most that reasonably could be discerned from the questionnaire is that, as of October 1994, plaintiff suffered from occasional pain in the right upper quadrant, most severe at times of stress. Dr. Parikh's responses shed no light on plaintiff's ability to lift, carry, stand, walk, sit, push, and pull, either in October 1994 or February 1996.
In further support of the proposition that plaintiff was capable of sedentary work, the ALJ relied upon Dr. Parikh's March 28, 1995 reply to the form letter sent by Pilgrim State, plaintiff's employer, regarding plaintiff's ability to return to full duty. Referring to the letter, the ALJ wrote that "on March 28, 1995, [Dr. Parikh] stated that abdominal pain on exertion restricted the claimant's lifting and bending, but also suggested she try light duty work." Tr. 18. However, read in its entirety, Dr. Parikh's letter advised Pilgrim State that, although plaintiff might be able to return to light duty, she might also experience "severe pain which will mean complete disability." Tr. 137. The letter did not otherwise comment on any of the RFC elements. Tr. 137. Dr. Parikh's letter, fairly read, provides no support for the conclusion that plaintiff was capable of sedentary work. It merely suggests that a trial period of light duty work be undertaken to determine the extent of plaintiff's ability to work.
As for Dr. Broomfield, none of his medical records discuss any of the RFC elements and it is wholly unclear how the ALJ could have concluded from Dr. Broomfield's records that plaintiff could perform sedentary work. At most, Dr. Broomfield's records suggest that, as of his last consultation on October 12, 1994, plaintiff was suffering little abdominal pain. Taken as a whole, the medical opinions of Drs. Parikh and Broomfield, and the non-medical opinion of Dr. Coombs do not provide substantial evidence that plaintiff retained the capacity to perform sedentary work.
Indeed, there was a virtual absence of evidence before the ALJ as to plaintiff's capacity to sit, stand, walk, lift, carry, push, pull, reach, handle, stoop, or crouch, all of which are pertinent to determining plaintiff's RFC.
Nor does the new evidence submitted to the Appeals Council provide substantial evidence to support the ALJ's decision as to plaintiff's RFC. Dr. Parikh's brief letter of February 6, 1996 added only that plaintiff had suffered a major attack of pancreatitis in December 1995; otherwise, it merely repeated information already in the record.
Dr. Hamburger's report touched upon plaintiff's ability to lift, but was otherwise silent as to the remaining RFC elements. Dr. Hamburger did suggest that, as of plaintiff's followup visit to him on November 14, 1995, her spondyloarthritis and osteoarthritis were stable at a sedentary level. Tr. 149. His report, however, noted that he had again seen plaintiff on February 15, 1996, at which time additional testing revealed that plaintiff had a marked reduction in range of motion and strength in her ankles with significant although lesser reduction in the hips and in the knees. Dr. Hamburger further observed that, because of the marked reduction in functional capacity of the hips, knees and ankles, plaintiff's capacity to use her lower extremities in any kind of gainful employment was markedly compromised. Dr. Hamburger concluded that plaintiff was disabled because of her lumbar spine osteoarthritis as well as her spondyloarthritis. Tr. 149. It is unclear whether Dr. Hamburger continued to evaluate plaintiff's work capacity as "sedentary" after the February examination. It is equally unclear what he meant by the term "sedentary,." inasmuch as he discussed none of the RFC elements other than lifting and ultimately concluded that plaintiff is disabled. Read in its entirety, Dr. Hamburger's report does not support the Commissioner's conclusion that plaintiff retains the capacity for sedentary work as that term is defined in the regulations.
The Commissioner argues that the comments of Dr. Parikh and Dr. Hamburger are consistent with the ALJ's finding that plaintiff is capable of performing sedentary work. Commissioner's Motion at 25. However, the burden of proof is on the Commissioner to offer positive evidence that plaintiff can perform sedentary work, and the burden is not carried merely by pointing to evidence that is consistent with his otherwise unsupported assertion. See Gray, 903 F. Supp. at 300 (Commissioner did not meet burden by pointing to reports that merely indicated "a lack of definitive evidence that the plaintiff cannot perform sedentary work"). As the court stated in Davis v. Shalala, 883 F. Supp. 828 (E.D.N.Y. 1995), in words directly applicable here:
The error in this case . . . is that [plaintiff] was placed in the sedentary category of work capability without any substantial evidence to support his capability to work at this level of physical work demand. Indeed, the ALJ's conclusion was not based on a positive finding that [plaintiff] could perform sedentary work. Rather, it was based on a negative finding that nothing in the record militated against the conclusion that Davis could perform such work. This Court disagrees with that conclusion.
Id. at 837. Taken as a whole, the record lacks specific medical evidence that plaintiff can meet the exertional limitations of sedentary work, and the Commissioner has failed to sustain his burden of proof as to the issue of plaintiff's ability to engage in gainful employment.
The record's virtual absence of medical evidence pertinent to the issue of plaintiff's RFC reflects the Commissioner's failure to develop the record, despite his obligation to develop a complete medical history. As the Second Circuit has repeatedly observed, the essentially non-adversarial nature of a disability benefits proceeding requires the Commissioner to affirmatively develop the medical record before rendering a final decision. Pratts, 94 F.3d at 37; Perez, 77 F.3d at 47; Echevarria v. Secretary of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982). This duty exists even when, as here, the claimant is represented by counsel. Perez, 77 F.3d at 47.
The Social Security Act, the regulations issued by the Commissioner, and the Commissioner's interpretation of both, make plain the importance accorded to developing the claimant's medical record. The Act expressly provides that the Commissioner, before making a determination of disability, is responsible for developing a complete medical history of the claimant and for making every reasonable effort to obtain medical evidence from claimant's treating physicians. 42 U.S.C. § 423(d)(5)(B). The regulations amplify the statute's directive in further stating: "Before we make a determination that you are not disabled, we will develop your complete medical history . . . [and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports." 20 C.F.R. § 404.1512(d). The regulations add that "When the evidence we receive from your treating physician . . . or other medical source is inadequate for us to determine whether you are disabled . . . we will first recontact your treating physician . . . or other medical source to determine whether the additional information we need is readily available." 20 C.F.R. § 404.1512(e). In particular, where the adjudicator is called upon to make a determination of a claimant's residual functional capacity ("RFC") to perform gainful employment, he "must . . . make every reasonable effort to ensure that the file contains sufficient evidence to assess RFC." SSR 96-8 P, 1996 WL 374184, at *5 (1996).
Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence is in order. Pratts, 94 F.3d at 39; Parker, 626 F.2d at 235. Remand is particularly appropriate where the reviewing court is unable to fathom the Commissioner's rationale in relation to the evidence in the record without further findings or explanation for the decision. Id., Berry, 675 F.2d at 469. This is such a case. Prior to the January 5, 1996 hearing, the ALJ should have secured a complete and current RFC assessment from plaintiff's treating physicians, Dr. Parikh and Dr. Broomfield, as well as from Dr. Kousourou who, as noted, did not report any findings regarding plaintiff's RFC, in contravention of the regulations. More importantly, however, the ALJ should not have rendered his decision on February 29, 1996, without securing Dr. Hamburger's medical records. As the ALJ was made aware at the hearing, Dr. Hamburger had already examined plaintiff and was scheduled to examine her again sometime in February. Tr. 37. An ALJ is vested with the power to subpoena the production of medical records relating to a matter under his consideration. 42 U.S.C. § 405(d); Carroll v. Secretary of Dep't of Health & Human Servs., 872 F. Supp. 1200, 1204 (E.D.N.Y. 1995). The Commissioner's regulations call for the development of a claimant's complete medical history, 20 C.F.R. § 404.1512 (d) and further state that SSA will recontact a claimant's medical sources to secure additional information. Given the state of the medical record at the time of the hearing -- one that scarcely spoke to the issue of plaintiff's RFC, and failed to provide probative information regarding plaintiff's claims of arthritis -- the ALJ erred in issuing his opinion without securing Dr. Hamburger's records.
Additionally, during the hearing, the ALJ missed the opportunity to develop aspects of plaintiff's disability that were inadequately covered by the then-available medical records. Plaintiff stated in her application that, in addition to suffering from bursitis of the foot, she also suffered from arthritis of the legs, arms, and hands. An X-ray report in Dr. Kousourou's records indicated that plaintiff had some degree of osteoarthritis in her hand. The ALJ did not ask plaintiff if she still claimed to suffer from these ailments and what medical treatment, if any, she had received. In light of Dr. Hamburger's report that, based on an examination some five months before the hearing, plaintiff suffered from degenerative arthritis, degenerative disc disease, and exhibited weakness in both hands, it appears that the ALJ missed a fruitful area of inquiry. Had the ALJ questioned plaintiff with respect to her claim of arthritis of the hands, he might have learned of Dr. Hamburger's finding and concluded that additional development was necessary to determine whether plaintiff suffered from a nonexertional manipulative limitation that significantly diminished her capacity to perform sedentary work.
It is surprising that the Appeals Council declined to review the ALJ's decision, particularly in light of the new evidence before it that substantiated plaintiff's arthritis claims -- claims that were virtually undocumented in the record at the time the ALJ made his decision. Inasmuch as the Commissioner must consider the limiting effects of a claimant's disabilities in combination, it should have been clear to the Appeals Council that the ALJ's determination was incomplete. Moreover, Dr. Hamburger's observation that plaintiff had a marked weakness in her right hand and some weakness in her left required the Appeals Council to determine whether these conditions impaired plaintiff's ability to manipulate objects and, if so, whether they rose to the level of a nonexertional impairment that significantly reduced plaintiff's ability to perform sedentary work within the national economy.
The Appeals Council's terse denial of plaintiff's request for review omitted any explanation for its finding that plaintiff's additional evidence did not provide a basis for changing the ALJ's decision. Tr. 3. This Court need not accept the decision of the Commissioner where he has failed to consider explicitly evidence necessary to a fair determination of plaintiff's application for disability benefits. Parker, 626 F.2d at 231; Smith v. Bowen, 687 F. Supp. 902, 904 (S.D.N.Y. 1988) (Commissioner's failure to explain implicit rejection of relevant evidence is plain error); Quinones v. Secretary of Dep't of Health and Human Servs., 567 F. Supp. 188, 190 (E.D.N.Y. 1983) (Appeals Council commits error when it fails to provide its reasons for discounting evidence in form of uncontroverted testimony of treating physician).
The decision of the Commissioner denying disability benefits to plaintiff was based on an erroneous legal standard because the non-medical opinion of Dr. Coombs was treated as a medical opinion. Notwithstanding this error, the decision was otherwise not supported by substantial evidence, and requires remand for further development of the medical record regarding plaintiff's RFC, including the issue of plaintiff's nonexertional limitations, if any. Accordingly, the Commissioner's motion is denied, plaintiff's cross-motion is granted insofar as it seeks a remand to the Commissioner, and this case is remanded to the Commissioner for further proceedings consistent with this opinion. The Clerk of the Court is directed to close the case.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
November 19, 1997