Wednesday, November 11, 2009

disability - ALJ duty to a) order consultative exams and b) to develop the record

Poleck v. Astrue - ED Pa. - November 9, 2009

http://www.paed.uscourts.gov/documents/opinions/09D1349P.pdf

The Magistrate Judge found that the ALJ failed to fully articulate his reasons for denying plaintiff's claims regarding his alleged heart impairment and carpal tunnel syndrome and recommended that these claims be remanded for further consideration by the Commissioner. Plaintiff appealed, claiming that the ALJ should have ordered second consultative examination and should have more fully developed the record. The court disagreed.

Failure to Order a Second Consultative Examination
Plaintiff claims that 20 C.F.R. § 1519a creates an independent duty on the part of the ALJ to order a second consultative examination even though plaintiff had informed the ALJ that he had medical insurance and would see his doctors for further evaluation. Plaintiff's 443). Plaintiff's reading of the regulation is incorrect.

Section 1519a states that a consultative examination may be purchased when the record as a whole is insufficient to support a decision on a claim. It then lists five situations that normally require a consultative examination.1 None of them apply in this case. Moreover, 20C.F.R. § 404.1512 states that it is the claimant’s responsibility to provide medical evidence showing the existence and scope of any impairment. This is consistent with the general principle that the claimant – not the Commissioner – has the burden of proof.

1 The five situations in which a consultative examination is required are when (1) additional evidence needed is not contained in the claimant’s medical sources, (2) evidence from the claimant’s medical source cannot be obtained for reasons beyond the claimant’s control, (3) the evidence is highly technical or highly specialized and not available from the claimant’s medical sources, (4) a conflict, inconsistency, ambiguity or insufficiency in the evidence must be resolved but cannot be by contacting the claimant’s medical source and (5) there is an indication of a change in the claimant’s condition that is likely to affect the claimant’s ability to work but the severity of the change cannot be established. 20 C.F.R. § 1519a(b)(1) - (5).

ALJ Duty to Develop the Record
Claimant argued that the 1) status of his alleged back, heart and mental impairments was unknown at the time of the hearing, 2) in such circumstances the ALJ has an affirmative duty to develop the record, 3) this duty could only be satisfied by ordering a second consultative examination, 4) the ALJ did not order such an examination and, therefore, 5) the ALJ’s decision is not supported by substantial evidence.

"This argument’s third premise is mistaken. It is important to recognize that the scope of an ALJ’s duty to independently investigate the facts is relatively narrow. In Sims v.Apfel, the Supreme Court stated that ALJs have a duty “to investigate the facts and develop the arguments both for and against granting benefits,” but this portion of his opinion was joined by only three other members of the court and is not precedential. 530 U.S. 103, 111 (2000). Although the Third Circuit has quoted this language favorably in two precedential opinions, it has never formally imposed a broad duty to investigate and develop arguments for all parties...."

The regulation describing the duties of the ALJ states, in part, that the ALJ "shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. If the ALJ believes that there is relevant and material evidence available which has not been presented at the hearing, the ALJ may adjourn the hearing or, at any time prior to the mailing of notice of the decision, reopen the hearing for the receipt of such evidence." 20 C.F.R. § 410.640 (emphasis added).

The only Third Circuit opinion directly interpreting the scope of this regulation is Hess v. Secretary, 497 F.2d 837 (3d Cir. 1974). In Hess, an ALJ denied the claimant's benefits claim without consulting his attending physician and without interviewing or examining the plaintiff. Id. at 840. The Third Circuit concluded that this was error, explaining that the claimant had the burden of proving his disability but that “due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary systemprevails.” Id.

In its application of thismore tolerant standard the Third Circuit explicitly refused to hold “that the responsibility will always be upon the hearing officer to secure current medical evaluations.” Id. at 841. Instead, it stated that “some lesser effort might be employed” and, in a non-exclusive list of examples, noted that an ALJ might advise claimants of the importance of current medical evaluations and suggest their submission at a later date. Id.

The Third Circuit explicitly refused to hold “that the responsibility will always be upon the hearing officer to secure current medical evaluations.” Id. at 841. Instead, it stated that “some lesser effort might be employed” and, in a non-exclusive list of examples, noted that an ALJ might advise claimants of the importance of current medical evaluations and suggest their submission at a later date. Id.

Here, the magistrate judge balanced plaintiff’s right to have his record developed by the ALJ with his burden to prove that he is disabled. The ALJ questioned claimant about the possibility of obtaining additional medical records. Claimant said that he had medical insurance, that he would consult his doctor, and that he would agree to any tests recommended by his doctor. His attorney said nothing to the contrary. Before this exchange, the ALJ had already agreed to leave the record open for thirty days so that claimant and his counsel could submit additional evidence. In these circumstances, the ALJ had every reason to believe that claimant would provide him with a complete record.

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