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United States District Court, S.D. New York

November 7, 2005.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

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


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.



  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 review the medical evidence and evaluate Zanique on behalf of the Social Security Administration. See Morgan v. Barnhart, 2005 WL 925594 at *6 (citing R. 146-51).

  Indeed, even now, Morgan's counsel does not claim that the ALJ failed to obtain any evidence from any treating physician or medical source. (See Dkt. No. 15: Morgan Objections Br. at 7-9; Dkt. No. 17: Morgan Objections Reply Br. at 6-8.)

  Rather, Morgan's counsel argues that the ALJ erred "when he failed [to] enforce the subpoena that was issued to the Child School and failed to obtain (or instruct Ms. Morgan to obtain) an evaluation of Zanique's function[s]." (Morgan Objections Br. at 7.) As Morgan's counsel concedes, the SSA did issue a subpoena to the Child School for Zanique's school records on September 19, 2002. (Morgan Objections Br. at 7, citing R. 157.) Morgan's counsel finds error in the fact that the ALJ made no effort to enforce the subpoena. (Morgan Objections Br. at 7.)

  Here there was no need for the ALJ to enforce the subpoena because Morgan had obtained the documents that were the subject of the subpoena and she presented them to the ALJ at the hearing. (R. 238.) Morgan told the ALJ: "as far as the subpoenas were concerned, they stated that I guess they didn't get information from [Zanique's] psychiatrist or her counselor, but those I do have." (R. 238, emphasis added.) The ALJ noted that Morgan handed him "the Board of Education IEP Report, and a mid-year report from January '03, and we'll mark those into evidence." (R. 238.) That mid-year report from the Child School is in the record as Exhibit 15F. (R. 221-34.) At the end of the hearing, the ALJ inquired whether there was anyone else he should contact or any other evidence he should subpoena, and Morgan responded there was not:

ALJ: And, is there any other medical source that you think would be useful in terms of me issuing a subpoena or contacting them?
[Morgan]: Well, at this point you have everything other than, you know, the Post Graduate which is [in] the starting process.
(R. 252.)*fn8

  Thus, the very school records that Morgan's counsel claims were missing, in fact were before the ALJ. Indeed, the ALJ referred to the Child School's mid-term report (Ex. 15F at 231-33) in his decision:

The school records show that her academic performance is fairly good. She is in a special education class for students with emotional problems, but her academic skills appear to be within normal range. In January, 2002, when the claimant would have been almost seven years old, she was reported to have decoding skills and math skills on a second grade level and comprehension on a first to second grade level. Her communication skills were found to be age appropriate in April, 2001. (Exhibits 2F-3F, 15F-16F.)
The claimant has less than marked limitations in the area of attending and completing tasks. . . . The school records indicate that she sometimes becomes "unfocused," but eventually completes the work required of her. Her homework and her classroom participation were noted to be excellent or satisfactory. (Exhibit 15F.) (R. 23-24, emphasis added.)
  Morgan's counsel appears to be suggesting that even where the claimant (or claimant's parent) provides relevant documents and the ALJ has considered those documents, the ALJ violated his duty to develop the record because he did not enforce a subpoena to obtain documents he already had.*fn9 To state that proposition is to demonstrate its absurdity.

  Finally, Morgan now is represented before this Court by counsel, and counsel has not submitted any evidence from the Child School that, had it been before the ALJ, would have likely caused the ALJ to reach a different conclusion. To be clear — Morgan's counsel has not presented any evidence even now from the Child School. See, e.g., Infante v. Apfel, 97 Civ. 7689, 2001 WL 536930 at *10 (S.D.N.Y. May 21, 2001) (plaintiff failed to show prejudice in ALJ hearing where plaintiff, represented before the Court by counsel, did not offer any new evidence supporting her incapacity to perform light work and did not "proffer that such evidence exists or could be developed").


  For the reasons stated above and in my two prior Reports and Recommendations, the ALJ did not fail to develop the record, and there is substantial evidence to support the Commissioner's decision that Zanique Morgan was not disabled. The Court (Judge Swain and myself) has bent over backward to consider the issues belatedly raised by Morgan's counsel, "in the interest of justice." The Commissioner's motion for judgment on the pleadings now should be GRANTED.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 1205, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Swain. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


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