F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 2 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
QUAY V. ZEVELY, JR.,
Plaintiff-Appellant,
v. No. 03-7058
(D.C. No. 02-CV-72-P)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
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); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellant Quay V. Zevely, Jr. appeals the district court’s order
affirming the Social Security Commissioner’s denial of his application for
disability insurance benefits under the Social Security Act. We exercise
jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We reverse and
remand for further proceedings.
Plaintiff claims that he has been unable to work since 1991 due to
limitations caused by post traumatic stress disorder (PTSD), 1
depression, arthritis,
hypertension, gout, and headaches. After his application for disability benefits
was denied initially and on reconsideration, a de novo hearing was held before an
administrative law judge (ALJ). In a decision dated December 8, 1999, the ALJ
denied plaintiff’s application for disability benefits, concluding: (1) that
plaintiff’s insured status expired on September 30, 1997; and (2) that plaintiff had
failed to demonstrate that he was under a disability on or before that date. In
December 2001, the Appeals Council denied plaintiff’s request for review of the
ALJ’s decision. Plaintiff then filed a complaint in the district court. After the
magistrate judge recommended that the ALJ’s decision denying benefits be
affirmed, the district court entered an order affirming the denial of benefits. This
appeal followed.
1
It appears to be undisputed that plaintiff’s PTSD is related to his military
service during the Vietnam war.
-2-
On February 12, 2004, we entered an order directing the Commissioner to
submit certified copies of the medical evidence from the Oklahoma City Veterans
Administration Medical Center covering the period December 7, 1999 through
July 21, 2000 to this court within thirty days. We directed the Commissioner to
submit these records because, although they were considered by the Appeals
Council, they were not contained in the administrative record that the
Commissioner submitted to the district court. As a result, we were unable to
conduct the required de novo review and determine whether the Appeals Council
erred in concluding that the records were “not material to the issue of whether
[plaintiff was] disabled at a time when [he] met the insured status requirements.”
Aplt. App., Vol. II at 4; see also Threet v. Barnhart , 353 F.3d 1185, 1191
(10th Cir. 2003) (noting that question of whether evidence submitted to Appeals
Council qualifies as “new, material, and chronologically pertinent is a question of
law subject to [this court’s] de novo review,” and that “[e]vidence is material to
the determination of disability if there is a reasonable possibility that [it] would
have changed the outcome”) (quotation omitted).
The Commissioner submitted the requested records to this court on March
10, 2004, and they consist primarily of progress notes relating to therapy sessions
that plaintiff attended for treatment of his PTSD from December 1999 through
July 2000. Because the records do not contain any background information or any
-3-
sort of medical history regarding plaintiff’s PTSD, we agree with the Appeals
Council that the records are not material to the issue of whether plaintiff
was disabled during the time when he met the insured status requirements.
Consequently, the records do not provide any basis for this court to reverse the
decision of the ALJ denying benefits.
In addition to claiming reversible error based upon the records that were
omitted from the administrative record, a claim that is now moot, plaintiff has
asserted three other alleged errors: (1) that the ALJ breached his duty to develop
the administrative record because he failed to obtain and consider evidence
associated with the disability rating that plaintiff has received from the Veterans
Administration; (2) that the ALJ’s finding that plaintiff did not suffer from a
severe mental impairment prior to the expiration of his insured status is not
supported by substantial evidence in the record; and (3) that the ALJ’s finding
that plaintiff retained the residual functional capacity to perform medium work
despite his documented knee impairment is not supported by substantial evidence
in the record.
Based on the record currently before this court, it appears that plaintiff has
failed to establish reversible error based on his second and third claims. We
decline to address the merits of those claims, however, because we agree with
plaintiff that the ALJ breached his duty to develop the administrative record by
-4-
failing to obtain and consider evidence associated with any disability ratings that
plaintiff has received from the Veterans Administration. See Baca v. Dep’t of
Health & Human Servs. , 5 F.3d 476, 480 (10th Cir. 1993) (addressing Veterans
Administration disability rating and holding that “[a]lthough findings by [the
Veterans Administration] are not binding on the [Commissioner], they are entitled
to weight and must be considered,” and remanding with directions “to obtain the
records from the VA”) (quotation omitted). 2
As a result, we reverse the ALJ’s
denial of benefits and remand this case to the Commissioner. On remand, the
Commissioner shall obtain and address the findings of the Veterans
Administration with respect to any disability ratings received by plaintiff and
determine the effect, if any, that the findings have on plaintiff’s application for
2
We note that plaintiff’s prior counsel made no effort during the hearing
before the ALJ to develop a record regarding any Veterans Administration
disability ratings. Nonetheless, the administrative record before the ALJ
contained sufficient information to trigger the ALJ’s independent duty to develop
a record regarding any such disability ratings. See Baca , 5 F.3d at 479-80
(holding that “the ALJ has a basic duty of inquiry to fully and fairly develop the
record as to material issues,” and that “[t]his duty exists even when the claimant
is represented by counsel”). As plaintiff has pointed out in his opening brief,
handwritten notes on plaintiff’s “Disability Interview” form stated that he “[g]ets
VA - 100% disability - around $2,000 mo!!,” Aplt. App., Vol. II at 106, and
plaintiff testified at the hearing before the ALJ that his source of income was
“VA disability,” id. at 33. We also note that: (1) in the request for
reconsideration that plaintiff submitted regarding the initial denial of his claim for
disability benefits, plaintiff stated that he had “been declared 100% disabled since
May 1998 by the Veterans Admin,” id. at 78; and (2) in a vocational report signed
by plaintiff on January 21, 1999, plaintiff stated that “[t]he Veterans
Administration has already certified that I am 100% disabled,” id. at 155.
-5-
social security disability benefits. We stress, however, that we are expressing no
opinion concerning whether any disability ratings from the Veterans
Administration should change the result in this case. 3
Id.
The order of the district court is REVERSED, and this case is REMANDED
to the district court with instructions to remand the case to the Commissioner for
further proceedings consistent with this order and judgment.
Entered for the Court
Wade Brorby
Senior Circuit Judge
3
The Commissioner does not appear to dispute that plaintiff received a total
disability rating from the Veterans Administration effective November 25, 1997,
but she claims that the rating is not relevant to plaintiff’s social security
application since it did not become effective until after plaintiff’s insured status
expired. See Aplee. Br. at 18, 26-27. This is not a valid argument, however, as
the current administrative record does not contain sufficient information to
determine the relevance of the total disability rating. Moreover, if the effective
date of the rating was in fact November 25, 1997, the rating may be relevant to
the issue of whether plaintiff was disabled for social security purposes only two
months earlier in September 1997, although we express no opinion concerning
that issue. We also note that plaintiff had apparently received a partial disability
rating from the Veterans Administration before his insured status expired, and the
partial rating could be potentially relevant to his social security application even
if the subsequent total rating is not.
-6-