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Myers v. Astrue

July 17, 2009

MARGARET M. MYERS, PLAINTIFF,
v.
MICHAEL J. ASTRUE*FN1, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Margaret Myers brings the above-captioned action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny her application for disability benefits. This matter was referred to United States Magistrate Judge Randolph F. Treece for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B) and Local Rule 72.3(d). Magistrate Judge Treece recommended that this Court reverse and remand the Commissioner's decision denying disability benefits pursuant to 42 U.S.C. § 405(g) for further proceedings. Presently before the Court is defendant's objection to the Report and Recommendation.

II. BACKGROUND

On February 27, 2004, plaintiff filed an application for Disability Insurance Benefits ("DIB"). (T. 44-46)*fn2. Plaintiff was 57 years old at the time of her application and alleged an inability to work due to emotional problems and stress. On April 21, 2004, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on December 21, 2004.

(T. 30-34). On March 19, 2005, the ALJ issued a decision and found at step one that plaintiff has not engaged in substantial gainful activity since her alleged onset date. (T. 23). At step two, the ALJ determined that plaintiff's depressive disorder was a medically determinable impairment but that plaintiff did not have any impairment(s) that significantly limited her ability to perform basic work-related activities and therefore, plaintiff did not have a severe impairment. (T. 23). The ALJ concluded that plaintiff was not disabled and denied her application for DIB benefits. (T. 23). The Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (T. 4-7). This action followed.

III. REPORT AND RECOMMENDATION

In the Report and Recommendation, Magistrate Judge Treece found that the ALJ failed to adequately develop the record with regard to obtaining opinions as to plaintiff's functional limitations from plaintiff's treating physicians, Dr. Beane and Dr. Aronowitz.*fn3 Magistrate Judge Treece recommended remand of the matter back to the ALJ to properly assess the severity of plaintiff's impairments. Defendant objects to this portion of the Report and Recommendation.

IV. DISCUSSION

A. Standard of Review

In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does not determine de novo whether plaintiff is disabled. Rather, the Court must examine the Administrative Transcript to ascertain whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). An ALJ is obligated to develop the record regardless of whether claimant is represented by counsel. See Shaw, 221 F.3d at 131 (citations omitted). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de novo review of any part of a Magistrate's Report and Recommendation to which a party specifically objects. Failure to object timely to any portion of a Magistrate's Report and Recommendation operates as a waiver of further judicial review of those matters. See Roland v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).

B. Duty to Develop Record

Defendant contends that the ALJ properly developed the record and was not required to recontact plaintiff's treating physicians to obtain an opinion on plaintiff's functional limitations. (Dkt. No. 13, p. 2). Defendant argues that the ALJ had the medical records of both doctors and therefore, was not required to recontact the doctors to obtain a medical statement about plaintiff's impairments. Plaintiff requests that if the Court determines that the record was adequately developed, that the Court should review the remaining issues raised by plaintiff. (Dkt. No. 14).

An ALJ must affirmatively develop the record in light of the "essentially non-adversarial nature of a benefits proceeding". Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996); see also Echevarria v. Sec'y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)). The duty of an ALJ to develop the record is "particularly important" when obtaining information from a claimant's treating physician due to the "treating physician" provisions in the regulations.*fn4 Devora v. Barnhart, 205 F.Supp.2d 164, 172 (S.D.N.Y. 2002). The Regulations state, in relevant part: "Before we make a determination that you are not disabled, we will develop your complete medical history... [and] will make every reasonable effort to help you get medical reports from your own medical ...


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