Hawkins v. Chater

F I L E D
United States Court of Appeals
Tenth Circuit

MAY 13 1997
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

MELZENIA HAWKINS,

Plaintiff-Appellant,

v. No. 96-5110

SHIRLEY S. CHATER,
Commissioner, Social Security
Administration, *

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 93-C-570-W)

Submitted on the briefs:

Paul F. McTighe, Jr. (Gayle L. Troutman with him on the brief), Tulsa,
Oklahoma, for Plaintiff-Appellant.

Stephen C. Lewis, United States Attorney, Joseph B. Liken, Acting Chief
Counsel, Region VI, Linda H. Green, Assistant Regional Counsel, Office of the

*
Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. The Commissioner has been substituted for
the Secretary in the caption, in the text, however, we continue to refer to the
Secretary because she was the appropriate party at the time of the underlying
decision.
General Counsel, U.S. Social Security Administration, Dallas, Texas, for
Defendant-Appellee.

Before TACHA, EBEL, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Claimant Melzenia Hawkins appeals from a district court order affirming

the Secretary’s decision to deny her application for social security disability

benefits. 1 We review the Secretary’s decision on the entire record “to determine

whether the findings are supported by substantial evidence and whether the

Secretary applied correct legal standards.” Pacheco v. Sullivan, 931 F.2d 695,

696 (10th Cir. 1991).

Claimant alleges disability because of hypertension, arthritis, and

depression. 2 Employing the Secretary’s five-step evaluative sequence, see

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
2
Claimant’s application for disability benefits did not list depression as a
cause of her disability. See R. Vol. II at 105. Because the evidence claimant
submitted to the administrative law judge, however, showed a history of
(continued...)

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Williams v. Bowen, 844 F.2d 748, 750-72 (10th Cir. 1988), the administrative law

judge (ALJ) found claimant’s impairments nonsevere, see 20 C.F.R. § 404.1521,

and concluded at step two that claimant was not disabled, see 20 C.F.R. §

404.1520(c). Claimant challenges that determination as unsupported by

substantial evidence in the record as a whole, arguing in particular that the ALJ

failed in his duty to develop the record when he refused to order consultative

physical and mental examinations of claimant.

It is beyond dispute that the burden to prove disability in a social security

case is on the claimant. See Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).

However, unlike the typical judicial proceeding, a social security disability

hearing is nonadversarial, see Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir.

1987), with the ALJ responsible in every case “to ensure that an adequate record

is developed during the disability hearing consistent with the issues raised,”

Henrie v. United States Dep’t of Health & Human Servs., 13 F.3d 359, 360-61

(10th Cir. 1993); 20 C.F.R. § 404.944 (requiring the ALJ to “look[] fully into the

issues”); see also Heckler v. Campbell, 461 U.S. 458, 471 n.1 (1983) (Brennan, J.

concurring) (describing duty as one of inquiry, requiring the decision maker “to

2
(...continued)
prescriptions for anti-depressant medication, and because claimant testified that
she was depressed, we consider the issue of depression to have been properly
before the ALJ. See Carter v. Chater, 73 F.3d 1019, 1021-22 (10th Cir. 1996).

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inform himself about facts relevant to his decision and to learn the claimant’s own

version of those facts”); cf. Social Security Ruling 96-7p at n.3 (assigning to the

adjudicator the task of developing “evidence regarding the possibility of a

medically determinable mental impairment when the record contains information

to suggest that such an impairment exists”); Social Security Ruling 82-62

(requiring the ALJ to develop and fully explain issue of whether a claimant

retains the functional capacity to perform past work).

Against this background, claimant first argues that the ALJ should have

ordered a consultative mental examination based on the evidence in the record of

her depression. The record reveals the following evidence regarding claimant’s

depression: In April 1990, Dr. Alexander, claimant’s treating physician in

California, noted in a treatment log that claimant had “been depressed” and that

he had prescribed Pamelor for nerves and depression. See R. Vol. II at 27.

Subsequent notes from Dr. Alexander indicate that claimant continued to take

Pamelor at least through May 1991, see id. at 27-28. The record contains no

objective medical test results to verify claimant’s depression.

The next mention of anything related to depression is a letter from Dr.

Reed, a physician who treated claimant after she moved to Oklahoma from

California, and who stated that “She was given Prosac [sic].” Id. at 34. Again,

no test results appear in the record to confirm depression. Claimant and her sister

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both testified at the hearing the claimant was depressed, see id. at 90, 98, and an

agency interviewer noted that claimant “looked” depressed. There is no evidence

that the agency interviewer was qualified to diagnose depression.

In rejecting claimant’s allegation of disabling depression, the ALJ

discounted her use of anti-depressant medication. He noted that one of the

treating physicians who had given her anti-depressants was a family

practitioner/OB-GYN and that the other physician, Dr. Reed, was an internist who

“obligingly” gave her medication. See R. Vol. II at 51. He noted that neither

physician reported objective findings or referred claimant to a mental health

specialist. See id. He refused to credit claimant’s subjective complaints of

depression.

We need not decide whether the evidence outlined above relating to

claimant’s mental state would be sufficient to justify a remand for further

development of the record because here there is a further opinion from Dr. Toner,

a psychiatrist, dated January 10, 1991, who completed a psychiatric review

technique form and was of the opinion that claimant had no medically

determinable impairment. See id. at 169. Dr. Toner specifically stated that

claimant suffers from “no medically determinable MI [mental impairment],” id. at

170, and that there was no indication of significant functional limitations on the

basis of psychological problems, see id.

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 Although the ALJ inexplicably did not mention this report in his decision,

the report is substantial evidence supporting the conclusion that claimant does not

suffer from a severe mental impairment. Its presence in the record, coupled with

the absence of any objective medical findings regarding claimant’s alleged

depression, justifies the ALJ’s decision to discredit claimant’s testimony and the

fact of her use of prescribed anti-depressants. Given this state of the record, the

ALJ was not required to order further psychological examination.

We turn now to claimant’s medical history regarding her hypertension and

chest pain. Claimant apparently began the social security disability application

process in California, but her file was lost by the agency. See R. Vol. II at 109.

What evidence does remain of claimant’s medical history in California reveals

that, in October 1990, under the treatment of Dr. Ridgill, claimant underwent an

EKG which was reported as abnormal, see id. at 185, presumably because of

nonspecific ST-T wave changes. 3 Dr. Ridgill’s assessment at that time was

hypertension with possible coronary artery disease. See id. The record of Dr.

Ridgill’s examination states the following:

“ELECTROCARDIOGRAM READING:

Normal sinus rhythm. Nonspecific STT changes. Mostly in the inferior
leads and anterior leads changes are noted.

3
There is no evidence in the record regarding what “nonspecific STT
changes” mean or what they indicate in terms of heart function.

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 INTERPRETATION: Rule out ischemic heart disease.”

See id. at 183. Although the ALJ did not comment on or attempt to interpret the

significance of this notation, the Secretary cites this portion of the record to mean

“ischemic heart disease was ruled out.” See Appellee’s Br. at 15 (emphasis

added). In light of the entire record, however, we do not view Dr. Ridgill’s

ambiguous statement, “rule out ischemic heart disease,” as supportive of the

conclusion that such disease “had been ruled out.” Rather, we believe that Dr.

Ridgill was of the opinion that further testing would need to be done in order to

rule out the possibility of ischemic heart disease. This interpretation is the only

consistent one because Dr. Ridgill then proceeded to order further tests,

specifically a treadmill exam. If Dr. Ridgill had already ruled out ischemic heart

disease, such further testing would presumably have been unnecessary.

Despite the abnormal EKG, Dr. Ridgill was then of the opinion that

claimant had no impairment-related physical limitations, see id. at 186, but that a

treadmill exam was necessary for further diagnosis, see id. at 183. On two

separate occasions claimant attempted to complete the treadmill test, but was

unable to do so because her blood pressure was too high. See id. at 114, 145. No

further tests were done to pinpoint claimant’s cardiac problems. 4

4
In addition to the 1990 EKG result, there is a further notation in the record
from Dr. Rose Taylor, in conjunction with her residual functional capacity
(continued...)

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 Sometime during the summer of 1991, claimant apparently moved to

Oklahoma, where she was seen twice by Dr. Reed. On December 19, 1991,

claimant again submitted to an EKG. While claimant’s blood pressure at the time

of the test was 130/70, the EKG was again abnormal. The report indicated that

anteroseptal myocardial infarction could not be ruled out; that ST & T wave

abnormality was again present; and that claimant had possible inferior ischemia.

See id. at 35. Claimant was given Procardia and nitroglycerin ointment. There

are no further tests in the record regarding claimant’s heart condition.

The ALJ rejected claimant’s contention that her heart condition constituted

a severe impairment, concluding that the diagnoses of her two treating physicians

were unsupported by objective medical evidence, see R. Vol. II at 50, and that

claimant had failed to provide any other medical evidence to support her claim.

The difficult issue presented here, where the charge is that the ALJ has

failed to develop the record by not obtaining a consultative examination, is to

decide what quantum of evidence a claimant must establish of a disabling

impairment or combination of impairments before the ALJ will be required to

4
(...continued)
assessment, that claimant’s EKG revealed something reacting in the poor
category. R. Vol. II at 161. The writing is illegible, and so it is impossible to
determine what part of claimant’s EKG was “poor.” A later illegible notation by
a different physician also notes something “very poor” with regard to claimant’s
EKG. See id. at 178.

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look further. We begin by acknowledging that the Secretary has broad latitude in

ordering consultative examinations. See Diaz v. Secretary of Health & Human

Servs., 898 F.2d 774, 778 (10th Cir. 1990). Nevertheless, it is clear that, where

there is a direct conflict in the medical evidence requiring resolution, see 20

C.F.R. § 404.1519a(b)(4), or where the medical evidence in the record is

inconclusive, see Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993), a

consultative examination is often required for proper resolution of a disability

claim. Similarly, where additional tests are required to explain a diagnosis

already contained in the record, resort to a consultative examination may be

necessary. 5

That these specific instances may require the use of consultative

examinations is supported by agency regulations. Subsection (f) of § 404.1512

provides:

(f) Need for consultative examination. If the information we
need is not readily available from the records of your medical
treatment source, or we are unable to seek clarification from your
medical source, we will ask you to attend one or more consultative
examinations at our expense.

20 C.F.R. § 404.1512(f). 20 C.F.R. § 404.1519a further provides:

5
We are not confronted here with a situation where evidence already exists,
and the ALJ must simply take the appropriate steps to acquire it. See, e.g., Carter
v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996); Baker v. Bowen, 886 F.2d 289,
292 (10th Cir. 1989).

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 (a)(1)(General). The decision to purchase a consultative
examination for you will be made after we have given full
consideration to whether the additional information needed (e.g.,
clinical findings, laboratory tests, diagnosis, and prognosis) is readily
available from the records of your medical sources. . . . Before
purchasing a consultative examination, we will consider not only
existing medical reports, but also the disability interview form
containing your allegations as well as other pertinent evidence in
your file.

(2)When we purchase a consultative examination, we will use
the report from the consultative examination to try to resolve a
conflict or ambiguity if one exists. We will also use a consultative
examination to secure needed medical evidence the file does not
contain such as clinical findings, laboratory tests, a diagnosis or
prognosis necessary for decision.

(b) Situations requiring a consultative examination. A
consultative examination may be purchased when the evidence as a
whole, both medical and nonmedical, is not sufficient to support a
decision on your claim. Other situations, including but not limited to
the situations listed below, will normally require a consultative
examination:

(1) The additional evidence needed is not contained in the records of
your medical sources;

(2) The evidence that may have been available from your treating or
other medical sources cannot be obtained for reasons beyond your
control, such as death or noncooperation of a medical source;

(3) Highly technical or specialized medical evidence that we need is
not available from your treating or other medical sources;

(4) A conflict, inconsistency, ambiguity or insufficiency in the
evidence must be resolved, as we are unable to do so by recontacting
your medical source; or

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 (5) There is an indication of a change in your condition that is likely
to affect your ability to work, but the current severity of your
impairment is not established.

see also 20 C.F.R. § 416.919a; Standards for Consultative Examinations and

Existing Medical Evidence, 56 Fed. Reg. 36,932, 36,941 (1991).

As is usual in the law, the extreme cases are easy to decide; the cases that

fit clearly within the framework of the regulations give us little pause. The

difficult cases are those where there is some evidence in the record or some

allegation by a claimant of a possibly disabling condition, but that evidence, by

itself, is less than compelling. How much evidence must a claimant adduce in

order to raise an issue requiring further investigation? Our review of the cases

and the regulations leads us to conclude that the starting place must be the

presence of some objective evidence in the record suggesting the existence of a

condition which could have a material impact on the disability decision requiring

further investigation. See Diaz, 898 F.2d at 777 (refusing to remand for

consultative examination where claimant had failed to present “objective evidence

supporting the conclusion that he suffers from depression”). Isolated and

unsupported comments by the claimant are insufficient, by themselves, to raise

the suspicion of the existence of a nonexertional impairment. See Brock v.

Chater, 84 F.3d 726, 728 (5th Cir. 1996).

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 Ordinarily, the claimant must in some fashion raise the issue sought to be

developed, see Henrie, 13 F.3d at 360-61, which, on its face, must be substantial,

see Heggarty v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991). Specifically, the

claimant has the burden to make sure there is, in the record, evidence sufficient to

suggest a reasonable possibility that a severe impairment exists. When the

claimant has satisfied his or her burden in that regard, it then, and only then,

becomes the responsibility of the ALJ to order a consultative examination if such

an examination is necessary or helpful to resolve the issue of impairment.

Further, when the claimant is represented by counsel at the administrative

hearing, the ALJ should ordinarily be entitled to rely on the claimant’s counsel to

structure and present claimant’s case in a way that the claimant’s claims are

adequately explored. Thus, in a counseled case, the ALJ may ordinarily require

counsel to identify the issue or issues requiring further development. See Glass v.

Shalala, 43 F.3d 1392, 1394-96 (10th Cir. 1994) (refusing to remand for further

development of the record where the ALJ had carefully explored the applicant’s

claims and where counsel representing claimant failed to specify the additional

information sought). In the absence of such a request by counsel, we will not

impose a duty on the ALJ to order a consultative examination unless the need for

one is clearly established in the record.

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 The ALJ does not have to exhaust every possible line of inquiry in an

attempt to pursue every potential line of questioning. See Glass, 43 F.3d at 1396.

The standard is one of reasonable good judgment. The duty to develop the record

is limited to “fully and fairly develop[ing] the record as to material issues.” Baca

v. Department of Health & Human Servs., 5 F.3d 476, 479-80 (10th Cir. 1993).

This standard is consistent with our holding in Henrie, 13 F.3d 359. There,

in a case decided at step four and involving the development of the record

regarding the specifics of a represented claimant’s past relevant work, we

remanded for additional development of facts relating to the stress level involved

in the claimant’s former work as a negative stripper. See id. at 360-61. We noted

that the ALJ must develop the record “consistent with the issues raised,” id., even

when a claimant is represented by counsel. See also Thompson, 987 F.2d at

1491-93 (ordering a consultative examination where medical record was

inconclusive); Baca, 5 F.3d at 479-80 (remanding for further development of

“material” issues raised by the record).

We also note that our standard is consistent with that in other circuits

which have discussed the issue of an ALJ’s duty to order a consultative

examination. In Brock, 84 F.3d 726, the claimant had written a post-hearing

letter to the ALJ alleging, for the first time, that he suffered from depression and

the effects of past drug abuse and arguing that he should have received a

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consultative examination. The court stated that “[a] consultative evaluation

becomes ‘necessary’ only when the claimant presents evidence sufficient to raise

a suspicion concerning a non-exertional impairment.” Id. at 728. Because the

claimant’s allegation was viewed as an unsupported and isolated comment, it was

insufficient to raise the suspicion of a non-exertional impairment, and no remand

was ordered.

In Cannon v. Harris, 651 F.2d 513 (7th Cir. 1981), the Seventh Circuit

reviewed the case of a claimant who did not specifically allege alcoholism as a

cause of her disability. Nevertheless, because of evidence elicited during the

administrative hearing, the court held that, although insufficient by itself to

support a finding of disability, the evidence of the claimant’s alcohol use “was

sufficient to raise an issue as to plaintiff’s mental and psychological capacity to

engage in substantial gainful activity,” id. at 519, thus requiring a remand for

further development of the record.

The Fourth Circuit has remanded where claimant was able to show that “the

Secretary’s decision ‘might reasonably have been different had [evidence been

developed, inter alia, regarding IQ tests and psychological tests] . . . when (her)

decision was rendered.” Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980) (quoting

King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)).

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 In Currier v. Secretary of Health, Education & Welfare, 612 F.2d 594 (1st

Cir. 1980), the claimant had been discharged by the Air Force because of mental

problems and had been given a one hundred percent disability from the VA. He

had been fired by his civilian employer as nonemployable, and there was evidence

in the record that he had “a non-trivial psychiatric condition.” Id. at 598. The

ALJ’s reliance on conclusory notes from a VA doctor was found to be an

inadequate development of the record. The court stated:

In most instances, where appellant himself fails to establish a
sufficient claim of disability, the Secretary need proceed no further.
Due to the non-adversarial nature of disability determination
proceedings, however, the Secretary has recognized that she has
certain responsibilities with regard to the development of the
evidence, and we believe this responsibility increases in cases where
the appellant is unrepresented, where the claim itself seems on its
face to be substantial, where there are gaps in the evidence necessary
to a reasoned evaluation of the claim, and where it is within the
power of the administrative law judge, without undue effort, to see
that the gaps are somewhat filled as by ordering easily obtained
further or more complete reports or requesting further assistance
from a social worker or psychiatrist or key witness. We emphasize
that we do not see such responsibilities arising in run of the mill
cases, but here appellant seems obviously mentally impaired to some
degree . . . .

Id. at 598 (citations omitted). See also Morgan v. Sullivan, 945 F.2d 1079, 1082

(9th Cir. 1991) (remanding for development of evidence regarding onset date of

claimant’s mental problems where record was ambiguous).

While there are some cases requiring a stricter showing by a claimant

asserting a claim of failure to develop the record, we view those cases as

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distinguishable because, for the most part, they involve a claim that the ALJ

failed to obtain existing medical records that the claimant later argues would have

established disability. For example, Shannon v. Chater, 54 F.3d 484, 488 (8th

Cir. 1995), involved claims that the ALJ, on his own initiative, had failed to

obtain existing evidence. The court there required the claimant to prove prejudice

by establishing that the missing evidence would have been important in resolving

the claim before finding reversible error.

However, there is a difference between a claimant who argues that he or

she should have been afforded a consultative examination, and a claimant who

argues that there was already evidence in existence that the ALJ failed to uncover

or procure. Where evidence is already in existence at the time of the

administrative hearing, it may be appropriate to require the stricter showing

exemplified in Shannon, 54 F.3d 484. It would not be reasonable, however, to

expect a claimant to demonstrate that evidence from a consultative examination,

which has yet to be administered, would necessarily be dispositive. As stated

earlier, the ALJ should order a consultative exam when evidence in the record

establishes the reasonable possibility of the existence of a disability and the result

of the consultative exam could reasonably be expected to be of material assistance

in resolving the issue of disability.

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 On the record before us, we hold that claimant has presented sufficient

medical evidence to warrant further investigation of her physical condition as it

relates to her claim of disabling hypertension and chest pain. Although the ALJ

stated that “Dr. Reed recorded no objective evidence of any impairment . . . and

the only laboratory data he secured was an electrocardiogram which revealed

nonspecific ST-T wave changes,” see R. Vol. II at 50, as we have discussed

above, Dr. Reed’s EKG revealed more than that. His opinion that claimant may

suffer from possible inferior ischemia, id. at 34, and the EKG report itself which

stated that anteroseptal myocardial infarction could not be ruled out and that

abnormal ST & T waves were present, see id. at 35, should have alerted the ALJ

to the need for more testing, particularly with a claimant who had already had one

abnormal EKG and had earlier, on two separate occasions, been unable to take a

further treadmill exam because of high blood pressure. 6

In order to meet the burden of proof at step two, a claimant must

demonstrate an impairment or combination of impairments that significantly

limits the claimant’s ability to do basic work activity. See 20 C.F.R.

6
Although claimant’s counsel at the outset of the hearing made a general
suggestion that “new physical evidence” might be developed if the ALJ were to
order psychiatric and physical examinations, see R. Vol. II at 76, that statement
was so general and generic as to provide very little additional reason for the ALJ
to order an examination of claimant’s hypertension and heart problems.

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§ 404.1520(c). A claimant’s showing at level two that he or she has a severe

impairment has been described as “de minimis.” Williams, 844 F.2d at 751.

Even under that nondemanding standard, however, we cannot say on the basis of

this record whether claimant’s impairment is severe or not severe without more

medical information. On remand, the ALJ should further develop the record to

determine the extent of claimant’s hypertension and related heart problems and

their impact on her ability to do work related activity. We note, for purposes of

this limited remand, that substantial evidence supports the ALJ’s determination

that claimant’s arthritis does not render her disabled, and we repeat our

conclusion that the ALJ did not err in refusing to order a consultative mental

examination of claimant.

The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED in part and REVERSED in part, and this case is

REMANDED for further proceedings in accordance with this opinion.

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