The opinion of the court was delivered by: KIMBA M. WOOD
Plaintiff brings this action to obtain review of a decision by the Secretary of the Department of Health and Human Services that plaintiff was not disabled between October 3, 1988 and July 10, 1990. Defendant moves to remand this case for further administrative proceedings in light of what has become an all too familiar procedural development; defendant now acknowledges after three years of administrative proceedings and forcing the plaintiff to file suit that the Administrative Law Judge ("ALJ") committed errors of law in adjudicating plaintiff's claim for Supplemental Security Income ("SSI") benefits.
Defendant moves to remand pursuant to sentence four of 42 U.S.C. § 405(g). Plaintiff cross-moves to remand pursuant to sentence six of 42 U.S.C. § 405(g) and on condition that the district court retain jurisdiction over her case during the pendency of the remand proceedings. For the following reasons, plaintiff's motion is granted and defendant's motion is denied.
On October 3, 1988 plaintiff filed an application for SSI benefits based on her claim that her pulmonary, cardiac and joint conditions rendered her permanently disabled and unable to work. Plaintiff's application was denied initially and again denied upon reconsideration. Plaintiff then requested a hearing which was held on November 29, 1989 before an ALJ who conducted a de novo review of the case. The ALJ issued a decision in which he found that plaintiff was not disabled on February 26, 1990. At plaintiff's request the Appeals Council within the Department of Health and Human Services remanded the case to the ALJ on October 25, 1990.
The ALJ conducted a second hearing on March 27, 1991, and, in a decision on May 3, 1991, he found that plaintiff had been disabled since July 10, 1990. On January 7, 1992, the ALJ's decision became the final decision of the Secretary when the Appeals Council denied plaintiff's request for further review. On March 6, 1992, plaintiff commenced this action. On October 16, 1992, the parties cross-motions were fully submitted. To date, defendant has not answered the Complaint.
II. Purported Errors of Law in ALJ's Decision
Second, defendant claims that the ALJ did not identify the basis for his conclusion that the only effect of plaintiff's bronchial asthma was to preclude work involving exposure to bronchial irritants. (Def. Mem. Supp. at 5). Defendant acknowledges that under Bapp v. Bowen, the ALJ should obtain evidence from a vocational expert to assist him in determining whether there are a significant number of jobs that a claimant can perform despite nonexertional impairments. See Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986).
Despite these two errors, defendant argues that sufficient medical evidence exists to deny plaintiff's claim. (Def. Mem. Supp. at 5). Although defendant does not concede that plaintiff is entitled to SSI benefits prior to July 10, 1990, defendant asks the court to "reverse the Secretary's decision and remand the case for further administrative proceedings" pursuant to sentence four of 42 U.S.C. § 405(g). (Id. at 6). Defendant assures the court that on remand almost five years after plaintiff first applied for benefits, the Secretary will obtain the evidence it needs to sustain its burden in denying benefits and will explain its reasoning. (Def. Mem. Supp. at 6).
Because plaintiff consents to remand the case to the Secretary for further administrative proceedings, the sole issue for resolution is whether the remand should be ordered pursuant to sentence four of § 405(g), as defendant requests, or pursuant to sentence six of that subsection, as plaintiff requests.
Sentence four of 42 U.S.C. § 405 (g) states:
The court shall have the power to enter, upon the pleadings and transcript of record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or ...