In Social Security Disability (“SSD”) cases, a failure to develop the record is considered to be a lack of a fair hearing. Therefore, to avoid having a decision rejected, an administrative law judge (“ALJ”) is required to develop the record. As a result, many ALJ’s go to extremes to ensure that every possible medical record, regardless of relevance, is part of the file.
It takes a long time to get a hearing. Consequently, the medical records may no longer be current when the hearing takes place. There is a sound way to avoid needlessly protracting the hearing process by insisting that any possible medical evidence be obtained.
A medical expert (“ME”) or a treating physician can opine that updated medical records would be cumulative or unnecessary. We represent a 39 year old with cervical radiculopathy who worked as a massage therapist. By the time the hearing arrived, the records from the claimant’s orthopedist were over a year old.
After the ME testified that the claimant met a listing 1.04, the ALJ asked if the claimant’s condition could have improved subsequent to the orthopedist’s latest records in the file. Since the ME testified that the condition would most likely stabilize or get worse, the ALJ determined that the updated records were superfluous.
If you are thinking about applying for SSD, please call my office for a free phone consultation. We would be happy to answer any questions you might have. We have offices conveniently located on Long Island in Nassau and Suffolk counties.Previous Next
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