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
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
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.
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 ...