Hughes v. Apfel, 96-CV-829H.

• Decision Date: 15 December 1997
• Docket Number: No. 96-CV-829H.,96-CV-829H.
• Parties: Alice Rae HUGHES, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of New York

992 F.Supp. 243

Alice Rae HUGHES, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

No. 96-CV-829H.

United States District Court, W.D. New York.

December 15, 1997.

Dennis A. Clary, Toohey & Dowd, P.C., Lewiston, NY, for Petitioner.

Jane B. Wolfe, U.S. Atty., Buffalo, NY, for Respondent.

DECISION AND ORDER

HECKMAN, United States Magistrate Judge.

The parties have consented to have the undersigned conduct any and all further proceedings in this case, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c). Currently pending for decision is the Commissioner's motion for judgment on the pleadings (Item 10). For the following reasons, the motion is denied and plaintiffs claim is remanded to the Commissioner for further development of the record and reconsideration of plaintiff's application.

BACKGROUND

Plaintiff was born on October 4, 1943 and is currently 54 years old (T. at 70, 110).¹ She attended school through the eighth grade, but later obtained her GED in 1982 (T. at 148). She also attended Kelley Business School at some time in 1983 and 1984(Id.). Plaintiff has worked as a stock clerk, bookbinder, maid and cashier (T. at 70, 148). Plaintiff most recently was employed as a stock clerk, a position she held from 1989 until she was terminated in February 1992 (T. 70-71, 148). Her job involved pulling and issuing parts, and then logging the items into a computer (T. at 70-71, 148, 165).

Plaintiff first applied for disability insurance benefits and supplemental security income benefits on December 13, 1993 and April 22, 1994 respectively (T. at 110-12, 132-35). In her disability report, plaintiff stated that she was disabled as of February 4, 1993, because of pain in her back and irritable bowel syndrome (T. at 144). She also declared that she was first bothered by these conditions in December 1991, that the pain would come and go, and that she continued to work during that time (Id.). She described her condition since February 4, 1993, however, as one of severe pain and discomfort (Id.).

Plaintiff's applications were denied initially (T. at 113-15, 136) and on reconsideration (T. at 128-31, 137-40). She then requested a hearing before an Administrative Law Judge (ALJ).

A hearing was held on December 15, 1994, January 24, 1995 and May 25, 1995, before ALJ Eric Glazer (T. at 54-109). Plaintiff was represented by counsel from the Niagara County Legal Aid Society (T. at 38, 42, 56, 62, 93). On June 12, 1995, ALJ Glazer found that plaintiff was not under a "disability" as defined in the Social Security Act and that her impairments did not prevent her from performing her past relevant work (T. at 34). This finding became the final determination of the Commissioner on November 7, 1996, when the Appeals Council denied plaintiff's request for review (T. at 3-4).

On December 6, 1996, plaintiff commenced this action pro se seeking reversal or remand of the Commissioner's final decision (Item 1). Plaintiff is currently represented by counsel.²

DISCUSSION

Plaintiff asserts that the ALJ committed error in failing to develop the evidentiary record. that the ALJ mischaracterized plaintiff's testimony, and that the Appeals Council failed to consider supporting medical evidence submitted after the hearing.

A. Judicial Review.

The Medicare Act provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. 405(g) (incorporated through 42 U.S.C. § 1395ii). Substantial evidence is that which a "reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991). Under this standard, judicial review of the Secretary's decision is limited, and the reviewing court may not try the case de novo or substitute its findings for those of the Commissioner. Richardson, supra, 402 U.S. at 401. The court's sole inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). The Commissioner's determination cannot be upheld, however, when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Grey v. Heckler, 721 F.2d 41, 44 (2d Cir.1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979).

Thus, judicial review of the Commissioner's determination involves two levels of inquiry. First, the court must decide whether the correct legal principles were applied in making the determination. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987); Baybrook v. Chater, 940 F.Supp. 668, 672 (D.Vt. 1996). Second, if correct legal principles were applied, the court must decide if the ALJ's decision is supported by substantial evidence. Johnson, supra, 917 F.2d at 985.

B. Development of the Evidentiary Record.

Plaintiff's argument with respect to this issue is two-fold. First, plaintiff contends that the ALJ erred in failing to obtain plaintiffs medical records from her primary treating physician, Dr. Rim. Second, plaintiff claims that the ALJ erred when he stated his intention to order a gastrointestinal consultative examination and then failed to do so. These claims are addressed in turn.

1. Obtaining Treating Physician's Records.

In her disability report dated December 13, 1993, plaintiff identified two physicians she was seeing every two to three months, Dr. James Kropelin and Dr. Jong Rim. Plaintiff stated that she began seeing Dr. Kropelin in May of 1993, and Dr. Rim in September of 1990.

Plaintiff's hearing commenced on December 15, 1994. After a prehearing conference, ALJ Glazer adjourned the proceedings in order to allow plaintiff and her counsel time to submit further medical evidence (T. at 56-59).

The hearing was recommenced on January 24, 1995, at which time some additional treatment records were presented (T. at 64-65). Dr. Rim's records were not among those submitted, however. Plaintiff then began her testimony, where she identified Dr. Rim as her "general doctor" (T. at 80). With respect to her irritable bowel syndrome, plaintiff testified that her symptoms began sometime in 1992 and that she needs to use the lavatory "anywhere from eighteen to twenty times during the day and four to six times during the night" (T. at 85). ALJ Glazer again adjourned the hearing, this time in order to schedule a consultative examination with an orthopedic specialist regarding plaintiff's complaints of back pain, "with attention also to the problems of the irritable bowel" (T. at 89). The following day, ALJ Glazer sent a confirming letter to plaintiff, stating that he had requested an examination by a specialist in orthopedics and gastrointestinal (T. at 37).

The hearing was recommenced again on May 23, 1995, at which time ALJ Glazer noted that "the claimant did finally receive an examination, but that we are lacking the focus on the problem relating to the irritable bowel syndrome" (T. at 93-95). Plaintiff continued her testimony. She stated that her bowel condition had been diagnosed by Dr. Kropelin, but that she went on to see her family physician, Dr. Rim, for that condition among other health problems (T. at 97-101). Plaintiff also testified that she began treating with Dr. Rim in 1990, and that she sees him every three months (104, 145).

In response to plaintiff's claim that ALJ Glazer erred in failing to obtain Dr. Rim's records, the government argues that the ALJ made "every effort" to develop the record, that it was incumbent upon plaintiff to produce her medical records, and that there is no indication that plaintiff's primary physician treated her for either back pain or irritable bowel syndrome. Furthermore, the government asserts that plaintiff has waived her right to raise this issue because she failed to assert this argument before the ALJ or the Appeals Council.

A claimant seeking disability benefits under the Social Security Act has the burden of proving that he or she is under a disability as defined by the Act. Before deciding whether the Commissioner's conclusions as to disability are supported by substantial evidence, however, this court must first determine whether the plaintiff has had a full hearing "in accordance with the beneficent purposes of the Act." Echevarria v. Secretary of Health and Human Servs., 685 F.2d 751, 755 (2d Cir.1982) (quoting Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir.1972)). Thus, the ALJ must affirmatively develop the record in light of the essentially non-adversarial nature of a benefits determination. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996); Perez v. Chater, 77 F.3d 41, 47 (2d Cir.1996) (both cases citing Echevarria, supra, 685 F.2d at 755). This duty arises from the Commissioner's regulatory obligation to develop a complete medical record before making a disability determination. 20 C.F.R. § 404.1512(d)-(f) (1997): Pratts, supra, 94 F.3d at 37. With respect to a claimant's treating physicians, the regulations state as follows:

Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application. . . . We will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.

20 C.F.R. § 404.1512(d). The regulations also state that:

When the evidence we receive from your treating physician . . . is inadequate for us to determine whether you are disabled, . . . [w]e will first recontact your treating physician . . . to determine whether the additional information we need is readily available.

Id. at § 404.1512(e). This duty exists whether the plaintiff is...