The opinion of the court was delivered by: VICTOR MARRERO, District Judge
Plaintiff Antonia Sanchez ("Sanchez") brought this action for
review of the final determination by the Commissioner of Social
Security (the "Commissioner") denying her claims for Supplemental
Security Income ("SSI") benefits under the Social Security Act
(the "Act"), 42 U.S.C. § 405(g) ("§ 405(g)"). Sanchez now moves
for judgment on the pleadings and the Commissioner makes an
identical cross-motion. The Court concludes that the
Administrative Law Judge ("ALJ") failed to fully develop the
record before issuing his decision, as he was obligated to do,
and that the vocational expert erred in making recommendations to
the ALJ as to the availability of employment. Accordingly, the
Court grants Sanchez's motion to remand this matter to the
Commissioner pursuant to § 405(g) for further proceedings and
denies the Commissioner's cross-motion. I. BACKGROUND*fn1
On May 25, 2000, Sanchez applied for SSI benefits on the
grounds that she suffered from depression, migraine headaches,
and body pain. Her claim was denied initially and on
reconsideration. She then requested a hearing before an ALJ,
which took place on March 12, 2002. Sanchez appeared at the
hearing pro se and spoke through a Spanish interpreter.
Medical evidence and testimony from the hearing describes
Sanchez's history of treatment for psychological and physical
illnesses from April 1998 to March 2002. The record reflects
diagnoses from Sanchez's treating physicians and the
Commissioner's consulting physicians. The medical reports reveal
similar findings, namely major depression and some limitations to
her ability to perform work-related activities. The record,
however, contains one diagnosis of fibromyalgia,*fn2
reflected in the documents from the Hospital for Joint Diseases
("HJD") that Sanchez presented to the ALJ. This diagnosis was the
most recent one made prior to the hearing.
Vocational expert Bala Carr ("Carr") testified at the hearing that a person with Sanchez's characteristics and
limitations would be unable to perform her past job as a window
assembler because the work requires a medium level of physical
exertion and she is now limited to a light exertion level.
Because Sanchez had no other past work experience to consider,
Carr proceeded to identify four jobs that Sanchez could perform
pursuant to the Dictionary of Occupational Titles ("DOT"). Carr
asserted that a hypothetical person with Sanchez's
characteristics could work as an office cleaner, a laundry
worker, a bagger, or a linen supply worker. Carr testified that
each of these jobs has a low exertional level and that her
testimony did not conflict with the DOT definitions or standards.
At the end of the hearing, the ALJ stated that he did not have
all the necessary medical treatment information from the HJD and
would subpoena those records. The HJD, however, did not respond
to the subpoena. The ALJ did not inform Sanchez of HJD's failure
to respond, nor did the ALJ further pursue the medical records
from the HJD.
On June 12, 2002, the ALJ denied Sanchez's SSI application. The
ALJ adopted Carr's conclusion that Sanchez would be able to
perform the various jobs in the local and national economy that
Carr described. The ALJ determined that because those jobs
existed in sufficient numbers in the local and national economy, Sanchez was not disabled under the relevant
Under the Act, "the [federal district] court shall have the
power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying or reversing the decision of the
[Commissioner], with or without remanding the cause for a
rehearing." 42 U.S.C. § 405(g). The Court's scope of review of a
disability determination entails two steps of inquiry. See
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1988); Johnson v.
Bowen, 817 F.2d 783, 785 (2d Cir. 1987). First, the Court must
decide "whether [the agency] applied the correct legal principles
in making the determination," and second, "whether the
determination is supported by `substantial evidence.'" Johnson,
817 F.2d at 785 (quoting 41 U.S.C. § 405(g)).
Under the second prong of this test, "the term `substantial'
does not require that the evidence be overwhelming, but it must
be `more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'" Miller v. Barhart, 01 Civ. 2744, 2004 WL 1304050,
at *5 (S.D.N.Y. May 6, 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Where substantial evidence does exist, "the Commissioner's
determination of fact is conclusive," even where the reviewing
court disagrees. Gonzalez ex rel. Gonzalez v. Barnhart, 03 Civ.
6607, 2004 WL 1460634, at *2 (S.D.N.Y. June 28, 2004). Thus, the
reviewing court is precluded from undertaking a de novo
review. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.
B. DISABILITY DETERMINATIONS
The Act defines disability as "an inability 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 12 months."
42 U.S.C. § 423(d)(1)(A). The effect of the physical or mental impairment
of such severity that [the claimant] 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.
Id. § 423(d)(2)(A).
The Commissioner must apply a five-step procedure to asses
disability claims. See 20 C.F.R. § 404.1520(a)(4). The Second
Circuit has described the process as follows: 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. If the claimant has
such an impairment, the [Commissioner] will consider
him disabled without considering vocational factors
such as age, education, and work experience . . .
Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite
the claimant's ...