Tuesday, January 29, 2008

disability - treating physician opinion - duty of ALJ to develop record

Nguyen v. Astrue - ED Pa. - January 23, 2008


Case remanded for proper consideration of the opinion of the treating psychiatrist.

The ALJ errors included

- improperly relying on claimant's failure to allege any symptoms in his Social Security paperwork failing to tell the treating psychiatrist about experiencing emotional problems as of a certain date. The court held that these “facts” are entitled to “no weight . . . because neither are based on ‘contrary medical evidence.’

- improperly considering claimant's failure to discuss his emotional problems with his family physician. That cannot negate the opinion of his treating psychiatrist, the specialist claimant consulted for his specific problem.”

- the fact that Mr. Nguyen told his doctor that he was "doing okay on the medication and was less depressed” does does not expressly contradict treating physician's opinion and substitutes the ALJ’s clinical judgment for that of the treating psychiatrist. The notes do not expressly contradict the physician's opinion. In so finding, the ALJ’s substituted his clinical judgment for that of the treating psychiatrist. The ALJ did not identify a contradiction between the doctor's notes and her opinion, but instead “set [the ALJ’s] own expertise against that of a physician who presents competent evidence.” Ferguson v. Schweiker, 765 F.2d 31, 37 (1985).

- The ALJ's statement that the treating physician's report was completely unsubstantiated by any contemporaneous clinical notes or testing. . . .is belied by the record"

- duty to develop the record - The ALJ, in considering the submissions of a claimant’s treating psychiatrist, has a limited duty to develop the record if he finds those submissions, in certain respects, inadequate to support the conclusions the psychiatrist makes. See Ferguson, 765 F.2d at 36 (“[I]f the ALJ believed [a claimant’s medical] evidence was inconclusive or unclear, it was incumbent upon him to secure whatever evidence he needed to make a sound determination.”). Pursuant to 20 C.F.R. § 404.1512(e)(1), the ALJ must “seek additional evidence or clarification from [a claimant’s] medical source when the report from [the] medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.” This specific regulation is an instance of the ALJ’s broader “duty to develop a full and fair record in social security cases.” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995).

This duty is “heightened” when plaintiff is without counsel, Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979), but still exists when plaintiff is represented. See Ventura, 55 F.3d at 902 (concluding, in a case where the claimant was represented by counsel but the ALJ was biased, that the ALJ’s duty to develop the record stems from the non-adversarial nature of social security hearings and the “beneficent purposes” of the Social Security Act).

Thus, while claimant bears the burden of providing evidence that the Commissioner “can use to reach conclusions about [the claimant’s] medical impairment(s),” 20 C.F.R. § 416.912(a), circumstances may arise where the ALJ, when presented with such evidence, may be compelled to develop the record in order to corroborate or discredit the claimant’s submissions. An “essential inquiry” for determining when this duty arises “is whether the incomplete record reveals evidentiary gaps which result in prejudice to the claimant.” Gauthney v. Shalala, 890 F. Supp. 401, 410 (E.D. Pa. 1995). Schwartz v. Halter, 134 F. Supp. 2d 640, 656 (E.D. Pa. 2001) (holding that the ALJ’s duty to develop the record “exists even when the claimant is represented by counsel because an administrative hearing is not an adversarial proceeding . . . ”); Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994) (holding that “the duty to develop the record fully and fairly” exists “‘even if . . . the claimant is represented by counsel’” (quoting Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992) (internal quotation omitted)).