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SANCHEZ v. BARNHART

August 5, 2004.

ANTONIA SANCHEZ, Plaintiff,
v.
JO ANE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

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 regulations.

  II. DISCUSSION

  A. STANDARD OF REVIEW

  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. 1991).

  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 must be:
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 ...


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