Opinion
02 Civ. 6372 (LAP).
October 28, 2005
MEMORANDUM AND ORDER
Plaintiff Raymond Serrano ("Plaintiff") brings this action to review a final decision of the Commissioner of Social Security ("Commissioner") that he was not entitled to disability insurance benefits. On November 14, 2003, Magistrate Judge Andrew J. Peck issued a Report and Recommendation (the "Report") concluding that the Commissioner's decision with respect to Plaintiff should be reversed and the action be remanded to the Commissioner for further fact finding. The Commissioner filed objections to the Report. Because of controlling Court of Appeals precedent and because the Report would curtail severely an Administrative Law Judge's discretion in developing an applicant's medical record, I disagree with the findings of the Report and affirm the Commissioner's decision.
I. Background
Only those facts relevant to the Report and the objections filed thereto are described here. On May 21, 1999, Plaintiff filed for disability benefits, alleging an inability to work since May 10, 1997. (Revised Administrative Record ("R."), 138-41.) Plaintiff's application was denied initially and upon reconsideration. (R. 134-37, 129-31.) At Plaintiff's request (R. 127), a hearing was held before an Administrative Law Judge ("ALJ") on March 14, 2000. (R. 29-50.) On August 25, 2000, the ALJ issued a decision finding that Plaintiff was not disabled. (R. 19-28, 105-14.) Upon Plaintiff's application (R. 103-04), on July 6, 2001, the Appeals Council vacated the ALJ's decision due to "inconsistent statements and conclusions" about Plaintiff's impairments, in addition to a lack of medical and vocational evidence. (R. 100-02.) The case was remanded to the ALJ for further proceedings. Id. A second hearing was held on November 8, 2001 (R. 51-83), which was followed by a second decision by the ALJ on February 22, 2002. (R. 9-18). The ALJ found that Plaintiff was not disabled because he was able to perform his past relevant work as a security guard or other light work. Id.
For a detailed history of Plaintiff's application for disability benefits, see Judge Peck's Report and Recommendation, pg. 2-19.
Plaintiff appealed the ALJ's decision to the district court on August 12, 2002, and the case was transferred to me on July 29, 2003. I referred the case to Judge Peck on August 12, 2003. He issued the Report on November 14, 2003, recommending that I grant Plaintiff's cross-motion for judgment on the pleadings and deny the Commissioner's motion and further recommending that Plaintiff's application be remanded to the ALJ for additional administrative proceedings. The Report based its conclusion on two arguments: (1) the ALJ impermissibly failed to enforce a subpoena issued to one of Plaintiff's treating physicians, a Dr. Tindel at Jacobi Medical Center ("Jacobi"); and (2) the ALJ then inappropriately failed to advise Plaintiff of the importance of Dr. Tindel's report. The Commissioner filed her objections to the Report on December 3, 2003, and Plaintiff responded on August 5, 2004. For the reasons outlined below, I decline to adopt the conclusions in the Report and affirm the Commissioner's decision.
II. Discussion
A court reviewing a denial of Social Security benefits "must first satisfy [itself] that the claimant has had `a full hearing under the Secretary's regulations and in accordance with the beneficient 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)). "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 (2d Cir. 1999) (internal quotations alterations omitted); see also Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).
"[W]hen the claimant appears pro se, suffers ill health and is unable to speak English well . . . [the courts] have `a duty to make a "searching investigation" of the record' to make certain that the claimaint's rights have been adequately protected." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (quoting Gold, 463 F.2d at 43). An ALJ is thus obligated to explore the facts of a pro se claimant's case by obtaining relevant medical records and asking questions of the applicant to assist in developing the case. Rosa, 168 F.3d at 80; Perez, 77 F.3d at 47. This principle is of particular importance in light of the "treating physician rule" at 20 C.F.R. § 404. 1527:
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) if well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.
A. The ALJ's Failure to Enforce a Subpoena for a Treating Physican Report from Dr. Tindel
Considering the standard outlined above, the Report concludes that the ALJ failed adequately to develop the medical record in Plaintiff's case. Specifically, the Report finds that the ALJ's failure to enforce a subpoena on Dr. Tindel at Jacobi Medical Center, a physician who saw Plaintiff on two occasions, results in an incomplete record requiring further administrative proceedings. However, while the Report accurately describes an ALJ's responsibility to develop the record in a pro se claimant's case, it misconstrues the extent of this duty on the facts presented.
The Report states that in cases involving pro se plaintiffs, an ALJ's duty to develop the record is "heightened," and "[r]easonable efforts . . . entails more than merely requesting reports from . . . treating physicians. It includes issuing and enforcing subpoenas requiring the production of evidence, as authorized by 42 U.S.C. § 405(d), and advising the plaintiff of the importance of the evidence." Jones v. Apfel, 66 F. Supp. 2d 518, 524 (S.D.N.Y. 1999) (Pauley, D.J. Peck, M.J.). The Report continues, stating that the Court of Appeals has "long recognized" an ALJ's obligation to explain a decision whether to enforce a subpoena:
(e) Judicial enforcement of subpoenas; contempt
42 U.S.C. § 405
(d) Issuance of subpoenas in administrative proceedings
For the purpose of any hearing, investigation or other proceeding 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 of Social Security. 42 U.S.C. § 405(e) reads:
In case of contumacy by, or refusal to obey a subpoena duly served upon any person, any district court of the United States for the judicial district in which said person charged with contumacy or refusal to obey is found or resides or transacts business, upon application by the Commissioner of Social Security, shall have jurisdiction to issue and order requiring such person to appear and give testimony, or to appear and produce evidence, or both; any failure to obey such order of the court may be punished by said court as contempt thereof.
The official handbook issued by the Social Security Administration's Office of Hearings and Appeals . . . provides that where there is failure to obey a subpoena, the ALJ should proceed with the hearing, and then decide whether to request enforcement via the Administration's Office of General Counsel. In either event, the ALJ is expected to include a memorandum explaining his choice.Treadwell v. Schweiker, 698 F.2d 134, 141 (2d Cir. 1983).
Though this holding runs contrary to the Court of Appeals' current view that the issuance and enforcement by an ALJ of a subpoena is discretionary, there is a more immediate problem with the Treadwell case and the Social Security Administration Handbook (the "Handbook") provision that it, and the Report, directly quote. (Rep. at 32.) According to Treadwell and the Report, Section I-2-5-82 of the Handbook, Noncompliance with a Subpoena, requires that an ALJ prepare a memorandum explaining any choice not to enforce a subpoena. While on January 11, 1983, when Treadwell was decided, Section I-2-5-82 may have so instructed, it certainly does not today and apparently did not at the time this matter was before the ALJ. The current Section I-2-5-82 reads:
If an individual refuses or fails to comply with a subpoena, the ALJ must consider any changes in the situation since the subpoena was first issued and again determine whether the evidence or facts requested are reasonably necessary for the full presentation of the case. If so, the ALJ will prepare a memorandum to the OGC Regional Chief Counsel requesting enforcement of the subpoena.
Social Security Administration, Office of Hearings and Appeals HALLEX (Hearings, Appeals and Litigation Law Manual) I-2-5-82 (available at http:www.ssa.gov/OP_Home/hallex/I-02/I-2-5-82.html.
The Commissioner appended a printout of the current Section I-2-5-82 to Defendant's Objections to the Report (which Objections are dated December 3, 2003), and on that page, the "last update" to the provision is listed as having occurred on July 23, 1997. (Commissioner's Objections, Ex. A.) Thus, although the Report describes the Social Security Handbook as "available online via the agency's official website, www.ssa.gov," (Rep. at n. 53), it appears as though the version of Section I-2-5-82 actually available online when the Report was drafted in November of 2003 was, in fact, not the version quoted twenty years earlier in the Treadwell decision, but rather the version that firmly places the issuance and enforcement of a subpoena within the ALJ's discretion.
The "last update" field of Section I-2-5-82 has since been changed online; the field now shows the latest update as having occurred on September 28, 2005.
In addition to this issue, the Report makes no reference to the Court of Appeals' decision in Yancey v. Apfel, 145 F.3d 106 (2d Cir. 1998), decided after Treadwell. The Yancey Court wrote:
The issuance of subpoenas in social security proceedings is governed primarily by 20 C.F.R. § 404.905 (d) (1), which provides, in pertinent part, as follows:
"When it is reasonably necessary for the full presentation of a case, an administrative law judge or a member of the Appeals Council may, . . . issue subpoenas for the appearance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents that are material to an issue at a hearing."
The plain language of this section clearly places the decision to issue a subpoena within the sound discretion of the ALJ.Yancey, 145 F.3d at 111.
Other courts within this district have placed the issuance and enforcement of subpoenas within an ALJ's discretion. See Dore v. Apfel, No. 99 Civ. 0709, 2003 U.S. Dist. LEXIS 2839, at *6 (S.D.N.Y. March 3, 2003) (issuance of a subpoena is within the discretion of the ALJ); Almonte v. Apfel, No. 96 Civ. 1119, 1998 U.S. Dist. LEXIS 4069, at *7 (S.D.N.Y. March 31, 1998) ("possible avenues the ALJ could have pursued included a subpoena, enforcement of the subpoena, and advice to the plaintiff of the importance of the evidence"); Rivera v. Chater, No. 95 Civ. 568, 1996 U.S. Dist. LEXIS 9250, at *14 (S.D.N.Y. July 2, 1996) (ALJ did not abuse authority in declining to issue subpoena); Severino v. Shalala, No. 93 Civ. 3280, 1995 U.S. Dist. LEXIS 10071, at *7 (S.D.N.Y. July 18, 1995) (ALJ did not err in refusing to issue subpoena).
The Report directly contradicts this established rule. Finding that the ALJ was obligated to enforce a subpoena on Dr. Tindel would remove the decision of issuance or enforcement from the ALJ's discretion. In concluding that the issuance and enforcement of subpoenas was a discretionary ALJ function, the Court of Appeals in Yancey was persuaded by the enormous burden presented by the alternative:
We are particularly concerned that to accept, as a matter of law, that a disability claimant has an absolute right to subpoena a reporting physician would unnecessarily increase the financial and administrative burdens of processing disability claims while diluting the ALJ's discretion in how he develops the record.Yancey, 45 F.3d at 114.
I am similarly concerned here. To develop Plaintiff's medical record, the ALJ requested Plaintiff's medical records from Jacobi Medical Center and an orthopedic report from Dr. Tindel. While Dr. Tindel never filed any report, the ALJ was not left with "nothing more than a pile of records," as the Report states. (Rep. at 35.) Rather, the ALJ had available to her Plaintiff's medical history from June of 1998 to July or 2001, in addition to four complete medical analyses from four different examining doctors. (R. 232, 323-24, 327, 348.) Each doctor found that Plaintiff retained the functional capacity to perform his past work as a security guard, as the ALJ eventually also found. Id. To mandate that an ALJ enforce a subpoena for a report from a fifth examining doctor, especially where the Report already notes that Plaintiff "started going to Jacobi about six to eight months prior to the hearing and had seen a different doctor each time," (Rep. at 11) would be a tremendous and undue burden.
I also note the factual similarity to the Yancey case:
The ALJ had before him medical reports from numerous treating sources, including Dr. Schoen, who had first diagnosed [lupus] in 1989, as well as two physicians who, along with Dr. Wong, subsequently examined Yancey and opined that she did not suffer from disabling [lupus] or arthritis. After weighing the evidence, the ALJ found that although Yancey suffered from multiple pains and fatigue, she did not have an impairment or combination of impairments listed in the pertinent regulations. Under these circumstances, we believe that . . . the ALJ acted well within his discretion by refusing to subpoena Dr. Wong.Yancey, 145 F.3d at 114.
I must also consider the fact that Dr. Tindel only examined Plaintiff twice in the period from July to August of 2001. (R. 61.) The subpoena was issued in November of that year. (R. 238.) Considering the period between treatment and subpoena of at least three months, in preparing his orthopedic report for Plaintiff, Dr. Tindel would certainly be consulting the very same medical records that Jacobi provided to the ALJ in response to the subpoena. I cannot conclude, therefore, that the medical record in this case was incomplete but rather find that the ALJ's decision not to enforce the subpoena was well within her discretion on the facts presented.
B. The ALJ's Failure to Advise Plaintiff of the Importance of Dr. Tindel's Report
The Report's second finding, that the ALJ erred in failing to inform Plaintiff of the importance of Dr. Tindel's report, presupposes that Plaintiff's medical record was not fully developed without Dr. Tindel's report. As described above, I do not find that to be the case. However, there are two additional reasons to find that the ALJ's decision not to stress the importance of Dr. Tindel's report to Plaintiff was not made in error.
First, 20 C.F.R. § 404.1513(d) (6) states that the absence of an opinion from a treating source does not in and of itself make a record incomplete. The section reads:
(6) A statement about what you can still do despite your impairment(s) based on the acceptable medical source's findings on the factors under paragraphs (b) (1) through (b) (5) of this section (except in statutory blindness claims). 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.
Therefore, the ALJ's decision not to inform Plaintiff that Dr. Tindel's report was of particular importance is not inappropriate. The Report assumes that Plaintiff's record is incomplete without Dr. Tindel's submission, but 20 C.F.R. § 404.1513(d) (6) rebuts that notion.
Second, Plaintiff directly expressed to the ALJ his desire not to review any copies of medical documents received from Jacobi. The ALJ told Plaintiff that she was requesting medical records from Jacobi (R. 55, 60, 62) and that she would "see if we can get Dr. Tindel to do a report regarding your condition." (R. 62.) The ALJ then said: "I'm going to hold the record open until December 10. Now, do you want to see the report and the records when we get them before I make a decision or should I just go ahead?" Id. Plaintiff responded: "I wouldn't be able to understand what's in there anyway unless it's explained to me by the doctor himself." Id. Even assuming that Dr. Tindel's report was as critically important as the Report argues, when faced with a plaintiff who affirmatively declines the invitation to review the evidence at issue, it can hardly be considered error not not issue a caution about the supposed importance of Dr. Tindel's report.
For these reasons, I find that the ALJ's decision not to inform Plaintiff of the presumed importance of Dr. Tindel's report was not erroneous.
III. Conclusion
The Commissioner's decision is affirmed. The Clerk of the Court shall mark this matter closed and all pending motions denied as moot.
SO ORDERED.