Faulty RFC, Failure to Develop Record Warrant Remand

November 16, 2009

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Determining residual functional capacity (RFC) requires an Administrative Law Judge (ALJ) to consider all medical evidence in the record, and then decide what is the most a claimant can do.  Gaps in the medical evidence require that the ALJ develop the record more fully, and thereby preclude a proper RFC assessment. Advocates know this and usually argue this omission to the Appeals Council.  When the Appeals Council fails to rectify the ALJ’s error, advocates must turn to the federal courts for relief.

A large body of case law has developed in the Second Circuit requiring ALJs to fully develop the record with respect to a claimant’s abilities and limitations, even when counsel is present in a case. There is also a significant amount of jurisprudence supporting the principal that an RFC assessment must take into account specific findings about what a claimant can do. A recent decision from the Northern District of New York illustrates that a remand is required when an ALJ fails to develop specific evidence of the ability to perform the exertional requirements necessary for a proper RFC determination.  In Lawton v. Astrue, 2009 WL 2867905 (N.D.N.Y. September 2, 2009), the Magistrate held that the lack of a physical RFC form from any acceptable medical source created a “critical void,” requiring the ALJ to develop the record and fill the gaps. In this case, the record contained an RFC form from a disability analyst, which the Magistrate noted was not an acceptable medical source under the Commissioner’s regulations.

The Magistrate also noted that the vocational expert’s testimony was “infected” with a lack of substantial evidence because the ALJ’s RFC determination was found to be deficient. The Lawton case includes many cites to leading Second Circuit cases on the relevant legal issues, including treatment of treating source evidence and credibility determinations, which the Magistrate found were supported by substantial evidence, but make for interesting reading nonetheless.

Mary Withington from the Legal Aid Society of Northeastern New York ably represented the plaintiff in this case. Congratulations to her on getting a remand in a case involving an ALJ who she says was “awfully stingy with the fully favorable decisions.” Luckily for her, this ALJ has since retired.