F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 15, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
HOWARD CONNICK,
Plaintiff-Appellant,
v. No. 04-2119
(D.C. No. CIV-02-592-JB/LCS)
JO ANNE B. BARNHART, (D. N.M.)
Commissioner of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and KELLY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Howard L. Connick challenges a decision terminating his
disability benefits. We affirm.
*
This order and judgment is not binding precedent, except under the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.
I.
Connick injured his back twice in 1991. As a result of the second injury,
he underwent two operations.
In 1994, the Social Security Administration (“the Administration”) ruled
that Connick was disabled and began paying benefits to him. Nearly five years
later, however, the Administration determined that Connick had recuperated from
his surgeries and that his condition had improved enough to warrant termination
of his disability benefits. Connick appealed this decision. Following an
evidentiary hearing, an administrative law judge (ALJ) upheld the termination of
benefits. Connick appealed again, but the ALJ’s decision was affirmed by the
Appeals Council.
Connick then petitioned for review in district court. A magistrate judge
recommended that the court deny Connick’s petition, and the district court
adopted this recommendation.
II.
Construing Connick’s pro se brief liberally, see Cannon v. Mullin, 383 F.3d
1152, 1160 (10th Cir. 2004), cert. denied, 125 S. Ct. 1664 (2005), we conclude
that he has raised the following claims:
(a) The Administration failed to consider information from
Connick’s regular physician.
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(b) The ALJ’s finding that Connick is capable of lifting up to
thirty pounds is not supported by the evidence.
(c) The Administration erred in relying on inconsistent testimony
by the vocational expert.
In examining these claims, “[w]e review the district court’s decision de novo,”
Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001), and
examine the underlying termination of benefits to determine “whether the factual
findings are supported by substantial evidence in the record as a whole and
whether the correct legal standards were applied,” Howard v. Barnhart, 379 F.3d
945, 947 (10th Cir. 2004).
A.
In his initial claim, Connick faults the ALJ for failing to consider
information from a physician who “is, and has been my Doctor for some time
now.” Aplt’s Br. at 2. It is difficult to read the name of this physician in
Connick’s brief, but it appears that his name is either Sloan or Stoan. It is also
possible that Connick intended to refer to Dr. Perry Stearns, who treated Connick
for his first injury in 1991 (which did not, by itself, cause Connick to become
disabled). Regardless of which of these possibilities is correct, Connick’s claim
is unavailing.
Because disability proceedings are non-adversarial, the hearing judge is
responsible for ensuring that the record is fully developed. See Hawkins v.
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Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Thus, even when a claimant fails
to provide pertinent information, the ALJ “has the duty to develop the record by
obtaining pertinent, available medical records which come to his attention during
the course of the hearing.” Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996)
(emphasis added). Application of this principle does not assist Connick, however,
as no information about any doctor named Sloan or Stoan was brought to the
ALJ’s attention, nor is there any indication in the record that Connick received
treatment from Dr. Stearns after 1991. Accordingly, the ALJ had no duty to seek
records from a doctor named Sloan or Stoan, or to seek additional records from
Stearns.
To the extent that Connick seeks to reopen administrative proceedings in
order to expand the record, we hold that he has not made the requisite showing.
A disability claimant who wishes to add evidence to the record must show that the
evidence is new, that it is material, and that “there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding.” 42 U.S.C.
§ 405(g); see also Longworth v. Comm’r, 402 F.3d 591, 598 (6th Cir. 2005).
Connick’s representation that the doctor in question has been treating him for a
long time indicates that records from this doctor would not constitute new
evidence. Moreover, Connick has neither demonstrated that information from this
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doctor would be material nor justified his failure to mention this doctor earlier.
For these reasons, Connick’s first claim provides no basis for relief.
B.
Connick’s second claim challenges the ALJ’s reliance on a determination
by Dr. Barry Diskant that Connick is “capable of lifting up to 30 pounds
occasionally.” R. at 25. In fact, however, the ALJ made a more limited
assumption but still found that Connick was able to perform a wide range of jobs.
After conducting a full medical evaluation in August 1997, Diskant
concluded that Connick “reached maximum medical improvement by 05-10-95,”
and that, since that date, Connick has been capable of lifting thirty pounds
occasionally, fifteen pounds frequently, and ten pounds constantly. Id. at 335.
This assessment was subsequently corroborated by Dr. Eugene Toner. See id. at
418. Other evaluations on or after May 10, 1995, established that Connick could
lift between twenty and thirty-five pounds occasionally. See id. at 347, 353, 411.
The ALJ’s opinion upholding the termination of benefits adopted the most
limited assessment–namely, that Connick could only lift twenty pounds
occasionally. See id. at 26. As noted above, this finding was supported by the
opinions of several doctors and was not controverted by any evidence in the
record. This finding therefore provides no basis for reversal of the
Administration’s decision.
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C.
In his final claim, Connick asserts that the ALJ erred in relying on
testimony from a vocational expert that contradicted earlier statements by the
same witness. Connick has not identified any inconsistencies, however, and we
have not discovered any in our own review of the record. Accordingly, we
decline to reverse the Administration’s decision based on this claim.
III.
For the foregoing reasons, we affirm the decision of the district court
upholding the termination of Connick’s disability benefits.
Entered for the Court
David M. Ebel
Circuit Judge
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