New York Court on ALJ's Responsibility to Develop the Record in Social Security Disability Case - Tirado v. Astrue

March 24,2009
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As experienced Social Security disability attorneys who have represented thousands of clients in disability claims, we know that there’s no such thing as a sure thing when it comes to obtaining disability benefits. As the Eastern District of New York’s recent decision in Tirado v. Astrue makes clear, not even getting hit by a subway ensures that a person will ultimately be deemed eligible for benefits. More importantly, perhaps, the court makes clear that an ALJ reviewing this and other claims must consider a fully developed factual record before ruling on the claim.
The Social Security Administration (SSA) initially denied Plaintiff Edwin Tirado’s claim for Social Security disability benefits, in which he alleged that he was unable to work due to knee and shoulder injuries sustained when he was hit by a subway in 2002. After a hearing before an SSA Administrative Law Judge (ALJ), the ALJ found that Plaintiff was not disabled for benefits purposes because he retained the residual functional capacity (RFC) to perform a range of light work.
The ALJ’s decision was largely based on her conclusions that the Plaintiff worked as a furniture deliveryman for almost two years following the subway accident, that he had no record of treatment for his injuries since 2004 and that he was not taking prescribed medications. She also considered the report of a consultative medical examiner who stated that Plaintiff suffered only mild limitations. The ALJ further ruled that Plaintiff’s statements concerning the intensity, persistence and limiting effects of his injuries were not credible to the extent they were inconsistent with the ALJ’s RFC assessment.
On appeal, the Eastern District reversed the ALJ’s decision, finding that the judge failed to adequately develop the record by failing to contacting Plaintiff’s treating physician to obtain information about treatment. In so doing, the court noted that “[t]he ALJ generally has an obligation to develop the record in light of the non-adversarial nature of the benefits proceedings,” particularly where the record lacks adequate information from the claimant’s treating physician. Although Plaintiff visited his primary care physician for chronic back pain and swollen knees in 2006 and 2007 and the doctor prescribed Plaintiff with a cane, brace and pain medication to treat these injuries, the ALJ neglected to solicit an opinion from this doctor regarding the claimant’s functional limitations.
According to the court, the ALJ’s failure to solicit the doctor’s opinion was particularly ill-advised in light of the fact that the ALJ noted that the record was lacking in medical evidence covering 2006 and 2007 and took this absence of medical evidence into account in assessing Plaintiff’s RFC. The ALJ, therefore, could not have based her RFC decision on adequately substantial evidence, according to the court. “Where there are gaps in the administrative record, or the ALJ has applied an improper legal standard, remand is the appropriate remedy to permit additional consideration,” the court ruled, sending the matter back to the ALJ.

An experienced disability lawyer doesn’t rely on an ALJ to develop the record either before or after an administrative hearing. We make sure that all the evidence necessary to make a decision has been procured and submitted and we make sure that the ALJ considers the evidence in the context of the other evidence in the record taking care to either fill any gaps in the record or explain why those gaps are present in the first place.