NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 16, 2009*
Decided September 23, 2009
Before
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐1741
ANTHONY C. MARTIN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of
Indiana, Fort Wayne Division.
v.
No. 08‐CV‐46
MICHAEL J. ASTRUE,
Commissioner of Social Security, Roger B. Cosbey,
Defendant‐Appellee. Magistrate Judge.
O R D E R
Anthony Martin applied for Supplemental Security Income, claiming that he is
unable to work because of the lasting effects of multiple gunshot wounds and
post‐traumatic stress disorder (“PTSD”). An administrative law judge (“ALJ”) concluded
that these severe impairments do not prevent Martin from performing a significant number
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2).
No. 09‐1741 Page 2
of jobs involving light, unskilled work. Martin sought review in the district court, arguing
that the ALJ failed to adequately develop the record and was prejudiced against him. A
magistrate judge, presiding by consent, rejected Martin’s contentions, and Martin now
appeals to this court. We affirm the judgment.
At the time of the administrative hearing in 2007, Martin was 27 years old, had
obtained his GED, and had last worked in a warehouse for several months in 2000. In April
2003 Martin was shot 14 times in his abdomen, lower back, and legs. As a result of his
injuries, he suffers from PTSD, has difficulty standing for long periods, and experiences
back pain and numbness in his right leg. Martin filed his first application for benefits in
July 2003, which the Social Security Administration (“SSA”) denied later that year. He did
not appeal that decision, but in November 2004 he filed a second application alleging a
disability onset date of April 14, 2003, the date of his shooting, and claiming that his injuries
from the gunshot wounds and his PTSD prevent him from working.
In evaluating Martin’s claim, the SSA obtained records from his treating physicians
and several consulting physicians. Records from Parkview Hospital in Fort Wayne,
Indiana, show that Martin was treated in April 2003 for multiple gunshot wounds. In
addition to the numerous wounds to his lower body, he suffered a liver laceration and, after
surgery, was left with two bullets embedded in his lower back. Martin attended physical
therapy at the Parkview Rehab Outpatient Clinic, where, three months after the shooting,
his therapist noted that he did “not appear to have functional limitations, which would
prevent him from searching [for] gainful employment.” In February 2005 Martin was again
rushed to the emergency room at Parkview Hospital after a second shooting in which he
was wounded in his left arm, left leg, and abdomen. Dr. Craig Marks surgically repaired
new injuries to Martin’s diaphragm, colon, stomach, and liver, and continued to treat him in
the following months for abdominal pain. Dr. Marks prescribed physical therapy in April
2005, and in September of that year, he referred Martin to Dr. Nikola Nenadovich, an
orthopedic specialist. Dr. Nenadovich saw Martin twice before the end of 2005 and
prescribed an anti‐inflammatory and home exercises.
During the SSA’s review of Martin’s inital application for benefits, he was referred to
Dr. Barbara Gelder for a psychiatric exam in September 2003. Dr. Gelder diagnosed Martin
with PTSD, recurrent major depression, alcohol abuse, and possible marijuana abuse.
Dr. Gelder evaluated Martin again in January 2005 and once more diagnosed PTSD as well
as a pain disorder due to physical and psychological factors. She ruled out a mental
handicap but assigned him a score of 43 on the Global Assessment of Functioning scale,
reflecting serious symptoms of mental illness or serious impairment in social functioning.
See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS
30‐32 (4th ed. 1994). Martin also participated in outpatient counseling for drug and alcohol
No. 09‐1741 Page 3
dependency at Bowen Center in 2003, and in December 2004 he was evaluated at Park
Center, where he was diagnosed with cocaine and alcohol dependency in full remission,
cannabis dependency, and pathological gambling.
In March 2005 Martin was also examined by three state‐agency physicians to assess
his residual functional capacity (“RFC”). Two doctors evaluated Martin’s physical RFC.
Dr. Yaroslav Pogorelov concluded that Martin has difficulty sitting, standing, walking, and
lifting due to abdominal and lower‐back pain as well as nerve damage to his right leg and
left arm. The physician opined that Martin would not be able to stand or walk for even two
hours in an eight‐hour day and noted also that he suffers from PTSD. Dr. T. Crawford
concluded that Martin’s physical limitations, including a difficulty with fine‐fingering
manipulation, prevent him from climbing ladders, ropes, and scaffolds but do not preclude
light work involving occasional postural activities. Finally, Dr. B. R. Horton, who assessed
Martin’s mental RFC, concluded that he can perform simple repetitive tasks but is
moderately limited in concentrating, understanding, and remembering detailed
instructions.
The SSA denied Martin’s application initially and upon reconsideration. Martin
requested that an ALJ take a fresh look at his claim, and a hearing was scheduled for
September 2007. Just prior to the hearing, in July 2007, the ALJ requested updated records
from Parkview Hospital and Dr. Marks. Those requests yielded records from treatment
through the end of 2005, including Dr. Nenadovich’s progress notes that were in the
possession of Dr. Marks.
At the hearing both Martin, who appeared pro se, and a vocational expert (“VE”)
testified. The ALJ began by advising Martin that he could benefit from having a
representative and explaining that a representative could receive payment only on a
contingency basis and then only with the approval of the ALJ. Martin confirmed that he
received a referral list for legal representation and declared that he wished to proceed
without a representative. The ALJ then asked Martin if there were any new documents
relevant to his claim. Martin answered that there were records from 2005 to the present
from Parkview Hospital1, Dr. Nenadovich, and Park Center. Although he first testified that
he had undergone an additional surgery at Parkview Hospital in late 2006 when the
gunshot wound in his stomach had become infected, he stated later in the hearing that the
1
In his testimony Martin referred to Parkview Hospital by its former name, Parkview
Memorial Hospital. For clarity we have used the current name. See Indiana Historical
Society, Parkview Hospital 3 http://www3.indianahistory.org/HBR/
business_pdf/parkview_hospital.pdf (last visited Sept. 1, 2009).
No. 09‐1741 Page 4
surgery was performed at Parkview North Hospital, a different facility within the Parkview
Health system, see Parkview Health, http://www.parkview.com/Locations/ Pages/
default.aspx (last visited Sept. 1, 2009). The ALJ probed him about his daily activities,
educational and employment background, medical history, and specific physical and
mental limitations, including his complaints of pain and anxiety. Martin testified that he
has nerve damage in his left leg and hand. He said that standing causes his leg to go cold
and numb, and moving causes pain in his back and legs that is unbearable on cold or rainy
days. He has difficulty climbing stairs, he said, but conceded that his use of a cane to walk
is infrequent. Martin added that he is in constant stress from the shootings and does not
often leave his house.
After Martin testified, the ALJ asked the VE to consider a hypothetical person with
Martin’s age, education, and work history who could perform light work with the ability to
sit or stand at will but could not be exposed to dampness or temperature extremes. This
hypothetical person, the ALJ added, would have only limited use of the fingers of the
nondominant left hand and could not lift or carry more than ten pounds with that hand.
Climbing of ladders, ropes, or scaffolds would be precluded, and only occasional balancing,
stooping, kneeling, crouching, crawling, or climbing of ramps and stairs would be allowed.
The ALJ also limited the individual to simple, routine, and repetitive tasks consistent with
unskilled work; ruled out contact with the general public and jobs involving more than brief
interactions with others; precluded jobs in fast‐paced environments or with strict
production requirements; and narrowed the permissible employment to positions requiring
only simple work‐related decisions and few workplace changes. The VE responded that a
person with these limitations still could perform a significant number of jobs existing in the
regional economy of northeast Indiana, including positions as a “wire worker” or an
assembler of electrical accessories or small products. Even with the added restriction of
sedentary instead of light work, said the VE, the person still could perform work as an
“addresser in the clerical field,” an optical assembler, or surveillance monitor.
Before ruling, the ALJ continued the hearing and requested updated records from
Parkview North Hospital and Park Center. Parkview North Hospital responded that
Martin had not been a patient there since January 2005, and Park Center responded by
sending duplicates of the records already in the administrative record from Martin’s
treatment in 2004. The ALJ thus relied on the hearing testimony and Martin’s medical
records from 2003 through 2005 to conclude that his impairments, although severe enough
to prevent him from returning to his past work in a warehouse, do not preclude him from
“making a successful adjustment to other work that exists in significant numbers in the
national economy.” Accordingly, the ALJ found that Martin is not disabled.
No. 09‐1741 Page 5
Martin appeals pro se and raises two primary arguments. He contends, first, that the
ALJ failed to adequately develop the record and, second, that the ALJ was prejudiced
against him at the hearing. As to the first of these contentions, an ALJ has a general duty to
“develop a full and fair record.” Smith v. Sec’y of Health, Educ. & Welfare, 587 F.2d 857, 860
(7th Cir. 1978); see Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009). Martin does not
dispute that the ALJ satisfied that duty regarding medical records covering the 12 months
preceding his November 2004 application for benefits. See 42 U.S.C. §§ 423(d)(5)(B),
1382c(a)(3)(H)(i); 20 C.F.R. § 416.912(d). Rather, says Martin, the ALJ should have but did
not obtain medical records covering 2006 and 2007 from Parkview Hospital, Park Center,
Vocational Rehab, and Indiana Surgical Specialists.
The ALJ met his burden to develop the record in this case. An ALJ is required to
make a “reasonable effort” to ensure that the claimant’s record contains, at a minimum,
enough information to assess the claimant’s RFC and to make a disability determination.
See 20 C.F.R. §§ 416.912(d), 416.927(c)(3); S.S.R. 96‐8p; Skinner v. Astrue, 478 F.3d 836, 843‐44
(7th Cir. 2007). Although the ALJ’s duty was heightened because of Martin’s pro se status,
this court “generally upholds the reasoned judgment of the Commissioner on how much
evidence to gather, even when the claimant lacks representation.” Nelms, 553 F.3d at 1098.
Here, the ALJ made a concerted effort to probe Martin’s recent medical history and ongoing
impairments by asking specific questions about his treatment, symptoms, and day‐to‐day
activities. See Luna v. Shalala, 22 F.3d 687, 692‐93 (7th Cir. 1994) (holding that ALJ
sufficiently developed record by probing all relevant issues, extensively questioning
claimant about his pain, medication, and activities, and reviewing available medical
records). The ALJ also requested updated records both before and after the hearing, and
despite some apparent confusion about whether he visited Parkview Hospital or Parkview
North Hospital, the ALJ’s various efforts to develop the record were reasonable. See S.S.R.
96‐8p; 20 C.F.R. § 416.912(d); cf. Nelms, 553 F.3d at 1098‐99 (holding that ALJ failed to
adequately develop record where he did not question pro se claimant about recent medical
history or make any attempt to gather additional records despite two‐year evidentiary gap).
And although in his appellate brief Martin names other medical facilities that he visited in
2006 and 2007, such as Vocational Rehab and Indiana Surgical Specialists, he failed to name
these facilities at the hearing despite the ALJ’s pointed questioning about his recent
treatment. The ALJ, therefore, cannot be faulted for not obtaining records from these
facilities. After all, “[e]ven a pro se litigant bears some responsibility for making a record.”
Johnson v. Barnhart, 449 F.3d 804, 808 (7th Cir. 2006).
Thus, Martin must show that he was prejudiced by the absence of medical records
dating after 2005, a hurdle he did not overcome. See Nelms, 553 F.3d at 1098; Nelson v. Apfel,
131 F.3d 1228, 1235 (7th Cir. 1997). Martin did not identify or provide additional records
during the proceedings before the Appeals Council or the district court, and even now he
No. 09‐1741 Page 6
has not attempted to detail what additional information about his condition the ALJ would
have uncovered. See Nelms, 553 F.3d at 1098 & n.1 (evaluating claimant’s additional records
submitted for limited purpose of demonstrating prejudice). Moreover, Martin fails to
explain how additional evidence could have led to a finding of disability. See id.; Johnson,
449 F.3d at 808; Nelson, 131 F.3d at 1236.
Martin’s second contention, that the ALJ was prejudiced, requires little discussion.
In evaluating such claims, we begin with the presumption that ALJs are impartial, and to
overcome that presumption, a claimant must show that the ALJ “displayed deep‐seated and
unequivocal antagonism that would render fair judgment impossible.” Liteky v. United
States, 510 U.S. 540, 556 (1994); see Schweiker v. McClure, 456 U.S. 188, 195 (1982); Keith v.
Barnhart, 473 F.3d 782, 788 (7th Cir. 2007). Martin asserts that both the ALJ and the VE
made “a mockery” of his condition when, following an outburst from Martin describing
flashbacks he has from the shootings and an outpouring of profanity at the end of the
hearing, the VE stated, “Maybe next time it’ll kill him.” This statement was indeed
unprofessional and inappropriate, but it was made by the VE, not the ALJ, and Martin does
not point to anything said or done by the ALJ exhibiting prejudice. Rather, our review of
the hearing transcript reveals that the ALJ thoroughly explored Martin’s impairments and
recent medical history, and patiently attempted to elicit information relevant to his
application for benefits. See Keith, 473 F.3d at 788. Thus, Martin’s claim of prejudice is
unavailing.
Finally, we have evaluated Martin’s remaining arguments and have determined that
they are without merit. Accordingly, we AFFIRM the judgment of the district court.