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ALJ Required to Develop Record

October 31, 2017

The Second Circuit reaffirmed the ALJ’s duty to develop the record, even if the claimant is represented, in Guillen v. Berryhill, 2017 WL 4279335, --- Fed. App’x --- (2d Cir. Sept. 27, 2017). In particular, the court found the ALJ failed to obtain a medical source statement from the plaintiff’s treating physician, or encourage the plaintiff to do so herself.  The Commissioner argued that a statement had twice been requested, although the court noted it was unclear from the record whether such a request was actually made.  The Commissioner also asserted the record contained sufficient evidence for the ALJ to assess residual functional capacity (RFC).

But the court found to the contrary, holding the medical evidence of record did not shed light on the plaintiff’s RFC, nor had a consulting doctor personally evaluated her. The record did not offer any insight into how the plaintiff’s impairments affected her functional abilities.  The court also disputed the ALJ’s rejection of the plaintiff’s lupus diagnosis, finding the ALJ’s statement that the record did not contain a formal diagnosis at odds with the records of the treating physician.

The Court of Appeals remanded the claim to a different ALJ, with orders to request a medical source statement from the plaintiff’s treating physician, including a functional assessment and clarification of the lupus diagnosis. 

The plaintiff was ably represented on appeal by Carolyn Kubitschek of New York City, a DAP attorney in her past life.


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