OPINION AND ORDER

GORENSTEIN, Judge

Plaintiff Pamela Punch brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying her disability benefits under the Social Security Act. Punch has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). The Commissioner has opposed this motion and cross-moved for judgment on the pleadings. The parties have consented to this matter being determined by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, Punch's motion is denied and the Commissioner's cross-motion is granted.

I. FACTUAL BACKGROUND

A. Punch's Claim for Benefits

Punch applied for disability benefits on November 24, 1997. R. 112-14. Punch claimed at that time that she had been disabled since February 29, 1996. R. 112. Her application was denied initially and subsequently denied on reconsideration. R. 92, 93, 94-97, 99-101. Punch requested a hearing, R. 102, and appeared, represented by counsel, before an Administrative Law Judge ("ALJ"). R. 27. A hearing was held on January 21, 1999. R. 27-91. Following the hearing, the ALJ ruled that Punch was not disabled and was not entitled to benefits. R. 12-26. Punch sought Appeals Council Review of this determination. R. 10-11. The Appeals Council denied review of the ALJ's determination on March 23, 2001. R. 5-6.

On April 20, 2001, Punch filed the instant complaint seeking review of the denial of her claim.

B. Evidence Presented at the Hearing Before the ALJ

1. Punch's Testimony

Punch was born in Guyana on February 10, 1945. R. 30. She graduated high school in Guyana, came to the United States in 1970, and became a citizen in 1993. Punch received job training in business schools, including training to type on a computer. R. 31-32. She also received additional computer training from an employer. R. 32.

Punch testified that she lived alone on the fifth floor of an apartment building with an elevator. R. 59-60. One of her adult children did all her cooking, laundry, cleaning and grocery shopping on weekends. Id. at 60-61. Although she did some shopping herself, it was generally only for bread and milk. Id. at 61.

Punch testified that she was 5 feet 2 inches tall and weighed 214 pounds. R. 32. She stated that her normal weight was 165 pounds. R. 33. According to Punch, she had gained 50 pounds in the previous 18 months due to decreased mobility as a result of her impairments. R. 33. The ALJ questioned her regarding her alleged weight gain, noting that medical records indicated that she had also weighed over 200 pounds in 1996. R. at 33. In response, Punch indicated that her weight had gone "up and down." R. at 33.

Punch also testified about the impact of her impairments on her daily life. She testified that she did not sleep well due to pain. R. 61. She stated that she went to bed at one in the morning, woke up at three or four in the morning but did not even sleep even for those few hours because of her pain. R. 61, 64. Instead she just "doze[s] a couple of minutes." R. 64. She was able to bathe, shower and dress herself R. 61-62. However, she could not participate in church any longer because she could not kneel, bend or stand, and as a result she no longer had any friends. R. 66-68. She did not visit her family, R. 66-67, 86, although she was able to use public transportation. R. 62-63, 145. Punch stated that walking "up and down" irritated her spine. R. 65. She also testified that she was brought to the hearing by her son in a car. R. 62.

Punch claimed that she mainly watched television or listened to the radio. R. 64-65. She had trouble concentrating and would cry due to the pain she was experiencing. R. 65. She was able to leave her apartment and take walks in the neighborhood on rare occassions. R. 65. In terms of her mobility, Punch testified that she could sit continuously for about one hour, could stand for about 20 minutes, and walk one or two blocks at a time. R. 65-66. She was also able to lift about 5 pounds. R. 66.

When Punch first applied for disability benefits, she reported to the Social Security Administration that she had become disabled in February 1996. R. 35. She left her job as a personal care aide at Prime Care in 1996 after she became disabled. R. 34-35. She engaged in an "unsuccessful work attempt" as a clerical bank worker from November 1996 to February 1997. R. 34-35. She stated that she stopped working in February 1997 because of pain she was experiencing from her ailments. R. 68.

Punch also testified about her work history from 1982 to 1997. From 1982-88, she had worked at Merrill Lynch doing computer entries concerning stocks and bonds. R. 37-38. She performed that job from a seated position. R. 38. She was laid off from that job during 1989. R. 38. She stated that she had worked as a home attendant from 1989 to 1992. R. 38. She also worked as a personal care aide at Prime Care from August 1995 until 1996. R. 36. According to the Disability Report completed by Punch on February 29, 1996, as a home care attendant Punch had to walk for about one hour, sit for two hours, and was required to bend and reach, to perform cleaning chores and to lift from 50 to over 100 pounds when she had to lift groceries or handle a patient. R. 125. Punch did not work from sometime in 1992 to late 1993. R. 38. She worked as a clerical worker for Merlight Industries' customer service department in 1992 for about 10 months. R. 37. Her job responsibilities were taking customer orders and helping customers. R. 37. The job was sedentary in nature and consisted of her taking customer orders and entering information in a computer. R. 37

From 1994 to 1996, she processed checks for a bank. R. 39-40. That job was performed both sitting and standing. R. 39-40. She testified that other employees helped her by carrying heavy stacks of papers to her desk for her. R. 40 Punch continued to do that job from November 1996 through February 1997. R. 43-44.

Punch testified that she injured her neck, shoulder and spine lifting a patient in 1996. R. 36, 45. She had a Worker's Compensation case concerning that injury. R. 49. She had a constant, severe pain that traveled down the right side of her neck, down her shoulder, arm, hand and her spine to her right leg. R. 46, 47, 48. She stated that as a result of the pain she started dragging her right leg while walking in mid-1997. R. 46-48, 55, 57.

Punch also testified that she started to experience pain, numbness and tingling in her fingers in February 1997, after she had ceased working. R. 47. She testified that although the pain lessened somewhat after she used medications, it never went away. R. 59. She stated that her pain medications caused side effects such as dizziness, diarrhea and vomiting. R. 59.

Punch testified that she had carpal tunnel syndrome in her right hand and that her hand and fingers were numb and stiff as a result, she dropped things. R. 50-51.

2. Vocational Expert Testimony

Ms. Edna Clarke, a vocational expert, classified the jobs about which Punch had testified. Clarke categorized Punch's home attendant job as one which required medium exertion and was semi-skilled. R. 89. She described the bank job as a sorter position, which was a semi-skilled sedentary position. R. 89. Punch's customer service and data entry jobs were also classified as semi-skilled sedentary jobs. R. 89-90. The difference between the sorter position at the bank and the customer service and data entry jobs were that those jobs required keyboarding, while the sorter position did not. R. 90.

3. Medical Evidence

Dr. Eitel Providence first saw Punch in 1995 for Worker's Compensation purposes after Punch fell off of a chair and allegedly hurt her back in October 1995. R. 210, 211. Dr. Providence treated Punch for traumatic injuries to the right ankle and lumbar spine. R. 212. He completed Worker's Compensation forms for Punch in March 1996 and checked boxes on the forms indicating that Punch was "total[ly] disabl[ed]" for Worker's Compensation purposes due to a traumatic injury to her back, neck and shoulder. R. 153, 240, 242. Punch's weight was recorded as 209 and 206 pounds on two separate occasions in April 1996. R. 149. On an April 1996 Worker's Compensation form, Dr. Providence indicated that Punch was suffering from a back sprain. R. 154, 241.

During the period that she was being treated by Dr. Providence, Punch was also receiving physical therapy for a back sprain from a Mr. Leonard Brown. R. 203, 204-07, 215-19. This physical therapy consisted of hot packs, ultrasound, electrical stimulation and exercise. R. 204. The physical therapist noted that Punch's straight leg raising was to 45 degrees, with tenderness above 10 degrees, paraspinal muscle spasm, and difficulty with heel-toe walking due to pain. R. 204.

In November 1996, Dr. Providence indicated that Punch could return to work, but that Punch did not return to work because she had lost her job. R. 151. In February 1997, the doctor noted that Punch had been working, but had quit her job. R. 151.

On April 14, 1997, Punch was treated at Brookdale University Hospital and Medical Center ("Brookdale Medical Center") after she vomited blood following an argument with her son. R. 158. Punch had slightly elevated blood pressure, but no other diagnosis was established. R. 158.

In July 1997, X-rays were taken of Punch's spine. R. 155-56. The X-rays revealed that Punch's cervical spine had loss of the normal lordotic curvature, that there were prominent hypertrophic spurs on C5, C6 and C7, but that disc spaces were preserved. R. 156. The x-rays revealed no abnormalities in Punch's lumbosacral spine, pelvis or right shoulder. R. 155-56.

Punch was examined by Dr. Marpreet Chhokar on July 14, 1997. R. 182-89. The examination revealed that Punch had limited spinal/back flexion. R. 185. An electrocardiogram that was taken revealed non-specific T-wave abnormalities. R. 187. Dr. Chhokar's impression was that Punch was suffering from back and neck pain and myalgia due to an old traumatic spine injury. R. 189. Dr. Chhokar indicated that Punch had a temporary condition and did not meet the criteria for Social Security disability benefits at that time. R. 189

Dr. Providence examined Punch again in December 1997. He noted that Punch did not need any assistance with walking. R. 166. He also noted that Punch could occasionally lift and carry up to 10 pounds, and had no limitations on her ability to sit. R. 167. Dr. Providence also indicated that Punch was capable of light work that did not involve heavy lifting or continued bending. R. 166.

Leo Parnes, DO., began treating Punch in November 1997. R. 171-177, 224-25. In December 1997, Parnes sent a letter to the New York State Workers Compensation Board noting Punch complained of pain resulting from injuries sustained while lifting a client. R. 178. Parnes found that Punch had traumatic cervical and lumbosacral derangement, limited cervical spine rotation, spasms, sprains and strains affecting the back, neck and shoulder, severe low back pain and sciatic radicular pain on the right side with pain radiating into the right leg. R. 178, 179, 234-35. He also completed a Worker's Compensation form indicated that Punch was disabled from her regular work duties and had a partial disability. R. 179. He stated that she could lift and carry less than 5 pounds, could stand and walk less than 2 hours, and could sit for less than 6 hours in a workday. R. 174.

Dr. Peter E. Graham examined Punch in January 1998. Punch weighed 215 pounds. R. 191-92. Her station was normal, and her gait was slow and tentative due to back pain. R. 191. Getting on and off the exam table was difficult due to her complaints of back pain. R. 191. Punch was able to dress and undress herself without any assistance. R. 191. Blood pressure was slightly elevated. R. 191.

Spinal examination by Dr. Graham revealed decreased flexion extension to 30 degrees, while lateral flexion was less than 10 degrees bilaterally. R. 191. Straight leg raising was less than 30 degrees. R. 191. There was tenderness upon lumbar spine palpitation. R. 191. Dr. Graham did not find any gross spinal deformity. R. 191. No paraspinal muscle spasm or tenderness was present. R. 191. The right shoulder range of motion was reduced with both adduction and flexion to 110 degrees. R. 191. All other joints exhibited full range of motion without any pain, swelling, redness or heat present. R. 191. Strength was adequate and commensurate with body build. R. 192. No atrophy was present. R. 192. Punch's hand dexterity was found to be normal. R. 192. She was able to make a full fist bilaterally. R. 192. She was also able to do a full squat. R. 192. A neurological examination by Dr. Graham was also normal. R. 192. Dr. Graham concluded that Punch had some limitations in her ability to walk, lift, carry and travel due to her back and shoulder problems, but she was not restricted in her ability to sit, stand and handle objects. R. 192.

On February 11, 1998, Punch was examined by Dr. Arnold J. Slovis, a state disability review physician. R. 92, 194-201. Dr. Slovis reviewed the medical evidence and assessed Punch's residual functional capacity. R. 194-201. Dr. Slovis noted that Punch's gait was slow, that she had difficulty with the exam table, and had reduced ranges of motion and straight leg raising. R. 195. X-rays taken at that time showed hypertrophic degenerative changes of the cervical spine. R. 195. X-rays of the lumbosacral spine were normal. R. 195. Dr. Slovis concluded that Punch was capable of carrying up to 10 pounds, that she could stand for at least 2 hours and sit for 6 hours in a workday, and that she had an unlimited ability to push and pull. R. 195. Dr. Slovis also noted that in regard to limitations, Punch should not climb ladders, ropes or scaffolds, but could occasionally stoop and kneel, and could frequently balance, crouch and crawl. R. 196. Dr. Slovis also expressed the opinion that Punch did not have any manipulative, visual, communicative or environmental limitations. R. 197-98.

X-rays taken on February 17, 1998 at Brookdale Medical Center revealed no fracture or subluxation and indicated only mild degenerative changes of the cervical and lumbar spine. R. 236-37. No abnormalities were found in Punch's sacrum and coccyx x-rays. R. 238.

In March 1998, Dr. V.B. Gupta, a state agency review physician, reviewed the medical evidence as well. R. 93, 194-201. Dr. Gupta concurred with the assessment and opinion of Dr. Slovis. R. 201. Like Dr. Slovis, Dr. Gupta found that Punch was not disabled. Id. at 93.

In April 1998, Punch was examined at Brookdale Medical Center. R. 250. During this examination, no motor deficits were found. R. 250. An EMG taken in May 1998 revealed no evidence of cervical radiculopathy, but did reveal evidence of right carpal tunnel syndrome. R. 251-52, 265. In June 1998, Punch's weight was 213.5 pounds. R. 253. At that time, Punch complained of right-sided pain at the slightest touch and significantly decreased strength on the right side. R. 253. Punch exhibited full strength on her left side. R. 253. Her reflexes were normal and she demonstrated no sensory deficits. R. 253.

In July 1998, Punch went to a hand clinic at Brookdale Medical Center for evaluation of her complaints of pain and numbness in her right hand and of "drop[ping] objects." R. 254-55. The doctor at Brookdale Medical Center (whose name is illegible in the record) observed that she entered the examination room carrying her bag in her right hand. R. 255. During the examination, she was "protective" of her right hand and the doctor described her as being "noncompliant" with the examination that was performed. R. 255. Punch refused to move her arm and neck when she was directed to do so, but the doctor observed that her joints were supple when Punch was distracted. R. 255.

The doctor's impression was that Punch had mild to moderate carnal tunnel syndrome on the right and prescribed night splinting. R. 255. The doctor was of the opinion that Punch's symptoms were "out of proportion" to the physical findings and the EMG report. R. 255. He also reached the conclusion that Punch was not motivated to complete therapy. R. 255.

On July 31, 1998, Punch was examined at the orthopedic clinic located at Brookdale Medical Center. R. 256. There was an indication of diminished sensation at C5-C8 and reduced cervical spine range of motion due to complaints of pain. R. 256. An MRI taken on April 30, 1998 revealed a "tiny" herniation at C4-C5 and degenerative changes at C5-C6. R. 267. Hand surgery was considered, but was not ultimately performed. R. 257, 258.

Dr. Parnes reported to the Worker's Compensation Board in October 1998 that Punch remained disabled. R. 239. In another letter submitted to the Worker's Compensation Board in November 1998, he reported that Punch was disabled and could not perform even sedentary work due to her disability. R. 260-61. He restricted her to standing, walking and sifting for less than 2 hours per day, and handling only from 2 to 3 pounds at a time. R. 261-62. Dr. Parnes also subsequently indicated in December 1998 that Punch had a chronic disability and chronic pain. R. 272.

An MRI of Punch's lumbar spine taken in October 1998 revealed a herniated nucleus pulposus at L5-S1, with left nerve root impingement and a posterior bulge at L3-L4 and L4-L5. R. 243.

Dr. Plotz, who was present at the hearing as a non-examining medical advisor, observed Punch's testimony and reviewed the medical evidence. R. 69. Dr. Plotz testified that the records indicated that Punch had suffered a severe strain while lifting a patient; had subsequently complained of right neck, arm and leg pain; and had recently complained of pain and numbness in her right hand. R. 69. Dr. Plotz stated that a "really minimal" cervical disc herniation was found at C4-C5, and a disc herniation was found at L5-S1 with impingement on the left. R. 70. Dr. Plotz concluded that the left herniation would not cause a problem in the right leg. R. 71. Dr. Plotz noted that an EMG test showed mild carpal tunnel syndrome and also noted that Punch's doctors felt that her symptoms were out of proportion to the objective medical findings. R. 71.

Dr. Plotz also testified while the MRI tests showed some herniated discs, the pain Punch complained of could not be sciatic radiation from those discs because the pain was located on the wrong side. R. 71. The doctor also stated that there was no reason why Punch should be dragging her leg. R. 71. Dr. Plotz noted that the record did not contain any indication of weakness in either the right leg or right hand. R. 72.

Dr. Plotz identified Punch's impairments as cervical and lumbosacral disc problems. R. 72. He stated that Punch would be limited to lifting and carrying no more than 10 pounds due to her demonstrated disc impairments. R. 74-76. He also testified that her complaints were out of line with the objective findings and that there was no objective limitation on her ability to stand and walk. R. 75. He noted that Punch was not restricted in regard to fine manipulation, such as keyboarding. R. 76. He also stated that it did not seem likely that Punch was unable to sleep at all as she had testified. R. 76.

C. The ALJ's Determination

On January 21, 1999, the ALJ issued a decision denying Punch's claim for disability benefits. R. 12-26. In reaching his determination, the ALJ considered Punch's testimony; the testimony of Dr. Charles Plotz, M.D., the medical expert; the testimony of Edna Clark, the vocational expert; and Punch's medical records, which included office chart notes prepared by Dr. Leo Parnes, Punch's treating physician and a report prepared by Peter Graham, M.D., a consultative examiner who examined Punch in 1998, as well as records of her treatment at Brookdale Hospital and her examinations by various state disability review physicians. See generally id. at 15-24. After a description of the evidence based on both testimony and the records submitted, the ALJ stated:

I agree with Dr. Plotz that claimant's subjective complaints are far out of proportion to her clinical and laboratory findings, and cannot be deemed credible to any greater extent than the partial range of light exertional activity that he indicated that should still permit. I note that his assessment agrees almost precisely with that made by the physician who treated claimant for the first 1-1/2 years after her AOD [Alleged Onset of Disability], Dr. Providence.

R. 22.

In assessing the evidence presented by the records of Punch's latest treating physician, Dr. Parnes, the ALJ noted that although Dr. Parnes "offered a much lower functional rating" for Punch, "there [was] little in his records to support that opinion . . . [h]is clinical findings are few except for a few positive ones at the time of his initial examination that have not been replicated before or since by other examiners." R. 22. The ALJ also outlined some of the evidence that contradicted Dr. Parnes's assessment, noting:

It is true that Dr. Parnes has (apparently) had access to some more sensitive radiographic findings than Dr. Providence did, and to electrodiagnostic studies. However, if anything those results should call claimant's subjective complaints more into question, not less. As noted, the lumbosacral MRI findings are entirely normal on the right — the only locus of claimant's lower extremity complaints. The cervical spine findings are somewhat contradictorily reported, but the actual radiologist's report supports Dr. Plotz's explanation that any abnormality in that area is mild to minimal. Even more significantly, electrodiagnostic studies at the same facility showed that claimant does not have cervical radiculopathy. Even her mild carpal tunnel syndrome cannot — according to both Dr. Plotz and a Brookdale treating physician — fully or even substantially explain Ms. Punch's subjective complaints.

R. 22 (emphasis in original).

In evaluating Punch's testimony, the ALJ identified a number of credibility issues. Although the ALJ recognized that "[a claimant's] symptoms and complaints must be considered," he found that Punch's record "contains . . . indicia of a tendency to exaggerate or embellish." R. 22. The ALJ did not find credible Punch's assertions that she was only getting "minimal amounts" of sleep due to her ailments, that she had to drag her right leg when she walked, a condition she had allegedly been suffering from for 1-1/2 years, that she had gained 45 pounds due to her ailments and that her initial physical therapy had lasted 3 to 4 months as opposed to just over a month. R. 22-23. The ALJ also did not find Punch's subjective complaints of pain credible, stating that he found it "remarkable" that if Punch's subjective complaints had been as serious as she claimed that she had not been prescribed a cane, back brace, neck brace, daytime wrist split or carpal tunnel release surgery. R. 23. Due to the discrepancies between Punch's subjective complaints and the clinical findings, the ALJ determined that her "subjective . . . complaints cannot be deemed credible to any greater extent" than that which would support a finding of the "light exertional activity" functionality rating as arrived at by Dr. Plotz. R. 22.

After his analysis of the evidence, the ALJ summarized his determination as follows:

For the reasons outlined above, I find that claimant's proven medically determinable impairments of low back strain, cervical strain and mild right carpal tunnel syndrome, plus obesity (not alleged but present) and hypertension (controlled and not "severe") cannot reasonably be expected to restrict her functional abilities below the level opined by Dr. Plotz and Dr. Providence (i.e. a wide range of light exertion). Furthermore, even if the claimant could perform no more than sedentary exertional activity, that would not exceed the requirements for three out of four previous types of work. I accept Dr. Plotz's opinion (which is the only one on this particular point) that claimant's carpal tunnel syndrome (not even present until over a year after claimant's AOD) would not restrict her even from the keyboard work necessary in two of the three of those jobs, and add that no such consideration is presented by the check sorting job. In any event, I conclude that claimant has failed to carry her burden of proof at Step 4 of the sequential evaluation process, and therefore is "not disabled."

R. 23-24.

The ALJ concluded by making the following specific findings:

1. The claimant met the disability insured status requirements of the Act on February 18, 1996, the date she stated she became unable to work, and continues to meet them through December 31, 2002.

2. The claimant has not engaged in substantial gainful activity since February 19, 1996.

3. The medical evidence establishes that the claimant has "severe" low back strain, cervical strain and (more recently) mild right carpal tunnel syndrome, as well as obesity and controlled hypertension, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4

4. The claimant's testimony as to the duration and severity of her subjective complaints and resulting functional effects is not fully credible.

5. The claimant has the residual functional capacity to perform work-related activities except for work involving lifting/carrying more than 10 pounds ( 20 C.F.R. § 404.1545).

6. The claimant's past relevant work as a sorter at a bank, customer order clerk and data entry clerk did not require the performance of work-related activities precluded by the above limitation(s) ( 20 C.F.R. § 404.1565).

7. The claimant's impairments do not prevent her from performing her past relevant work.

8. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of the decision ( 20 C.F.R. § 404.1520(e)).

R. 25-26. The decision of the ALJ became final when the Appeals Council denied review on March 23, 2001. R. 5-6.

II. APPLICABLE LEGAL PRINCIPLES

A. The Law Governing Disability Determinations

An individual is "disabled" under the Social Security Act if he or she cannot "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). The impairment suffered by the person must be such that the individual

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 under the Social Security Act, the Commissioner is required to evaluate the claim by considering "(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).

The Commissioner is also required to evaluate a claim for disability benefits pursuant to the five-step process outlined in regulations to the Social Security Act. See 20 C.F.R. § 416.920; see also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (describing the five-step evaluation process). In evaluating the claim, the ALJ must first determine whether the claimant is currently engaged in any "substantial gainful activity." 20 C.F.R. § 416.920(b). If the claimant is not, the ALJ must decide if the claimant has a severe impairment, which is an impairment that "significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c). If the claimant's impairment is severe and is listed in 20 C.F.R. Part 404, Subpt. P, App. 1, or is equivalent to one of the listed impairments, a claimant must be found disabled and the inquiry stops there. 20 C.F.R. § 416.920(d).

If the claimant's impairment is not listed or is not equal to one of the listed impairments, the Commissioner must review the claimant's residual functional ability to determine if the claimant is able to do work he or she has done in the past. If the Claimant is able to do such work, he or she is considered not to be disabled. 20 C.F.R. § 416.920(e). Finally, if the claimant is unable to perform past work, the Commissioner must decide if the claimant's residual functional capacity permits the claimant to do other work. If the claimant cannot perform other work, the claimant will be deemed disabled. 20 C.F.R. § 416.920(f). The claimant bears the burden of proof on all steps except the final one (that is, proving that there is other work the claimant can perform). Curry, 209 F.3d at 122.

Further, where multiple impairments are involved, the "combined effect of a claimant's impairments must be considered in determining disability [and] the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995).

B. The Standard of Review by this Court

Review of the Commissioner's final decision by a court is limited to determining whether there is "substantial evidence" to support the Commissioner's determination. See 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive"); accord Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Brown v. Apfel, 174 F.3d 59, 61 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence is "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The role of the reviewing court is therefore "quite limited and substantial deference is to be afforded the Commissioner's decision."Burris v. Chater, 1996 WL 148345, at *3 (S.D.N.Y. Apr. 2, 1996). This deference extends not only to factual findings, but also to all conclusions which can be drawn from those facts. See Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1968). If the reviewing court finds substantial evidence to support the commissioner's final decision, that decision must be upheld, even where substantial evidence supporting the claimant's position also exists. See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). Although the court is not to conduct a de novo review of the underlying claim, Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991), the reviewing court is required to "examine the entire record, including contradictory evidence" in order to "determine whether the findings are supported by substantial evidence." Brown, 174 F.3d at 62 (citations omitted). A reviewing court must not defer to the Commissioner's decision if the Commissioner failed to apply the correct legal standard in reaching a determination. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999).

C. The "Treating Physician" Regulations

In making a determination as to claimant's disability, the Commissioner is also obligated to follow the "treating physician" regulations located at 20 C.F.R. § 404.1527. These regulations state:

If we find that a treating source's opinion of 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.

III. DISCUSSION

Punch makes a number of attacks on the ALJ's decision denying her disability benefits. See Plaintiff's Memorandum of Fact and Law in Support of Motion for Judgment in Her Favor on the Basis of the Pleadings and Administrative Record, dated October 21, 2001 (hereinafter "Punch Mem."), at 11-19. She argues that (a) the ALJ ignored the "treating physician rule" id. at 16-18; (b) the ALJ "improperly denigrated" her various medical conditions by failing to include her herniated discs as impairments and by characterizing her right carpal tunnel syndrome as merely mild whereas a hospital physician had characterized it as mild to moderate, id. at 12, 15; (c) the ALJ did not properly assess her credibility, id. (d) the ALJ improperly had a non-examining medical expert testify as to her "residual functional capacity;" id. at 12, 17-18, and (e) the ALJ failed to take her carpal tunnel syndrome into account in his determination that Punch could perform sedentary work.Id. at 13, 15. Each argument is discussed below.

A. The Treating Physician Rule

Punch argues that the ALJ "ignored" the treating physician regulations in assessing her disability claim see Punch Mem. at 12, by improperly giving more weight to consultative examiner Dr. Graham and the non-examining medical expert Dr. Plotz than one of Punch's treating physicians, Dr. Parnes. Id. at 16-18.

The treating physician regulations, however, require that the ALJ give controlling weight to the treating physician's opinion only if the ALJ "find[s] that a treating source's opinion of the issue(s) of the nature and severity of [the claimant's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2). In his decision on Punch's disability claim, the ALJ acknowledged this requirement noting that he is

obliged to consider several factors before determining what weight [the opinions of treating physicians] are entitled to. Among those factors is the extent of "relevant evidence [presented] to support [their] opinion, particularly medical signs and laboratory findings. . . ." 20 C.F.R. § 404.1527(3). Furthermore, "the more knowledge a treating source has about [a claimant's] impairments the more weight we give to the source's medical opinion. We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed. . . ." 20 C.F.R. § 404.1527(d)(2)(ii).

R. 24.

In reaching his decision, the ALJ stated that "Dr. Parnes' [Punch's most recent treating physician] office chart notes . . . do not show very much other than subjective complaints," R. 18, and that "there are very few abnormal clinical findings." R. 21. The ALJ also states that "although . . . [Dr.] Parnes . . . offered a much lower functional rating almost immediately after he first saw claimant, there is little in his records to support that opinion" and that "[Dr. Parnes'] clinical findings are few except for a few positive ones at the time of his initial examination that have not been replicated since by other examiners." Id. at 22. The ALJ therefore considered the "relevant evidence" that "supported" Dr. Parnes' opinion 20 C.F.R. § 404.1527(d)(3); he also "look[ed] at the treatment the source provided and the kinds and extent of examinations and testing the source ha[d] performed." 20 C.F.R. § 404.1 527(d)(2)(ii). That the ALl ultimately credited Dr. Plotz's opinion more highly than that of Dr. Parnes is in fact a result of the ALJ following the "treating physician" regulation rather than "ignoring" it, as Punch claims. See Punch Mem. at 12. In accordance with the regulation, the ALJ concluded that Dr. Parnes' opinion was not "well supported by medically acceptable clinical and laboratory diagnostic techniques" and was "inconsistent with the other substantial evidence" presented in the case record as contemplated by 20 C.F.R. § 404.1527(d)(2).

Punch also argues that Dr. Graham's report cannot constitute substantial evidence capable of overriding Dr. Parnes' conclusion that Punch could not perform even sedentary work because Dr. Graham's report failed to determine the durational extent of Punch's capabilities for certain activities and Dr. Graham had not adequately reviewed the diagnostic tests contained in the record. See Punch Mem. at 16-18. She cites Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000), for the proposition that a consulting examiner's report cannot constitute substantial evidence. This argument fails for several reasons. First, Curry held only that a physician's report cannot constitute substantial evidence where the report is "so vagne as to render [the report] useless." Curry, 209 F.3d 117 at 123. Curry went on to note that the reports of "treating or consulting physicians need not be reduced to any particular formula" in order to be deemed adequate. Id. at 123. In this case, Dr. Graham's report was highly specific. Dr. Graham found after a physical examination that Punch had "severe back pains with significant limitation of function present" and that her "walking, lifting, carrying and traveling is limited as a result of back and shoulder problems." R. 192.

Second, it is clear the ALJ did not rely on Dr. Graham's opinion alone but rather took into account all diagnostic tests performed on Punch, and the evaluation of such tests by Dr. Plotz, among others, in rendering his final determination on Punch's disability claim. R. 18, 19, 20, 21, 22. Although Dr. Graham did not reach a determination as to Punch's durational capacity in regard to the activities she was able to engage in, other physicians — specifically, Dr. Providence, Punch's initial treating physician, and Dr. Plotz, — were able to provide evidence concerning this issue. See R. 18, 20-21. Moreover, there is abundant evidence in the case record, other than Dr. Graham's report, that supports the Commissioner's final decision and which also militates against giving controlling weight to Dr. Parnes's opinion. The records of Dr. Providence, Dr. Chhokar, Dr. Gupta, Dr. Slovis and each of Punch's treating physicians at Brookdale Medical Center, along with the testimony of Dr. Plotz, all indicate that Punch is able to work despite her various impairments. See R. 18-22. Because Dr. Graham's report is not the only evidence upon which the ALJ based his decision and is not so vague as to be "useless" in evaluating Punch's disability claim, it may properly form part of the "substantial evidence" supporting the ALJ's determination. See Apfel, 209 F.3d at 123.

Moreover, even the report of a consultative physician can constitute substantial evidence. See Richardson, 402 U.S. at 402 ("a written report by a licensed physician who has examined claimant . . . may constitute substantial evidence supportive of a finding by the hearing examiner"). The opinion of a non-examining medical expert can also serve as substantial evidence and override the opinion of the treating physician pursuant to the treating physician regulations. See 20 C.F.R. § 404.157. In arguing that the opinion of a non-examining doctor cannot provide the substantial evidence to override that of a treating physician, Punch relies on Hidalgo v. Bowen, 823 F.2d 294, 297 (2d. Cir. 1987). Hidalgo, however, was decided prior to the 1991 treating physician regulation codified at 20 C.F.R. § 404.157, which was subsequently recognized as controlling by the Second Circuit. See Schisler, 3 F.3d at 568. InSchisler, the Second Circuit noted that the 1991 treating physician regulation found at 20 C.F.R. § 404.157 differed from the treating physician rule previously followed by the Second Circuit in several ways, one of which was permitting the opinions of non-examining sources to override the opinions of treating sources where the non-examining source's opinion was supported by evidence in the record. 3 F.3d at 567-68. Accordingly, the opinion of Dr. Plotz, which is supported by the substantial medical evidence in the record, is adequate to override the opinion of the treating physician, Dr. Parnes.

B. Failure to Consider the Combined Effect of Punch's Impairments

1. Herniated Disc Impairments

Punch also argues that the ALJ omitted from his findings that Punch had herniated discs in both the cervical and lumbar spinal areas. Punch Mem. at 12, 15. It is well established that the "combined effect of a claimant's impairments must be considered in determining disability [and] the SSA must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d at 103 1; accord Kolodnay v. Schweiker, 680 F.2d 878, 880-81 (2d Cir. 1982) (failure to consider the combined effect of multiple impairments constitutes reversible error). In Punch's case, however, the ALJ explicitly considered Punch's herniated discs in making his determination. The ALJ notes in his decision that "[i]n October of 1998, an MRI of the lumbosacral spine showed a left sided L5/S1 disc herniation impinging on the left nerve root." R. 18. He also recognizes that Dr. Parnes mentions in his notes that Punch has "a cervical disc hemiation at C4/5." R. 19. The ALJ also adverts to Punch's disc herniations when he describes Dr. Plotz's testimony. R. 20-21. The decision states that "[r]adiographic testing has show [sic] a small to minimal C4/5 disc herniation, and a more significant herniation at L5/S1 to the left side." R. 20. The ALJ's decision also notes Dr. Plotz's opinion that "because [Punch] does have two disc herniations, it would be prudent to restrict her lifting and carrying to 10 pounds." R. 21, 75-76. In fact, this conclusion was incorporated into the ALJ's finding that "the claimant has the residual functional capacity to perform work-related activities except for work involving lifting/carrying more than 10 pounds." R. 25. Accordingly, the only work-related restriction recognized by the ALJ was the very restriction that Dr. Plotz found necessary as a consequence of Punch's herniated discs.

Moreover, the ALJ's findings recognize that the claimant suffers from "severe" low back strain and cervical strain, R. 25, and therefore takes into account Punch's lumbosacral and cervical impairments. The ALJ also discusses the disc herniations as they relate to Punch's alleged leg pain and leg dragging when he recounts Dr. Plotz's opinion that the left impinging disc herniation could not cause the pain and dragging complained of by Punch. R. 21. Because the ALJ explicitly considered the disc herniations and their impact on Punch's residual functional capacity, he properly considered the "combined effect of [the] claimant's impairments." Dixon v. Shalala, 54 F.3d at 1031.

2. Other Impairments

Without further elaboration, Punch argues generally that "the ALJ fail[ed] to appreciate the combined effect of plaintiffs various impairments, as producing a total disability." Punch Mem. at 12. Other than the claim that the ALJ omitted her herniated discs from his determination, however, Punch provides no further explanation for this argument.

In fact, the ALJ considered the totality of Punch's impairments. The ALJ states that "the medical evidence establishes that the claimant has `severe' low back strain, cervical strain and (more recently) mild carpal tunnel syndrome, as well as obesity and controlled hypertension, but that she does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4." R. 25. Further, the ALJ considered obesity to be an impairment even though it was "not alleged" by Punch. R. 22. He also "considered the possibility that claimant's symptoms could in part be caused by depression" although he noted that due to the absence of such a diagnosis, the inference was by necessity "highly speculative." R. 23. The ALJ found that taking into consideration Punch's various impairments, such impairments "cannot reasonably be expected to restrict [Punch's] functional abilities below the level opined by Dr. Plotz and Dr. Providence (i.e. a wide range of light exertion)." R. 23. Because the ALJ explicitly took into account all of Punch's medically determinable ailments (as well as obesity and depression, not even claimed by Punch), there is no basis on which to conclude that the ALJ failed to consider the "combined effect of a claimant's impairments." Dixon v. Shalala, 54 F.3d at 1031.

C. Claimant Credibility

Punch argues that the ALJ failed to "accord appropriate credence to plaintiffs allegations of severe, unremitting pain." Punch Mem. at 12. Under the governing regulations, the Commissioner is required to consider a claimant's subjective complaints of pain. 20 C.F.R. § 404.1529 specifically addresses the evaluation of pain by the Commissioner:

In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. By objective medical evidence, we mean medical signs and laboratory findings as defined in § 404.1528(b) and (c). By other evidence, we mean the kinds of evidence described in §§ 404.1512(b)(2) through (6) and 404.1513(b)(1), (4), and (5) and (e). These include statements or reports from you, your treating or examining physician or psychologist, and others about your medical history, diagnosis, prescribed treatment, daily activities, efforts to work, and any other evidence showing how your impairment(s) and any related symptoms affect your ability to work. We will consider all of your statements about your symptoms, such as pain, and any description you, your physician, your psychologist, or other persons may provide about how the symptoms affect your activities of daily living and your ability to work. However, statements about your pain or other symptoms will not alone establish that you are disabled; there must be medical signs and laboratory findings which show that you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all of the other evidence (including statements about the intensity and persistence of your pain or other symptoms which may reasonably be accepted as consistent with the medical signs and laboratory findings), would lead to a conclusion that you are disabled. In evaluating the intensity and persistence of your symptoms, including pain, we will consider all of the available evidence, including your medical history, the medical signs and laboratory findings and statements about how your symptoms affect you. (Section 404.1527 explains how we consider opinions of your treating source and other medical opinions on the existence and severity of your symptoms, such as pain.) We will then determine the extent to which your alleged functional limitations and restrictions due to pain or other symptoms can reasonably be accepted as consistent with the medical signs and laboratory findings and other evidence to decide how your symptoms affect your ability to work.

In this case, there was conflicting evidence regarding Punch's pain. Although there was evidence presented at the hearing that Punch had complained of pain repeatedly to various health care practitioners, R. 153, 178-79, 189, 191-92, 204, 234-35, 240, 242, 250, 255-56, 260-61, 272, and continued to do so in her testimony at the hearing, R. 47, 50-51, 54, 64-66, there was also evidence that Punch's subjective complaints were out of proportion to the objective clinical findings. R. 22-24. Given this discrepancy, it was within the ALJ's authority to make a determination as to Punch's credibility. Case law makes clear that the Commissioner, not the reviewing court, is the appropriate party to make credibility findings concerning the claimant and that such findings must be accepted by the reviewing court unless they are clearly erroneous.See, e.g., Aponte v. Sec., Dept. of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984); see also Tejada, 167 F.3d at 775-76 (ALJ may make credibility determinations); Pascariello v. Heckler, 621 F. Supp. 1032, 1036 (S.D.N.Y. 1985) (ALJ may discredit claimant's claim of severe and disabling pain after considering all relevant evidence, including medical evidence and claimant's demeanor). Because pain is a "subjective experience," credibility determinations are particularly appropriate where "there is conflicting evidence about a claimant's pain." Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999).

Here, the ALJ made a specific finding that Punch's "testimony as to the duration and severity of her subjective complaints and resulting functional effects is not fully credible." R. 25. The record was replete with instances casting doubt on Punch's bona fides. For example, in July 1998, Punch went to a hand clinic at Brookdale Medical Center for evaluation of her complaints of pain and numbness in her right hand and of "drop[ping] objects." R. 254-55. The doctor at Brookdale Medical Center observed that she entered the examination room carrying her bag in her right hand. R. 255. During the examination, she was "protective" of her right hand and the doctor described her as being "noncompliant" with the examination that was performed. R. 255. Punch refused to move her arm and neck when she was directed to do so, but the doctor observed that her joints were supple when Punch was distracted. R. 255. The doctor was of the opinion that Punch's symptoms were "out of proportion" with the physical findings and the EMG report. R. 255. He also reached the conclusion that Punch was not motivated to complete therapy. R. 255.

The ALJ supported his credibility finding through his characterization of Punch's demeanor on the stand, her testimony, and the medical evidence, including the evidence just discussed. Thus, in his decision, the ALJ states that

I agree with Dr. Plotz that claimant's complaints are far out of proportion to her clinical and laboratory findings, and cannot be deemed credible to any greater extent than the partial range of light exertional activity that he indicated he would still permit. I note that his assessment agrees almost precisely with that made by the physician who treated claimant for the first 1-1/2 years after her AOD [Alleged Onset of Disability], Dr. Providence. Although her present osteopath, Leo Parnes, D.O., offered a much lower functional rating almost immediately after he first saw claimant, there is little in his records to support that opinion (and in any case, claimant herself does not claim that her condition deteriorated significantly between the two treatment sources except by the onset of some mild carpal tunnel symptoms). His clinical findings are few except for a few positive ones at the time of his initial consultation that have not been replicated before or since by other examiners. On the whole, he seems to be basing his conclusions primarily on claimant's subjective symptoms. Although such symptoms and complaints must be considered, they are important only to the extent that they may reasonably be expected to result from one or more medically-determinable impairments with which a claimant has been appropriately diagnosed.

R. 22. The ALJ also noted that Punch's "mild carpal tunnel syndrome cannot — according to both Dr. Plotz and a Brookdale treating physician — fully or even substantially explain Ms. Punch's subjective complaints." R. 22. In further assessing her credibility, the ALJ stated in his decision that:

Claimant's record also contains a number of other indicia of a tendency to exaggerate or embellish (besides the direct remarks to that effect by her treating doctor). Most of those have been mentioned earlier. She of course cannot possibly be getting the minimal amounts of sleep to which she testified. No treating doctor so stated, and she told Dr. Graham that she sleeps until 8 or 9 in the morning. Indeed she has not even asked any doctor for medications to aid her sleep. Her allegation of having to drag her right leg when she walks, for some 1 1/2 years, is not reported even by Dr. Parnes, nor is there any clinical finding of weakness in that limb that might explain this. Contrary to her testimony, she has not gained some 45 pounds because of her inactivity caused by her illness, but rather has been reasonably close to her present (excess) weight since well before her AOD, according to her own doctor's records.

I also find it remarkable that if claimant's symptoms were anywhere near as serious as she reported (particularly the leg dragging), no cane would have been prescribed for her — yet none has. Neither has a back brace, a neck brace, or even a daytime wrist splint (let alone carpal tunnel release surgery). Claimant's recollection of the period of her initial physical therapy was also typically exaggerated, in that it lasted not 3-4 months but only just over one month.

R. 22-23.

Punch contends that she is entitled to "high credibility" because of her extensive work history. Punch Mem. at 15. Although it is true that a "long and honorable" work history supports a claimant's credibility,Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983), the Court is aware of no case suggesting that such work history is conclusive as to a claimant's credibility. As a matter of logic, even a claimant with such a work history may be untruthful and the ALJ must still be entitled to make credibility determinations based on other evidence in the record, such as claimant's demeanor, conflicting testimony and medical evidence. See Pascariello v. Heckler, 621 F. Supp. at 1036 (ALJ may discredit claimant's claim of "severe and disabling pain" after considering all relevant evidence, including medical evidence and claimant's demeanor). In this case, the ALJ considered a number of factors — including Punch's testimony, her demeanor, the testimony of the medical expert, and medical evidence suggesting that Punch had a tendency to "exaggerate and embellish" — in deciding how much he would credit Punch's testimony. R. 16-17, 22-23. Moreover, his determination was not that Punch was totally unworthy of belief. Despite the indications of her lack of credibility, the ALJ still found that Punch suffered from a number of medically determinable impairments and should be restricted to lifting not more than 10 pounds. R. 26. Because the ALJ's credibility determination with regard to Punch was not "clearly erroneous," this Court will accept his finding. Aponte, 728 F.2d at 591 (where ALJ's findings are supported by substantial evidence, a court "must uphold the ALJ's decision to discount a claimant's subjective complaints of pain").

D. Improper Testimony as to Residual Functional Capacity

Punch argues that Social Security Administration's Hearings, Appeals and Litigation Law Manual ("HALLEX Manual") 1-2-539 (June 30, 1994) expressly prohibits an ALJ from asking a medical expert to decide what a claimant's functional residual capacity is and that the ALJ in this case violated this directive during Punch's hearing. Punch Mem. at 17-18. Although the HALLEX Manual does state that "an ALJ may not ask an ME [medical expert] to decide what a claimant's REC [residual functional capacity] is, or whether a claimant is or is not disabled," it also explains that an ALJ is permitted to "ask an ME to provide information and opinion(s) which will help the ALJ decide these issues, e.g., an ALJ may ask an ME to describe the impact of an impairment on the claimant's ability to concentrate, remember, or cogitate." HALLEX Manual, 1-2-539

The exchange between the ALJ and Dr. Plotz concerning Punch's functional residual capacity at the hearing occurred as follows:

ALJ: Based on the findings in the record and the clinical and, and objective, do you, yourself, have an opinion as to the claimant's residual functional capacity that could reasonably be expected to result from her medically determinable impairments?

Plotz: Yes, I would think that she would be limited to no more than sedentary work as defined.

ALJ: And the medically determinable impairment that would cause that limitation?

Plotz: The cervical disks [sic], cervical disk [sic], and the lumbosacral disk [sic], even though it is currently not producing the problem of which she complains.

ALJ: I'm a little confused then. It's —

Plotz: Well, it, it's simply that to do light work she would have to lift 20 to 25 pounds, and I think in view of having two demonstrated disks [sic] that would be advised.

ALJ: How about standing? Would she be limited in standing?

Plotz: From an objective point of view? No, she would not.

ALJ: Would she be limited in walking?

Plotz: From an objective point of view, no.

ALJ: When you say "from an objective point of view, no, —

Plotz: Well, subjectively, she says that she can't do it so —

ALJ: Uh-huh.

Plotz: — subjectively, the answer would have to be yes, she's limited.

ALJ: Okay.

Plotz: Also, objectively, there is nothing in the record that would prevent her from walking.

ALJ: How about from lifting or carrying?

Plotz: Well, again, as I say, the disks [sic] would. That's the reason I do not think she could do light work.

ALJ: The, the lifting or carrying, then, would reasonably [sic] limited in what way?

Plotz: Because both lifting and carrying could aggravate a, a disk [sic] problem.

ALJ: I meant to what extent.

Plotz: To what extent. I'm not sure I understand —

ALJ: How much weight?

Plotz: Oh, 10 pounds easily, yes.

ALJ: Would she be restricted in fine manipulation including keyboard use?

Plotz: Not according to the record, no.

R. 75-76.

Viewed in context, the ALJ's question about residual functional capacity did not impermissibly permit the medical expert to "decide" the question of residual functional capacity, which is all that is prohibited by the HALLEX Manual 1-2-539. Instead, the ALJ sought the doctor's "opinion" on this question and used that question as a platform for exploring the medical expert's views concerning specific restrictions on Punch's ability to function in a job. The ALJ asked about Punch's ability to stand, walk, lift, carry and engage in fine manipulation such as keyboarding. R. 74-76. Such questions are unquestionably permitted by the HALLEX Manual, 1-2-539. Thus, the ALJ did not ask Dr. Plotz to decide the RFC issue but instead used the information provided by Dr. Plotz to arrive at his own decision.

In any event, even if the questions directed at Dr. Plotz in regard to Punch's residual functional capacity violated the HALLEX Manual, Punch suffered no prejudice because the other information provided by Dr. Plotz was permissible and the ALJ did not rely solely on Dr. Plotz's conclusion as to residual functional capacity to support his own decision, but rather stated that he "agre[ed]" with Dr. Plotz's assessment in light of other testimony and medical records presented. See R. 22 (agreeing with Dr. Plotz's assessment and evaluating evidence supporting that conclusion); see also e.g., Brunson v. Barnhart, 2002 WL 393078 at *14-15 (E.D.N.Y. March 14, 2002) (where no prejudice is shown, "[t]he ALJ's failure to follow the HALLEX directive . . . provides plaintiff with no basis for relief") (citing Shave v. Apfel, 238 F.3d 592, 597 (5th Cir. 2001).

Further, Punch incorrectly contends that the opinion of a non-examining doctor by itself cannot override the diagnosis of a treating physician. Punch Mem. at 18. He therefore argues that ALJ's reliance on Plotz's testimony concerning Punch's residual functional capacity was improper.Id. In fact the current "treating physician" regulations recognize that "opinions of nonexamining sources [may] override treating sources' opinions, provided they are supported by evidence in the record."Schisler, 3 F.3d at 568 (citing 20 C.F.R. § 404.1527(f)). See Section III.A above. Accordingly, the ALJ properly elicited the medical expert's information and opinion concerning Punch's residual functional capacity.

E. Failure to Include Carpal Tunnel Syndrome in Assessing Capacity for Sedentary Work

Punch argues that the ALJ "fail[ed] to appreciate that even if plaintiff could otherwise posses [sic] the durational capacity for sedentary work, arguendo, that her carnal tunnel syndrome would preclude the necessary manual dexterity needed for such jobs to be performed on a substantial, sustained basis." Punch Mem. at 13. In fact, the ALJ specifically addressed this issue. In reaching his determination, the ALJ stated that although Punch exhibited "some signs of mild carnal tunnel syndrome," her complaints in that regard "do not primarily pertain to the median nerve (which is the one that would be affected by CTS), in that the complaints are in fingers 2, 3 and 4 whereas the medical [sic] nerve would be expected to affect only the second finger." R. 21. The ALJ also noted Dr. Plotz's testimony that the carnal tunnel syndrome "would not be expected to impose significant fingering restrictions. The treating and diagnosing doctors did not feel the condition was serious enough to warrant surgery, and EMG/NCS testing showed it was not especially serious. (To this I would add that the doctors did not even prescribe splints except at night )." R. 21. Ultimately, the ALJ included in his findings "mild right carnal tunnel syndrome" as one of Punch's impairments. R. 25. Although Punch argues that a physician at Brookdale Hospital characterized her carpal tunnel syndrome as "mild to moderate," whereas the ALJ characterized her condition as "mild," Punch Mem. at 15, she does not explain how this minor discrepancy would affect the outcome of the ALJ's decision, especially where the ALJ fully considered all evidence as to the nature and extent of her right carnal tunnel syndrome and its impact on her ability to engage in fine manipulation including keyboard use. R. 21, 25.

F. Substantial Evidence Supports the Final Decision of the Commissioner

There is substantial evidence to support the ALJ's decision that Punch is not disabled. The only doctor who stated that Punch was disabled and could not work was Dr. Parnes, Punch's current treating physician. R. 260-61. However, there was substantial evidence in the record that contradicted Dr. Parnes's assessment and the ALJ relied on such evidence in his decision. Dr. Providence, Punch's prior treating physician, opined that Punch could occasionally lift and carry up to 10 pounds, had no limitations in her ability to sit and was capable of light work as long as it did not involve heavy lifting or continuous bending. R. 166-67. Dr. Chhokar reported that Punch did not meet the criteria for SSI disability at that time and only had a temporary impairment. R. 189. Dr. Graham found that Punch's station was normal, she was able to dress and unless herself without assistance, that she had some limitations in her range of motion, but no spinal deformity or paraspinal tenderness, all joints exhibited full range of motion, strength was adequate with no atrophy present and that hand dexterity and neurological function were normal. R. 191. Treating physicians at Brookdale found no motor deficits, no cervical radiculopathy, and only mild to moderate right carnal tunnel syndrome. R. 250-52, 265. A physician at Brookdale opined that Punch's subjective complaints were "out of proportion" in regard to the clinical findings. R. 255. Two state agency review physicians, Dr. Gupta and Dr. Slovis, both concluded that Punch was not disabled. R. 92-93, 194-201. Dr. Plotz, the medical expert who testified at Punch's hearing and who had reviewed Punch's medical records, testified that although Punch's medically determinable impairments prevented her from lifting more than 10 pounds, he found that they did not seriously restrict her ability to stand, walk, perform fine manipulation such as keyboarding, or generally to perform sedentary work. R. 71-73, 75-76. He also found that Punch's complaints were out of proportion to the objective findings, and that there was no medical reason why Punch should be dragging her leg. R. 71-73.

Taken as a whole, the evidence is such that "a reasonable mind might accept as adequate to support" the conclusion that Punch has not met her burden in establishing that she is disabled. Richardson, 402 U.S. at 401. Notwithstanding Punch's submission of some evidence to the contrary, there also existed substantial evidence to support the Commissioner's final decision. As a result, that decision must be upheld. Alston v. Sullivan, 904 F.2d at 126; Schauer v. Schweiker, 675 F.2d at 57.

Conclusion

Punch's motion for judgment on the pleadings is denied and the Commissioner's crossmotion for judgment on the pleadings is granted. The Clerk is requested to enter judgment dismissing the complaint.

SO ORDERED.