Conley v. Bowen

• Decision Date: 09 January 1986
• Docket Number: No. 85-1318,85-1318
• Citation: 781 F.2d 143
• Parties: , Unempl.Ins.Rep. CCH 16,554 Jesse CONLEY, Appellant, v. Otis R. BOWEN, * Secretary, Department of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 143

781 F.2d 143

12 Soc.Sec.Rep.Ser. 145, Unempl.Ins.Rep. CCH 16,554

Jesse CONLEY, Appellant, v. Otis R. BOWEN, ^* Secretary, Department of Health and Human Services, Appellee No. 85-1318.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 15, 1985.

Decided Jan. 9, 1986.

Alan Nussbaum, Little Rock, Ark., for appellant.

Kathleen C. Buckner, Baltimore, Md., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge and ARNOLD, Circuit Judge.

PER CURIAM.

Jesse Conley appeals from an order of the district court ¹ affirming the decision of the Secretary of Health and Human Services (Secretary) to deny Conley's application for disability and supplemental security income benefits. For reversal, Conley argues that the district court erred in not reviewing this case as an appeal from the Secretary's termination of benefits. Conley also argues that the Secretary's decision is not supported by substantial evidence on the record because the administrative law judge (ALJ) did not fully and fairly develop the record, did not call a vocational expert to testify, and did not make credibility findings with respect to Conley's testimony. Finally, Conley argues that the district court did not consider recent developments in the law. For the reasons discussed below, we affirm the decision of the district court.

I. BACKGROUND

Conley was previously granted disability benefits from 1975 to 1977. The benefits were terminated, however, and subsequent applications for benefits were denied. Conley did not appeal the termination or the denials. His present application claimed November of 1979 as the onset of disability due to nerves and ulcers. The Secretary denied the application, both initially and on reconsideration. An evidentiary hearing was held before an ALJ on September 10, 1981. Conley, who partially completed the tenth grade, was thirty-seven years old at the time of the hearing. He served as an Army Infantryman in Viet Nam, and has worked as a construction laborer. The record indicates that Conley has a history of drug and alcohol dependency, and that he has sought treatment on several occasions for nervous disorders. Conley testified that he is unable to work and has difficulty concentrating, sitting, and sleeping because of the nervous disorders. Conley also testified, however, that he had done yard work for others and has performed household chores since the onset of his disability.

In January of 1980, Conley was admitted to the Veterans Administration Hospital, where he was diagnosed as having anxiety neurosis, calculus on teeth, and dental caries. He was discharged in March of 1980. In October of 1980, Dr. Weatherly performed a neuropsychiatric examination on Conley, and found no sensory disturbances. In January of 1981, Dr. Levy, a treating physician, reported that Conley's neurological examination was normal. ² Dr. Levy concluded that Conley exhibited no symptoms of neurosis or psychosis. Conley was again admitted to the hospital, and diagnosed by the treating physician as suffering from gastritis, alcohol abuse, and a personality disorder. In June of 1981, Dr. Hill examined Conley and found no overt psychosis, but recommended that he continue taking his neuroleptic medication. The following month, Conley was readmitted to the hospital, complaining of nervousness and poor appetite. Finally, in August Dr. Levy completed a residual functional capacity evaluation, which indicated only mild impairments in Conley's ability to relate to others, but no restriction in his ability to perform daily activities. The record reflects statements by treating physicians that Conley only sought treatment in an attempt to increase his pension and to avoid pending legal problems.

The ALJ found that Conley suffered from anxiety neuroses, currently in remission, and drug and alcohol dependency. He found, however, that the medical evidence indicated that Conley had the residual functional capacity to perform his past relevant work as a construction laborer. Moreover, the ALJ noted that Conley chose "not to work because of secondary gain factors * * * and because of a very poor motivational attitude." The ALJ therefore concluded that Conley was not disabled within the meaning of the Social Security Act. The Appeals Council denied review, and the district court affirmed the denial of benefits.

II. DISCUSSION

Conley first argues that this case should be treated as an appeal from the Secretary's termination of benefits because it involves the first application for "reinstatement of benefits" for which he has the assistance of counsel since the termination of his previous period of disability. Section 205(g) of the Social Security Act provides that all final decisions of the Secretary are judicially reviewable by a claimant "within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow." 42 U.S.C. Sec. 405(g) (1982). Conley failed to seek review of his previous termination decision within the sixty-day period. He filed subsequent applications that were denied, however, well after the sixty-day period and without the assistance of counsel. The Act does not provide, and Conley cites no authority for, an exception to the sixty-day requirement for claimants who fail to obtain assistance of counsel as a result of a termination of benefits or who subsequently reapply for benefits after the sixty-day period without assistance of counsel. We decline to create such an exception and, consequently, hold that the district court correctly reviewed this case as a denial by the Secretary of an application for benefits.

Conley next argues that the decision to deny benefits is not supported by substantial evidence because the ALJ did not fully and fairly develop the record, did not call a vocational expert to testify, and did not make credibility findings with respect to Conley's testimony. Conley argues that to develop the record in this case, the ALJ should have ordered additional examinations to resolve inconsistencies in the medical evidence. An ALJ has a duty to fully develop the record, even when the claimant is represented by counsel. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir.1983). When a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled, a consultative examination may be ordered. 20 C.F.R. Sec. 416.917. We have recognized that it may be reversible error for an ALJ not to order a consultative examination when, without such an examination, he cannot make an informed choice. Dozier v. Heckler, 754 F.2d 274, 276 (8th Cir.1985). The record in this case, however, contains sufficient medical evidence for the ALJ to make an informed choice without the aid of additional examinations. The treating physicians concurred in their diagnoses that Conley exhibited no symptoms of psychosis or neurosis. Moreover, the physicians generally concurred that Conley fabricated or exaggerated his condition. Consequently, Conley's argument that the ALJ erred in failing to order additional examinations is without merit.

Conley's argument that the ALJ should have called a vocational expert to testify is similarly without merit....