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Comins v. Astrue

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 26, 2009

BELVA COMINS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Scullin, Senior Judge

ORDER

In a Report and Recommendation dated February 20, 2008, Magistrate Judge Lowe recommended that this Court affirm the Commissioner's decision and dismiss the Complaint. See Dkt. No. 11. Plaintiff filed objections to those recommendations. See Dkt. No. 12.*fn1

Plaintiff's objections concern Magistrate Judge Lowe's finding that the Administrative Law Judge ("ALJ") had fulfilled the duty that he owed to Plaintiff as a pro se claimant to develop the record fully with regard to the medical evidence, particularly from Plaintiff's treating physician.*fn2 In the Second Circuit, an ALJ has an affirmative duty to develop a complete medical record before making a disability determination. See Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (citations omitted). Where a claimant is appearing pro se, the ALJ must "'"scrupulously and conscientiously . . . probe into, inquire of, and explore for all the relevant facts."'" Cutler v. Weinberger, 516 F.2d 1281, 1286 (2d Cir. 1975) (quotation and other citations omitted) (finding investigation inadequate where medical records were illegible and claimant's claims were corroborated); see also Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991) (finding that the treating physician rule and the duty to develop a record for a pro se claimant "compel[] the ALJ to move beyond pro forma compliance with the treating physician rule and to obtain from the treating source expert opinions as to the nature and severity of the claimed disability"); cf. 20 C.F.R. § 404.1513(b)(6) ("Although we will request a medical source statement about what you can still do despite your impairment(s), the lack of the medical source statement will not make the report incomplete." (citation omitted)); and 20 C.F.R. § 416.913(b)(6) (same). However, the duty to develop the record exists only where there are apparent gaps in the record. See Haug v. Apfel, No. 99 CIV. 443, 2000 WL 178212, *6 (S.D.N.Y. Feb. 16, 2000) (noting that the record contained all records available from the physicians). This requirement assures that the ALJ meets the goal of holding a comprehensive hearing under the Secretary's regulations and in accordance with the purposes of the Act. See id.

In this case, the ALJ reviewed the medical opinions of the following people with respect to Plaintiff's mental impairments: Dr. Ragab, Plaintiff's primary care physician; Dr. Barry, state consultive examiner; Y. Sienko, disability analyst; John Anderson, clinical social worker; and Drs. Noia and Spearman, state consultative examiners. Defendant also notes that the ALJ had a GAF analysis from Dr. Patil, whom Plaintiff claims the ALJ should have contacted. See A.R. at 303. The Court finds that the ALJ met his heightened duty to complete the record. In reaching his decision, the ALJ had a complete record, including opinions from Plaintiff's primary care physician who expressed an opinion based on Plaintiff's anxiety and depression as well as a record, if not opinion, on functionality from Dr. Patil. Therefore, the Court agrees with Magistrate Judge Lowe's finding that there was substantial evidence in the record to support the ALJ's determination and that the ALJ did not breach his duty to Plaintiff by failing to secure an opinion from Dr. Patil because there were no deficiencies in the record.

Accordingly, after carefully considering Magistrate Judge Lowe's Report and Recommendation, Plaintiff's objections thereto, as well as the applicable law, and for the reasons stated herein and in Magistrate Judge Lowe's Report and Recommendation, the Court hereby

ORDERS that Magistrate Judge Lowe's February 20, 2008 Report and Recommendation is ADOPTED in its entirety; and the Court further

ORDERS that the Commissioner's decision is AFFIRMED and Plaintiff's Complaint is DISMISSED; and the Court further

ORDERS that the Clerk of the Court shall enter judgment for Defendant and close this case.

IT IS SO ORDERED.


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