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October 21, 2004.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

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


Plaintiff Felix Valentin ("Valentin") brings this action for review of the final determination by the Commissioner of Social Security (the "Commissioner") denying Valentin's claims for Supplemental Security Income ("SSI") benefits under the Social Security Act (the "Act"), 42 U.S.C. § 405(g) ("§ 405(g)"). The Commissioner moves for judgment on the pleadings on the grounds that the determination of the Administrative Law Judge ("ALJ") is supported by substantial evidence. Valentin opposes the motion and requests a remand for further administrative proceedings. For the reasons discussed below, the Court denies the Commissioner's motion and remands the case to the Commissioner for further proceedings.


  On June 17, 1998, Valentin applied for disability insurance and SSI benefits. His claim was denied initially and on reconsideration. He then requested a hearing before an ALJ, which took place on May 24, 2001. At the hearing, Valentin withdrew his request for disability insurance benefits.

  The vocational expert in this case (the "VE") testified at the hearing that Valentin's previous employment in Puerto Rico required a heavy level of physical exertion and that his most recent job as a janitor at McDonald's required only a medium level of physical exertion. The medical evidence in the record and testimony from the hearing describe Valentin's history of treatment from January 1998 to May 2001 for diabetes, mild hypertension, and various aches and pains. The record reflects diagnoses from Valentin's treating physicians and the Commissioner's consulting physicians. The medical reports reveal similar findings, namely diabetes, mild hypertension, and various limitations to his ability to perform work-related activities.

  On July 26, 2001, the ALJ denied Valentin's SSI application. The ALJ based his decision on the VE's testimony that Valentin's McDonald's job required only a medium level of physical exertion. The ALJ concluded that Valentin had the residual functional capacity ("RFC")*fn2 to perform his past work at a medium level of physical exertion. (See Rec. at 18-19.) The ALJ's decision became the final decision of the Commissioner on June 25, 2003.



  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 a two-step inquiry. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1988); Johnson v. Bowen, 817 F.2d 983, 985 (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 985 (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)). If the Court finds substantial evidence in the record, "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); see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982) ("We would be derelict in our duties if we simply paid lip service to . . . [the substantial evidence] rule, while shaping our holding to conform to our own interpretation of the evidence.") (citation omitted). Thus, the reviewing court is precluded from undertaking a de novo review. See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).


  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 Social Security Administration has established a five-step procedure for evaluating disability claims. See 20 C.F.R. § 404.1520(a)(4). A finding of no disability at any one step ends the inquiry without proceeding to the sequential step. See id. First, the ALJ asks whether the claimant is currently engaged in substantial gainful activity. If not, at step two, the ALJ determines whether the claimant has a "severe impairment" that significantly limits his physical or mental ability to perform basic work activities. Third, if the claimant suffers a "severe impairment" that is listed in Appendix 1 of the regulations,*fn3 there is a presumption of disability. Fourth, if the claimant's "severe impairment" is not listed in Appendix 1, the ALJ determines whether the claimant has the RFC to perform previous work the claimant performed. Finally, at step five, if the claimant is unable to perform past relevant work, or has no previous work history, the ALJ ascertains whether there is other work that the ...

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