ANDREW J. PECK, United States Magistrate Judge

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

To the Honorable Deborah A. Batts, United States District Judge:

Plaintiff Seddy Richardson, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security (the "Commissioner") denying him Supplemental Security Income ("SSI") and Disabled Adult Child ("DAC") insurance benefits. (Dkt. No. 1: Compl.) Presently before the Court is Richardson's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) (Dkt. No. 8: Notice of Motion), and the Commissioner's cross-motion for judgment on the pleadings (Dkt. No.10: Gov't Notice of Cross-Motion).

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings should be DENIED, and Richardson's motion for judgment on the pleadings should be GRANTED and the case remanded to the Commissioner for further proceedings.

FACTS

Procedural Background

In March 2008, Richardson filed for SSI and DAC insurance benefits. (See Dkt. No. 7: Administrative Record filed by the Commissioner ["R."] 51, 52, 90-93.) In both applications, Richardson alleged that he was disabled since October 15, 1996 due to a right hip impairment. (R. 51-52, 103-12.) On June 5, 2008, the SSA denied both claims, finding Richardson not disabled. (R. 53-59.) On July 10, 2008, Richardson requested an administrative hearing. (R. 60-68.)

Administrative Law Judge ("ALJ") Wallace Tannenbaum conducted a hearing on July 21, 2009. (R. 15-46.) Richardson appeared with his present counsel, Christopher Bowes. (R. 15, 17.) On September 10, 2009, ALJ Tannenbaum issued a written decision finding that Richardson was not disabled. (R. 4-14.) ALJ Tannenbaum's decision became the Commissioner's final decision when the Appeals Council denied review on March 23, 2010. (R. 1-3.)

On December 15, 2010, Richardson filed this action claiming that the ALJ's decision was "not supported by substantial evidence and is based on errors of law." (Dkt. No. 1: Compl. ¶ 14.)

The issue before the Court is whether the Commissioner's decision that Richardson was not disabled between October 15, 1996 and September 10, 2009 is supported by substantial evidence. Non-Medical Evidence

Richardson was born on March 2, 1978. (R. 19, 90.) In 1994, Richardson developed a bone disease, avascular necrosis, in his right hip. (R. 42-43, 165.) Richardson was eighteen years old at the alleged onset of his disability, October 15, 1996. (R. 90.)

Richardson received a G.E.D. diploma in 2003. (R. 19, 154.) Between October and December 1996, Richardson worked as a food service clerk at Taco Bell, but he was fired for reasons unrelated to his hip. (R. 21-22, 34, 150.) Between June 1999 (or perhaps January 2000) and October 2000, Richardson worked as a stock clerk for Duane Reade. (R. 21, 34-36, 113-14, 133-35, 150, 156.) As a stock clerk, Richardson did "[a] little bit of every thing" and helped customers with purchases. (R. 114, 150.) He stopped working at Duane Reade because he was "doing crimes," that is, selling drugs on the street. (R. 35-36.)

Between May 2001 and March 2008, Richardson was incarcerated. (R. 20, 91.) While in prison, Richardson sometimes worked at a computer in "sitting down positions." (R. 28-29.) Following his release from prison, Richardson worked intermittently in 2008 as a "[p]hone interviewer," a dishwasher and a cashier. (R. 19-20, 36, 113, 156.) Richardson has not worked since late 2008. (R. 22, 101.)

Richardson testified that his right hip impairment has worsened each year and prevents him from working. (R. 22-24, 32, 34, 36-37, 39, 40, 125, 128, 149, 158.) Richardson's criminal record also prevents him from getting a job. (R. 22, 44.) Richardson's leg "hurt[s] [him] really bad now," he cannot stand and do the types of jobs he did previously. (R. 22.) If he sits in a chair for thirty to forty-five minutes, he feels "stiffness, discomfort and pain," and has trouble walking once standing. (R. 29-30, 32-33, 39.) Richardson also has difficulty climbing stairs, feels discomfort after standing for more than twenty to thirty minutes and can walk just two or three blocks before needing rest. (R. 25-26, 37, 38, 108.) Richardson does not use a cane or walker (although he personally feels he was "starting to need one") and takes public transportation alone. (R. 25, 30, 37, 38, 105.) He has trouble getting dressed and using the toilet because of pain from bending his right hip, but can prepare his own meals and do other household chores. (R. 25, 103-04.) For temporary pain relief, Richardson takes Motrin. (R. 24, 32-33, 111.) Other than a recent visit to the ER for hip pain, Richardson was not receiving medical treatment or physical therapy. (R. 23-24, 25-26.)

Richardson was incarcerated again in or around December 2009. (Dkt. No. 9: Richardson Br. at 6; see also R. 87.) Prior to his re-imprisonment, Richardson lived with his mother in a first floor apartment (R. 18, 24-25, 91), where he watched TV for three to four hours everyday, regularly saw his girlfriend and about once a week went to the movies and visited with friends (R. 26-27, 30-31, 106-07). When he visited friends, they would "stand and talk" at a "sports bar" while watching sports games. (R. 27, 29-30.) Medical Evidence

Treating Physicians at the New York State Department of Correctional Services: May 2001-March 2008

An April 30, 2002 x-ray of Richardson's right hip showed "advanced avascular necrosis [of the] right femoral head with marked degenerative right hip joint disease, & chronic subluxation [of the] right hip [joint and a] 1.5cm degenerative cyst in [the] right iliac bone." (R. 165.) An x-ray of Richardson's left hip taken the same day showed "mild degenerative left hip joint disease." (R. 165.)

On April 28, 2005, Richardson complained of right hip pain and was prescribed 600mg Motrin. (R. 167.) A prison physician noted that Richardson had hip surgery in 1996 due to avascular necrosis and "pins [were] placed" in his hip. (R. 167; see also R. 151-52.) The physician also observed that Richardson walked with a "cane [and a] limp" and that his right leg appeared one inch shorter than the left. (R. 167.) On May 16, 2005, Richardson received a prescription for "[o]rthopedic [b]oots" with a three-quarter inch "[f]oam [e]levation" on the right side for "[b]alance." (R. 166.)

On February 28, 2006, Richardson again complained of right hip pain and was prescribed 600mg Motrin. (R. 163.) On March 27, 2006, Richardson received "sp[ecial] order state issue boots" (R. 163) and in January 2007, he was prescribed ibuprofen for pain (R. 164). A prison physician opined that Richardson would need a hip replacement to correct his injury. (R. 164.)

Consultative Examination: May 2008

On May 13, 2008, consultative orthopedist Dr. Mariya Tsinis examined Richardson. (R. 168-70.) Richardson took the subway unaccompanied to the appointment. (R. 168.) Dr. Tsinis observed that Richardson moved without an assistive device but walked with a "Trendelenburg gait" and stood with his right foot "on the toes." (R. 169.) Although Richardson had no difficulty getting up from the chair or from the exam table to a sitting position, he complained of "stiffness in the right hip after prolonged sitting," and trouble walking and climbing stairs. (R. 168, 169.)

Richardson described a history of "constant right hip pain" starting in 1992. (R. 168.) He was first diagnosed with avascular necrosis in 1994 and underwent right hip surgery at Columbia Presbyterian Hospital in 1996. (R. 151-52, 168.) At the time of examination, Richardson estimated that he could sit with his "right knee extended" for two to three hours, stand for a few minutes and walk about three blocks before needing rest. (R. 168.) Richardson reported that, although he took Motrin for pain relief, he was not undergoing any physical therapy. (R. 168.)

Upon examination of Richardson's hip joints, Dr. Tsinis reported that Richardson's right hip range of motion was limited in "flexion" to seventy degrees. (R. 169.) There was "zero internal rotation," "[e]xternal rotation" was measured at forty degrees and "[a]bduction" at thirty-five degrees. (R. 169.) Richardson had "pain on movement" of his right hip and "tenderness on palpation." (R. 169.)

Dr. Tsinis reported that Richardson's lower extremities possessed muscle strength of grade "5/5 except for the right hip flexors and abductors which is 5-/5." (R. 169.) Additionally, Dr. Tsinis reported that Richardson's right leg was three centimeters shorter than the left leg. (R. 169.) An x-ray of Richardson's right hip, taken the same day, showed "[m]arked osteoarthritic changes with deformity of the femoral head." (R. 169, 171.)

Dr. Tsinis diagnosed Richardson with "[l]eg length discrepancy" and a "[h]istory of right hip surgery with decreased range of motion and persistent pain." (R. 170.) Dr. Tsinis determined that: (1) Richardson's abilities to lift, carry, push, pull and stand were "significantly impaired"; (2) his ability to sit was "mildly to moderately impaired"; and (3) his ability to ambulate was "moderately to severely impaired." (R. 170.)

Physical RFC Assessment: June 2008

On June 4, 2008, disability examiner R. Rosenthal completed a physical residual functional capacity assessment of Richardson. (R. 172-77.) Due to the condition of Richardson's right hip, Rosenthal determined that Richardson had the following exertional limitations: (1) occasionally lift and/or carry up to 10 pounds; (2) frequently lift and/or carry less than 10 pounds; (3) stand and/or walk, with normal breaks, for at least two 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. 173.) Rosenthal also determined that Richardson could "occasionally" climb stairs, balance, stoop, kneel, crouch and crawl. (R. 173-74.) Rosenthal stated that the evidence supporting the limitations was that Richardson had "marked osteoarthritis of [the right] hip . . . and walks with [T]rendelenburg gait but does not use assistance for ambulation." (R. 173.) The ALJ's Decision

In a written decision dated September 10, 2009, ALJ Tannenbaum denied Richardson's application for SSI and DAC benefits for the period beginning October 15, 1996. (R. 4-14.) ALJ Tannenbaum reviewed Richardson's claim of disability resulting from his right hip impairment, considering both Richardson's testimony and the medical record. (R. 10-14.)

ALJ Tannenbaum found that Richardson's "medically determinable impairment could reasonably be expected to cause the alleged symptoms," but that his "statements concerning the intensity, persistence and limiting effects of these symptoms [were] not credible." (R. 12.) In particular, ALJ Tannenbaum noted that although Richardson testified that he could sit for only half an hour, he "did a mostly sitting down job while in prison," he was able to "visit his girlfriend and go to . . . movie[s]," he "socializes and attends sports bars on occasion with friends" and "watches television about 3-4 hours a day." (R. 12.) Additionally, although Richardson testified that he could not stand more than twenty to thirty minutes or walk for more than three blocks before needing rest, ALJ Tannenbaum noted that Richardson did "some work" in 2008 as a "cashier, stock clerk and dishwasher," and could "travel alone using public transportation" and "shop[] for clothing and phone cards." (R. 12.)

ALJ Tannenbaum recognized the findings of consultative orthopedist Dr. Tsinis that Richardson had "abnormal right hip function" with "significant limitations for prolonged standing and walking," but also noted that Richardson was "not receiving active ongoing medical treatment" or "physical therapy," and did not use "a cane or a walker." (R. 12, 13.)

ALJ Tannenbaum applied the appropriate five step legal analysis (see R. 8-9), as follows: First, ALJ Tannenbaum found that Richardson had not "engaged in substantial gainful activity . . . since October 15, 1996, the alleged onset date." (R. 10.) Second, ALJ Tannenbaum determined that Richardson had a "severe impairment," "avascular necrosis status post right hip surgery." (R. 10.) Third, ALJ Tannenbaum found that Richardson did "not have an impairment or combination of impairments that [met] or medically [equaled] one of the listed impairments." (R. 10.) Fourth, ALJ Tannenbaum determined that while Richardson had "no past relevant work," he had "the residual functional capacity" to perform "basic work activities with sedentary exertional demands." (R. 11, 12-13.) At the last step, ALJ Tannenbaum found that, "[c]onsidering [Richardson's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Richardson] can perform." (R. 13.) ALJ Tannenbaum concluded that Richardson was not "under a disability, as defined in the Social Security Act, from October 15, 1996 through the date of [the] decision," i.e., September 10, 2009. (R. 13.)

ALJ Tannenbaum's decision became the final decision of the Commisioner when the Appeals Council denied review on March 23, 2010. (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); Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010); Betances v. Comm'r of Soc. Sec., 206 F. App'x 25, 26 (2d Cir. 2006); Surgeon v. Comm'r of Soc. Sec., 190 F. App'x 37, 39 (2d Cir. 2006); Rodriguez v. Barnhart, 163 F. App'x 15, 16 (2d Cir. 2005); Malone v. Barnhart, 132 F. App'x 940, 941 (2d Cir. 2005); Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005).

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.

Disabled adult child disability benefits are available "if such child was under a disability (as so defined) at the time he attained the age of 18 or if he was not under such a disability (as so defined) at such time but was under a disability (as so defined) at or prior to the time he attained (or would attain) the age of 22." 42 U.S.C. § 402(d)(1)(G); see also 20 C.F.R. § 404.350(a)(5).

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 to support such determination. E.g., 42 U.S.C. § 405(g); Salmini v. Comm'r of Soc. Sec., 371 F. App'x 109, 111 (2d Cir. 2010); Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d Cir.), cert. denied, 551 U.S. 1132, 127 S. Ct. 2981 (2007); Halloran v. Barnhart 362 F.3d 28, 31 (2d Cir. 2004); Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003); 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. Barnhardt, 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., Comins v. Astrue, 374 F. App'x 147, 149 (2d Cir. 2010); Rosa v. Callahan, 168 F.3d at 77; Tejada 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). However, the Court 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., 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, 42 U.S.C. §§ 405(a) (Title II), 1383(d)(1) (Title XVI), the agency has promulgated regulations establishing a five-step sequential evaluation process to determine disability. See 20 CFR § 404.1520 (2003) (governing claims for disability insurance benefits); § 416.920 (parallel regulation governing claims for Supplemental Security Income). 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." §§ 404.1520(b), 416.920(b). [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." §§ 404.1520(c), 416.920(c). [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. §§ 404.1520(d), 416.920(d). [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. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).

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.

C. The ALJ's Duty to Develop the Record

It is the "well-established rule in [the Second] circuit" that the ALJ must develop the record, even where, as here, the claimant was represented by counsel:

Even when a claimant is represented by counsel, it is the well-established rule in our circuit "that the social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding." Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009) (internal quotation marks and brackets omitted) [cert. denied, 130 S. Ct. 1503 (2010)]; accord Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004), reh'g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996); see also Gold v. Sec'y of Health Educ. & Welfare, 463 F.2d 38, 43 (2d Cir. 1972) (pro se claimant). Social Security disability determinations are "investigatory, or inquisitorial, rather than adversarial." Butts, 388 F.3d at 386 (internal quotation marks omitted). "[I]t is the ALJ's duty to investigate and develop the facts and develop the arguments both for and against the granting of benefits." Id. (internal quotation marks omitted); accord Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).

II. APPLICATION OF THE FIVE STEP SEQUENCE TO RICHARDSON'S CLAIMS

A. Richardson Was Not Engaged in Substantial Gainful Activity

The first inquiry is whether Richardson was engaged in substantial gainful activity after his application for SSI and DAC benefits. "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 Tannenbaum's conclusion that Richardson had not engaged in substantial gainful activity during the applicable time period (see page 9 above) is not disputed. (See Dkt. No. 10: Gov't Br. at 9-10.) The Court therefore proceeds to the second step of the five part analysis.

B. Richardson Demonstrated A "Severe" Physical Impairment That Significantly Limited His Ability To Do Basic Work Activities

The next step of the analysis is to determine whether Richardson 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 Tannenbaum determined that the medical evidence indicated that Richardson had a "severe impairment," that is, "avascular necrosis status post right hip surgery." (See page 9 above.) This finding is not disputed. (See Dkt. No. 10: Gov't Br. at 9-10.) The Court therefore proceeds to the third step of the five part analysis.

C. Richardson Did Not Have A Disability Listed in Appendix 1 of the Regulations

The third step of the five-part test requires a determination of whether Richardson 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 Tannenbaum found that while Richardson's medically-determinable impairments were "severe," he did not have an "impairment or combination of impairments that [met] or medically [equaled] one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (R. 10; see page 9 above.) Appendix 1 provides a categorization of physical impairments, including the musculoskeletal system. See 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.00. Richardson argues that ALJ Tannenbaum failed to properly determine whether he suffered from an impairment that meets the criteria in Appendix 1. (Dkt. No. 9: Richardson Br. at 17-20.)

Section 1.02 outlines the conditions required to establish disorders of the joint. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 1.02. To constitute an Appendix 1 impairment, Richardson's right hip condition must qualify as "[m]ajor dysfunction of a joint(s)," characterized by:

gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:

A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b.

an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.

individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.

ALJ Tannenbaum found that Richardson's right hip impairment did not satisfy the requirements of Appendix 1. (See page 9 above.) Although Richardson's avascular necrosis likely constitutes a "gross anatomical deformity" within the meaning of 1.02, there is substantial evidence to support the ALJ's finding that Richardson could "ambulate effectively."

First, Richardson's own testimony confirms that he can: (1) walk, without the use of a cane or walker, for two to three blocks before needing rest; (2) take public transportation without assistance; (3) climb stairs; and (4) perform various household chores and "routine ambulatory activities" such as shopping for clothing or going to movies and visiting with friends. (See page 4 above.) Dr. Tsinis' examination also supports the finding that Richardson can "ambulate effectively." Although Dr. Tsinis observed that Richardson walked with a "Trendelenburg gait," and found that his ability to ambulate was "moderately to severely impaired," she noted that Richardson was not "involved in physical therapy," did "not use [any] assistive devices," and had no difficulty getting up from the chair or from the exam table to a sitting position. (R. 168, 169; see pages 6-7 above.)

Richardson did not prove that his hip impairment impacted his ability to ambulate to the extent required by the Listings. See, e.g., Paulino v. Astrue, 08 Civ. 02813, 2010 WL 3001752 at *15 (S.D.N.Y. July 30, 2010) (Peck, M.J.) (claimant that "limped slowly [to] avoid[ ] pressure on [her] right ankle and had moderate limitations in walking long distances," could ambulate effectively because she walked "without any assistive device," and was able to climb stairs "to her fourth floor apartment (albeit slowly) and travel by bus and taxi without assistance" (citations & quotations omitted)); Dibiasio v. Astrue, No. 08 CV 0743, 2010 WL 3368429 at *10 (W.D.N.Y. June 10, 2010) (claimant who "made short trips to the store, performed light household chores like laundry, gardening, vacuuming and meal preparation, and was able to travel short distances without a cane" could ambulate effectively), report & rec. adopted, 2010 WL 3368358 (W.D.N.Y. Aug. 23, 2010); Marullo v. Astrue, No. 08 CV 0818, 2010 WL 2869577 at *9 (W.D.N.Y. May 4, 2010) (claimant's testimony that she takes "Tylenol for knee pain, has difficulty walking long distances . . . and has to sit when she experiences pain in her legs . . . without more, does not rise to the definition of ineffective ambulation" (citations omitted)), report & rec. adopted, 2010 WL 2869574 (W.D.N.Y. July 20, 2010); Serrano v. Astrue, 08 Civ. 1920, 2009 WL 959557 at *10 (S.D.N.Y. Mar. 16, 2009) (claimant could ambulate effectively because she "was able to use public transportation, do her own shopping, climb steps to enter and exit her apartment, and walk several blocks, albeit with breaks"); Guy v. Astrue, 615 F. Supp. 2d 143, 161 (S.D.N.Y. 2009) (although claimant "experienced some discomfort when walking," he could ambulate effectively because he indicated that he was able to walk short distances comfortably with a cane); Munn v. Comm'r of Soc. Sec., No. 06 CV 231, 2008 WL 2242654 at *8 (N.D.N.Y. May 29, 2008) (claimant who was able to complete daily activities independently, such as shopping and socializing with family and friends, dismount the examination table without assistance during appointments, and walk without assistive devices, although she used a cane occasionally, could ambulate effectively).

Substantial evidence thus supports ALJ Tannenbaum's determination that Richardson did not meet the criteria for disability based on his musculoskeletal disorder under the Listings of Impairments, 20 C.F.R. Pt. 404, Subt. P, Appendix 1, 1.02.

D. Richardson Has No Past Relevant Work

The fourth prong of the five part analysis asks whether Richardson had the residual functional capacity to perform his past relevant work. (See page 14 above.) Because Richardson's past work "did not rise to the level of substantial gainful activity," ALJ Tannebaum concluded that Richardson had "no past relevant work." (R.10; see page 9 above.) This finding is not disputed, so the Court proceeds to the fifth and final step of the analysis.

E. There Was Insufficient Evidence to Support the ALJ's Finding that Richardson Can Perform "Sedentary" Work

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); see, e.g., Arruda v. Comm'r of Soc. Sec., 363 F. App'x 93, 95 (2d Cir. 2010); Butts v. Barnhart, 388 F.3d 377, 381 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Curry v. Apfel, 209 F.3d 117, 122-23 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).

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.

ALJ Tannenbaum determined that Richardson had "the residual functional capacity to perform the full range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)." (R. 11; see page 9 above.) The record evidence does not support this finding.

Richardson testified that if he sits for thirty to forty-five minutes, he feels "stiffness, discomfort and pain." (See page 4 above.) Richardson told Dr. Tsinis that he could sit for two to three hours with his right knee extended. (R. 168; see page 6 above.) ALJ Tannenbaum found Richardson's testimony as to the "intensity, persistence and limiting effects of [his] symptoms . . . not credible." (See page 8 above.) ALJ Tannenbaum's credibility finding seems to have relied solely on Richardson's testimony that his work assignment in prison was performed in a sitting position, that he used public transportation, went to movies and sports bars on occasion and watched television for around three to four hours each day. (R. 12.) There was no proof, however, that Richardson "engaged in any of these activities for sustained periods comparable to those required to hold a sedentary job." Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 643 (2d Cir. 1983) (Claimant who "sometimes reads, watches television, listens to the radio, [and] rides buses and subways" was nonetheless unable to perform sedentary work, where there was "no proof that [claimant] engaged in any of these activities for sustained periods comparable to those required to hold a sedentary job. On the contrary, as far as the record is concerned he did these things only for short periods."); see, e.g., Balsamo v. Chater, 142 F.3d 75, 81-82 (2d Cir. 1998) (Claimant's testimony that he often read and watched television, operated a motor vehicle when required and occasionally attended church and helped his wife go shopping was insufficient, without additional evidence, to show his ability to perform sedentary work where there was "no evidence that [he] 'engaged in any of these activities for sustained periods comparable to those required to hold a sedentary job.'" (quoting Carroll)); Murdaugh v. Sec'y of Dept. of Health & Human Servs., 837 F.2d 99, 102 (2d Cir. 1983) (Claimant's ability to"water[] his landlady's garden, occasionally visit[] friends and . . . get on and off an examination table" was insufficient, without additional evidence, to show his ability to perform sedentary work.); Archambault v. Astrue, 09 Civ. 6363, 2010 WL 5829378 at *30-31 (S.D.N.Y. Dec. 13, 2010) (Claimant's "ability to engage in certain limited daily activities," such as doing household chores, driving his car or boat, and fishing once every three weeks did "not provide evidence of his ability to perform sedentary work unless he [could] perform those daily activities at a level consistent with the demands of sedentary work."), report & rec. adopted, 2011 WL 649665 (S.D.N.Y. Feb. 17, 2011); Carbone v. Astrue, No. 08 CV 2376, 2010 WL 3398960 at *17 (E.D.N.Y. Aug. 26, 2010) (claimant's testimony that "her activities include cooking, cleaning the house, shopping, watching TV, . . . visiting relatives, and occasionally taking her daughter to the park" was insufficient, without additional evidence, to show her ability to perform sedentary work, citing Carroll); Hilsdorf v. Comm'r of Soc. Sec., 724 F. Supp. 2d 330, 351-52 (E.D.N.Y. 2010) ("The mere fact that [claimant] engaged in these activities" - that he "did some shopping . . . [and] drove a car" - standing alone, "is meaningless" to show his ability to sit for sustained periods necessary to perform sedentary work). For example, the record does not specify the duration for which Richardson's work assignment in prison required him to sit (the Court doubts he worked an eight hour day in prison), or whether Richardson watched television while sitting or lying down. See Balsamo v. Chater, 142 F.3d at 81 ("We take judicial notice that individuals can read and watch television while lying down."). Instead, the record suggests Richardson engaged in sitting activities infrequently and "with problems." (R 37; see R. 29-31, 38-39.)

Consulting Dr. Tsinis's conclusion that Richardson's ability to sit was "mildly to moderately" impaired (see page 7 above) provides no support for ALJ Tannenbaum's conclusion that Richardson could perform sedentary work. Dr. Tsinis' finding is so vague as to render it useless in evaluating whether Richardson could perform sedentary work. See Curry v. Apfel, 209 F.3d at 123 (The "use of the terms 'moderate' and 'mild,' without additional information, does not permit the ALJ, a layperson notwithstanding . . . considerable and constant exposure to medical evidence, to make the necessary inference that [the claimant] can perform the exertional requirements of sedentary work."); accord, e.g., Dambrowski v. Astrue, 590 F. Supp. 2d 579, 583 (S.D.N.Y. 2008); Blizzard v. Barnhart, 03 Civ. 10301, 2005 WL 946728 at *12 (S.D.N.Y. Apr. 25, 2005); O'Brien v. Barnhart, 01 Civ. 2483, 2002 WL 449860 at *4 (S.D.N.Y. Mar. 22, 2002).

In short, ALJ Tannenbaum's conclusion that Richardson could perform the full range of sedentary work is speculative and is not supported by substantial evidence. (See cases cited at pages 24-26 above.) On remand, the Commissioner should make specific findings as to Richardson's ability to sit for sustained periods necessary for sedentary work. The Commissioner should also follow the Secretary's suggestion that when a claimant must alternate between periods of sitting and standing, because "[u]nskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will[,] . . . a [vocational specialist] should be consulted to clarify the implications for the occupational base." SSR 83-12, 1983 WL 31253 at *4 (S.S.A. 1983).

As a final matter, the Court notes that it is an open question in this Circuit whether a claimant whose disability benefits are terminated for non-medical reasons is entitled to a presumption that his disability has continued. See Singletary v. Astrue, No. 07-CV-6025, 2008 WL 1323892 at *2 (W.D.N.Y. Jan. 22, 2008) (finding no precedent in the Second Circuit on "the issue of res judicata" when a claimant's prior disability benefits were terminated for non-medical reasons such as incarceration); cf. DeLeon v. Sec'y of Health & Human Servs., 734 F.2d 930, 937 (2d Cir. 1984) ("[W]e hold that the Secretary must apply the medical improvement standard in deciding whether to terminate benefits to an individual previously found to be disabled." The medical improvement standard is that "having once established that a particular condition is disabling, a claimant is entitled to a presumption that as long as there is no change in the condition itself, or in the governing statutes or regulations, neither will the statutory classification of disability be changed."). Richardson's current application is predicated on the same condition for which he was previously granted SSI benefits. (See page 2 n.1 above.) Since ALJ Tannenbaum determined on September 22, 2000 that Richardson was disabled, even if no presumption applies, it would be appropriate at least for the ALJ to explain why a different conclusion should apply to Richardson's present application. See, e.g., Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984) ("The existence of a prior established disability is highly relevant when the nature of that disability appears to be the very same cause of the alleged disability then under examination."); Villanueva v. Chater, 95 Civ. 4006, 1996 WL 471195 at *3 (S.D.N.Y. Aug. 20, 1996) ("[D]espite testimony by [claimant] about receiving prior disability benefits for the injury to his left arm, the ALJ failed to question him about changes in his condition and its relationship to his current disability claim. [Claimant], then, was deprived of a fair hearing by the ALJ's failure to fully develop the record on this key point." (citation to Mimms omitted)). That is particularly true because Richardson's condition is degenerative and therefore unlikely to improve absent joint replacement surgery. Accordingly, on remand the Commissioner also should consider the prior SSA finding that Richardson was disabled, and its accompanying medical record, and explain the basis for any different conclusion with respect to Richardson's current application.

CONCLUSION

For the reasons discussed above, the Commissioner's determination that Richardson was not disabled within the meaning of the Social Security Act during the period October 15, 1996 to September 10, 2009 is not supported by substantial evidence. The Commissioner's motion for judgment on the pleadings (Dkt. No. 10) should be DENIED, and Richardson's motion for judgment on the pleadings (Dkt. No. 8) should be GRANTED and the case remanded 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 Deborah A. Batts, 500 Pearl Street, Room 2510, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Batts (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); 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

July 8, 2011

Respectfully submitted,

/s/_________

Andrew J. Peck

United States Magistrate Judge Copies to: Christopher James Bowes, Esq.

Susan C. Branagan, Esq.

Judge Deborah A. Batts