Opinion
99 Civ. 8898 (MBM)
February 14, 2001
GEORGE J. SILVER, ESQ. (Attorney for Plaintiff) Stephen H. Fields Associates New York NY
LORRAINE S. NOVINSKI, ESQ., (Attorney for Defendant) Assistant United States Attorney New York, NY
OPINION ORDER
Adel Alwashie appeals pursuant to 42 U.S.C. § 405 (g) (1994), challenging the decision of the Commissioner of Social Security that he was not disabled within the meaning of the Social Security Act. Both parties move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12 (c). For the reasons stated below, Alwashie's claim is remanded to the Commissioner.
I.
Adel Alwashie was born on June 3, 1956. (Tr. 42) He has a high school diploma and completed some college courses. (Tr. 42) On November 20, 1995, while working as a junior engineer aboard a ship, Alwashie fell on his back as he carried a box of rags up stairs. (Tr. 206) An x-ray showed no fractures. (Tr. 162) Alwashie then relocated to Brooklyn, New York, where he began treatment by Dr. Ali Guy for neck and back pain. (Tr. 162)
On November 29, 1995, Alwashie complained to Dr. Guy of neck pain radiating to his upper extremities with numbness and tingling in his arms. He also complained of lower back pain which radiated down both lower extremities with occasional numbness and tingling. (Tr. 219) Dr. Guy reported that Alwashie's neck was diffusely tender with diffuse severe spasm, one-half the normal range of motion, and muscle power testing of 4/5. Alwashie's back was also diffusely tender with spasm and one-half the normal range of motion. Straight leg raising was 75 degrees with bilateral low back pain. Alwashie's range of motion for all four of his extremities was within normal limits, but the muscle power testing of both hip groups was 4+/5. His gait was normal. Based on this examination, Dr. Guy advised Alwashie to abstain from work until further notice and further improvement. Dr. Guy prescribed Tylenol 3. (Tr. 162-63)
Several months later, on February 7, 1996, a magnetic resonance imaging ("MRI") of Alwashie's lumbar spine, the part of the spine between the ribs and the pelvis, was normal. (Tr. 160, 216); see Stedman's Medical Dictionary 896 (25th ed. 1990). An MRI of the cervical spine, the part of the spine found in the neck, showed multiple disc bulges. (Tr. 160, 217); Stedman's, supra at 280. An electromyogram ("EMG") study revealed radiculopathy, which is defined as disease of the spinal nerve roots. (Tr. 160, 213-16); see Stedman's, supra at 1308. In the spring of 1996, Alwashie traveled to Yemen where he received nine weeks of physiotherapy for neck and back pain at the Al-Gamhouria Teaching Hospital. (Tr. 211-12)
Dr. Ali Guy wrote a second report on July 19, 1996. He recorded no physical examination findings. Dr. Guy diagnosed (1) right cervical radiculopathy; (2) bulging discs, bilateral narrowing of the area where the spinal cord is located (neural foraminal narrowing); (3) internal derangement of the lumbar spine; (4) lumbar strain; and (5) traumatic myofascial pain syndrome, a disorder characterized by pain and stiffness in soft tissues. (Tr. 209-10); see Stedman's, supra at 605, 1042; Merck Manual of Medical Information, Home Edition 675 (1997). Dr. Guy wrote: "based upon the history obtained, review of past medical records, results of the MRI and EMG studies, it is my professional opinion that [Alwashie] has sustained extensive injuries causally related to the episode of November 20, 1995. Traumatic arthritis and synovitis [inflammation] of the injured parts are expected. [Alwashie] also sustained a permanent partial disability causally related to the incident of November 20, 1995." (Tr. 209) Dr. Guy described Alwashie's prognosis as guarded. (Tr. 210)
Dr. Guy wrote a final report on March 30, 1997. Alwashie continued to complain of neck and lower back pain with "good and bad days." (Tr. 160) A physical examination showed that Alwashie's neck was diffusely tender with moderate spasm and a full range of motion. Muscle power testing was 4+/5. Alwashie's back was also diffusely tender with moderate spasm and one-half the normal range of motion. The straight leg raise was 75 degrees with bilateral lower back pain. Muscle power testing of both lower extremities was 4+/5 and Alwashie's gait was normal. Dr. Guy recommended continued rehabilitation therapy, and suggested that Alwashie would reach maximum medical improvement in six to ten weeks. (Tr. 160-61) On June 2, 1997, Dr. Guy reported that Alwashie was "fit for sea duty." (Tr. 159) The above reports appear to have been written for the benefit of Alwashie's employer. The record does not contain contemporaneous medical notes by Dr. Ali Guy or an opinion rendered in response to Alwashie's Social Security claim.
In addition to the neck and back problems resulting from his fall, Alwashie also complained of anxiety. Alwashie saw a psychiatrist, Dr. Daniel Guy, who wrote a report on January 30, 1997. He recorded Alwashie's complaints of palpitations, sweating, and dizziness. He also recorded that Alwashie suffered from frightening dreams about the accident and that flashbacks prevented him from sleeping. (Tr. 157) However, Dr. Daniel Guy described Alwashie as cooperative and neat, with good eye contact. Although his mood was anxious, Alwashie's thought process was logical and goal-directed, his affect was full in range and motility, and no delusions were elicited. Alwashie' s memory and judgment were intact and his concentration, fund of knowledge, and insight were good. (Tr. 158) Nonetheless, Dr. Guy's impression was "post-traumatic stress disorder," and he recommended medication and weekly psychotherapy. (Tr. 158) The record does not contain contemporaneous notes regarding Alwashie taken by Dr. Daniel Guy.
Dr. Robert Greenberg conducted a psychiatric examination at the request of Alwashie's employer. (Tr. 203) Dr. Greenberg's observations were similar to those of Dr. Guy — that Alwashie was cooperative, his affect was appropriate, and his thought processes were logical and goal directed. (Tr. 205) He concluded that it was not clear that Alwashie suffered from any specific psychiatric syndrome, and that his "limited anxiety-related symptoms" were not so severe as to interfere with most aspects of his life. Dr. Greenberg also found that Alwashie's symptoms did not clearly prevent Alwashie from returning to work. He also suggested that returning to work would probably be useful for Alwashie. (Tr. 204-205)
On April 30, 1997, Alwashie applied for disability benefits, claiming multiple disc bulges in the spine, radiculopathy, and post-traumatic stress disorder resulting from his 1995 fall. (Tr. 77-79, 108)
On July 26, 1997, Dr. Mario Mancheno performed a consultative physical examination. Alwashie complained that he could not work because of back pain. (Tr. 166) Alwashie described intermittent, sharp and shooting pain that radiated to his left thigh and leg. He claimed that he could sit for one hour, stand for 40 minutes and walk about eight blocks. (Tr. 166) Dr. Mancheno noted tenderness of Alwashie's neck on motion and palpation. The lumbosacral spine was also tender. Dr. Mancheno reported Alwashie's range of motion of the neck and lumbosacral spine, but drew no conclusions as to whether they were within normal limits. Alwashie's upper and lower extremities had a full range of motion. Muscle power and tone testing of the upper and lower extremities was 5+/5+. Although Alwashie had difficulty on toe-heel walking, his gait was steady and he had no difficulty rising from a chair, dressing, undressing, or getting onto the examining table and lying down. Based on his physical examination, observations, the February 1996 MRI and other reports, Dr. Mancheno diagnosed a discogenic disorder of the lumbosacral and cervical spine. He concluded that Alwashie was moderately impaired in lifting and carrying as well as pushing and pulling. He found Alwashie to be mildly impaired in standing and walking as well as sitting. (Tr. 166-67)
Based on the medical tests and physical examinations described above, but without examining Alwashie, Dr. Arnold Slovis completed a residual functional capacity assessment. (Tr. 182) He described Alwashie as a 40 year-old with discogenic disorder of the cervical and lumbosacral spine. He wrote that Alwashie had pain and muscle spasms but no evidence of motor, sensory, or reflex abnormalities. Dr. Slovis found that Alwashie could occasionally lift and/or carry 20 pounds and that he could lift and/or carry 10 pounds frequently. He further concluded that Alwashie could stand and/or walk for at least two hours in an eight hour work day and could sit for about six hours of an eight hour work day. Dr. Slovis described Alwashie's ability to pull and push as unlimited. (Tr. 183) He also concluded that Alwashie could occasionally climb, balance, stoop, kneel, crouch and crawl. (Tr. 184)
Dr. Harvey A. Barash performed a mental status examination on June 27, 1997. (Tr. 164) Dr. Barash's observations were similar to those of Dr. Daniel Guy, finding Alwashie to be polite and cooperative with coherent and goal-directed thought processes, a good fund of knowledge and adequate comprehension and concentration. (Tr. 164-65) Dr. Barash described Alwashie's affect as mildly saddened but full, and reported that his mood contained low grade depressive feelings, themes, and trends. (Tr. 164) Alwashie also appeared a "little tense," and lacked self confidence. (Tr. 164) Dr. Barash concluded that there was evidence consistent "with allegations of a psychiatric condition that require[d] treatment, however on testing Alwashie's memory, comprehension, concentration, persistency and pace were without significant limitations. [Alwashie's] adaptability appear[ed] limited to the extent he ha[d] anxious and depressive complaints and reduced tolerance for stress." (Tr. 165) Dr. Barash's over-all prognosis for Alwashie was fair to guarded. (Tr. 165)
Upon a review of the psychiatric record described above, Dr. Jerome Kessel conducted a residual functional capacity assessment. (Tr. 178) He concluded that Alwashie could "understand, remember, and carry out simple and detailed instructions. He [could] concentrate for up to two hours at a time. He [could] relate appropriately to coworkers and supervisors. He [was] moderately restricted in adapting to changes in the work environment." (Tr. 180)
A hearing was held on July 29, 1998. (Tr. 41) Alwashie was the sole witness. Alwashie complained that his left leg hurt sometimes. He stated that he could lift "a little" and walk five to ten blocks. (Tr. 51) He explained that he could not work because his neck and back pain were "so severe" and because he felt emotionally out of control, with dizziness, heart palpitations, and shaking. (Tr. 53) He testified that he stopped receiving medical treatment in June 1997 because his insurance coverage ended. He explained that he had made three trips to Yemen in the previous year to obtain treatment and medication and that he received money from friends. (Tr. 43-45) He testified also that he was treated by Dr. Sherwood Jackson, and that he was taking Clonadine. (Tr. 47-48) Based on his testimony, and the record described above, the ALJ concluded that Alwashie was not disabled. The Appeals Council denied Alwashie's request for review, making the ALJ's decision the final decision of the Commissioner. Alwashie now seeks this court's review of the Commissioner's decision.
II.
The Social Security Act considers someone disabled if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." 42 U.S.C. § 423 (d)(1)(A) (West Supp. 2000). The person must be unable not only to do his previous work but also, "considering his age, education, and work experience, [to] engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423 (d)(2)(A) (West Supp. 2000)
The Commissioner has established a five-step process for evaluating disability claims. See 20 C.F.R. § 404.1520 (2000). The procedure has been described by the Second Circuit as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" [that] significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment . . . listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissionerj then determines whether there is other work [that] the claimant could perform.Curry v. Arfel, 209 F.3d 117, 122 (2d Cir. 2000) (quoting Rosa v.Callahan, 168 F.3d 72, 77 (2d Cir. 1999)) (alterations in original). The claimant bears the burden of proving that he is not engaged in substantial gainful activity, that he has a severe impairment, and that either his impairment meets one of the listings or he cannot perform his past work. "Once a claimant proves that his severe impairment prevents him from performing his past work, the [Commissioner] then has the burden of proving that the claimant still retains the residual functional capacity to perform substantial gainful work which exists in the national economy." Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); see also Curry, 209 F.3d at 122.
The ALJ determined that Alwashie was not engaged in substantial gainful activity. (Tr. 14) Alwashie spends most of his memorandum contesting the ALJ's finding that Alwashie's impairment was not severe. Alwashie's argument is misguided. The ALJ's decision explicitly states that "the claimant's impairment(s) produces a limitation(s) which meets the definition of `severe.'" (Tr. 14) The ALJ found only that Alwashie did not have an impairment listed in Appendix 1 of the regulations. (Tr. 14)
Before proceeding to steps four and five, the ALJ determined Alwashie's residual functional capacity ("RFC"). (Tr. 15) A claimant's RFC is defined as what he can do despite his limitations, and is an issue at steps four and five of the evaluation process. 20 C.F.R. § 404.1545 (a) (2000); SSR 96-8p, 1996 WL 374184, at *3 (1996). The RFC should be a function-by-function determination of the claimant's ability to do workrelated physical activities such as sitting, standing, walking, carrying, lifting, or pulling, as well as mental and other abilities. 20 C.F.R. § 505.1545 (b), (c)(d) (2000); SSR 96-8p, 1996 WL 374184, at *3 (1996). The ALJ described Alwashie's RFC as follows: "the objective medical evidence does not provide a basis for finding limitations greater than . . . lifting and carrying no more than ten pounds frequently and twenty pounds occasionally; and no more than occasional climbing, balancing, stooping, kneeling, crouching or crawling." (Tr. 15) The ALJ's determination of Alwashie's RFC cannot be sustained because (1) the ALJ failed to make a reasonable effort to ensure that there was sufficient evidence in the record to assess Alwashie's REC, and (2) the REC determination fails to account for the shift in the burden of proof from the claimant at step four to the Commissioner at step five.
The ALJ "must . . . make every reasonable effort to ensure that the file contains sufficient evidence to assess REC." SSR 96-8p 1996 WU 374184, at *5; see also 42 U.S.C. § 423 (d)(5)(B) (West Supp. 2000) (imposing responsibility on the Commissioner for developing a complete medical record and making a reasonable effort to obtain evidence from treating physician); 20 C.F.R. § 404.1512 (d)(e) (2000). The ALJ's duty to affirmatively develop the medical record exists even when, as here, the claimant is represented by counsel. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)
The record in this case is not sufficient to assess Alwashie's RFC. The three reports by Alwashie's treating physician, Dr. Ali Guy, were not written for the purpose of Alwashie's application for disability benefits. The record contains no assessment by Dr. Ali Guy of Alwashie's ability to sit, stand, walk, lift, carry, push, and pull. Furthermore, the record contains no contemporaneous medical records, although Dr. Ali Guy's reports contain findings from two physical examinations and the results of two MRIs and an EMG performed in February 1996. Dr. Ali Guy's conclusion that Alwashie had a "permanent partial disability" is not probative of Alwashie's RFC. (Tr. 109); Cf. Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir. 1985) (finding that a person with a partial disability is not disabled under the Social Security Act). His determination that Alwashie was fit for sea duty suggests Alwashie was able to return to his previous job as a junior engineer as of June 1997. (Tr. 159) However, it suggests also that he could not return to work prior to that date, and it does not address Alwashie's ability to sit, stand, walk, lift or carry. In sum, the reports of Alwashie's treating physician, Dr. Ali Guy, are not sufficient to establish Alwashie's RFC.
Despite the absence of a treating physician's opinion regarding Alwashie's ability to perform the exertional requirements of work, the ALJ proceeded to determine Alwashie's RFC. The ALJ wrote that "the medical opinions in the record from examining physicians and from physicians employed by the Disability Determination Services support the residual functional capacity determined herein." (Tr. 20) The ALJ cited the opinions of Drs. Mancheno, Barash, Kessel, Slovis, and Greenberg. The opinions of Drs. Barash, Kessel, and Greenberg are relevant to Alwashie's nonexertional impairments and will be discussed below. The opinions of Dr. Slovis and Dr. Mancheno do not help to assess Alwashie's RFC.
Dr. Mancheno, an examining physician, found that Alwashie had a moderate impairment in lifting and carrying, and in pushing and pulling. He found a mild impairment for standing and walking as well as for sitting. (Tr. 167) The Second Circuit recently considered a similar opinion by Dr. Mancheno that described the claimant's limitations as "mild" or "moderate." The Court found Dr. Mancheno's opinion "so vague as to render it useless." Curry, 209 F.3d at 123. The same is true of his opinion here.
Dr. Slovis, a non-examining physician, found that Alwashie could occasionally lift and/or carry 20 pounds and could frequently lift and/or carry 10 pounds. He determined that Alwashie could stand for at least two hours in an eight-hour work day and could sit for about six hours in an eight-hour work day. He found also that Alwashie had an unlimited ability to push and/or pull. (Tr. 183) Dr. Slovis's opinion is based not on an examination of Alwashie, but on the three reports of Dr. Ali Guy, the examination by Dr. Mancheno, the MRI, and the EMG. Dr. Slovis's opinion is the only evidence that Alwashie was able to lift and carry in accordance with the ALJ's RFC determination. The opinion of a non-examining physician "alone does not constitute the substantial evidence necessary' to uphold the ALJ's decision. Rodriguez v. Apfel, 1999 WL 511867, at *5 (S.D.N.Y. 1999) (citing cases); see also Pratts v.Chater, 94 F.3d 34, 38 (2d Cir. 1996) (finding that an opinion based solely on an incomplete medical history offers no basis to find the substantial evidence necessary to uphold the ALJ's decision)
The "virtual absence of medical evidence pertinent to the issue of [Alwashie's] RFC" illustrates the ALJ's "failure to develop the record, despite his obligation to develop a complete medical history."Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997). Two letters written to Alwashie by an adjudication officer claimed that Alwashie's treating physicians did not complete forms sent to them, and offered assistance "in obtaining this information." (Tr. 38, 75) However, there is no direct evidence of a request to Alwashie's treating physician for a complete medical history or an opinion of Alwashie's ability to perform the strength requirements of work. The ALJ did not use his subpoena power to obtain Alwashie's complete medical records or to require Dr. Ali Guy to testify. 42 U.S.C. § 405 (d); see also Sobolewski, 985 F. Supp. at 315. Furthermore, Alwashie testified at the hearing that he was receiving treatment from Dr. Sherwood Jackson, yet the ALJ made no attempt to obtain current records or testimony from Dr. Jackson.
The record does contain records from Dr. Jackson written in 1994.
Not only did the ALJ fail to make a reasonable effort to ensure that the record contained adequate evidence to assess Alwashie's RFC, but the ALJ also failed to shift the burden of proof from the claimant at step four to the Commissioner at step five. Based on his RFC determination, the ALJ found that Alwashie's lifting restrictions prevented him from performing his past work. Therefore, the ALJ proceeded to step five, and the burden shifted to the Commissioner to prove that alternative substantial gainful employment exists in the national economy that Alwashie could perform. See Curry, 209 F.3d at 122 (quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)). The Commissioner's burden has two components. First, the Commissioner must prove that the claimant has the capacity to perform work. Second, the Commissioner must prove that the work the claimant has the capacity to perform exists in the national economy. See Decker v. Harris, 647 F.2d 291, 294 (2d Cir. 1981)
Although the ALJ correctly described the burden shifting from the claimant at step four to the Commissioner at step five, (Tr. 20), he did not apply it.
Regarding Alwashie's capacity to perform work, the ALJ found that, based on the RFC determination, Alwashie could perform "light" work. Light work requires lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Light work requires also a good deal of walking or standing, or some pushing and pulling of arm or leg controls if sitting most of the time is required. 20 C.F.R. § 404.1567 (b) (2000). To satisfy the first component of his burden, the Commissioner was required to prove that Alwashie was able to perform each of these exertional elements of light work. See Sobolewski, 985 F. Supp. at 309-10.
At step five, jobs available in the national economy are categorized according to their exertional requirements. The categories range from sedentary work, which requires the least physical exertion, to very heavy work. 20 C.F.R. § 404.1567 (2000)
However, the ALJ disregarded this burden when he determined Alwashie's RFC based on the failure of the evidence to prove additional limitations. Specifically, the ALJ concluded that "the objective medical evidence does not support the existence of limitations greater than those" described in his RFC determination. (Tr. 15); see id. at 314 ("The ALJ's conclusion was not based on a positive finding that [the claimant] could perform sedentary work. Rather, it was based on a negative finding that nothing in the record militated against the conclusion that [the claimant] could perform such work.") (citations omitted)), cited with approval in Rosa v. Callahan, 168 F.3d 72, 81 (2d Cir. 1998); see also Curry, 209 F.3d at 124 (finding that the ALJ's conclusion "evince[d] a disregard for" the burden shifting procedure); Stancel v. Apfel, 2000 WU 1839758, at *5 (S.D.N.Y. 2000). Alwashie's failure to adduce evidence of additional limitations does not satisfy the Commissioner's burden of proving that Alwashie could lift 20 pounds at a time, frequently lift or carry 10 pounds, and do a good deal of walking or standing.
Even if the ALJ had properly shifted the burden of proof, the record does not contain substantial evidence that Alwashie can perform light work. The objective medical evidence of Alwashie's impairment, specifically the MRI and the EMG, showed multiple disc bulging and radiculopathy. The ALJ found it significant that there was no evidence of disc herniation or spinal stenosis. (Tr. 15) However, the absence of these two conditions despite the presence of disc bulging and radiculopathy is not evidence that Alwashie could perform the lifting, carrying, standing, or walking requirements of light work. Cf. Rosa, 168 F.3d at 79 (finding that, as a "lay person," the ALJ was not in a position to know whether the absence of a particular condition precluded a disabling loss of motion). The ALJ also found that, although there was evidence of nerve root dysfunction in the February 1996 EMG, "the degree of this abnormality was not specified." (Tr. 15) An unspecified abnormality does not establish Alwashie's ability to perform light work.
The only evidence that Alwashie could fulfill the lifting and carrying requirements of light work is Dr. Slovis's opinion. As stated above, the opinion of a non-examining physician alone does not constitute substantial evidence. Rodriguez, 1999 WL 511867, at *5 Furthermore, Dr. Slovis failed to find that Alwashie could stand and/or walk for six hours a day, although he did state that Alwashie could stand and/or walk for at least two hours a day. The record contains no evidence that Alwashie could stand and/or walk for a good deal of the day.
It bears mention that Alwashie argues also that the ALJ failed to consider his nonexertional impairments. Therefore, Alwashie argues, the ALJ improperly relied on the Medical-Vocational Guidelines, commonly called "the grids," to satisfy the second component of the Commissioner's burden — proof that the work Alwashie can perform exists in the national economy. See Rosa, 168 F.3d at 78 (explaining that the Commissioner can generally satisfy the second element of his burden by referring to the grids unless the claimant has significant nonexertional impairments). Alwashie does not identify any nonexertional impairments in his memorandum. Nonetheless, the ALJ's RFC found limitations in Alwashie's ability to climb, balance, stoop, kneel, crouch and crawl, which are nonexertional limitations. 20 C.F.R. § 404.1569a(c) (vi) (2000). Alwashie also alleged post-traumatic stress disorder ("PTSD")
Nonexertional impairments affect a "claimant's ability to meet the requirements of jobs other than strength demands." Sobolewski, 985 F. Supp. at 310; see 20 C.F.R. § 404.1569a(c)(i) (2000) (noting that difficulty functioning due to nervousness, anxiety, or depression is a nonexertional impairment).
The record of Alwashie's nonexertional impairments also is inadequate to the task at hand. Only Dr. Slovis's opinion addresses Alwashie's ability to climb, balance, stoop, kneel, crouch, and crawl. As discussed above, Dr. Slovis's opinion is not substantial evidence upon which the ALJ may make his determination. Furthermore, the record contains only one report written by Dr. Daniel Guy, Alwashie's treating psychiatrist. Although the report diagnoses PTSD, Dr. Guy expresses no opinion as to its impact on Alwashie's ability to work. Dr. Barash, upon examining Alwashie, found that his "adaptability appeared limited to the extent that he had anxious and depressive complaints and reduced tolerance for stress." (Tr. 165) Dr. Kessel, a non-examining physician, found that Alwashie was "moderately restricted in adapting to changes in the work environment." (Tr. 180) These opinions, like Dr. Mancheno's, are so vague that they are not evidence of the significance of Alwashie's alleged nonexertional impairments. Dr. Greenberg, who examined Alwashie at the request of his employer, concluded that Alwashie did not clearly suffer from any specific psychiatric syndrome, and that his "limited anxiety-related symptoms" were not of sufficient severity to interfere with most aspects of his life. (Tr. 204-205) Although he did suggest that Alwashie would benefit from returning to work, Dr. Greenberg's statement that his symptoms would not interfere with most aspects of his life does not establish that they would not interfere with Alwashie's ability to work.
The ALJ did not adequately "determine the extent to which the claimant's nonexertional impairments would further diminish his capacity to perform work." Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (citing Bapp v. Bowen, 802 F.3d 601, 604-05 (2d Cir. 1986)). The ALJ did not discuss Alwashie's nonexertional limitations, stating only that they were "slight." Any determination the ALJ may have made in some unarticulated way was based on an incomplete record.
Recent cases have reversed and remanded for calculation of benefits based solely on the Commissioner's failure to sustain his burden of proving that the claimant can perform work that exists in the national economy. See Curry, 209 F.3d at 124 (reversing and remanding solely for calculation of benefits because the Commissioner failed to prove claimant's capability to engage in sedentary work). However, "`[w]here there are gaps in the administrative record or the ALJ has applied an improper legal standard, [the Second Circuit has], on numerous occasions, remanded to the Commissioner for further development of the evidence.'" Rosa, 168 F.3d at 82-83 (quoting Pratts, 94 F.3d at 39 (citations omitted)). In this case, the ALJ failed to develop the record adequately and made his decision without a reasonable effort to ensure that the record contained enough evidence to assess Alwashie's RFC. In addition, the ALJ failed to determine Alwashie's RFC in proper relation to the Commissioner's burden of affirmatively proving that Alwashie could perform the functions of light work. Therefore, remand of this case for further development and consideration of the evidence is appropriate.
* * *
For the reasons stated above, Alwashie's claim is remanded to the Commissioner.
SO ORDERED: