inappropriate when nonexertional limitations 'significantly diminish' plaintiff's ability to work so that the Grids do not particularly address plaintiff's limitations." Vargas v. Astrue, 10 Civ. 6306, 2011 WL 2946371 at *13 (S.D.N.Y. July 20, 2011); see also, e.g., Travers v. Astrue, 10 Civ. 8228, 2011 WL 5314402 at *10 (S.D.N.Y. Nov. 2, 2011) (Peck, M.J.), report & rec. adopted, 2013 WL 1955686 (S.D.N.Y. May 13, 2013); Lomax v. Comm'r of Soc. Sec., No. 09-CV-1451, 2011 WL 2359360 at *3 (E.D.N.Y. June 6, 2011) ("Sole reliance on the grids is inappropriate, however, where a claimant's nonexertional impairments 'significantly limit the range of work permitted by his exertional limitations.'").

Rather, where the claimant's nonexertional limitations "'significantly limit the range of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational expert." Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d at 605); see also, e.g., Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) ("We have explained that the ALJ cannot rely on the Grids if a non-exertional impairment has any more than a 'negligible' impact on a claimant's ability to perform the full range of work, and instead must obtain the testimony of a vocational expert."); Rosa v. Callahan, 168 F.3d at 82 ("Where significant nonexertional impairments are present at the fifth step in the disability analysis, however, 'application of the grids is inappropriate.' Instead, the Commissioner 'must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'" (quoting & citing Bapp)); Suarez v. Comm'r of Soc. Sec., No. 09-CV-338, 2010 WL 3322536 at *9 (E.D.N.Y. Aug. 20, 2010) ("If a claimant has nonexertional limitations that 'significantly limit the range of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational expert." (quoting Zabala)).

ALJ Rodriguez found that a person of Karle's age (fifty-one years old), education level (doctorate), work experience, with the ability to perform light work, is not disabled for purposes of Social Security benefits. (See page 15 above.) ALJ Rodriguez, however, elicited testimony from vocational expert Donald Slive that he "would not be able to identify jobs in the national or regional economy" for "[s]uch a hypothetical individual due to the inability to perform work requiring bilateral manual dexterity," and that a hypothetical individual who would be off task ten percent of the time would not be able to sustain employment. (See page 12 above.) ALJ Rodriguez failed to address Slive's testimony. ALJ Rodriguez must articulate the reasons for his decision to ignore the vocational expert's determination. Accordingly, the Court should find that the Commissioner failed to carry his burden at step five. See, e.g., Morales v. Astrue, 11 Civ. 1853, 2012 WL 414236 at *9 (S.D.N.Y. Feb. 9, 2012) ("Here, in making his RFC determination, the ALJ chose to address some but not all of [claimant's] ability to perform certain functions. The ALJ noted that 'claimant can only occasionally push or pull with her upper extremities; must alternate between sitting and standing, at will, provided she is not off task more than 10% of the workday; can occasionally climb ramps and stairs, and never climb ladders ropes or scaffolds; and can occasionally bend.' However, the ALJ chose not to address how long [claimant] could sit or stand and how much she could lift, carry, push or pull. The ALJ cannot have it both ways." (fn. omitted)); Lee v. Astrue, No. 10-CV-6036, 2011 WL 1675101 at *8 (W.D.N.Y. May 4, 2011) ("Consequently, even assuming arguendo that the ALJ correctly described Plaintiff's general physical exertional abilities in his hypothetical questioning of the VE [vocational expert] . . . (which would require the Court to accept the ALJ's finding that Plaintiff's complaints of pain were exaggerated), the VE's additional testimony, concerning Plaintiff's mental impairments and incontinence, indicates that Plaintiff would not be able to perform the sedentary jobs identified above. Although the ALJ contends that Plaintiff is able to perform certain jobs, such conclusion is not supported by the record, particularly in light of the testimony by the VE and [a psychologist expert witness]. Accordingly, the Court finds that Defendant failed to carry his burden at step five of the sequential analysis."); Gelser v. Astrue, No. 09-CV-803, 2011 WL 832861 at *24 (W.D.N.Y. Jan. 31, 2011) ("Where, as here, the VE's testimony is essential to a finding of disability, failure to address the VE's determination requires remand, and the ALJ, at a minimum, must articulate the reasons for his decision not to follow the VE's determination that Plaintiff would not be able to perform any work in the national economy if he was off task twenty-five percent of each workday. While it may be that the ALJ presented the final hypothetical to the VE despite the ALJ's disbelief that Plaintiff, in fact, would be off task twenty-five percent of the time, the ALJ's failure to explain as much requires remand."), report & rec. adopted, 2011 WL 830712 (W.D.N.Y. Mar. 3, 2011); Ball v. Astrue, 755 F. Supp. 2d 452, 466-67 (W.D.N.Y. 2010) ("Where, as here, the VE's testimony is essential to a finding of disability, failure to address the VE's determination requires remand, and the ALJ, at a minimum, must articulate the reasons for his decision not to follow the VE's determination that Plaintiff would not be able to perform any work in the national economy if she needed to take unscheduled rest breaks. While it may be that the ALJ presented the final hypothetical to the VE despite the ALJ's disbelief that Plaintiff, in fact, required such unscheduled rest breaks, the ALJ's failure to explain as much requires remand."); Stewart v. Barnhart, 235 F.R.D. 579, 590-91 (W.D.N.Y. 2006) ("The Court finds that the Commissioner failed to meet her burden of showing that there was other work plaintiff could perform. Most significantly, the ALJ completely ignored the VE's testimony that, accepting plaintiff's testimony as true, he could not perform the jobs the VE testified about. Moreover, even if the ALJ was justified in finding plaintiff incredible, the VE testified that if plaintiff were to be out sick four or more times per month, he would not be able to work in any of the jobs the VE listed. As already noted, [treating physician] indicated that plaintiff's condition would probably result in his being absent four or more days per month. In light of the VE's testimony and the evidence in the record, substantial evidence supports the conclusion that no jobs exist that plaintiff could do." (citations omitted)).

"Upon a finding that an administrative record is incomplete or that an ALJ has applied an improper legal standard, we generally . . . remand the matter to the Commissioner for further consideration." Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000); see, e.g., Meadors v. Astrue, 370 F. App'x 179, 183-84 (2d Cir. 2010); Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). However, if "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," the Court may order a remand solely "for calculation and payment of benefits." Parker v. Harris, 626 F.2d at 235.

In this case, a remand to the Commissioner is appropriate in order for the ALJ to expressly consider the vocational expert's testimony at step five of the five-step analysis.

CONCLUSION

For the reasons discussed above, the Commissioner's determination that Karle was not disabled within the meaning of the Social Security Act during the period February 3, 2006 to March 24, 2010 is not supported by substantial evidence at the fifth step of the analysis. Accordingly, the Commissioner's motion for judgment on the pleadings (Dkt. No. 14) should be DENIED and Karle's motion for judgment on the pleadings (Dkt. No. 7) should be GRANTED to the extent of remanding the case to the Commissioner for further proceedings consistent with this Report and Recommendation.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John G. Koeltl, 500 Pearl Street, Room 1030, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Koeltl (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Ingram v. Herrick, 475 F. App'x 793, 793 (2d Cir. 2012); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York

May 17, 2013

Respectfully submitted,

/s/_________

Andrew J. Peck

United States Magistrate Judge Copies by ECF to: All Counsel

Judge John G. Koeltl