The opinion of the court was delivered by: Debevoise, Senior District Judge
Plaintiff, Esther Candido, appeals from a final determination of the Commissioner of Social Security (the "Commissioner"), denying her application for Supplemental Security Income benefits ("SSI") under Title XVI of the Social Security Act (the "Act").
The procedural history of this case is a protracted one, and because due process issues must be addressed, this history must be set forth at considerable length.
Plaintiff*fn1 originally filed an application for SSI on November 15, 1993, alleging disability as of 1979 due to endometriosis. Her claim was denied through the hearing level. In a September 27, 1996 decision Administrative Law Judge ("ALJ") Muehlig denied plaintiff's claim. Plaintiff filed a request for review in the Appeals Council which, on May 29, 1997 denied the request. Plaintiff filed a complaint in this Court seeking reversal of the Commissioner's decision.
The Court reversed and remanded the case to the Commissioner. Its August 20, 1999 Decision and Order required that on remand the Commissioner take certain actions: (1) Because the consultative examination of Dr. Feman had not performed a rectal or pelvic examination or taken relevant clinical tests, despite the fact that Plaintiff's chief complaints stemmed from spastic colitis and endometriosis, the Court directed that the Commissioner should purchase another consultative examination and specify that the consultative examiner should perform a rectal and pelvic examination, as well as any other medical examinations or laboratory or diagnostic tests that would develop the record more fully (2) because the Physical Capacities Evaluation form upon which the ALJ relied was inadequate and lacked substantial support in the record, on remand the medical expert should prepare a new Physical Capacities Evaluation addressing the additional evidence that is submitted; (3) having failed to consider the combined effects of Plaintiff's exertional and non-exertional impairments, the ALJ improperly relied solely on the grid guidelines to determine if Plaintiff is able to engage in gainful employment, and on remand a vocational expert should be called upon to determine if Plaintiff is capable of performing other jobs in the national economy; and (4) on remand the ALJ should consider the evidence submitted by Plaintiff to supplement the record before the Appeals Council, along with any additional evidence Plaintiff decides to submit and all additional medical and vocational evidence required by the opinion.
On February 1, 2001 the Appeals Council remanded the case to an ALJ, who "will comply with the court order, provide the claimant an opportunity to appear at a hearing, pursuant to 20 C.F.R. §§ 404.1512-404.1518 and/or 416.912-415.918, and issue a new decision. (R. 134).
On February 23, 2001 ALJ Muehlig sent to Plaintiff a notice of a hearing in her case to be held on March 19, 2001. The notice was accompanied by a list of legal services projects to which Plaintiff could apply for assistance if she could not afford to pay for representation. (R. 139-145).
It appears that there were filed in the case a Medical Examining Physician's Report in which the reporting physician completed 17 pages of questions (R. 146-163) and 4/99, 6/99 and 6/00 one page reports of Dr. Richard G. Pizzano. (R. 164-166)
Plaintiff failed to appear at the March 19 hearing and on March 23, 2001 the ALJ sent her a Notice to Show Cause for failure to appear in which he advised her, among other things, that if she could show good cause for the non-appearance he would schedule another hearing. (R. 167). On March 31 Plaintiff wrote the ALJ and stated that she "cannot be present because of the two conditions with my stomach. I've been having pain, and using the bathroom frequently. And also I'm in a lot of pain with my herniated disk. And my mom had a stroke." Plaintiff further wrote: "Please your Honor, make your decision based on all the additional medical evidence, I mailed in to you on 3/15/01." (R. 168).
On May 9, 2001 the ALJ informed Plaintiff that he had requested the Disability Determination Services to schedule a consultative examination for her. He advised Plaintiff that "[s]ince this examination is necessary for the proper evaluation of your claim, it is urged that you give your full cooperation to the arrangements made." (R. 169). An examination was scheduled for June 11, 2001, of which Plaintiff was notified.
A internal government Report of Contact dated June 11, 2001 recites, "Mr. Perry, brother of claimant Ester (sic) Candido, called to inform that his sister is not going to the Ct appointment on 6/11/01 that was arranged for her." (R. 172)
The ALJ arranged with vocational expert Rocco J. Meola to testify at a hearing scheduled for August 8, 2001. Mr. Meola was informed that "your testimony will be based, in part, on the testimony given by the claimant and any other witnesses, including a medical expert if needed.
(R. 177). On June 22, 2001 the ALJ notified Plaintiff of the August 8 hearing date. The description of the subjects to be considered at the hearing included the following: "I plan to look with special care into the issue of COURT REMAND. This supplemental hearing is being held pursuant to Order of Appeals Council to the undersigned dated February 1, 2001 following remand of Civil Action No. 97-5516 by the United States District Court for the District of New Jersey." (T. 181-184).
On July 11, 2001 Plaintiff checked the box on the Acknowledgment of Receipt (Notice of Hearing form) that stated "I cannot be present at the time and place shown on the Notice of Hearing. I request that you reschedule my hearing because:"
Please your Honor, I cannot be present, because of my health problems. Please I request that please your Honor make your decision based on all the additional Medical evidence I mailed in to you on 3/15/01. And my Mother had a stroke.
I'm very Sorry Your Honor in the delay in mailing this Form to you, the reason it's a little late, is because my Uncle recently had a stroke also. I'm really so sorry for the delay. Between my health and the family illness this is the reason I cannot be present.
On July 30, 2001, having been advised that Plaintiff would not attend the August 8 hearing, the ALJ sent interrogatories to Mr. Meola, the vocational expert, asking him to examine the relevant exhibits and then respond. (R. ...