Jones v. Bowen

• Decision Date: 12 August 1987
• Docket Number: No. 86-4949,86-4949
• Citation: 829 F.2d 524
• Parties: , Unempl.Ins.Rep. CCH 17,624 Jimmy JONES, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary, Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 524

829 F.2d 524

19 Soc.Sec.Rep.Ser. 79, Unempl.Ins.Rep. CCH 17,624

Jimmy JONES, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary, Department of Health and Human Services, Defendant-Appellee.

No. 86-4949

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Aug. 12, 1987.

Lonnie R. Smith, Bobbie Ross, Southwest La. Legal Services Society, Inc., Lake Charles, La., for plaintiff-appellant.

Marguerite Lokey, Dallas, Tex., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., Patrick A. Hudson, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court For the Western District of Louisiana.

Before POLITZ, WILLIAMS and JONES, Circuit Judges.

PER CURIAM:

Appellant applied for insurance benefits under Secs. 216(i) and 223 of the Social Security Act, 42 U.S.C. Secs. 416(i), 423, alleging that in 1984 he became unable to work due to high blood pressure, diabetes, heart and prostate trouble. An administrative law judge determined that he was not disabled within the meaning of the Act and was therefore not entitled to disability benefits. The district court affirmed the Secretary's determination, finding it supported by substantial evidence. We AFFIRM.

Appellant first asserts that the administrative law judge failed to fully and fairly develop the facts of his claim by not requesting a psychiatric or psychological examination to explore appellant's claimed non-exertional impairments. See Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.1984). Appellant argues that assertions of his examining physicians "were sufficient to place the Secretary on notice that a psychiatric or psychological examination was crucial to correct adjudication." We disagree.

It is clear that the claimant has a burden of proving his disability by establishing a physical or mental impairment. Cook v. Heckler, 750 F.2d 391, 393 (5th Cir.1985); 42 U.S.C. Sec. 423(d)(5)(A). Under the applicable regulations, if sufficient medical or other evidence is not provided by the claimant, the secretary is required to make a decision based on the information available. See 20 CFR Sec. 404.1516 (1986). Under some circumstances, however, a consultative examination is required to develop a full and fair record. 20 CFR Sec. 404.1517 (1986). The decision to require such an examination is discretionary. In Turner v. Califano, 563 F.2d 669, 671 (5th Cir.1977), we stated "[t]o be very clear, 'full inquiry' does not require a consultative examination at government expense unless the record establishes that such an examination is necessary to enable the administrative law judge to make the disability decision." (emphasis in original). See also Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 214 (6th Cir.1986) (adopting Turner's expression that the ALJ's decision to require consultative examination is discretionary).

At the outset, we note that appellant did not list a mental non-exertional impairment in his original request for benefits. Moreover, there is no indication in the record that he ever requested a consultative examination. Appellant relies solely on the following statements of examining physicians to support his claim of non-exertional mental impairments. First, in January 1984, when appellant was seen for chest pain he stated that "he had become emotionally upset" and then developed severe left pre-cordial chest pain, associated with diaphoresis, nausea, and shortness of breath. Second, during a November, 1984 disability determination examination, appellant reported to a physician that he had become grouchy, angry, and depressed about his situation of being unable to work. "Mere sensitivity about loss of ability to perform certain chores, however, does not even approach the level of a mental or emotional impairment as defined by SSA regulations." Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir.1987) (citing 20 CFR Subpart P, App. 1, Listing 12.00). Thus, we conclude that not only did appellant fail to meet his burden in proving a non-exertional mental impairment, but that appellant also failed to raise a suspicion concerning such an impairment necessary to require the ALJ to order a consultative examination to discharge his duty of "full inquiry" under 20 CFR Sec. 416.1444 (1986).

Appellant also asserts that, contrary to the Secretary's determination, his cardiovascular disease, diabetes mellitus, hypertension, ¹ obesity, and manifestations of these ailments in debilitating pain render him unable to perform the full range of light work activities under 20 CFR Sec. 404.1567(b) (1986). We conclude, however, that the record contains substantial evidence supporting the ALJ's conclusion that none of these impairments alone, or in combination, prevented appellant from performing the full range of light work activities, or from performing his past relevant work. First, while appellant has a history of cardiovascular disease, the ALJ concluded that it was not manifested by signs, symptoms, and objective medical findings that meet or equal the requirements of a listed impairment in 20 CFR part 404, Subpart P, App. 1, Reg. 4. Additionally, while appellant has been seen on several occasions for complaints of chest pain, these episodes have been resolved during hospital stays, from the last of which appellant was discharged in "satisfactory" condition. Second, appellant also has a history of and is being treated for diabetes mellitus. This is a remediable condition and therefore is not disabling under the Act. Epps v. Harris, 624 F.2d 1267, 1270 (5th Cir.1980). The record shows that when appellant follows his prescribed insulin treatment, the condition is controlled. There is no evidence of significant diabetic retinopathy or any motor disfunction. Third, appellant's hypertension was within the range considered mild to moderate by the medical profession. Appellant's hypertension was not shown to be disabling. Lovett v. Schweiker, 667 F.2d 1, 3 (5th Cir.1981). Fourth, appellant claims that the ALJ gave no consideration to his obesity. While appellant did not raise this issue until his district court complaint, the record does not support such a contention. At the time of the hearing, it was reported that appellant weighed approximately 290 pounds. Under the Secretary's regulations, however, appellant's weight would have to exceed 328 pounds to satisfy the definition of obesity. 20 CFR part 404, Subpart P, Appendix 1, Sec. 10.10, table I.

Finally, appe...