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Mack v. Astrue

February 11, 2010

DEANNA BAILEY MACK
v.
MICHAEL ASTRUE



The opinion of the court was delivered by: Stewart Dalzell, J.

ORDER

AND NOW, this 11th day of February, 2010, upon consideration of Deanna Bailey Mack's motion for summary judgment (docket entry # 10), the defendant's response thereto (docket entry # 12), the plaintiff's reply (docket entry # 14), and after careful and independent review of the Report and Recommendation of United States Magistrate Judge Lynne A. Sitarski (docket entry # 15), to which no one filed objections within the time that Local R. Civ. P. 72.1 IV(b) prescribes, and the Court finding that:

(a) Mack raises several issues in her appeal from the Social Security Administration's denial of her claim for Supplemental Security Income and Disability Insurance Benefits;

(b) Judge Sitarski only discusses two of these issues in her Report and Recommendation ("R&R"), namely (1) the failure of the Administrative Law Judge ("ALJ") to explain his decision to not seek to enforce a subpoena for records of Mack's psychotherapist and (2) his reliance on the report of a psychologist, Dr. Dana Goode, that was missing several pages;

(c) The ALJ admitted that Goode's report was incomplete, but as Judge Sitarski observed it is missing most of Goode's narrative regarding her evaluation of Mack's condition, see R. at 217-220;

(d) It is difficult to see how the ALJ concluded that he could rely on such a report, and he offered no explanation of that decision;

(e) The ALJ similarly gave no reason for his failure to seek to enforce the subpoena, even though Mack requested that enforcement;

(f) As Judge Sitarski noted, the ALJ has "broad discretion" to decide whether to issue a subpoena, R&R at 7 (citing 20 C.F.R. §§ 404.950(d)(1), 416.1450(d)(1) (both permitting an ALJ to issue subpoenas when the evidence or testimony sought "is reasonably necessary for the full presentation of a case"));

(g) And pursuant to 42 U.S.C. § 405(e), district courts have jurisdiction to enforce such a subpoena upon the Commissioner's application to do so;

(h) We agree with Judge Sitarski's observation that, although the Third Circuit does not appear to have addressed the question of whether an ALJ must enforce a subpoena that he has issued, the ALJ should at least articulate his reasoning for declining to do so;

(i) Indeed, the Social Security Administration Hearings, Appeals, and Litigation Law Manual ("HALLEX") provides that "[i]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 [and transmit] a memorandum to the OGC Regional Chief Counsel requesting enforcement of the subpoena," HALLEX at Ch. I-2-5-82, available at http://www.ssa.gov/OP_Home/hallex/I-02/I-2-5-82.html (emphasis added);

(j) It does not appear that the ALJ complied with this procedure, and "it is an elementary rule that the propriety of agency action must be evaluated on the basis of stated reasons," Treadwell v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983) (appellant from a denial of disability insurance benefits suffered a due process violation where, among other things, the ALJ failed to articulate on the record why he issued subpoenas for records and then did not seek to enforce them);

(k) The ALJ must ensure that "there is sufficient development of the record and explanation of findings to permit meaningful review," Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (discussing whether the ALJ provided an adequate explanation of the ALJ's decision regarding one of the steps in the five-step analysis of a claim for disability benefits);

(l) After a careful and independent review of the record and the R&R, we agree with Judge Sitarski's conclusion that the ALJ improperly failed to explain his decisions to (1) rely on Goode's incomplete report and (2) decline to seek to ...


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