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
OPINION AND ORDER
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.
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
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
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
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
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
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
In an united Employability Report, Parola wrote that plaintiff should
"avoid heavy lifting, prolong [sic] sitting, standing." Id. at
On July 27, 2001, Parola reported that plaintiff "suffers from
herniated disc, carpal tunnel syndrome, depression, anxiety" and
that "[s]he should
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
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.
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
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.
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
[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
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
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
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
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
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
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
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.
II. LEGAL STANDARD
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.
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.
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
because the record contains "substantial evidence showing that
plaintiff was not disabled during the period in question." Id.
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
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
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
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
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]
person would be a surveillance system monitor." Id. at
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
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
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
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
relevant period; and 3) a fuller assessment and explanation of the
relative weight to be accorded to the opinions of the treating and
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
The Clerk of the Court is directed to close this motion [docket #10]
and this case.