The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff Deborah Badgley initiated this action pursuant to Section 405(g) of the Social Security Act, 42 U.S.C. § 405(g), to review the final determination of the Commissioner of Social Security (the "Commissioner") denying plaintiff's application for Social Security Disability Insurance benefits ("DIB") and Supplemental Security Income ("SSI"). The Commissioner has filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Item 8). Plaintiff has declined to file a cross motion, and has filed no response to the Commissioner's motion after being granted two adjournments for that purpose. For the following reasons, the Commissioner's motion is denied and the case is remanded.
Plaintiff was born on June 8, 1961 (Tr. 55 ).*fn1 She applied for DIB and SSI benefits on December 20, 2001, alleging disability as of August 31, 2001 due to depression, anemia, hypothyroidism, and trouble sleeping (Tr. 55-57, 276-78). Plaintiff's application was denied initially (Tr. 29-34; 281-83). Plaintiff then requested a hearing, which was held on July 8, 2003 before Administrative Law Judge ("ALJ") Nancy Battaglia (Tr. 694-718). Plaintiff testified at the hearing and was represented by counsel.
By decision dated December 18, 2003, the ALJ found that plaintiff was not under a disability within the meaning of the Social Security Act (Tr. 290-300). On April 23, 2004, the Appeals Council remanded the case for further proceedings (Tr. 286-89). A supplemental hearing was held on August 10, 2005 before ALJ Robert T. Harvey (Tr. 653-93). In a decision dated October 3, 2005, the ALJ found that plaintiff was not disabled (Tr. 17-27). The ALJ's decision became the Commissioner's final determination on April 27, 2007, when the Appeals Council denied plaintiff's request for review (Tr. 8-11).
Plaintiff then filed this action on June 22, 2007, pursuant to the judicial review provision of 42 U.S.C. § 405(g). On January 10, 2008, the Commissioner filed a motion for judgment on the pleadings on the ground that the ALJ's determination must be upheld because it is supported by substantial evidence in the record (see Item 8). The court directed plaintiff to file a response by February 12, 2008 (Item 7), but none was filed.
On March 17, 2008, plaintiff wrote to the court and requested a 60-day extension of time in which to file her response (Item 11). By text order dated March 17, 2008, the court granted this request and directed her to file such response by May 19, 2008 (Item 12). Plaintiff again failed to file a response. The court then gave plaintiff one further extension of time in which to file a response. By order dated July 14, 2008, plaintiff was given until August 18, 2008, in which to file her response. No response was filed.
I. Scope of Judicial Review
The Social Security Act states that upon district court review of the Commissioner's decision, "the findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is defined as evidence which "a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tejada v. Apfel, 167 F.3d 770, 773-72 (2d Cir. 1999). Under these standards, the scope of judicial review of the Commissioner's decision is limited, and the reviewing court may not try a case de novo or substitute its findings for those of the Commissioner. Richardson, 402 U.S. at 401. The court's inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982), quoted in Winkelsas v. Apfel, 2000 WL 575513, at *2 (W.D.N.Y. February 14, 2000).
However, "[b]efore the insulation of the substantial evidence test comes into play, it must first be determined that the facts of a particular case have been evaluated in light of correct legal standards." Klofta v. Mathews, 418 F. Supp. 1139, 1141 (E.D. Wis. 1976), quoted in Gartmann v. Secretary of Health and Human Services, 633 F. Supp. 671, 680 (E.D.N.Y. 1986). The Commissioner's determination cannot be upheld when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Tejada, 167 F.3d at 773.
II. Standard for Determining Eligibility for Disability Benefits
To be eligible for DIB and/or SSI under the Social Security Act, plaintiff must show that he or she suffers from a 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), and is "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 . . . ." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a). The Regulations set forth a five-step process to be followed when a disability claim comes before an ALJ for evaluation of the claimant's eligibility for benefits. See 20 C.F.R. §§ 404.1520, 416.920. First, the ALJ must determine whether the claimant is presently engaged in substantial gainful activity. If the claimant is not, the ALJ must decide if the claimant has a "severe" impairment, which is an impairment or combination of impairments that "significantly limits [the claimant's] physical or mental ability to do basic work activities . . . ." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant's impairment is severe, the ALJ then determines whether it meets or equals the criteria of an impairment found in 20 C.F.R. Pt. 404, Subpart P, App. 1 (the "Listings"). If the impairment meets or equals a listed impairment, the claimant will be found to be disabled. If the claimant does not have a listed impairment, the fourth step requires the ALJ to determine if, notwithstanding the impairment, the claimant is capable of performing his or her past relevant work. Finally, if the claimant is not capable of performing his or her past relevant work, the fifth step requires the ALJ to determine whether the claimant is capable of performing other work which exists in the national economy, considering the claimant's age, education, past work experience, and residual functional capacity. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Reyes v. Massanari, 2002 WL 856459, at *3 (S.D.N.Y. April 2, 2002).
The claimant bears the burden of proof with respect to the first four steps of the analysis. If the claimant demonstrates an inability to perform past work, the burden shifts to the Commissioner to show that there exists other work that the claimant can perform. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). The Commissioner ordinarily meets his burden at the fifth step by resorting to the medical vocational guidelines set forth at 20 C.F.R. Pt. 404, Subpart P, App. 2 (the "Grids").*fn2 However, where the Grids fail to describe the full extent of a claimants' physical limitations, the ALJ must "introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform." Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986).
In this case, the ALJ determined that the plaintiff had not engaged in substantial gainful activity since the alleged onset date of her disability (Tr. 21-22). Upon review of plaintiff's medical records and hearing testimony, the ALJ found plaintiff's impairments--history of drug and alcohol abuse, depression, obesity, left upper extremity weakness, and anxiety disorder--to be severe, but not of sufficient severity to meet or equal any of the impairments in the Listings (Tr. 22). The ALJ also determined that plaintiff's hypothyroidism was not a severe impairment because it did not significantly limit her ability to do basis work activities. Id.; 20 C.F.R. § 404.1521. ...