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December 15, 2004.

RUTH DAVILA, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: DENISE COTE, District Judge


On July 19, 2004, Ruth Davila ("Davila") filed this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), to obtain review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability benefits. The Commissioner moved for a judgment on the pleadings to affirm the Commissioner's decision. The plaintiff cross moved for judgment on the pleadings. For the reasons that follow, Davila's motion for a judgment on the pleadings is denied, and the Government's cross-motion for judgment on the pleadings is granted. BACKGROUND

  The following facts are taken from the administrative record.

  Application and Hearing History

  On December 15, 1994, Davila filed an application for SSI benefits. An administrative hearing was held on September 13, 1996, where Davila personally appeared without counsel and without an interpreter. At that hearing, Davila stated that she had difficulty understanding English. Through the course of the hearing, Davila expressed difficulty understanding the Administrative Law Judge's ("ALJ") questions approximately nine times, although each time the ALJ was able to re-phrase the question in such a way that Davila could reply with a responsive answer. For the most part, Davila was able to give responsive answers without repetition, re-phrasing, or explanation of the question. She testified that she graduated from high school in Puerto Rico, and that she could read and write English "a little bit." She also testified that she last worked as a cashier in a supermarket in 1989. On December 18 an Administrative Law Judge ("ALJ") determined that Davila was not disabled. The Appeals Council denied Davila's request for a review of the decision. Davila then commenced a civil action in district court; with consent of the parties, this case was remanded to the Commissioner for further proceedings on June 24, 1998 in order to develop the record more fully. See Davila v. Apfel, 97 Civ. 7686 (JES) (S.D.N.Y. June 24, 1998). Subsequently, the Appeals Council vacated the Commissioner's December 18 decision and remanded the case to the same ALJ, Robin J. Arzt.

  The ALJ held a hearing on June 9, 1999. At that hearing, Davila was represented by counsel, and brought a Spanish-language interpreter. The ALJ attempted to excuse the interpreter, leading to the following colloquy:
ALJ: . . . I was excusing Ms. Chaparro because on the last occasion when we had the initial hearing Ms. Davila spoke fluently in English and testified she graduated from high school and that she is also literate in English. She both reads and writes English. I'm not really clear on why we need to use the interpreter today. Now if Ms. Davila feels more comfortable using the interpreter I will allow her to do that. However, that will not change the findings I'm going to be making regarding her vocational background. . . . I mean, I just thought, you know, Ms. Chaparro could just go on her way since the woman can speak English. Ms. Davila, can you tell me why you requested an interpreter today?
CLMT: Because I did not understand English, I only understand some things.
ALJ: Okay, well we managed to get through the entire hearing last time and she was perfectly fine. Okay —
. . .
ATTY: I've met with Ms. Davila several times and . . . I have had a terrible time getting through to her in English. There's very often misunderstanding. She tries to answer in English, it sometimes appears as if she's, if she's able to hold a conversation in English, but there's a lot of confusion.
ALJ: Well, that's interesting —
ATTY: And well —
ALJ: The reason I'm saying that is there was no interpreter present at the last hearing and she got through the entire hearing and believe me, if she was having a hard time we would have had an interpreter present. Okay, well fine, the interpreter can stay, fine, so we'll use the interpreter.
  On February 25, 2000, the ALJ determined that Davila was not disabled. After considering Davila's objections, the Appeals Council let the ALJ's decision stand in a decision dated December 28. Davila once again sought judicial review of the ALJ's decision in the district court; with consent of the parties, this case was remanded to the Commissioner for further proceedings on September 4, 2001. See Davila v. Massanari, 01 Civ. 1639 (JES) (S.D.N.Y. Sept. 4, 2001). The Appeals Council vacated the Commissioner's February 25 decision and remanded the case to a different ALJ pursuant to its policy of remanding to the same ALJ only once.

  On August 29, 2002, a new hearing was held by ALJ Paul A. Heyman. Davila was represented by counsel, and again brought a Spanish language interpreter. In addition, one of Davila's friends was present at the hearing and gave testimony. At that hearing, Davila testified that she was unable to work because a thyroid condition caused her to feel tired, she had an enlarged heart that also caused her to feel tired, she sometimes had a rapid heartbeat, diabetes caused her to experience leg pain, she suffered anxiety and panic in crowded, enclosed spaces, often felt sad, and sometimes heard voices and saw shadows of people who were not there. She testified that her fear of enclosed places possibly could be attributed to the fact that her apartment burned down eight years ago. Davila also stated that she sometimes walks approximately three blocks to her local supermarket. The ALJ, in a decision of December 11, 2002, determined that Davila was disabled as of September 26, 2001, but not before. The ALJ found, inter alia, that while Davila's statements "of disabling symptoms and limitations are generally credible," they do not "rise to a level of disability until September 26, 2001."*fn1 The ALJ found that Davila retains residual functional capacity for a "wide range of light work," that she is capable of "lifting twenty pounds occasionally with frequent lifting of ten pounds and for standing and sitting for six hours a day," and that "the claimant's job base of light work, which includes sedentary jobs was not severely eroded."

  Davila subsequently commenced this action, seeking review of the ALJ's determination that she was not disabled prior to September 26, 2001.

  Medical History

  Because applicants for social security benefits only become eligible for such benefits after they have applied, see 20 C.F.R. § 416.335, Davila's relevant medical history begins in December 1994, when she filed an application for SSI benefits. There is no evidence in the record of treatment of Davila from December 1994 to March 1995.

  On March 27, 1995, Dr. Michael Polak conducted a consultive evaluation. Dr. Polak diagnosed Davila with asthma (by history), hypertension, diabetes mellitus and hyperthyroidism. Dr. Polak determined that Davila had the functional capacity to do work related activities but should not be required to walk excessively long distances and should be limited in exposure to extreme temperatures or excessive dust. Dr. Polak found that Davila had no problem with activities requiring dexterity, walking a short-moderate distance, a limited amount of stairs and no difficulty lifting, carrying, pushing or pulling heavy loads.

  In April, Davila was treated at the outpatient clinic at Bronx Municipal Hospital. On April 24, 1995, Davila said she felt tired but had no major specific complaints. Davila was again seen at Bronx Municipal on August 6, 1995. She reported feeling "ok" and the treating physician determined that Davila's blood pressure was adequately controlled.

  On August 30, 1996, Davila walked into the Emergency Department of Jacobi Hospital complaining of coughing green and yellow sputum and wheezing. The hospital prescribed medication and discharged Davila with no shortness of breath or wheezing.

  On September 30, 1996, Davila underwent an initial psychiatric evaluation at Sound View Throgs Neck Community Health Center. Davila was described as well-groomed, attentive and cooperative, and her behavior was described as appropriate. Her mood was depressed and somber. Davila claimed she heard her name being called out and saw someone at her side, and explained that she had passive thoughts of death. Her immediate memory was described as impaired at times. Pursuant to the Diagnostic and Statistical Manual of Mental Disorders, the examiner's diagnosis was: Axis I — major depression (severe) with ...

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