IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 25, 2009
No. 08-41211 Charles R. Fulbruge III
Summary Calendar Clerk
PAMELA WINSTON, on behalf of D.F., a minor
Plaintiff-Appellant
v.
MICHAEL J. ASTRUE, Commissioner of Social Security
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Pamela Winston appeals the denial of supplemental security income
benefits for her minor son, D. F. An Administrative Law Judge found D.F. not
disabled and thus ineligible for such benefits. The Appeals Council denied
review and Winston appealed this final decision of the Social Security
Administration’s Commissioner to the district court. Following the magistrate’s
report and recommendation, the district court dismissed Winston’s complaint
with prejudice. We now affirm.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-41211
I
D.F. has been diagnosed with attention deficit hyperactivity disorder
(ADHD). Winston first applied for supplemental security income on April 27,
2005, arguing that her son’s condition constitutes a compensable “disability.”
After the ALJ denied her initial application, Winston filed a second, and was
awarded benefits beginning on April 1, 2007. This appeal arises from the first
application; thus, Wilson seeks disability payments for the approximately two
years between April 27, 2005 and April 1, 2007.
Winston raises two issues on appeal. First, noting that she proceeded
without counsel before the ALJ, she argues that the ALJ failed to adequately
develop the factual record. Second, Winston asserts that the success of her
second application demonstrates that her first was meritorious and the ALJ
erred in denying it.
II
We review the Commissioner’s decision only to determine whether
substantial evidence in the record supports the decision and whether the
adjudicator used proper legal standards in evaluating the evidence.1 Substantial
evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”2 In applying this standard, we may only
scrutinize the record; we may not reweigh evidence, consider the issues de novo,
1
42 U.S.C. §§ 405(g), 1383(c)(3); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.
1994).
2
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938).
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No. 08-41211
or substitute our judgment for that of the Commissioner.3 A finding of “no
substantial evidence” is appropriate only if no credible evidentiary choices or
medical findings exist to support the decision.4
a
In reviewing a claim for benefits, an ALJ is under an obligation to fairly
and fully develop the record. 5 This “obligation rises to a special duty” when a
claimant is unrepresented by legal counsel, requiring the ALJ to “scrupulously
and conscientiously probe into, inquire of, and explore for all the relevant facts.”6
If the ALJ fails in this duty, she does not have before her sufficient facts on
which to make an informed decision; accordingly, such a decision is not
supported by substantial evidence.7 Notwithstanding this special duty, the
burden to demonstrate a disability is always on the claimant.8 If the claimant
does not provide sufficient evidence, the ALJ must make a decision based on the
available evidence.9
Here, the record contained sufficient evidence for the ALJ to make an
informed decision, including a full evaluation by a physician, school records from
a licensed professional counselor, records from other treating physicians, reports
3
See Greenspan, 38 F.3d at 236.
4
Johnson v. Bowen, 864 F.2d 340, 343–44 (5th Cir. 1988).
5
James v. Bowen, 793 F.2d 702, 704 (5th Cir. 1986).
6
Id. (quoting Kane v. Heckler, 731 F.2d 1216, 1219–20 (5th Cir. 1984)) (internal
quotation marks omitted).
7
Id.
8
Anderson v. Sullivan, 887 F.2d 630, 634 (5th Cir. 1989).
9
Id.
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No. 08-41211
from several of D.F.’s teachers, and Winston’s testimony. Physicians and
counselors agreed that D.F. suffered from mild to moderate ADHD. D.F.’s first
grade teacher noted that he was able to function as a beginning first grader, that
his behavior and attitude had improved, that he functioned below average in
four of eleven categories but not functioning in the “poor” range of any category.
His second grade teacher concurred: D.F. appeared to be an average second
grader, and although he was given shorter assignments and more time to
complete them, he was compliant and respectful, and initiated activities
independently, completed tasks in a timely fashion, and was able to make and
keep friends. In second grade, D.F. rated below average in only three of the
eleven diagnostic categories, and was not in the poor functioning range in any
of them. Other school records indicated that he was able to independently
perform functional daily living routines necessary in the educational
environment. In reviewing Winston’s claim for benefits, a Disability
Determination Services physician ascertained that D.F. had no limitations in the
domains of using and manipulating objects, caring for himself, physical health
and well-being, attending and completing tasks, and relating to others. He
found D.F. to have less than marked limitation in his ability to acquire and use
information. In other words, the reviewing doctor did not believe D.F. was
disabled.
However, Winston points to two missing pieces of evidence that could have
shown D.F.’s condition rose to the level of disability: results of an I.Q. test and
a cognitive achievement report on D.F.’s I.Q. and speech and language
capabilities. It is unclear from D.F.’s brief if this particular report was
completed prior to the ALJ’s decision or whether it was ever completed, although
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No. 08-41211
it does appear to be a part of the school’s evaluation plan as early as February
2005.
Even without this additional evidence, however, the ALJ fulfilled his
“special duty” to fully develop the record and scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts. This is especially
true given the court’s consideration of Winston’s own testimony. In light of the
factual record before the ALJ, we cannot say his decision is unsupported by
substantial evidence.
b
Winston’s second assertion–that the district court’s error is made plain by
the approval of Winston’s second application–is similarly unavailing. Whether
a subsequent application is approved is of no moment to the question of whether
the prior application was meritorious at the time of consideration. Here, the ALJ
determined that the evidence at the time indicated D.F. was not disabled. We
may disturb this judgment only if “there is a conspicuous absence of credible
choices or no contrary medical evidence.” 10
We AFFIRM.
10
Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (citations and internal quotation
marks omitted).
5