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HUGHES v. APFEL

December 15, 1997

ALICE RAE HUGHES, Plaintiff,
v.
KENNETH S. APFEL, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: HECKMAN

 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 plaintiff's 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). *fn1" 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. *fn2"

 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, 83 L. Ed. 126, 59 S. Ct. 206 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (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, 817 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 plaintiff's 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 ...


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