James v. Bowen
| Decision Date | 18 June 1986 |
| Docket Number | No. 86-3056,86-3056 |
| Parties | , Unempl.Ins.Rep. CCH 17,071 Clemon J. JAMES, Plaintiff-Appellant, v. Otis W. BOWEN, Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elizabeth O. Powers, Staff Atty., Capital Area Legal Services Corp., Murphy W. Bell, Exec. Director, Baton Rouge, La., for plaintiff-appellant.
Patrick A. Hudson, John M. Gough, Office of Gen. Counsel, Dallas, Tex., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Louisiana.
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
Plaintiff-appellant Clemon James appeals the district court's summary judgment in favor of the defendant-appellee, Secretary of Health and Human Services, dismissing James' suit seeking to set aside the Secretary's denial of his claim for Social Security disability insurance and supplemental income benefits under 42 U.S.C . Secs. 423(a) and 1381a. James applied for the benefits claiming that his medical condition resulted in complete disability. In his appeal to this Court, James for the first time asserts that the administrative law judge, knowing that James was not represented by counsel, failed to discharge his duty to fully develop all the relevant facts regarding his disability. This contention was not raised in the district court below, where James was represented by counsel, and we therefore reject it since any deficiency in this respect was not egregious and since the record appears to be developed with at least minimal adequacy and contains substantial evidence to support the administrative law judge's determination that James is not disabled within the meaning of the statutes. Accordingly, we affirm the district court's judgment denying James' claim for relief.
James filed an application for Social Security disability insurance benefits and supplemental income benefits on March 25, 1983. 1 James is a forty-nine year old man who has an eighth grade education and is able to read and write. In addition, he has attended eight months of welding school, although he did not finish. He has worked as a welder, truck driver, insulation installer, carpenter's helper, and most recently as a night watchman. His last period of substantial gainful employment was in May of 1981. James claims that he was fired when the building he was guarding was vandalized after he blacked out.
The state agency and the Social Security Administration denied his application initially and after reconsideration. Appellant requested a hearing de novo before an administrative law judge (ALJ). Appellant appeared in person before the ALJ without counsel. The ALJ initially confirmed that James had been informed of his right to counsel in the notice of the hearing which he had received. Although the hearing lasted only ten minutes, the ALJ did ask James various questions regarding his claimed disability. James disagreed with the medical reports that his blood pressure was under control. He told the ALJ that he had dizzy spells and that he had "passed out all the way" although "it haven't been a long time now," and that he had bad headaches in the morning which lasted for about an hour but went away after he took his blood pressure medicine. In addition, he stated that his heart beat fast and he took medication for fluid around his heart. He also claimed to have problems with his nerves, stating that "most of the time if I get angry or something my nerves get bad or something like that or if there's a lot of noise around or something, sometimes I get scared my pressure go up." However, James has not seen any medical personnel in regard to his nerves. James stated that he could walk about two or three blocks if he took his time, that he did not have too much trouble lifting, and that he could bend, stoop, and squat. In response to the ALJ's questions, he stated that he spent most of his time sitting around the house watching television.
Based upon this testimony and medical reports from four doctors, the ALJ found that James was not disabled within the meaning of the statutes. 2 Specifically the ALJ determined that James suffered from significant hypertension, obesity, moderate obstructive ventilatory disease, and that he had a history of a nervous condition, but he did not have an impairment or combinations of impairments listed in, or medically equal to one listed in, Appendix 1, Subpart P, Regulation Number 4. 3 The ALJ also found that James' subjective complaints were not supported by the medical evidence to the degree of severity alleged, that James had residual functional capacity to perform work-related activities except for work involving lifting weights in excess of fifty pounds, and that his past relevant work as a welder did not require work outside his capabilities. The ALJ found that James was not disabled as defined in the Social Security Act and therefore was not entitled to disability insurance or supplemental security income benefits.
After the ALJ's decision, James sought a review of the decision by the appeals council, which declined review on June 11, 1984, thus making the ALJ's determination final. James subsequently filed a petition for review in the United States District Court for the Middle District of Louisiana. The district court granted the Secretary of Health and Human Services' motion for summary judgment, and James brings this appeal.
In his appeal to this Court, James complains that the hearing before the ALJ was merely perfunctory. James failed to raise this argument in the district court, arguing below only that he was disabled and there was insufficient evidence to sustain the ALJ's finding of no disability. James was represented by counsel throughout the proceedings in the district court. The action below was filed three months after our decision in Kane v. Heckler, 731 F.2d 1216 (5th Cir.1984), on which James relies in this connection, and the motion for summary judgment was filed about nine months after Kane. This Court as a general rule does not consider issues raised for the first time on appeal. Wiley v. Offshore Painting Contractors, Inc., 711 F.2d 602, 609 (5th Cir.1983); City of Waco v. Bridges, 710 F.2d 220, 227 (5th Cir.1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1414, 79 L.Ed.2d 741 (1984). While we might overlook the failure to raise this issue in the court below in a particularly egregious case, this is not such a case.
In arguing that the abbreviated nature of the hearing requires a remand, James relies upon our holding in Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.1984), in which we stated that the ALJ has a duty to fully and fairly develop the facts relative to a claim for benefits. When, as in this case, the claimant is not represented by counsel, the ALJ's obligation "rises to a special duty" which requires the ALJ to "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Id. at 1219-20. If the ALJ fails in this duty, he does not have before him sufficient facts on which to make an informed decision and consequently the decision is not supported by substantial evidence. Id. at 1219.
A review of the facts in both cases shows that the situation in the case at bar is properly distinguished from that in Kane. In Kane, as in this case, the Social Security claimant was not represented by counsel. There, however, the material similarity ends. In Kane the hearing before the ALJ lasted only five minutes and a significant part of the proceeding was devoted to the formal introduction of exhibits and to putting Kane, the claimant, under oath. The ALJ asked only one question regarding Kane's subjective complaints. 4 By contrast, the ALJ in this case asked James various questions regarding his blood pressure and whether or not he thought it was controlled, his dizzy spells, his blackouts and how often they occurred, and his nerve problem. In addition, the ALJ questioned James about his ability to perform various tasks such as how far he could walk, how long he could stand, if he had trouble lifting, how much he did around the house, and his use of his hands. He also questioned James about his activities during the day and how often he saw the doctor, and concluded by asking James if he had anything else he wanted to say. This is obviously much more of an investigation into James' activities than was conducted by the ALJ in Kane with his one question.
James emphasizes that his hearing lasted for only ten minutes and the hearing in Kane lasted five minutes. We did not set a specific time rule for determining if the ALJ conducted a full and fair investigation in Kane, but rather an objective test. The one question the ALJ asked in Kane did not sufficiently develop the relevant facts. On the other hand, the more substantial questioning of the ALJ in this case did develop the relevant facts and the exact amount of time it took is not determinative. Here the ALJ at least minimally fulfilled his duties as set forth in Kane to develop the...
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