by substantial evidence. 42 U.S.C. § 405(g).
Plaintiff says that in determining whether she was disabled the ALJ improperly considered the Board's decision dismissing her case. But the ALJ makes no reference to plaintiff's worker's compensation action in his decision. Plaintiff's argument is based on a false premise and is without merit.
Plaintiff also says that because the Board's decision "violated state law," the ALJ should not have considered any medical evidence deriving from the Board's investigation of her workmen's compensation claims.
The record does not indicate whether plaintiff authorized the Board to provide the ALJ with her medical records. But at the June 8, 1993 hearing, after the ALJ directed plaintiff's attention to the evidence that he would consider, including the Board's records, plaintiff did not object. She stated that having reviewed the documents, she felt that they supported her claim of disability.
Further, it appears that the only documentary medical evidence in the record, including reports from plaintiff's treating physicians, was supplied by the Board. The ALJ did not err in considering the medical evidence obtained from the Board's records.
Finally, plaintiff argues that at the June 8, 1993 hearing, the ALJ improperly refused her request that he and Dr. Finkelstein examine her knee.
The ALJ found and plaintiff does not contest that she last met the Act's disability insured status on June 30, 1980. Evidence of the state of plaintiff's knee in June 1993 was not relevant to the question of whether plaintiff was disabled prior to June 1980. As the ALJ noted during the hearing, there was no question that plaintiff had been continuously disabled since March 26, 1990. The ALJ did not err in refusing plaintiff's request.
Plaintiff has the burden of "providing medical evidence" to show that she is disabled. 20 C.F.R. § 404.1512(c). But an ALJ has a heightened obligation to assist a pro se claimant, in particular to "assist the plaintiff affirmatively in developing the record." Smith v. Bowen, 687 F. Supp. 902, 906 (S.D.N.Y. 1988).
Especially where an unrepresented claimant's record is inconsistent and incomplete, an ALJ must "scrupulously and conscientiously probe into, inquire of and explore all the relevant facts." Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980).
Towards this end, an ALJ may issue a subpoena requiring the production of any evidence relating to a matter under his or her consideration. 42 U.S.C. § 405(d); Treadwell v. Schweiker, 698 F.2d 137, 141 (2d Cir. 1983). In the event that a person served with a subpoena refuses to comply, the Secretary may seek enforcement by a federal district court. 42 U.S.C. § 405(e).
At the very least, before denying a pro se claimant's application, the ALJ should advise the claimant that "he considered his case unpersuasive, and . . . suggest that he produce additional medical evidence or call [his treating physician] as a witness." Santiago v. Schweiker, 548 F. Supp. 481, 486 (S.D.N.Y. 1982).
In this case, plaintiff testified that she saw Dr. Griffith, one of her treating physicians, from late 1976 to 1986, but did not provide any documentation of that treatment. She explained that after her workmen's compensation case was closed in late 1976, Dr. Griffith "probably didn't file any more reports with the Board." It is not clear whether plaintiff relied upon the Board to submit these records or attempted to obtain them herself.
Although the ALJ issued a subpoena for Dr. Griffith's records, he apparently did not seek to have the subpoena enforced. Moreover, he neither suggested that plaintiff attempt to obtain and submit the records, nor explained that plaintiff could call Dr. Griffith as a witness. This is particularly significant because the record does not indicate whether plaintiff sought to obtain these records or instead assumed that they would be provided.
If plaintiff did in fact see Dr. Griffith between October 1976 and June 1980, his opinion as a treating physician regarding the degree of plaintiff's disability would be entitled to significant weight. 20 C.F.R. § 1527(d). In light of plaintiff's pro se status and the importance of Dr. Griffith's opinion of plaintiff's degree of disability between October 1976 and June 1980, the court concludes that the ALJ had a responsibility to develop the record more fully.
In addition, the court observes that in his decision, the ALJ did not consider the entire record. In particular, he overlooked the reports of Drs. Schoenfeld, Levowitz, and Koven, as well as some of Dr. Soren's reports.
Furthermore, the court notes that the ALJ stated that Dr. Finkelstein testified that he found no evidence of any impairment for the period prior to June 1980. In fact, Dr. Finkelstein did not give an opinion regarding plaintiff's purported impairment.
The court makes note of these errors in order to assist the ALJ in considering the record on remand.
The court remands the case for further proceedings consistent with this opinion. Before conducting another hearing, the ALJ shall apply for enforcement of the subpoena of Dr. Griffith's records. The ALJ shall also direct plaintiff to attempt to obtain those records or ask Dr. Griffith to testify.
Dated: Brooklyn, New York
January 20, 1995
Eugene H. Nickerson, U.S.D.J.
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