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Curto v. Astrue

March 3, 2008


The opinion of the court was delivered by: Denise Cote, District Judge


Plaintiff Marion Curto ("Curto") and defendant Commissioner of Social Security Michael J. Astrue (the "Commissioner") cross-move for remand in this action for judicial review of the Comissioner's denial of Curto's claim for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). The dispute between the parties concerns the statutory basis for the remand: Curto seeks remand pursuant to the sixth sentence of 42 U.S.C. § 405(g); the Commissioner seeks remand pursuant to that provision's fourth sentence. For the following reasons, the action is remanded pursuant to the fourth sentence of Section 405(g).


These facts are not disputed, and are drawn from the administrative record. Curto applied for DIB and SSI on February 23, 2004, claiming that she was disabled and unable to work as of August 31, 2002. The Social Security Administration ("SSA") denied Curto's claims by letter dated August 6, 2004. The letter explained that the SSA had "determined that your condition is not severe enough to keep you from working," specifically in "computer sales," which Curto had identified as her area of employment.

Pursuant to Curto's request, a hearing was held on March 14, 2006 before administrative law judge ("ALJ") Brian Lemoine. The ALJ first received into evidence extensive documentation of Curto's medical history. That evidence generally indicated that Curto had an array of coronary and pulmonary dysfunctions, as well as difficulty with her knees. The consensus among the physicians who examined Curto was that she had no limitations in sitting, but certain limitations walking and standing. One of the medical reports, however, indicated that Curto's condition precluded even sedentary work.*fn1 Further, the examinations indicated that she needed to avoid extreme weather conditions, dusts, fumes, chemical inhalants, and heights as a result of her compromised pulmonary functioning.

At the hearing, testimony was then taken from Curto, appearing pro se, her sister Angela Mastellone, and vocational expert Amy Leopold. Curto testified regarding her health problems and treatment. She testified that she was unable to lift a gallon of milk and that she couldn't work because, "I tire quickly. I take three or four naps a day. I sit in front of the TV and I just fall asleep. [D]riving here [to the hearing], I had to stop twice just to pull over just to collect myself because I get so tired." Under very limited questioning from the ALJ, Curto testified that her most recent employment mainly involved answering phones, handling mail, and some light typing. Notably, the ALJ did not inquire into the exertional demands of this work. Notwithstanding the absence of this pertinent information, Leopold, who was certified as a vocational expert without objection from Curto, stated that she had sufficient information to classify Curto's previous work experience. Leopold classified Curto's previous employment as light and sedentary, but also that Curto generally lacked the requisite skills for performing sedentary work. In particular, Leopold noted that Curto had few computer skills.

The ALJ issued his decision in Curto's case on March 23, 2006. He found that Curto had "severe cardiac and pulmonary impairments," but that she had "the residual functional capacity to lift light objects, sit as needed, [] stand and walk for short periods of time but cannot engage in work activity in an environment containing pulmonary irritants." Accordingly, the ALJ denied her claims for DIB and SSI. Curto appealed the ruling, and the Appeals Council denied review on April 16, 2007.

Curto filed the complaint in this action on May 10. On July 3, before filing an answer, the Commissioner wrote to Curto and proposed that the action be remanded to the SSA pursuant to the fourth sentence of Section 405(g) in order to conduct further administrative proceedings. Curto declined that proposal, and the Commissioner filed an answer on July 10. The parties cross-moved for remand, and the motions were fully submitted on February 14, 2008.


In Shalala v. Schaefer, 509 U.S. 292, 296 (1993), the Supreme Court explained that the "exclusive methods" by which a district court can remand a case to the Commissioner are set forth in sentences four and six of Section 405(g). See also Raitport v. Callahan, 183 F.3d 101, 103-04 (2d Cir. 1999).

Sentence four provides:

The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.

42 U.S.C. ยง 405(g). Sentence six provides, in relevant part: The court may, on motion of the Commissioner of Social Security made for good cause shown before [he] files [his] answer, remand the case to the Commissioner [] for further action by the Commissioner [], and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and ...

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