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United States District Court, S.D. New York

March 10, 2004.

EVELYN MEDINA, Plaintiff -against- JO ANNE B. BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Evelyn Medina brings this action under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (the "Act"), challenging the final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI") benefits. The Commissioner has moved to remand to the Social Security Administration ("SSA") for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). Plaintiff has cross-moved for judgment on the pleadings and remand for the calculation and award of benefits. For the reasons set forth below, the decision of the Commissioner is vacated and the case is remanded for further administrative proceedings. Page 2


  A. Procedural History

  Plaintiff filed an application for SSI benefits on September 25, 2000. See Transcript of the administrative record ("Tr.")*fn1 at 92. In her application, plaintiff alleged that she was disabled and had been unable to work since May 1996 due to carpal tunnel syndrome, arthritis of the left hip, and bulging and herniated discs. Id. at 101. She described "excruciating pain" in her back, pain in her shoulders, and numbness in her hands and legs, and indicated that those conditions prevented her from "[doing] heavy lifting, sitting too long or standing," or using her hands to write or do other things. Id. at 108. Plaintiff also noted in her application that "[t]here are times that because of my illness [sic] and pain from them I get depressed and disgusted." Id.

  Plaintiff's application was denied. Id. at 62-66. Upon request, a hearing was conducted before an administrative law judge ("ALJ") on January 29, 2002. Id. at 19-61. On May 2, 2002, the ALJ issued a decision denying plaintiff's application for benefits. Id. at 9-17. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for Page 3 review on October 10, 2002. Id. at 4-5.

  B. Plaintiff's Personal History

  Plaintiff was born on September 22, 1958. Id. at 92. She was 43 years old at the time of the ALJ's decision. She has a tenth-grade education. Id. at 107. Plaintiff has not worked since she was a teenager and had a summer job helping kids in a youth program; she has no vocational training. Id. at 101-02, 27-28. Plaintiff lives with three children, her 24-year-old daughter, eight-year-old daughter, and three-year-old nephew, in a seventh-floor apartment in an elevator building. Id. at 25.

  At the hearing, plaintiff testified that she was only able to walk about a block or two and that the furthest she generally walked was from her home to a store across the street. Id. at 43. She explained that she took cabs or an

  ambulance service to get around. Id. at 25-26. Plaintiff also stated that she did not cook or do any housework. Id. at 46-47. She testified that her 24-year-old daughter helped with cleaning and shopping and that a government-provided "homemaker" came to her home daily to look after her three-year-old nephew and do housework. Id. at 48-49. Plaintiff indicated that a typical day for her entailed getting up "slowly but surely," watching television, getting dressed with assistance, and attending medical appointments such as her twice-weekly physical Page 4 therapy sessions. Id. at 49-50. She testified that she did not sleep well at night because of her pain. Id. at 50.

  C. Medical Evidence

  Plaintiff's medical record in this case starts with a visit to the Urban Health Plan ("UHP") clinic in the Bronx in June 1999. Id. at 209. Over the next several years, she received treatment for, among other things, chronic neck pain, cervical neuropathy, carpal tunnel syndrome, herniated discs, osteoarthritis, anxiety, and depression. Id. During this time, plaintiff saw her primary physician, Dr. Claude-Edouard Parola, as well as UHP physicians in the neurology, rheumotology, podiatry, psychiatry, and physiatry departments. See Plaintiff's Memorandum of Law in (1) Support of Her Motion for Judgment on the Pleadings and Remanding her Application for Calculation and Payment of Benefits and (2) Opposition to Defendant's Motion for Remand ("Pl. Mem.") at 3.

  1. Diagnostic Testing

  The record includes the following results of diagnostic testing. X-rays of plaintiff's cervical spine taken in June 1999 were normal. See Tr. at 156. An MRI of plaintiff's lumbrosacral spine taken in August 1999 showed disc space narrowing and a disc bulge. Id. at 153. A March 2000 MRI of plaintiff's cervical spine showed a herniated disc and "neuroforaminal narrowing" but no evidence of Page 5 atrophy, compression, or other abnormalities. Id. at 150. Plaintiff was diagnosed `with carpel tunnel syndrome in April 2000 after undergoing an electromyogram ("EMG"). Id. at 142. X-rays taken in August 2000 revealed mild degenerative'

  joint narrowing of plaintiff's right hip and left ankle and degenerative osteoarthritic changes of her ankle. Id. at 151, 154.

  2. Treating Physicians

  a. Dr. Claude-Edouard Parola

  Dr. Claude-Edouard Parola, plaintiff's, primary physician at UHP, began treating plaintiff in November 1999. See Pl. Mem. at 3. On May 11, 2001, Parola reported: "[Plaintiff] suffers from . . . disc herniation which produce [sic]' severe neck pain and parasthesia of both upper extremities. She also suffers from carpel tunnel syndrome, L-spine disc bulging which is causing her to have severe low back pain. [H]er condition now is [causing] her to be depressed. She is referred to psychiatry for evaluation. It is my opinion that Miss Medina is unable to work due to her current medical problems." Tr. at 162.

  In an united Employability Report, Parola wrote that plaintiff should "avoid heavy lifting, prolong [sic] sitting, standing." Id. at 210.

  On July 27, 2001, Parola reported that plaintiff "suffers from herniated disc, carpal tunnel syndrome, depression, anxiety" and that "[s]he should Page 6 refrain from work that requires prolonged standing, sitting, heavy lifting, and high stress level situation." Id. at 212.

  In an August 23, 2001 form report, Parola diagnosed plaintiff with chronic back pain, carpal tunnel syndrome, depression, and anxiety. See id. at 205. He also indicated that plaintiff had a "bilateral tingling sensation" in both hands. Id. at 204. In the report, Parola checked off boxes characterizing plaintiff's disability as "slowly progressive" and indicating that plaintiff experienced limitations in walking, standing, stooping, kneeling, reaching, pushing, and pulling, and that she should avoid lifting. Id. at 203.

  Finally, in a March 5, 2002 disability report admitted to the record after the hearing, Parola diagnosed plaintiff with chronic back pain, peripheral neuropathy, carpel tunnel syndrome, depression, and shoulder pain. See id. at 225. He reported that plaintiff was lying down two to three times a day due to pain. Id. at 227. In a section of the form report about the patient's ability to do sustained work activities in an ordinary work setting during an eight-hour day, Parola indicated that plaintiff could: sit continuously in a normal seated position for 15 minutes and a total of eight hours; stand continuously at a work station for 15 minutes at a time and a total of eight hours; and walk continuously for 10 minutes and a total of eight hours. Id. at 228. In the same section, he reported that Page 7 plaintiff could frequently lift and carry up to five pounds during an eight-hour `workday and occasionally up to 10 pounds but never more than 10 pounds. Id. at 228-29. Parola also reported that plaintiff could occasionally bend, climb, or reach but never squat or crawl. Id. at 229. Finally, he indicated that she could occasionally use her hands for repetitive actions such as handling (gross manipulation), fingering (fine manipulation), and pushing and pulling. Id.

  b. Other UHP Physicians

  A July 1999 UHP physical therapy evaluation describes plaintiff's upper and lower back problems and lists spasms and tenderness as objective data. Id. at 139. In September 1999, a UHP psychiatrist diagnosed plaintiff with `depressive disorder. Id. at 141. A January 2000 neurology report from UHP's Dr. Taylor describes plaintiff as a "nervous, depressed [female] with probable panic disorder who shows symptomology of bilateral carpal tunnel syndrome and fibromyalgia." Id. at 144. In April 2000, a podiatry specialist diagnosed plaintiff with a strained left ankle and left foot and radiculopathy. Id. at 147. In early 2002, a rheumatologist, Dr. Aster, diagnosed plaintiff with right shoulder impingement. Id. at 234.

  3. Consulting Physicians

  a. Dr. Mohammad Khattak Page 8

  On March 10, 2001, Dr. Mohammad Khattak examined plaintiff at SSA's request. Id. at 164-65. He noted that she was carrying a cane but indicated that her gait was steady and that she was able to walk, stand, sit, and get on and off the examination table without assistance. Id. at 164. An examination of her cervical spine showed normal curvature, no muscle spasms or tenderness, and a range of motion for flexion of 45 degrees, extension of 30 degrees, lateral rotation of 45 degrees bilaterally and lateral flexion of 45 degrees bilaterally. Id. An examination of plaintiff's lumbosacral spine showed normal curvature, forward flexion of 60 degrees, and lateral flexion of 30 degrees bilaterally. Id.

  Dr. Khattak also reported a normal range of motion of the shoulder, normal joints of the elbow, forearm and hands, no intrinsic muscle atrophy, no impairment of fine dextrous movements, and no sensory or motor deficits. Id. He also found a normal range of motion of the hip, knee and ankle joints, and no motor or sensory deficits or muscle atrophy of the lower extremities. Id. at 165. He reported that x-rays of her right shoulder and right hand were normal and that an x-ray of the lumbrosacra1spine showed mild lumbar straightening and should be repeated. Id. Dr. Khattak diagnosed plaintiff with rheumatism and determined that she had "no limitations in bending, sitting, standing, walking, lifting, carrying or reaching or with gross and fine manipulations in her hands." Id. Page 9

  b. Dr. Robert Cicarell

  On March 10, 2001, plaintiff was also examined by a psychiatrist, Dr. Robert Cicarell, at SSA's request. Id. at 168-70. Dr. Cicarell reported:

[Plaintiff's] thought process is logical and coherent. There is no evidence of psychotic symptomatology. Her mood is depressed and stays depressed throughout the day. . . . She has been depressed more days than not for years. Her affect is depressed. She is alert and oriented to person, place, time and situation. . . . Her attention is impaired. . . . Concentration is impaired. . . . The claimant's overall intellectual functioning is within normal limits. She possesses emotional insight. She is aware that she is depressed. Her understanding of the cause is suffering from chronic pain.
Id. at 169. Dr. Cicarell diagnosed plaintiff with dysthymic disorder and suggested `that she would benefit from psychiatric treatment. Id. Finally, he wrote that `plaintiff "has a limited to fair ability to understand, carry out and remember instructions in a work setting." Id. at 170.

  c. Dr. G. Kleinerman

  On April 13, 2001, Dr. G. Kleinerman, a state agency physician, assessed plaintiff's mental residual functional capacity. Id. at 171-88. He reported moderate limitation in plaintiff's "ability to maintain attention and concentration for extended periods" and "ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest Page 10 periods." Id. at 171-72. He reported no significant limitations in plaintiff's understanding and memory, social interaction, or adaptation abilities. Id.

  D. Other Evidence

  1. Testimony of Plaintiff

  At the January 29, 2002 hearing, plaintiff testified that she had a constant "nagging, inflamated [sic], throbbing pain" in her neck, upper back, and shoulders. Id. at 29-30. She indicated that she was taking several prescription pain medications and that they helped this pain subside "a little." Id. at 30. She also described pain across her lower back near a bulging disc. Id. at 31. At the time of the hearing, plaintiff was wearing braces on both wrists and using a cane. Id. at 32-33. She testified that she used them because of pain and numbness she experienced in her hands and fingers. Id. at 33-34. Plaintiff indicated that the largest item she could carry was a small quart of milk. Id. at 44.

  Plaintiff also described a numbness throughout her left leg and pain in her left foot. Id. at 35-36. She stated that she could only sit in one place for 30 minutes to an hour or stand for about 15 minutes before feeling pain in her back and left leg. Id. at 43-44. She testified that she attended physical therapy sessions twice a week. Id. at 38.

  Finally, plaintiff testified that she suffered from depression and Page 11 anxiety. She stated that she had "nervous attacks," could not get on trains `because she got panicky and could not breathe, and that she feared someone would come into her room to kill her. Id. at 40. She indicated that she was taking antidepressants and seeing a therapist at Soundview Mental Health Center once a month. Id. at 40-42.

  At the time of the January 2002 hearing, plaintiff was taking the following prescription medications: Zoloft, 50 mg daily and Celexa, 20 mg daily, for depression and anxiety; and Neurontin, 600 mg daily and Celebrex, 200 mg daily, for pain. Id. at 88.

  2. Testimony of Vocational Expert

  Vocational expert ("VE") Mark Ramnauth also testified at plaintiff's January 2002 hearing. Id. at 52-58. The VE began by asking whether plaintiff was able to sign or write with her hands; plaintiff responded, "I use my right hand and I sign very little." Id. at 53. Next, the ALJ posed the following hypothetical to the VE:

  [L]et's assume that we have a 43 year old woman with limited education. Let's say at this point that she is capable of light work as that's defined including the ability to lift a maximum of 20 pounds, 10 pounds occasionally. She would have to have the option to sit or stand at will. And she would not be able to do any fine finger, no prolonged standing, no heavy lifting, well that's in excess of 20 pounds. She would have a limited ability to understand and carry out instructions in Page 12 a work setting. The job would have to be limited to repetitive-simple, repetitive tasks, no dangerous machines, no heights. Given that hypothetical situation would there be any jobs in the national or regional economy?

 Id. at 54.

  The VE responded that the person could perform the job of elevator operator, an unskilled job listed in the U.S. Department of Labor's Dictionary of Occupational Titles ("DOT") as number 388-663.010. Id. at 54-55. The VE reported that there were 3,000 elevator operator positions in the local market and 200,000 in the national market. Id. The VE also noted that the job would involve fairly constant use of at least one hand and would provide for a sit/stand option where a stool was available. Id. at 55. The VE indicated that a ticketer position may also fit the ALJ's hypothetical. Id. He noted that there were about 2,000 ticketer positions locally and 20,000 in the national market. Id. at 56.

  Next, the ALJ varied his hypothetical to include "inability to use hands for gross motor use." Id. The VE explained that the DOT characterizes such a limitation as involving restricted use of the upper extremity for reaching, handling, and fingering. Id. He then responded that neither the ticketer nor elevator operator positions would be available under the new hypothetical and that the only possible occupation for [such] a person would be a surveillance system Page 13 monitor." Id. at 56-57. He explained that a surveillance system monitor is defined `by DOT number 379-367.010 as an unskilled sedentary occupation and that there are about 10,000 positions in the local labor market and 150,000 in the national `market. Id. at 57. The VE also stated that a surveillance system monitor position would not require a high-school diploma or equivalent but would require some note-taking and six to eight hours a day of sitting. Id. at 57-58.

  E. The ALJ's Decision

  The ALJ made the following findings in his decision denying plaintiff's request for SSI benefits. First, he determined that plaintiff had "not engaged in substantial gainful activity" since the date she applied for benefits. Id. at 15. Second, he found that plaintiff had the following severe impairments: "low back pain, carpal tunnel syndrome, ankle and shoulder discomfort and emotional problems." Id. at 16. He noted that "[t]hese medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4." Id. Third, he found that plaintiff's "allegations regarding her limitations[were] not totally credible." Id. Fourth, he determined that plaintiff had the residual functional capacity for "simple, repetitive light and sedentary work involving a sit and stand option" that does "not require fine manipulation, working at heights or around dangerous machinery." Id. The ALJ Page 14 noted that "[t]here was sufficient evidence in the record to establish the claimant's residual functional capacity." Id. Fifth, the ALJ found that "[b]ased on the claimant's functional capacity and vocational profile, there are a significant number of jobs in the national economy that she can perform." Id. Finally, he concluded that plaintiff "was not under a `disability' as defined in the Social Security Act." Id.


  When reviewing a decision by the Commissioner, a court may enter "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. § 405(g) (fourth sentence). The Act also provides that in reviewing a denial of disability benefits, the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). Substantial evidence in this context is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (internal quotation marks omitted) (citations omitted).

  In deciding disability claims, the ALJ must follow a five step process. Page 15 See 20 C.F.R. § 404.1520, 416.920. First, the ALJ must consider whether the claimant is currently engaged in substantial gainful activity. Second, if she is not so engaged, the ALJ must determine whether the claimant has a "severe" `impairment that significantly limits her physical or mental ability to do basic work activities. Third, if the claimant suffers from such a limitation, the ALJ must decide whether, based solely on the medical evidence, that limitation corresponds with one of the conditions listed in Appendix 1 of the regulations. If it does, the ALJ does not inquire into vocational factors such as age, education and work experience because the claimant is presumed to be disabled. Fourth, if the claimant does not have a listed impairment, the ALJ must determine whether the `claimant has the residual capacity to perform her past relevant work despite her severe impairment. Finally, if the claimant satisfies her burden of showing that she has a severe impairment that prevents her from performing her past work, the burden then shifts to the Commissioner to prove that the claimant retains the residual functional capacity to perform alternative work which exists in the national economy. See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002).

  Remand to the Commissioner for further development of the evidence is appropriate when " `there are gaps in the administrative record or the ALJ has applied an improper legal standard.' " Rosa, 168 F.3d at 82-83 (quoting Pratts v. Page 16 Chater, 94 F.3d 34, 39 (2d Cir. 1996) and Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). Where, on the other hand, a court has "no apparent basis to conclude that a more complete record might support the Commissioner's decision," it is appropriate "simply to remand for a calculation of benefits." Rosa at 83. Finally, without unequivocal evidence in the record to support a finding of disability, delay in administrative proceedings alone is insufficient to justify a remand solely for the calculation of benefits. See Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996).


  Defendant argues that remand to the Commissioner is warranted because of gaps or inconsistencies in the record on which the ALJ relied. See Memorandum of Law in Support of the Commissioner's Motion for Remand ("Def. Mem.") at 3. Specifically, defendant argues that "the ALJ did not adequately develop the record [with regard to the psychiatric treatment plaintiff received from Soundview Mental Health Center] and did not re-contact plaintiffs treating physician to clarify his inconsistent opinions, as required by the Commissioner's regulations." Id. Defendant cites treating physician Dr. Parola's various reports from 2001 and 2002 as presenting conflicting opinions as to "the amount of sitting, standing, and lifting plaintiff could do." Id. at 4. Defendant argues that remand, rather than reversal and award of benefits, is warranted Page 17 because the record contains "substantial evidence showing that plaintiff was not disabled during the period in question." Id. at 5.

  Plaintiff argues that the Commissioner's decision should be reversed and remanded solely for calculation of benefits. She asserts that the Commissioner failed to meet her burden of proof at the fifth step of the disability determination process because the record on which the ALJ relied lacked substantial evidence that the plaintiff was not disabled under the Act. See Pl. Mem. at 1-2. Specifically, plaintiff argues that "[n]one of the three job positions cited by the vocational expert who testified . . . could be performed by someone with [plaintiff's] residual functional capacity as reflected in . . . her treating physician's March 2002 opinion, an opinion the Commissioner otherwise adopted." Id.

  A. The Treating Physician Rule

  The regulations require an ALJ to give controlling weight to a treating physician's opinion on the nature and severity of a claimant's impairments when the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record." 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). When a treating physician's opinion is not given controlling weight, the ALJ must apply a Page 18 series of factors in determining the weight to give such an opinion. See id. These factors include: (1) the frequency of examination and the length, nature, and extent of the treatment relationship; (2) the opinion's consistency with the record as a whole; and (3) whether the opinion is from a specialist. See id. Under the same regulations, the ALJ must explain the weight it gives to a treating physician's opinion. See 20 C.F.R. § 404.1527(d)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion."). `Failure to provide `good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)).

  The ALJ in this case gave at least some weight to the March 2002 report and the undated "Employability Report" of plaintiff's treating physician, Dr. Parola. See Tr. at 14. The ALJ determined that the March 2002 assessment provided convincing evidence "that the claimant could sit and stand eight-hours in a workday, but required a change of position every fifteen minutes" and that the "Employability Report" showed that plaintiff "could work in all situations except Page 19 those that involved heavy lifting, prolonged sitting and standing." Id.*fn2 The ALJ `accorded little weight to Dr. Parola's May 11, 2001 report in which he indicated that plaintiff was "unable to work due to her current medical problems." Id. at `162.

  The ALJ explained that he was dismissing the May 11 conclusion that plaintiff was unable to work because it was contrary to both the medical evidence and Dr. Parola's "physical assessment of the claimant's abilities." Id. at 14. Because the ultimate finding of whether a claimant is disabled is "reserved to the Commissioner," 20 C.F.R. § 404.1527(e)(1),"[a] treating physician's statement that the claimant is disabled cannot itself be determinative." Snell, 177 F.3d at 133. Accordingly, the ALJ was warranted in not giving controlling weight to Dr. Parola's May 11, 2001 statement.

  The ALJ's decision, however, does not explain the relative weight he accorded to plaintiff's treating physician and to consulting physician, Dr. Khattak, who reported that plaintiff had no difficulties in sitting, standing, walking, lifting, or carrying. See Tr. at 165.It is clear that the ALJ's finding that plaintiff had Page 20 the residual functional capacity for "simple, repetitive light and sedentary work involving a sit and stand option" is wholly consistent with Dr. Parola's assessment of plaintiff's physical abilities.*fn3 Instead, as defendant suggests, the ALJ apparently relied to some extent on Dr. Khattak's opinion in determining plaintiff's residual functional capacity and formulating the hypothetical which he posed to the VE and which provided the basis for the ALJ's fifth step finding that Page 21 plaintiff could perform work that exists in the national economy. See `Memorandum of Law in Opposition to Plaintiff's Cross-Motion for Judgment on the Pleadings and in Further Support of the Commissioner's Motion for Remand' ("Def. Opp.")at 3.

  For example, while Dr. Parola indicated in his March 2002 report that plaintiff could never carry more than 10 pounds, see Tr. at 229, the ALJ's hypothetical and the SSA's definition of "light work" both describe a person who is able to lift up to 20 pounds. Id. at 54,20 C.F.R. § 416.967(b). Both the elevator and ticketer positions that the VE identified as among the only options for someone fitting the ALJ's hypothetical are classified as "light work" by the DOT. See Pl. Mem. at 19-20 (citing the relevant DOT entries). Similarly, while Dr. Parola's March 2002 assessment indicated that plaintiff was able to use her hands and upper extremities for repetitive action only occasionally, see Tr. at 229, the ALJ's initial hypothetical described someone with limits only on "fine finger" ability and provided specifically for "repetitive tasks." Id. at 54. When the ALJ refined the hypothetical to more closely follow Dr. Parola's assessment by including "[limited use of] the upper extremity for reaching, handling, and fingering," the VE determined that neither the ticketer nor elevator operator positions would be available and that "the only possible occupation for [the] Page 22 person would be a surveillance system monitor." Id. at 56-57.

  The ALJ failed to account for these subtle but significant discrepancies between his findings as to plaintiff's residual functional capacity and treating physician Dr. Parola's March 2002 assessment. Given the VE's reliance on the ALJ's definition of that residual functional capacity (in his initial and modified hypothetical) and given the ALJ's reliance on the VE's testimony in finding that plaintiff was able to perform substantial gainful activity, the ALJ's failure to provide "good reasons" for not fully crediting Dr. Parola's opinion provides grounds for remand under Snell.

  B. The ALJ's Duty to Fully Develop the Record

  Due to the non-adversarial nature of a disability benefits hearing, the ALJ has an affirmative duty to develop the administrative record even where a claimant is represented by counsel.*fn4 See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). Here, the ALJ had a duty to more fully develop the record with respect to Page 23 plaintiff's mental and physical health.

  First, although plaintiff stated and the record indicates that she had been receiving treatment for depression and other mental health problems at. Soundview Mental Health Center, the record neither contains treatment reports from this facility nor indicates that the ALJ tried to obtain any. See Tr. at 39-42, 87,206, 208, 224. Accordingly, the ALJ's determinations that plaintiff's "alleged emotional difficulties . . . [are] no more than mild or moderate" and that "[n]othing in the record indicates that the severity of [plaintiff's] emotional difficulties increased since the consultative examinations" with Dr. Cicarell are based on an incomplete record of plaintiff's mental health problems. Id. at 14.

  Second, the ALJ failed to seek clarification from plaintiff's treating physician, Dr. Parola, as to plaintiff's physical limitations. Where an ALJ finds inconsistencies in a treating physician's report(s), he bears an affirmative duty to seek clarification. See 20 C.F.R. § 416.912(e)(1) (providing that the SSA "will seek additional evidence or clarification from [a] medical source when the report from [the]medical source contains a conflict or ambiguity that must be resolved"); see also Rosa, 168 F.3d at 79 (" `[I]f an ALJ perceives inconsistencies in a treating physician's reports, the ALJ bears an affirmative duty to seek out more information from the treating physician and to develop the administrative record Page 24 accordingly' " (quoting Hartnett v. Apfel, 21 F. Supp.2d 217, 221 (E.D.N.Y. 1998)).

  As defendant argues, Dr. Parola's various reports in 2001 and 2002 provide inconsistent assessments of plaintiff's physical limitations. See Def. Mem. at 4. In the workday activities section of his March 2002 report, for example, Dr. Parola indicated that plaintiff was able to sit or stand for eight hours in a workday as long as she could change position every 15 minutes and that she could walk continuously for 10 minutes for a total of eight hours. See Tr. at 228. As the ALJ noted, this assessment was not consistent with Dr. Parola's May 11, 2001 determination that plaintiff was unable to work because of her "current medical problems." Id. at 211. The medical problems listed in the March 2002 report, however, match those listed in the May 2001 report and include back and shoulder pain, carpal tunnel syndrome, and depression. Id. at 211, 225. Dr. Parola's July and August 2001 reports also suggested that plaintiff had more limited physical capacity than that reported in the work activities section of the March 2002 report. Id. at. 212, 202-03. In sum, although the ALJ was not required to rely on Dr. Parola's May 2001 conclusion that plaintiff was unable to work, he did have a duty to attempt to resolve the inconsistencies between that and other reports by Dr. Parola upon which he did rely in determining plaintiffs Page 25 residual functional capacity. Specifically, the ALJ should have contacted Dr. Parola to clarify inconsistencies in his reports as to plaintiff's limitations on sitting, standing, lifting, and otherwise using her upper extremities.'

  C. Remand for Calculation of Benefits

  Remand solely for calculation of benefits is warranted only where the record contains "persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose." Parker, 626 F.2d at 235. The Commissioner's failure in this case to provide "good reasons" for discounting the opinion of plaintiff's treating physician and to folly develop the record preclude the Court from concluding that the finding of no disability is supported by. `"substantial evidence" and should be upheld. It is not clear, however, that a more complete record would not support the Commissioner's findings.

  Instead, because the record contains conflicting evidence as to plaintiff's physical and mental residual functional capacities as well as gaps in that evidence, remand for further proceedings is appropriate. The ultimate determination of plaintiff's potential to do a limited range of work seems likely to hinge on what is missing from the record and the ALJ's decision: 1) a clearer statement from plaintiff's treating physician as to the extent of her physical impairments; 2) a better understanding of plaintiff's mental impairment during the Page 26 relevant period; and 3) a fuller assessment and explanation of the relative weight to be accorded to the opinions of the treating and consulting physicians.

  Because the ALJ failed to adequately explain his decision and develop the record, and because " `further findings' would so plainly help to assure the proper disposition" of plaintiff's claim, remand for further proceedings is appropriate. Rosa 168 F.3d at 83 (citing Pratts, 94 F.3d at 39).


  For the foregoing reasons, the Commissioner's motion is granted. The Commissioner's decision is vacated and the matter is remanded pursuant to sentence four of section 405(g) 6f Title 42 of the United States Code for further proceedings consistent with this Opinion.

  On remand, the ALJ should: 1) request a more detailed explanation, from Dr. Parola as to plaintiff's physical limitations and her ability to perform light and/or sedentary work activities; 2) obtain and evaluate reports from plaintiff's mental health care providers at Soundview; and 3) fully explain the weight he gives to the reports of plaintiff s treating physician. Page 27

  The Clerk of the Court is directed to close this motion [docket #10] and this case.


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