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MORGAN v. BARNHART

November 7, 2005.

DARCEL MORGAN o/b/o ZANIQUE MORGAN, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Laura Taylor Swain, United States District Judge:

This Report and Recommendation supplements my two prior Reports and Recommendations in this case, familiarity with which is assumed. See Morgan v. Barnhart, 04 Civ. 6024, 2005 WL 2338709 (S.D.N.Y. Sept. 26, 2005) (Peck, M.J.); Morgan v. Barnhart, 04 Civ. 6024, 2005 WL 925594 (S.D.N.Y. Apr. 21, 2005) (Peck, M.J.).

  In my second Report, I rejected Morgan's counsel's argument — that the ALJ failed to develop the record — as belated, and in a footnote noted that "on the merits, it appears the government has the better argument." Morgan v. Barnhart, 2005 WL 2338709 at *2 n. 1. At Judge Swain's request (Dkt. No. 21: 10/5/05 Order), in the interest of justice, I now expand on that footnote, but reach the same conclusion as before — Morgan's belated argument that the ALJ failed to develop the record is without merit, and the Court should grant the Commissioner's motion for judgment on the pleadings.

  ANALYSIS

  I. THE ALJ ADEQUATELY DEVELOPED THE RECORD

  Morgan's counsel argued that "Morgan was deprived of a full and fair hearing" because the "ALJ failed to fully develop the record to fill gaps in the record." (Dkt. No. 15: Morgan Objections Br. at 5; see also id. at 6-9; Dkt. No. 17: Morgan Objections Reply Br. at 608.)

  A. Background Legal Principles*fn1

  A court reviewing an SSI denial "must first satisfy [itself] that the claimant has had `a full hearing under the Secretary's regulations and in accordance with the beneficent purposes of the Act.'" Echevarria v. Secretary of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (quoting Gold v. Secretary of Health, Educ. & Welfare, 463 F.2d 38, 43 (2d Cir. 1972)); see, e.g., Montes-Ruiz v. Chater, No. 97-6013, 129 F.3d 114 (table), 1997 WL 710607 at *1 (2d Cir. Nov. 14, 1997); Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990); Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980).*fn2

  "Moreover, it is the rule in our circuit that the ALJ, unlike a judge in a trial, must affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding, even if the claimant is represented by counsel." Tejada v. Apfel, 167 F.3d 770, 774-75 (2d Cir. 1999) (internal quotations & alterations omitted); accord, e.g., Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004), amended on other grounds, 416 F.3d 101 (2d Cir. 2005); Green v. Apfel, No. 01-6117, 25 Fed. Appx. 54, 56, 2002 WL 4566 at *2 (2d Cir. Dec. 28, 2001); Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); Cruz v. Sullivan, 912 F.2d at 12; Echevarria v. Secretary, 685 F.2d at 755.*fn3

  "[W]hen the claimant appears pro se, suffers ill health and is unable to speak English well, as in this case, [the courts] have `a duty to make a "searching investigation" of the record' to make certain that the claimant's rights have been adequately protected." Cruz v. Sullivan, 912 F.2d at 11 (quoting Gold v. Secretary, 463 F.2d at 43); see, e.g., Echevarria v. Secretary, 685 F.2d at 755; Hankerson v. Harris, 636 F.2d at 895.*fn4 The ALJ is thus obligated to explore the facts by obtaining relevant medical records and asking questions of a pro se claimant to assist the claimant in developing his case. See, e.g., Rosa v. Callahan, 168 F.3d at 80 (ALJ required to request additional records from physicians); Perez v. Chater, 77 F.3d at 47 (ALJ required to make "`every reasonable effort to help [the claimant] get medical reports from [his] own medical sources'") (quoting 20 C.F.R. § 404.1512(d)); Cruz v. Sullivan, 912 F.2d at 11 (ALJ required to obtain hospital records and ask plaintiff about his asthma attacks); Echevarria v. Secretary, 685 F.2d at 755-56 (ALJ failed to explore claimant's subjective complaints or obtain necessary medical records).*fn5

  The ALJ's responsibility to assist a claimant in obtaining the claimant's medical records carries particular importance in light of the well-established treating physician rule, which requires an ALJ to grant special deference to the opinions of a claimant's treating physicians. As Judge Glasser explained:
[T]hese two principles — the duty to develop a full record and the treating physician rule — do not operate independently of each other . . . [T]he duty to develop a full record and to assist a pro se plaintiff compels the ALJ . . . to obtain from the treating source expert opinions as to the nature and severity of the claimed disability. . . . Thus, when the claimant appears pro se, the combined force of the treating physician rule and of the duty to conduct a searching review requires that the ALJ make every reasonable effort to obtain not merely the medical records of the treating physician but also a report that sets forth the opinion of that treating physician as to the existence, the nature, and the severity of the claimed disability. . . . Until he satisfies this threshold requirement, the ALJ cannot even begin to discharge his duties to the pro se claimant under the treating physician rule.
Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991).*fn6 To achieve this goal, the ALJ is authorized to issue subpoenas requiring the production of any evidence relating to a matter under consideration. See, e.g., 42 U.S.C. § 405(d) ("For the purpose of any hearing . . . authorized or directed under this subchapter, or relative to any other matter within the Commissioner's jurisdiction hereunder, the Commissioner of Social Security shall have power to issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation or in question before the Commissioner.").*fn7

  B. Application of These Principles to Morgan's Case

  The ALJ obtained records from all of Zanique Morgan's treating medical sources, and from Zanique's educational providers; specifically, the administrative record before the ALJ contained reports and information from: Graham-Windham Services to Families and Children; Bronx Mental Health Services; psychiatrist Dr. John Bolling; the Kennedy Child Study Center; the New York City Board of Education; and the Child School. See Morgan v. Barnhart, 2005 WL 925594 at *2-7 (summarizing all of these records). In addition, the ALJ obtained a report from Dr. Scheimberg of the New York State Disability Assistance Department, and had Dr. Gagan ...


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