Hawkins v. Chater

• Citation: 113 F.3d 1162
• Decision Date: 13 May 1997
• Docket Number: No. 96-5110,96-5110
• Parties: , Unempl.Ins.Rep. (CCH) P 15718B, 97 CJ C.A.R. 713 Melzenia HAWKINS, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner, Social Security Administration, * Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1162

113 F.3d 1162

53 Soc.Sec.Rep.Ser. 382, Unempl.Ins.Rep. (CCH) P 15718B,

97 CJ C.A.R. 713

Melzenia HAWKINS, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner, Social Security

Administration, ^* Defendant-Appellee.

No. 96-5110.

United States Court of Appeals, Tenth Circuit.

May 13, 1997.

Paul F. McTighe, Jr. (Gayle L. Troutman, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellant.

Stephen C. Lewis, United States Attorney, Joseph B. Liken, Acting Chief Counsel, Region VI, Linda H. Green, Assistant Regional Counsel, Office of the General Counsel, U.S. Social Security Administration, Dallas, Texas, for Defendant-Appellee.

Before TACHA, EBEL, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Claimant Melzenia Hawkins appeals from a district court order affirming the Secretary's decision to deny her application for social security disability benefits. ¹ We review the Secretary's decision on the entire record "to determine whether the findings are supported by substantial evidence and whether the Secretary applied correct legal standards." Pacheco v. Sullivan, 931 F.2d 695, 696 (10th Cir.1991).

Claimant alleges disability because of hypertension, arthritis, and depression. ² Employing the Secretary's five-step evaluative sequence, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988), the administrative law judge (ALJ) found claimant's impairments nonsevere, see 20 C.F.R. § 404.1521, and concluded at step two that claimant was not disabled, see 20 C.F.R. § 404.1520(c). Claimant challenges that determination as unsupported by substantial evidence in the record as a whole, arguing in particular that the ALJ failed in his duty to develop the record when he refused to order consultative physical and mental examinations of claimant.

It is beyond dispute that the burden to prove disability in a social security case is on the claimant. See Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir.1991). However, unlike the typical judicial proceeding, a social security disability hearing is nonadversarial, see Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir.1987), with the ALJ responsible in every case "to ensure that an adequate record is developed during the disability hearing consistent with the issues raised," Henrie v. United States Dep't of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir.1993); 20 C.F.R. § 404.944 (requiring the ALJ to "look[ ] fully into the issues"); see also Heckler v. Campbell, 461 U.S. 458, 471 n. 1, 103 S.Ct. 1952, 1959 n. 1, 76 L.Ed.2d 66 (1983) (Brennan, J. concurring) (describing duty as one of inquiry, requiring the decision maker "to inform himself about facts relevant to his decision and to learn the claimant's own version of those facts"); cf. Social Security Ruling 96-7p at n. 3 (assigning to the adjudicator the task of developing "evidence regarding the possibility of a medically determinable mental impairment when the record contains information to suggest that such an impairment exists"); Social Security Ruling 82-62 (requiring the ALJ to develop and fully explain issue of whether a claimant retains the functional capacity to perform past work).

Against this background, claimant first argues that the ALJ should have ordered a consultative mental examination based on the evidence in the record of her depression. The record reveals the following evidence regarding claimant's depression: In April 1990, Dr. Alexander, claimant's treating physician in California, noted in a treatment log that claimant had "been depressed" and that he had prescribed Pamelor for nerves and depression. See R.Vol. II at 27. Subsequent notes from Dr. Alexander indicate that claimant continued to take Pamelor at least through May 1991, see id. at 27-28. The record contains no objective medical test results to verify claimant's depression.

The next mention of anything related to depression is a letter from Dr. Reed, a physician who treated claimant after she moved to Oklahoma from California, and who stated that "She was given Prosac [sic]." Id. at 34. Again, no test results appear in the record to confirm depression. Claimant and her sister both testified at the hearing the claimant was depressed, see id. at 90, 98, and an agency interviewer noted that claimant "looked" depressed. There is no evidence that the agency interviewer was qualified to diagnose depression.

In rejecting claimant's allegation of disabling depression, the ALJ discounted her use of anti-depressant medication. He noted that one of the treating physicians who had given her anti-depressants was a family practitioner/OB-GYN and that the other physician, Dr. Reed, was an internist who "obligingly" gave her medication. See R.Vol. II at 51. He noted that neither physician reported objective findings or referred claimant to a mental health specialist. See id. He refused to credit claimant's subjective complaints of depression.

We need not decide whether the evidence outlined above relating to claimant's mental state would be sufficient to justify a remand for further development of the record because here there is a further opinion from Dr. Toner, a psychiatrist, dated January 10, 1991, who completed a psychiatric review technique form and was of the opinion that claimant had no medically determinable impairment. See id. at 169. Dr. Toner specifically stated that claimant suffers from "no medically determinable MI [mental impairment]," id. at 170, and that there was no indication of significant functional limitations on the basis of psychological problems, see id.

Although the ALJ inexplicably did not mention this report in his decision, the report is substantial evidence supporting the conclusion that claimant does not suffer from a severe mental impairment. Its presence in the record, coupled with the absence of any objective medical findings regarding claimant's alleged depression, justifies the ALJ's decision to discredit claimant's testimony and the fact of her use of prescribed anti-depressants. Given this state of the record, the ALJ was not required to order further psychological examination.

We turn now to claimant's medical history regarding her hypertension and chest pain. Claimant apparently began the social security disability application process in California, but her file was lost by the agency. See R.Vol. II at 109. What evidence does remain of claimant's medical history in California reveals that, in October 1990, under the treatment of Dr. Ridgill, claimant underwent an EKG which was reported as abnormal, see id. at 185, presumably because of nonspecific ST-T wave changes. ³ Dr. Ridgill's assessment at that time was hypertension with possible coronary artery disease. See id. The record of Dr. Ridgill's examination states the following:

"ELECTROCARDIOGRAM READING:

Normal sinus rhythm. Nonspecific STT changes. Mostly in the inferior leads and anterior leads changes are noted.

INTERPRETATION: Rule out ischemic heart disease."

See id. at 183. Although the ALJ did not comment on or attempt to interpret the significance of this notation, the Secretary cites this portion of the record to mean "ischemic heart disease was ruled out." See Appellee's Br. at 15 (emphasis added). In light of the entire record, however, we do not view Dr. Ridgill's ambiguous statement, "rule out ischemic heart disease," as supportive of the conclusion that such disease "had been ruled out." Rather, we believe that Dr. Ridgill was of the opinion that further testing would need to be done in order to rule out the possibility of ischemic heart disease. This interpretation is the only consistent one because Dr. Ridgill then proceeded to order further tests, specifically a treadmill exam. If Dr. Ridgill had already ruled out ischemic heart disease, such further testing would presumably have been unnecessary.

Despite the abnormal EKG, Dr. Ridgill was then of the opinion that claimant had no impairment-related physical limitations, see id. at 186, but that a treadmill exam was necessary for further diagnosis, see id. at 183. On two separate occasions claimant attempted to complete the treadmill test, but was unable to do so because her blood pressure was too high. See id. at 114, 145. No further tests were done to pinpoint claimant's cardiac problems. ⁴

Sometime during the summer of 1991, claimant apparently moved to Oklahoma, where she was seen twice by Dr. Reed. On December 19, 1991, claimant again submitted to an EKG. While claimant's blood pressure at the time of the test was 130/70, the EKG was again abnormal. The report indicated that anteroseptal myocardial infarction could not be ruled out; that ST & T wave abnormality was again present; and that claimant had possible inferior ischemia. See id. at 35. Claimant was given Procardia and nitroglycerin ointment. There are no further tests in the record regarding claimant's heart condition.

The ALJ rejected claimant's contention that her heart condition constituted a severe impairment, concluding that the diagnoses of her two treating physicians were unsupported by objective medical evidence, see R.Vol. II at 50, and that claimant had failed to provide any other medical evidence to support her claim.

The difficult issue presented here, where the charge is that the ALJ has failed to develop the record by not obtaining a consultative examination, is to decide what quantum of evidence a claimant must establish of a disabling impairment or combination of impairments before the ALJ will be required to look further. We begin by acknowledging that the Secretary has broad latitude in ordering consultative examinations. See Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 778 (10th Cir.1990). Nevertheless, it is clear that, where there is a direct conflict in the medical evidence requiring resolution, see 20 C.F.R. § 404.1519a(b)(4), or where the medical evidence in the record is inconclusive, see Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir.1993), a...