The opinion of the court was delivered by: Gabriel W. Gorenstein, Judge.
Plaintiff Gisela Devora 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 and Supplemental Social Security benefits.*fn1 The
Commissioner has moved for judgment on the pleadings on the ground that
her decision was supported by substantial evidence. Devora opposes this
motion and has requested that the matter be remanded for a new hearing.
On February 21, 2002, the parties consented to determination of this case
by a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (c).
For the reasons set forth below, the Commissioner's motion is denied and
Devora's motion for a remand is granted.
On October 19, 1998, Devora submitted applications for disability
benefits and for
supplemental security income benefits based on
disability. R. 58-61, 163-66.*fn2 These applications were denied
initially and on reconsideration. R. 37-40, 43-46. Subsequently, Devora
requested a hearing before an Administrative Law Judge ("ALJ"). R. 47.
The hearing was held on July 1, 1999. R. 19-34. Devora, who spoke through
an interpreter at the hearing, appeared without an attorney or any other
representative. R. 19, 21. On September 14, 1999, the ALJ issued a
decision finding that Devora was not entitled to disability benefits. R.
8-17. This decision became final on December 6, 2000, when the Appeals
Council denied Devora's request for review. R. 4-6. Devora presented a
timely complaint to the Pro Se Office of this Court on February 5, 2001.
An attorney filed a notice of appearance on behalf of Devora on May 2,
B. Evidence Presented at the Hearing
Devora was born on November 11, 1942, in Santo Domingo, Dominican
Republic. R. 24. She had been in the United States since 1977. R. 25. She
completed four years of school. R. 26. Devora does not speak any
English. R. 25.
Devora's previous employment was as a sewing machine operator and a
floor worker in a clothing factory. R. 25, 67, 87. She worked at these
positions from January 1977 to May 1998. R. 67, 87. Devora's work in the
clothing factory required seven hours a day of standing and one hour of
sitting. R. 67. The positions did not require any walking. R. 67. Devora
was not required to lift more than 10 pounds during her employment. R.
67. Devora stopped working in 1998, when she was laid off and began
collecting unemployment insurance benefits. R. 25, 26. According to the
interpreter at the hearing, Devora had stated to him while reviewing her
case file that her employer had laid her off "because she was ill on the
job and he saw that she wasn't strong and she wasn't able to do the job."
Devora stated that when she walks she gets a pain in the left side of
her neck. R. 30. She also testified that she could not stand up for any
length of time. R. 30. She stated that if she sits for a while she has to
lie down and if she stands for "a second" she has to sit back down. R.
30. She was also not able to carry anything and could "barely walk" due
to pain in her back. R. 30. She was able to lift 5 to 10 pounds. R. 30.
In terms of daily activities, Devora stated that she went to church.
R. 31. She was advised that she should walk for exercise. R. 32. She was
able to read and watch TV a little. R. 31. At home, she prepared meals
and washed dishes. R. 31-32. She was barely able to wash and dress
herself, at times because of "incredible" pain in her back. R. 32.
Sometimes her daughter or a friend would help her get dressed. R. 32. She
also complained of pain in the bottom of her foot and pain in the bone of
her right leg "like it's going to explode" if she stood for too long. R.
Devora stated that she had not been treated for depression. R. 30. She
took one 400 milligram tablet of Ibuprofen every six hours, two 40
milligram tablets of Monopril per day and 500 milligrams of calcium twice
a day. R. 27-28.
During her testimony, the ALJ requested that Devora have her doctor
fill out a form entitled "Medical Assessment of Ability to Do Work
Related Activities, Physical," R. 29-30, 32 33, stating that the form was
"very important." R. 29. The ALJ stated that there was a "good chance"
that she would be found disabled, but that she had to have the right
documentation. R. 29. He also stated that she should not "worry about it"
but should "just do the best" that she could to get her doctor to fill
out the form. R. 33.
Devora's medical records reflected that she was seen at Harlem Hospital
on October 6, 1998. R. 117-18. She reported a two-year history of joint
pain in both shoulders, the lower back, her wrists and knees. R. 118. She
was not in any distress during that examination. R. 118. The examining
physician found that Devora was obese and had a crepitant right knee but
that she did not have any swelling or reduction of range of motion. R.
118. The examining physician's assessment was that Devora was suffering
from obesity, arthritis and hypertension. R. 117. Devora was recommended
to lose weight, exercise and adhere to a low salt diet. R. 117. It was
also recommended that she take medicine for her high blood pressure. R.
On October 22, 1998, Devora began receiving treatment at Metropolitan
Hospital Center. R. 22, 76, 15 1-54. On her first visit, Devora's blood
pressure was 150/100. R. 152. She stated that she had not taken any
medication since October 6, 1998. R. 152. A week later when she was
examined, her blood pressure was listed as 140/90. R. 150. Devora denied
any headaches, dizziness, chest pain or shortness of breath. R. 150.
On December 31, 1998, also at Metropolitan Hospital Center, Devora
reported pain in her legs and hips that was worse with movement but
improved with rest and nonsteroidal inflammatory medication. R. 148. She
had crepitation in the knees, but she exhibited full range of motion and
there were no effusions. R. 149. Her blood pressure was 140/90 and she
weighed 219 pounds. R. 149. Devora's blood pressure medication was
changed and an exercise program was recommended. R. 149. She returned for
another blood pressure reading on January 14, 1999, where she reported
that she was taking her medication and had no complaints at that time.
R. 146. Her blood pressure was 150/100. R. 146.
Devora was seen by a dietician on February 15, 1999. R. 145. She was
measured to be 61" tall and weighed 216 pounds, which was 187% of her
desirable body weight. R. 145. She was instructed by the dietician on a
weight reduction diet, low fat cooking methods and healthy, balanced
meals. R. 145.
On February 26, 1999, Devora again visited Metropolitan Hospital Center
and presented with complaints of knee pain that increased with walking.
R. 140. She was found to have crepitus of the right knee and bilateral
pitting edema. R. 140. She denied any shortness of breath, palpitations or
chest pain. R. 140. Her blood pressure medication was increased; diet and
exercise were recommended for her obesity. R. 141. The treating physician
prescribed weight loss and Motrin as treatment for Devora's degenerative
joint disease. R. 141. Devora returned for refills of her medicine on
April 28, 1999, but
did not present any additional complaints at that
time. R. 138.
On her next visit to Metropolitan Hospital Center, which took place on
May 21, 1999, Devora's health problems were identified as hypertension,
obesity and degenerative joint disease. R. 134. Her weight had increased
to 219 pounds. R. 134. Her blood pressure was 140/96. R. 134. Crepitus of
her right knee with inflammatory signs and bilateral pitting edema were
also noted. R. 134. The record stated that Devora had been noncompliant
with her low cholesterol diet and her dietary restrictions were
reinforced. R. 135. When she returned on June 25, 1999 for a blood
pressure reading her blood pressure remained at 140/90. R. 133.
On July 21, 1999, at her examination at Metropolitan Hospital Center,
she was 217 pounds and her blood pressure was 130/90. R. 132. Devora
denied chest pain, shortness of breath or any other breathing problems.
R. 132. She presented with bipedal pitting edema. R. 132. Her treating
physician assessed Devora as having ...