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SCHAAL v. COMMISSIONER OF SOC. SEC.

October 17, 1995

RITA SCHAAL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,1 Defendant.



The opinion of the court was delivered by: DIBIANCO

 This matter was referred to the undersigned for report and recommendation by Chief United States District Judge Thomas J. McAvoy, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). It has proceeded in accordance with General Order 43 of this court dated December 28, 1994 that sets forth the procedures to be followed in appeals from a denial of Social Security benefits. Both parties have filed briefs, but oral argument was not heard.

 PROCEDURAL HISTORY

 Plaintiff filed an application for Supplemental Security Income ("SSI") disability benefits, pursuant to Title XVI of the Social Security Act, on August 14, 1990. (Administrative Transcript ("T") at 97-100). The application was denied initially on October 2, 1990, (T. 111-14), and on reconsideration on November 16, 1990. (T. 126-28).

 On November 28, 1990, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (T. 129-30). A hearing was held on December 21, 1990, before ALJ J. Lawson Brown, at which the plaintiff appeared pro se. (T. 62-80). In a decision dated February 8, 1991, the ALJ found that the plaintiff was not under a disability. (T. 168-73).

 On March 13, 1991, the plaintiff requested review by the Appeals Council. (T. 174). In a decision dated November 19, 1991, the Appeals Council granted the plaintiff's request for review and remanded the matter for further proceedings. (T. 175-77).

 Notice of the remand was mailed to the plaintiff, but was returned as unforwardable. (T. 186-189). The Office of Hearings and Appeals attempted to obtain plaintiff's current address but was unsuccessful. (T. 183-185). The ALJ dismissed plaintiff's hearing request as abandoned on January 16, 1992, pursuant to 20 C.F.R. § 416.1457. (T. 190-192).

 Plaintiff filed a request for review of the ALJ's dismissal on February 21, 1992. (T. 193). The Appeals Council granted plaintiff's request on September 18, 1992, and remanded the matter to the ALJ. (T. 195-97).

 A second hearing was conducted on June 6, 1993, at which the plaintiff appeared with her attorney. (T. 81-96). The ALJ considered the case de novo and, on July 27, 1993, found that the plaintiff was not under a disability. (T. 40-49). The decision of the ALJ became the final decision of the Secretary (now Commissioner) when the Appeals Council denied plaintiff's requests for review on December 30, 1993.

 CONTENTIONS

 The plaintiff makes the following claims:

 1. The plaintiff was not afforded due process because: the ALJ was hostile to the plaintiff; the ALJ failed to fully develop the record; the Appeals Council failed to assign a different ALJ to the second hearing; and the ALJ considered the plaintiff's demeanor in making his decision. (Brief at 12-14).

 2. The ALJ failed to apply the appropriate Social Security regulations and rulings. (Brief at 14-15).

 3. The ALJ failed to call a vocational expert. (Brief at 15).

 4. The court should remand the case for consideration of new and material evidence. (Brief at 15-18).

 5. The court should award attorneys fees. (Brief at 18- 19).

 FACTS

 This Court adopts the facts contained in plaintiff's brief under the heading "The Facts" (Dkt. # 10 at 3-9), and supplemented in defendant's brief under the headings "Medical Evidence" and "Other Evidence" (Dkt. # 12 at 3-13), with any exceptions as noted.

 DISCUSSION

 To be considered disabled, a plaintiff seeking SSI disability benefits must establish that she "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 twelve months . . . ." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's

 
physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, 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.

 42 U.S.C. § 1382c(a)(3)(B).

 The Commissioner uses a five-step process, set forth in 20 C.F.R. § 416.920, to evaluate SSI disability claims.

 
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. . . . The [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

  Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984).

 The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that his impairment prevents him from performing his past work, the burden then shifts to the Commissioner to prove the final step. Id.

 1. Scope of Review:

 In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). A reviewing court may thus not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the crucial factors justifying his findings with ...


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