MEMORANDUM AND ORDER

JOHN GLEESON, District Judge

Mercedes Peralta brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to review a final determination of the Commissioner of the Social Security Administration ("the Commissioner") denying her disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act") and Supplemental Security Income ("SSI") under Title XVI of the Act. The parties have cross-moved for judgment on the pleadings. Peralta claims that (1) the Administrative Law Judge's ("ALJ's") decision was erroneous and not supported by substantial evidence; and (2) the Appeals Council failed to give proper consideration to new evidence provided subsequent to the ALJ's decision. I held argument on the motion on June 3, 2005. For the reasons set forth below, the motions for judgment on the pleadings are denied, and the case is remanded to the Commissioner for further proceedings.

BACKGROUND

A. Personal and Work History

Peralta was born in 1956 in the Dominican Republic, where she completed ninth grade and attended two years of college. Peralta became a citizen of the United States in 1997. From at least 1993 through 2001, Peralta operated a printing machine, most recently operating a machine that printed and cut labels. On February 28, 2001, Peralta's hand was caught in the machine and, in attempting to free herself, a portion of the fourth finger of her right hand (the "ring" finger) was severed. Peralta went to the Elmhurst Hospital emergency room, where the severed portion of her finger was reattached. Peralta, who is right handed, has not worked since. (Tr. 361.)

B. Procedural History

Peralta filed for DIB and SSI benefits on October 9, 2001. After her applications were denied initially, a hearing was held before ALJ Seymour Fier on June 16, 2003. Peralta, who was represented by counsel, testified at the hearing. In addition, medical expert Thomas Weiss and vocational expert Fred Siegel also testified. On February 20, 2004, the ALJ issued a decision denying Peralta's claim. That decision became the final decision of the Commissioner when the Appeals Council denied Peralta's request for review.

C. Medical Evidence

1. Drs. Michael Hearns and Cheri Durden — Treating Physicians

On April 4, 2001, Peralta was seen by Dr. Cheri Durden at Central Medical Services of Westrock ("Westrock"). Peralta's chief complaints were numbness and tingling in the first through third fingers of her right hand; pain in her third and fourth fingers; and an electrical sensation radiating to above her elbow and accompanied by a sensation of heat in her fingers and forearm. Upon examination, Durden observed hematoma and flap at the distal interphalangeal joint; decreased sensation in the first through third fingers; weakness in abduction of the third and fourth fingers; deformity, loss of nail, and contracture (flexion) of the fourth finger; and that the fourth and fifth fingers were painful to the touch. Range of motion of the wrist was normal. (Tr. 260-61, 296.)

Durden diagnosed status-post avulsion injury of the right fourth finger, likely with consequential flexion contracture, right distal nerve injury of the right wrist, and traumatic carpal tunnel syndrome. Durden referred Peralta to Dr. Ignatius Roger, a hand specialist, and scheduled neuromotor testing. Durden also prescribed Neurontin and Motrin. (Tr. 261.)

On May 4, 2001, Peralta was examined by Dr. Michael Hearns at Westrock. Hearns's diagnoses were status post right ring finger distal amputation; neuroma; and consequential hand and arm tenderness due to the injury. Hearns prescribed a Lidoderm, patch and physical therapy. (Tr. 259.) In a letter dated June 3, 2003, Hearns stated that when Peralta was initially seen at Westrock, she explained that in attempting to free her hand she forcefully pulled her arm out of the machine, sustaining injuries to her neck and right arm (as well as her right hand). Peralta also stated that she had pain in her right arm and neck. (Tr. 302.)

Hearns was Peralta's primary treating physician, and he saw her around once a month from May 2001 through at least February 2003. In a letter to Peralta workers' compensation attorneys dated January 3, 2002, Hearns stated that Peralta's diagnoses were traction injury to the neck, right shoulder and elbow, and status post amputation and surgery to the right fourth finger with the subsequent development of neuroma and segmental Reflex Sympathetic Dystrophy ("RSD"). Hearns concluded that Peralta had a "total and permanent disability."

In a letter to Peralta's workers' compensation attorneys dated June 27, 2002, Hearns stated that Peralta's diagnoses included internal derangement of the right shoulder and elbow. Hearns prescribed an MRI of the right shoulder and neck and a bone scan. (Tr. 124.)

On July 1, 2002, Hearns complained to Durden of hand pain radiating to her elbow, swelling, hypersensitivity, and neck pain. Peralta reported some relief with the Lidoderm patch and Neurontin. Upon examination, Peralta had flexion contracture of the fourth and fifth finger, marked sensitivity in the ulnar distribution, and allodynia (pain resulting from non-noxious stimulus to the skin) of the arm and forearm. Peralta had limited abduction of the right shoulder to 90 degrees, full range of motion of the neck with trigger points and muscle spasms, and a positive Tinel sign of the wrist bilaterally. Durden diagnosed impingement of the right shoulder, RSD of the right arm, and ulnar neuropathy. (Tr. 125.)

An MRI of Peralta's shoulder performed on July 31, 2002 revealed a focal tear of the anterior supraspinatus tendon, and mild acromiclavicular joint hypertrophic changes. (Tr. at 180.) An MRI of the cervical spine performed on August 7, 2002 showed cervical spondylitic changes most notable from C3-4 through C6-7. (Tr. 176, 179.) A three-phase bone scan performed on August 7, 2002 showed degenerative joint disease of both shoulders, elbows, and wrist joints; and focal uptake in the right first metacarpo-phalangeal joint. Dr. Patel, who reviewed the bone scan, stated that the results were suggestive of arthritis, but that chronic RSD could not be ruled out.

In a letter to Peralta's workers' compensation attorneys dated October 17, 2002, Hearns requested a series of stellate injections, cervical injections, and right shoulder surgery, and reiterated his conclusion that Peralta had a total and permanent disability. On January 2, 2003, Peralta had a series of x-rays taken. An x-ray of her right wrist was normal. An x-ray of her right shoulder showed prominent spurring of the acromioclavicular joint. An x-ray of her right hand showed flexion contractures of the fourth and fifth digits. An x-ray of Peralta's cervical spine showed degenerative changes with neural foraminal narrowing, and moderate decreased range of motion on flexion with severe decreased range of motion on extension. (Tr. 262-265.)

In a letter to Dr. Richard Seldes dated February 6, 2003, Dr. Darden cleared Peralta for right shoulder surgery. Darden stated that Peralta was currently receiving treatment for segmental RSD involving the right ring finger, and was also receiving treatment for cervical radiculopathy and derangement of the right elbow. Durden stated that Peralta had a right shoulder supraspinatus tear.

On February 11, 2003, Peralta underwent arthroscopic surgery to repair a rotator cuff tear and treat acromioclavicular joint arthritis and impingement syndrome. (Tr. at 233-234.)

On May 23, 2003, Hearns completed a multiple impairments questionnaire. Hearns stated that Peralta's primary symptoms were that she was unable to use her right shoulder, had right shoulder, neck, arm, and hand pain, and worsening flexion contracture of her fourth and fifth digits. Hearns rated Peralta's pain as 9 out of 10, increasing with activities and movement. Hearns stated that he was not able to completely relieve the pain with medication. He opined that Peralta could sit for one hour and stand/walk for one hour in an eight hour day; occasionally lift and carry 0-5 pounds; and had significant limitations in reaching, handling, fingering, or lifting with her right hand. Her treatment consisted of Vioxx and Neurontin for pain, as well as right shoulder surgery. Hearns indicated that Peralta's pain would "frequently" be severe enough to interfere with attention and concentration; that emotional factors did not contribute to the severity of her symptoms; and that Peralta was incapable of even "low stress" at work. Hearns indicated that Peralta would need four to five unscheduled breaks at unpredictable intervals during an eight-hour day; would be absent from work more than three times a month; and could not push, pull, kneel, bend, or stoop.

In a letter to Peralta's current attorneys dated June 3, 2003, Hearns reviewed Peralta's medical history, concluding that Peralta had a total and permanent disability caused by her accident. Peralta's diagnoses were status post amputation and surgery to the right ring finger with the subsequent development of a neuroma and neuropathic pain syndrome, internal derangement of the right shoulder/elbow, and status post right shoulder surgery. Hearns stated that Peralta should continue with physical therapy and medications. (Tr. 302-304.)

2. Dr. Ignatius Roger — Treating Hand Specialist

On a disability insurance questionnaire indicating an examination date of November 14, 2001, Dr. Ignatius Roger, a hand specialist, stated that he began treating Peralta on April 10, 2001 and was seeing her once a month. Roger's treating diagnoses were RSD and flexion deformity of the right fourth and fifth fingers. Peralta's symptoms were painful right fourth and fifth fingers; impaired extension of the digits; and impaired grasp. Roger's opinion of Peralta's ability to work was that she had impaired use of her right hand. He opined that Peralta was limited in her ability to lift, carry, push and pull, and that she had no limitations in her ability to stand, walk, or sit. (Tr. 85-89.)

In a progress note dated April 10, 2002, Roger indicated that Peralta's pain radiated up her right arm. Based on this examination, Peralta checked the box on a Workers' Compensation C-4 form (Attending Doctor's Report and Carrier/Employer Billing Form) indicating that Peralta's disability was "total." (Tr. 108-109.) Roger checked this same box on C-4 forms dated April 16, April 25, May 2, and December 12, 2001, and February 6, April 10, August 28, and October 2, 2002. (Tr. 150-52; 108-112; 185-86.)

On a Bilateral Manual Dexterity questionnaire dated May 26, 2002, Roger indicated that he was seeing Peralta every two months, with the most recent examination taking place on April 10, 2002. His diagnosis was laceration and deformity of the right ring finger, and he stated that Peralta's prognosis was "poor." Roger indicated that Peralta had reduced grip strength, tenderness, swelling, and loss of fine coordination in her right hand; and near constant pain in her right fourth finger. Roger checked the boxes indicating that Peralta could lift and carry 0-5 pounds occasionally and had significant limitations in doing repetitive reaching, handling, fingering, or lifting. As for the degree of limitation Peralta would face in a competitive 8-hour work day using the upper extremities, Roger indicated that Peralta would have moderate limitations in her ability to grasp, turn, and twist objects and to use her fingers or right hand for fine manipulation. On the issue of whether Peralta would sometimes need to take unscheduled breaks or be absent from work, Roger wrote "unknown." (Tr. 117-122.)

3. Anthony Ventura — Physical Therapist

On a disability questionnaire completed on October 26, 2001, physical therapist Anthony Ventura stated that he had been treating Peralta twice a week since May 8, 2001. (Peralta attended at least 44 physical therapy sessions between May 8, 2001 and April 22, 2002. Tr. 200-05, 153-59, 194-96.) Ventura indicated that Peralta had decreased range of motion in her fourth finger, decreased strength in her fourth and fifth fingers, and complained of pain whenever she used her right hand. Ventura opined that Peralta was unable to fully perform any work duties with her right hand secondary to pain, weakness, and lack of motion. Ventura indicated that Peralta could occasionally lift 0-5 pounds with her right hand, was limited in her ability to push and pull, and had no limitations on her ability to sit, stand, or walk. (Tr. 79-83.)

4. Jay Nathan — Consultative Orthopedist

In connection with Peralta's workers' compensation claim, Dr. Jay Nathan performed a consultative orthopedic exam on November 17, 2001. Peralta's complaints were pain in her right hand that radiated up to her arm and shoulder, numbness in her right fingers, and difficulty moving and lifting her right hand. Upon examination, Nathan stated that Peralta had minimal decreased fist strength, minimal decreased dexterity, decreased sensation of the right ring finger, and hypersensitivity of the "right ring, long, and small fingers." Nathan's impression was status post laceration of her right ring finger and flexion deformity of the fourth and fifth fingers. He stated that Peralta had lost 20% of the use of her right hand. (Tr. 94-95.)

5. Mohammad Khattak — Consultative Physician

On December 10, 2001, Peralta was examined by Dr. Mohammad Khattak. Peralta complained of pain and stiffness of the PIP and DIP joints of the right ring finger and the inability to use her right hand. Upon examination, Khattak stated that the range of motion of Peralta's wrist joint was normal; there was a 60 degree flexion deformity of the PIP joint and 30 degree flexion deformity of the DIP joint of her ring finger; there was no intrinsic muscle atrophy; that Peralta was able to make a fist and appose the thumb to the fingers normally; and that her hand grip was "4++/5." Khattak's diagnosis was status post laceration to the volar aspect of the distal phalanx with stiffness and flexion deformity, and loss of motion at the PIP and DIP joints of the right ring finger. Khattak stated that Peralta's prognosis was that she would "improve with physical therapy." Khattak concluded that Peralta's "ability for gross and fine manipulation in her right hand may be mildly limited, but there are no limitations in bending, sitting, standing, walking, lifting, carrying or reaching with gross and fine manipulations in her left hand." (Tr. 91-92.)

6. Residual Functional Capacity Assessment

An undated and unsigned Residual Functional Capacity ("RFC") Assessment Form (apparently completed by a DDS physician, see List of Exhibits, Tr. 2) indicated under "exertional limitations" that Peralta could lift 20 pounds occasionally and 10 pounds frequently; stand, walk or sit for about six hours in an eight-hour workday; and had an unlimited ability to push or pull. The specific facts supporting these limitations included that "muscle strength is 5/5 bilaterally in the forearm muscle and intrinsic hand muscle groups. There is no muscle atrophy. Claimant can make a fist." As for postural limitations, the "frequently" box was checked for Peralta's ability to climb, balance, stoop, kneel, crouch, and crawl. As for manipulative limitations (reaching, handling, fingering, and feeling), the "none established" box was checked. For symptoms, the RFC author stated that Peralta "is alleging a right hand injury. She is alleging pain and stiffness in right hand. She has not had pain in the left hand. She has not indicated how her impairment affects her ability to lift, carry, push, pull etc. so a credibility statement cannot be made." The RFC author checked the box stating that the treating or examining source conclusions about Peralta's limitations were not significantly different. The RFC author did answer the follow-up question, however, which asked him to "explain why those conclusions are not supported by the evidence in the file." In response, the RFC author stated that "CE [illegible] indicates limitations for gross and fine manipulations in her right hand but no limitation in other areas." (Tr. at 99-106.)

7. Medical Expert — Dr. Weiss

At the request of the ALJ, Dr. Thomas Weiss testified as a medical expert at Peralta's hearing on June 16, 2003. Dr. Weiss summarized Peralta's impairments, noting among other things that Peralta had considerable pain and discomfort in the entire right arm and hand; severe painful symptomology; neuroma; neck spasms and 20% loss of range of motion in the neck; 50% loss of range of motion in her right shoulder; and RSD of the entire right upper extremity. (Tr. 369-70.)

The ALJ asked Weiss whether he agreed with the RFC's conclusion that Peralta was capable of light work. Weiss opined that Peralta was capable of light work which did not involve the use of her right arm. He testified, however, that the RFC did not accurately reflect Peralta's impairments. Weiss noted that the RFC was neither dated nor signed, and that the report did not specify any manipulative limitations: "It would be apparent from [Peralta's] presentation today, the reports in the folder, x-ray reports and other observation, that she would have certain limitations in use of her — at least of her right hand." (Tr. 371-73.)

Under questioning by Peralta's counsel, Weiss testified that he agreed with the finding that Peralta suffered from RSD and that RSD could cause significant pain:

Q. [Plaintiff's Attorney]: So when you give your RFC of light, that's not taking into consideration the Claimant's pain that she is suffering?

A. [Weiss]: Well this is all a matter of motivation and distraction, concentration. I still believe [Peralta] could do light duty.

(Tr. 375.)

Subsequent to the hearing, the ALJ forwarded a letter from Dr. Hearns dated June 18, 2003 to Dr. Weiss. In that letter, Hearns stated that the symptoms of Peralta's RSD were "burning, throbbing, electricity like feeling stinging, feels like a dentist is drilling your teeth without anesthesia, feels like you [sic] arm is on fire. The pain is chronic and long lasting. RSD is a disabling condition." (Tr. 316.) In a note to the ALJ, Weiss checked off a box stating that this letter would not change his testimony. (Tr. at 317.)

8. Paul Ladopoulous — Treating Psychiatrist

In a report dated August 16, 2004, Dr. Paul Ladopoulos detailed Peralta's psychiatric treatment. Ladopoulos's report and accompanying questionnaire indicated that he had been treating Peralta two or three times a month since July 27, 2003. Peralta's chief complaint was anxiety and depression following the accident. Her initial history included depressed mood, anhedonia, low energy, low self-esteem, poor concentration, and feelings of helplessness and hopelessness. Peralta's current progress included continued depression over the injury and shame over her "deformed" right hand. Ladopoulus's impression was post traumatic stress disorder. He stated that Peralta should continue individual supportive psychotherapy, and he prescribed Zoloft and Wellbutrin. In the questionnaire, Ladopoulus indicated that Peralta was "markedly limited" in various categories under "concentration and persistence"; and that her psychiatric condition exacerbated her pain. (Tr. 341-350.)

9. Fred Siegel — Vocational Expert

At the June 16, 2003 hearing before the ALJ, Fred Siegel, a vocational expert, testified. The ALJ stated as a premise that Peralta's ability to do light work would be limited to a person who has the residual functional capacity to use only the left hand. (Tr. at 378.) The vocational expert testified that Peralta could work as a (1) theater usher; (2) elevator operator; (3) surveillance system monitor, and (4) gate guard. (Tr. at 376-380.) Under questioning by Peralta's attorney, Siegel indicated that though he did not have the Dictionary of Occupational Titles ("DOT") with him at the hearing, his recollection and observations were that a theater usher would not have to do any sweeping; a system surveillance monitor would rarely, if ever be required to take notes; and a gate keeper was never required to take notes. (Tr. at 381-84.)

D. The ALJ's Decision

The ALJ issued a formal decision on Peralta's application on February 20, 2004. (Tr. 17-26.) Following the SSA's five-step disability evaluation, see 20 C.F.R. §§ 44.1520 and 416.920, the ALJ found that Peralta's soft tissue injury was a significant impairment, but that it did not meet nor equal a listed impairment. Further, the ALJ found that Peralta's allegations regarding her limitations were "not totally credible." The ALJ stated that Peralta's ability to perform all or substantially all the requirements of light work were impeded by "additional exertional and or non/exertional limitations," but concluded that Peralta had the residual functional capacity for light and sedentary work. The ALJ stated that "[a]lthough [Peralta's] exertional limitations do not allow her to perform the full range of light work . . . there are a significant number of jobs in the national economy that she could perform. Examples of such jobs include work as usher in theaters, elevator operator, surveillance system monitor and gate guard." Accordingly, the ALJ found that Peralta was not under a "disability" at any time through the date of decision. (Tr. 25-26.)

The ALJ supported his conclusion as follows:

After careful consideration of the entire record, the undersigned concludes that the claimant is capable of performing light work activity. The claimant could lift and/or carry 20 pounds occasionally and 10 pounds frequently. She could sit, stand, and walk for 6 hours in an eight-hour workday. This conclusion is supported by numerous reports contained in the record, including the assessment of the State agency non-examining consultant.

In accordance with Social Security Ruling 96-6p, consideration has been given to the administrative findings of fact made by the State agency medical physicians and other consultants, At the lower levels, they found that the claimant was capable of performing light work [citing Dr. Khattak's report and the undated, unsigned RFC.] These opinions are weighted as non-examining expert sources. However, they are found to be consistent with the record when viewed as a whole.

DISCUSSION

The role of a district court in reviewing the Commissioner's final decision is limited. "A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by `substantial evidence' or if the decision is based on legal error." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); see also 42 U.S.C. § 405(g). "Substantial evidence is `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept is adequate to support a conclusion.'" Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If substantial evidence supports the ALJ's findings, the decision is binding, Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984), and this Court cannot "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) (quoting Valente v. Secretary of Health Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). However, in deciding whether the Commissioner's conclusions are supported by substantial evidence, the reviewing court must "first satisfy [itself] that the claimant has had `a full hearing under the Secretary's regulations and in accordance with the beneficent purpose of the Act.'" Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Sec'y of HEW, 463 F.2d 38, 43 (2d Cir. 1972)).

B. Establishing a Disability

"To receive federal disability benefits, an applicant must be `disabled' within the meaning of the Social Security Act." Shaw, 221 F.3d at 131; see also 42 U.S.C. § 423(a), (d). A claimant is "disabled" within the meaning of the Act when he can show an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." § 423(d)(1)(A). The impairment must be 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." § 423(d)(2)(A).

The Commissioner uses a five-step regulatory analysis to determine whether a claimant is "disabled" under the Act. Shaw, 221 F.3d at 132; 20 C.F.R. § 404.1520. First, the claimant must not be engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the claimant must show a "severe impairment" which significantly limits his or her mental or physical ability to do basic work activities. 20 C.F.R. § 404.1520(c). Third, if the impairment is listed in Appendix 1 of the regulations or is equal to a listed impairment, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d). Fourth, if the impairment does not meet or equal a listed impairment, the claimant must show that he or she has no residual functional capacity to perform his or her past work. 20 C.F.R. § 404.1520(e), (f). Fifth, if the claimant makes that showing, the Commissioner must determine if there is other work in the national economy that the claimant can perform. 20 C.F.R. § 404.1520(g). The claimant has the burden of proof with respect to the first four steps; the Commissioner bears the burden of proof on the last step. Shaw, 221 F.3d at 132.

In making the required determinations, the Commissioner must consider (1) the objective medical facts; (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of the claimant's symptoms submitted by the claimant, her family, and others; and (4) the claimant's educational background, age, and work experience. Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983). Further, the ALJ has an affirmative duty to investigate facts and develop the record where necessary to adequately assess the basis for granting or denying benefits. 20 C.F.R. § 404.900(b) (expressly providing that the SSA "conduct the administrative review process in an informal, nonadversary manner"); Sims, 530 U.S. at 110-11 (2000) ("Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits"); Shaw, 221 F.3d at 134. If "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," it is appropriate for a court to reverse an ALJ's decision and order the payment of benefits. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980).

C. The Treating Physician Rule

"The law gives special evidentiary weight to the opinion of the treating physician." Clark v. Commissioner, 143 F.3d 115, 118 (2d Cir. 1998). Specifically, the Social Security Administration regulations state:

Generally, we give more weight to opinions from your treating sources. . . . If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply [various factors] in determining what weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give [a claimant's] treating source's opinion.

The factors that must be considered when the treating physician's opinion is not given controlling weight include: "(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist." Shaw, 221 F.3d at 134 (quoting Clark, 143 F.3d at 118). The regulations also require the ALJ to set forth his reasons for the weight assigned to a treating physician's opinion. 20 C.F.R. § 404.1527(d)(2); Shaw, 221 F.3d at 134. "The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases, even — and perhaps especially — when those dispositions are unfavorable. A claimant . . . who knows that her physician has deemed her disabled, might be especially bewildered when told by an administrative bureaucracy that she is not, unless some reason for the agency's decision is supplied." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999).

An ALJ is not required to give controlling weight to a treating physician's opinion that a claimant is disabled or unable to work. See 20 C.F.R. § 404.1527(e). Such an opinion is not a "medical opinion" within the meaning of the statute. See 20 C.F.R. §§ 404.1527(e); 404.1527(a)(2) ("Medical opinions are statements . . . that reflect judgments about the nature and severity of [a claimant's] impairment(s)," including judgments about a claimant's symptoms, diagnosis, prognosis, and physical or mental limitations.). Nevertheless, an ALJ must review "all of the medical findings and other evidence that support a medical source's statement that [a claimant] is disabled." § 404.1527(e)(1).

1. Giving Reasons and Weighing Evidence

Peralta's claim is remanded to the Commissioner because the ALJ failed to explain the weight, if any, assigned to the opinions of Peralta's treating physicians Dr. Hearns and Dr. Roger. "Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).

Peralta was examined by Dr. Hearns about once a month from April 2001 until at least February 2003. In a multiple impairments questionnaire completed on May 23, 2003, Hearns opined, among other things, that Peralta could lift only up to five pounds; could sit for one hour at a time; and had constant pain that would frequently be severe enough to interfere with attention and concentration. In a letter dated June 18, 2003, Hearns characterized the pain Peralta was suffering as "burning, throbbing, electricity like feeling stinging, feels like a dentist is drilling your teeth without anesthesia, feels like you [sic] arm is on fire. The pain is chronic and long lasting."

The ALJ noted Hearns's opinion, but failed to give "good reasons" for the apparent rejection of that opinion. The ALJ, in fact, gave no reasons at all. Instead, the ALJ stated that his own conclusion that Peralta was capable of performing light work — including lifting and/or carrying 20 pounds occasionally and 10 pounds frequently — was supported by numerous reports.

The Commissioner states that "[t]he ALJ correctly rejected the medical opinion of Dr. Hearns because it was inconsistent with the opinions from every other treating and examining source." First, as discussed below, the record suggests that treating physicians Roger and Hearns diagnoses were consistent in terms of Peralta's ability to lift and carry only up to 0-5 pounds (as opposed to the ALJ's conclusion that Peralta can lift 20 pounds). More importantly, the Commissioner's explanation of the ALJ's rationale is not a substitute for the ALJ providing good reasons in his decision for the weight given to treating physician's opinions. See Snell, 177 F.3d at 134 (refusing to accept Commissioner's post hoc explanation for weight given to treating physician) (citing Burlington Truck Lines, Inc. v. United States, 471 U.S. 156, 168 (1962) (reviewing court "may not accept appellate counsel's post hoc rationalizations for agency action.")).

The failure to give an explanation for the weight given to Hearns's opinion in itself justifies remand. See Snell, 177 F.3d 128, 133 (2d Cir. 1999). In addition, the "numerous reports" the ALJ relied on all are reports by non-treating, and often non-examining physicians that do not appear to be well supported. The ALJ states, for example, that the undated and unsigned RFC assessment is "consistent with the record." See Tr. 22. But that RFC assessment states that Peralta had no manipulative limitations; an unlimited ability to push and pull (including the operation of hand and foot controls); and the ability to climb — which apparently includes the ability to climb ladders, ropes and scaffolds — "frequently." As the medical expert recognized, the record is replete with indications that Peralta in fact has significant limitations (in addition to those affecting the use of her right hand) that cannot be reconciled with the RFC assessment.

The ALJ also credited the report of the consultative physician, Mohammad Khattak. Dr. Khattak, however, found that Peralta's "ability for gross and fine manipulation in her right hand may be mildly limited, but there are no limitations in bending, sitting, standing, walking, lifting [or] carrying." Khattak's assessment is inconsistent with every other physician's diagnoses, both examining and non-examining. In addition, Khattak's report was dated December 10, 2001. The record indicates that Peralta's condition continued to worsen after her accident. Indeed, Peralta underwent arthroscopic surgery on February 11, 2003 to repair a rotator cuff tear and treat acromioclavicular joint arthritis and impingement syndrome in her right shoulder.

The ALJ also reported without comment the findings of Dr. Roger, a treating physician and hand specialist. Dr. Roger completed a bilateral manual dexterity questionnaire on May 26, 2002, indicating that he had seen Peralta every two months since April 10, 2001. In this questionnaire, Roger indicated, among other things, that Peralta's prognosis was "poor"; that she could lift and carry 0-5 pounds occasionally; and that she should not engage in pulling. The ALJ's conclusion that Peralta could engage in work involving lifting and carrying 20 pounds is at odds with Roger's assessment, and yet the ALJ never explained why he rejected the opinion of Roger, or what weight he was assigning that opinion.

In sum, the ALJ failed to explain his rejection of the opinions of treating physicians' Hearns and Rogers, and this failure warrants remand.

2. Reliance on Vocational Expert

Where a claimant's impairments prevent her from performing her past work, the burden shifts to the Commissioner to prove that the claimant is capable of working. Rosa v Callahan, 168 F.3d 72, 77 (2d Cir. 1999). The Commissioner must produce evidence to show alternative employment that exists in significant numbers in the national economy. Id. In the ordinary case, the Commissioner's burden is met by resorting to the applicable medical vocational guidelines (commonly referred to as "the grids"). Id. Where the guidelines fail to describe the full extent of a claimant's physical limitations, the Commissioner must adduce testimony of a vocational expert, or other similar evidence, that jobs exist in the economy that the claimant can obtain and perform. Id. In making such a determination, the expert can rely on information available in governmental and other publications, such as the Dictionary of Occupational Titles ("DOT"). See 20 C.F.R. §§ 404.1566(d), 416.966(d); Sanchez v. Barnhart, 329 F. Supp. 2d 445, 449 (S.D.N.Y. 2004). Ultimately, however, the ALJ is solely responsible for determining the claimant's capabilities based on all the evidence. See Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983).

Here, the ALJ relied on the testimony of Dr. Siegel, the vocational expert, as to jobs Peralta could perform that exist in significant numbers in the national economy. Specifically, Siegel testified that Peralta could work as a theater usher (4,500 hundred jobs in New York and 50,000 nationally); elevator operator (2,700 hundred in New York, and 50,000 nationally); surveillance system monitor (2,000 in New York, and 75,000 nationally); and gate guard (55,000 in New York and 1,250,000 nationally). When listing potential jobs, Siegel stated: "I'm trying to figure out those [jobs] that don't require bimanual function." When told not to consider any function of the right extremity, Siegel stated that he would "quit here," that is, after listing the four jobs above. See Tr. 380.

At the hearing, Peralta's attorney questioned Siegel about whether an usher may also be responsible for sweeping theaters. Siegel stated that he did not have the DOT with him, but that his recollection was that the DOT's description of an usher says nothing about sweeping, and that he had observed a one-armed usher at Lincoln Center. Peralta's attorney also asked Siegel whether a system surveillance monitor or gate guard would ever be required to jot down notes. Siegel testified that a surveillance system monitor would rarely, if ever, be required to take notes, and that a gate guard would not be required to take notes.

Social Security Ruling 00-4p clarifies the agency's standards for the use of vocational experts. The ruling states in part:

Occupational evidence provided by a VE or VS [vocational expert or vocational specialist] generally should be consistent with the occupational information supplied by the DOT. When there is apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such a consistency.

Neither the DOT nor the VE or VS evidence automatically "trumps" when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information.

Here, The ALJ did not inquire on the record into any potential discrepancy between Siegel's testimony and the job description in the DOT, even though Peralta's counsel questioned whether a theater usher may be required to sweep the theater. Where the basis of a vocational expert's conclusions is questioned at a hearing, the ALJ should make an inquiry to find out whether the expert's conclusions are reliable. See Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). Here, the ALJ made no such inquiry. In his decision, the ALJ adopted Siegel's assertion that Peralta could work as a theater usher, including in that decision the DOT code for the position as set forth by Siegel at the hearing. Tr. at 25. As the Commissioner concedes, however, the code given by Siegel is not in the DOT. Comm'r's Br. at 23 n. 6. According to the Commissioner, Siegel was most likely referring to the head usher position, which calls for semi-skilled work — work that would be inappropriate for Peralta. Comm'r's Br. at 23 n. 6. It was error for the ALJ to rely on the expert's mischaracterization, especially in light of Peralta's counsel's questions as to the suitability of such work.

The Commissioner argues that the ALJ's error "does not require reversal of the ALJ's decision because the vocational [sic] identified several other jobs that plaintiff could do." Comm'r's Br. at 23 n. 6. I need not decide whether this error alone warrants remand, though at least one district court in this circuit has remanded where two of four jobs proffered by the Vocational Expert were incorrectly characterized. See Sanchez v. Barnhart, 329 F. Supp. 2d 445, 454 (S.D.N.Y. 2004) (the Court is "in no position to conclude that the remaining two jobs exist in sufficient numbers in the national and local economy as to satisfy the fifth prong of the disability test and preclude remand.").

On remand, if a vocational expert again provides evidence, the ALJ is directed to ask about any possible conflict between the expert's testimony and the information provided in the DOT. See SSR 00-4p (adjudicator has affirmative responsibility to ask about conflicts with DOT when vocational expert provides evidence). And while the DOT does not have binding force, see Donahue, 279 F.3d at 445, its descriptions suggest that the other jobs proffered by Siegel may not be suitable for someone with Peralta's impairments:

DOT 388.663-010, Elevator Operator:

Operates elevator to transport passengers . . . pushes buttons or moves lever to control movement of elevator on signal or instructions from passenger or others. Opens and closes safety gate and door of elevator at each floor where stop is made. . . . May perform other duties, such as distributing mail to various floors, answering telephone, preventing unauthorized persons from entering building, and assisting other employers to load and unload freight. May sweep or vacuum elevator.

DOT 372.667-030, Gate Guard:

Guards entrance gate of industrial plant and grounds, warehouse, or other property to control traffic to and from buildings and grounds. Opens gate to allow entrance or exit. . . . Directs visitors and truckers to various parts of grounds or buildings. . . . Inspects outgoing traffic to prevent unauthorized removal of company property or products. . . . May perform maintenance duties, such as mowing lawns and sweeping gate areas. . . .

DOT 397.367-010, Surveillance System Monitor:

Monitors premises of public transportation terminals to detect crimes or disturbances, using closed circuit television monitors, and notifies authorities by telephone of need for corrective action. Observes television screens that transmit in sequence views of transportation facility sites. Pushes hold button to maintain surveillance of location where incident is developing, and telephones police or other designated agency to notify authorities of location or disruptive activity.

3. New Evidence

Because I am remanding the case to the Commissioner, I need not determine whether the Appeals Council properly considered the psychiatrist's report, which was provided to the Council subsequent to the ALJ's decision. On remand, the ALJ shall consider this new evidence to the extent that it relates back to Peralta's condition "during the time period for which benefits were denied." Lisa v. Sec'y Dep't Health Human Servs., 940 F.2d. 40, 43 (2d Cir. 1991); 42 U.S.C. § 405(g) (new evidence may be considered where it is material and there is good cause for failure to incorporate such evidence into the record). Although Ladopoulus indicates that he did not begin to treat Peralta until July 27, 2003, he explains that her psychiatric symptoms were caused by the February 28, 2001 accident. Thus, although the report is dated after the ALJ's decision, the ALJ may still properly consider it to the extent it sheds light on Peralta's disability during the relevant period.

CONCLUSION

For the reasons set forth above, the motions for judgment on the pleadings are denied. The case is remanded to the Commissioner for further proceedings consistent with this opinion.

So Ordered.