The opinion of the court was delivered by: Denise Cote, District Judge
On June 12, 2000, plaintiff Carmen Tavarez ("Tavarez") filed an action pursuant to the Social Security Act seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") benefits. In a previous Opinion, this Court remanded the action for further administrative proceedings. Tavarez v. Comm'r, Soc. Sec. Admin., No. 00 Civ. 4317 (DLC), 2001 WL 238225 (S.D.N.Y. Mar. 9, 2001). Following a second denial of her SSI application, Tavarez filed this action on March 10, 2005. Plaintiff moves for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P., reversing the Commissioner's determination, or, in the alternative, remand. The Commissioner cross-moves for judgment on the pleadings affirming the denial. For the reasons set forth below, defendant's motion is granted, and plaintiff's motion is denied.
The following facts are undisputed except where otherwise noted. Tavarez is an American citizen, who was born on October 15, 1961, in the Dominican Republic. She has a GED, which she obtained in Spanish, but she cannot read, speak, or understand English. Tavarez is a single mother of two children, one of whom has cerebral palsy and cannot walk. Tavarez worked until 1986, when a difficult pregnancy required her to stop. On August 19, 1996, Tavarez fell down a flight of stairs, sustaining various injuries, including a fracture in her leg.
On March 12, 1997, Tavarez filed an application for SSI benefits, claiming a disability beginning at the time of her fall. The Social Security Administration ("SSA") denied her application on April 16, 1997. Tavarez subsequently requested a hearing before an administrative law judge (the "ALJ").
At the ALJ hearing on July 26, 1998, Tavarez, who was represented by pro bono counsel, claimed disability based not only on physical ailments, but also depression.*fn1 In an opinion of September 16, 1998 (the "first opinion"), the ALJ affirmed the SSA's denial of benefits. After the Appeals Council of the SSA denied her request for review, Tavarez filed a claim in this Court, seeking reversal of the ALJ's opinion. Tavarez moved for judgment on the pleadings, or, in the alternative, remand. The Government cross-moved for reversal and remand. In an Opinion dated March 9, 2001, the Court granted the Government's motion, remanding on the grounds that the ALJ (1) did not adequately explain why he failed to give controlling weight to Dr. Alba's assessment of the limitations on Tavarez's activities imposed by her depression; and (2) did not adequately consider Tavarez's subjective testimony concerning her pain and other symptoms. Tavarez, 2001 WL 238225, at *3-5.
On remand, the ALJ subpoenaed medical records, treatment notes, charts, emergency room records, and test results from Dr. Alba. Dr. Alba did not respond. The ALJ also scheduled two orthopaedic examinations and two psychiatric examinations, but Tavarez did not appear for any of the appointments. At the second hearing in front of the ALJ on April 1, 2002, counsel for plaintiff indicated that Tavarez had not attended the medical examinations because she believed she would have to pay for them. Tavarez's attorney also represented that her client had stopped seeing Dr. Alba approximately one year earlier, and that she was claiming disability only for the "closed period" ending with her last psychiatric visit. The ALJ asked plaintiff's counsel to submit a letter providing the precise dates during which Tavarez claims to have been disabled. It does not appear that such a letter was ever submitted. Although neither party defines the period in its motion papers,*fn2 for the purposes of this Opinion, the Court will treat the closed period as running from August 1996, the date of Tavarez's physical injury, through March 2001, the approximate date of her last visit to Dr. Alba.
On July 26, 2002, the ALJ issued an opinion once again affirming the denial of SSI benefits (the "second opinion"). He stated that he had not given Dr. Alba's assessment of Tavarez's limitations controlling weight because it was inconsistent with a previous psychiatric evaluation. The ALJ also said that he considered plaintiff's subjective complaints, but that, "based on the overall medical evidence provided, ... claimant's impairments were not as severe as to the extent alleged by the claimant."
The SSA Appeals Council denied plaintiff's request for review on January 5, 2005. Tavarez then commenced this action, filing a complaint on March 10, 2005, in which she requests that the Court reverse the SSA decision and "grant maximum monthly insurance and/or Supplemental Social Security Income benefits to the plaintiff, retroactive to the date of initial disability."
In reviewing a decision of the Commissioner, a court may "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). This Court may set aside a determination of the ALJ only if it based upon legal error or is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "Substantial evidence" is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Jaskinski v. Barhhart, 341 F.3d 182, 184 (2d Cir. 2003) (citation omitted). Furthermore, the findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive, Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995), and thus, the reviewing court does not decide the case de novo. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)(citation omitted).
The Commissioner will find a claimant disabled under the Social Security Act (the "Act") if the claimant demonstrates the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted ... for a continuous period of not less than 12 months." 42 U.S.C. § 432(d)(1)(A). The claimant's impairment must be "of such severity that he 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." Id. § 432(d)(2)(A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. at § 432(d)(3).
The Commissioner uses a five-step process when making disability determinations. See 20 C.F.R. §§ 404.1520 and 416.920. 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 severe impairment, he has the residual ...