that the ALJ notified Plaintiff of the deficiency.
2. Failure to Elicit Adequate Testimony Regarding the Nature of Past Relevant Work
In determining whether a claimant can perform her past relevant work, "the Commissioner normally focuses in the first instance on the physical demands of the job previously performed by the claimant." Rivera v. Sullivan, 771 F. Supp. 1339, 1351 (S.D.N.Y. 1991). The court in Rivera v. Sullivan noted the difficulties presented when the physical requirements of the past job differ from those requirements usually encountered in that category. Therefore, the claimant must prove her inability to perform both her particular past relevant work and the demands generally imposed by that type of work. Rivera v. Sullivan, 771 F. Supp. at 1352 (citing SSR 82-61 (1982) 836, 838).
In the case at bar, Rivera's past relevant employment was that of a stock clerk. (Tr. at 22-23.) The ALJ failed to elicit testimony regarding how much time Plaintiff spent walking or standing in her previous stock clerk positions. This is important because Dr. Balinberg, the physician who examined Rivera at the Commissioner's request, concluded that Rivera had a limited ability to walk long distances. (Tr. at 79.) The ALJ also failed to inquire if such work involved exposure to dust which exacerbated Rivera's asthma. No evidence in the record shows that the ALJ elicited information about the physical demands usually placed on a stock clerk. As a result of this gap in the record, it is impossible to determine if Rivera would have been able to prove an inability to perform the duties usually required of a stock clerk.
3. Failure to Inquire Fully About the Scope of Plaintiff's Daily Activity
The ALJ failed to inquire into the scope of the activities in which Rivera currently engages. When Plaintiff testified that she went "window shopping a little bit," (Tr. at 27), the ALJ failed to ask how far she walks when window shopping or how frequently she needed to rest. This is a significant omission in light of the fact that Dr. Papapietro's assessment fails to draw a conclusion regarding Rivera's ability to walk and Dr. Balinberg conclusion that Rivera had a limited ability to walk long distances. (Tr. at 75, 86) Further, when Plaintiff stated that she was able to "buy little bits" of groceries but needed to have her son carry the bags home, the ALJ failed to inquire into how Rivera traveled to the grocery store or the weight or number of items usually in the bags to determine a possible weight restriction. Again, this information becomes important in light of the deficiencies in the treating physician's assessment.
Because of the failure to inform the Plaintiff of deficiencies in the evidence, failure to elicit adequate testimony regarding past relevant work, and failure to make adequate inquires into the scope of Plaintiff's daily activities, the Court finds that the Plaintiff did not receive a full and fair hearing. See, e.g., Echevarria, 685 F.2d 751.
C. Conclusions Not Supported by Substantial Evidence
"The entire thrust of judicial review under the disability benefits law is to ensure a just and rational result between the government and a claimant, without substituting a court's judgment for that of the Secretary, and to reverse an administrative determination only when it does not rest on adequate findings sustained by evidence having 'rational probative force.'" Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 230, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). In order for the Commissioner's decision to be affirmed, the Court must find that the Commissioner's conclusions are supported by substantial evidence. Cruz, 912 F.2d at 11. "Substantial evidence is defined as 'more than a mere scintilla.' It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971)).
In order to determine whether a claimant is disabled, the Commissioner performs a five step analysis. First, the Commissioner determines if the claimant is engaged in "substantial gainful activity." If not, the Commissioner next considers the effect of the claimants mental or physical impairments. If more than one impairment exists, the combined effect of these impairments will be considered. The impairments must be severe and expected to last at least twelve months. If, such an impairment exists, the Commissioner then must determine, based solely on the medical evidence, if the ailment is listed in 20 C.F.R. Part 404 Subpart P Appendix 1. If the impairment is listed in the Appendix, the Commissioner considers the claimant to be disabled. If the impairment is not listed in the Appendix, the Commissioner considers the claimant's current work activity, the severity of the impairment(s), the claimant's "residual function capacity,
past work, age, education, and work experience." Finally, if the claimant is found to be unable to perform his past work than the Commissioner considers whether there is other work the claimant could perform. 20 C.F.R. § 416.920(a); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The burden is on the Plaintiff to show the first four elements and the Commissioner bears the burden of showing the fifth element. Berry, 675 F.2d at 467.
Here, the ALJ found that Rivera was not engaged in substantial gainful activity and that she had an impairment, (Tr. at 13-14), which satisfies the first two prongs. The third prong was not satisfied as the impairment was not listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Hence, the ALJ continued, as it should have, to the fourth prong. The ALJ found that Rivera's residual function capacity was to do light work and that her past work did not require her to do more than light work. Accordingly, the ALJ concluded Rivera was not disabled.
The Court disagrees.
1. Conclusion that Plaintiff has the Residual Function Capacity to Perform the Full Range of Light Work
The ALJ concluded that the Plaintiff "is capable of performing the full range of light work." (Tr. at 14.) The regulations define light work as work
involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing . . . . To be considered capable of performing a full or wide range of light work [claimant] must have the ability to do substantially all of these activities.