Musgrave v. Sullivan

• Decision Date: 15 June 1992
• Docket Number: No. 91-7101,91-7101
• Parties: , Unempl.Ins.Rep. (CCH) P 16760A, 3 NDLR P 19 David W. MUSGRAVE, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1371

966 F.2d 1371

37 Soc.Sec.Rep.Ser. 542, Unempl.Ins.Rep. (CCH) P 16760A,

3 NDLR P 19

David W. MUSGRAVE, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human

Services, Defendant-Appellee.

No. 91-7101.

United States Court of Appeals, Tenth Circuit.

June 15, 1992.

Paul F. McTighe, Jr., Tulsa, Okl., for plaintiff-appellant.

John W. Raley, Jr., U.S. Atty., Gayla Fuller, Chief Counsel, Region VI, Christopher Carillo, Asst. Regional Counsel, Office of the Gen. Counsel, Dallas, Tex., for defendant-appellee.

Before MOORE, TACHA, and BRORBY, Circuit Judges.

TACHA, Circuit Judge.

Claimant David W. Musgrave appeals an order of the district court affirming the decision of the Secretary of Health and Human Services denying his request for Supplemental Security Income benefits under the Social Security Act, 42 U.S.C. 405(g). ¹ On appeal, Claimant contends that (1) the Secretary's decision was not supported by substantial evidence and (2) the ALJ erred in failing to obtain the testimony of a vocational expert.

Claimant was twenty-five years old at the time he filed for social security disability benefits on February 13, 1989. This request was denied initially and on reconsideration. Claimant requested, and was granted, a hearing before an administrative law judge (ALJ) on September 25, 1989. Claimant claims disability from April 6, 1988, due to an injury to his back he sustained in 1986, while in the Navy. While working aboard ship, Claimant apparently fell eight feet onto a steel deck, landing in a seated position. ²

Claimant has a high school education and was honorably discharged from the Navy after four years' service. Prior to entering the Navy, Claimant received training as a nurse's aide and worked in that capacity in a nursing home for approximately six months. During his four years in the Navy, Claimant worked basically as a janitor and performed maintenance jobs, such as painting.

The ALJ denied Claimant's application for benefits, finding that Claimant was able to return to his prior work activity as a nurse's aide or a janitor. The Appeals Council declined to review the ALJ's decision. The decision thus became the final decision of the Secretary. Claimant filed for review and the district court affirmed. Claimant appeals, and we affirm.

At the time of the ship-board accident, Dr. T.A. Miller diagnosed Claimant's injuries as lumbosacral contusion/spasm. Appellant's App. Vol. II at 188. Dr. Miller also noted that the radiologist read an old compression fracture which appeared to be stable. Id. The record indicates that Claimant was treated for seven days with bed rest, analgesics, and muscle relaxants. Claimant appeared to have no other injuries and was released from the hospital as fully ambulatory. He was placed on limited duty for one week and then gradually returned to full duty. Id. at 183.

Claimant remained on full active duty for another two years before his discharge. Although Claimant told the ALJ that he was medically discharged from the Navy, id. at 28, the record indicates that Claimant was separated at the end of his tour with no indication of early or unusual separation for medical reasons. Id. at 162-63. Claimant's separation physical examination report is void of any indication of lingering back problems. Id. The report states that Claimant, at the time of discharge, two years after the accident, was in "good health" and taking no medications. Id.

At the hearing, the ALJ heard Claimant testify that he suffers constant pain in his lower back which radiates down his legs and also causes stomach upset. Id. at 31, 33. Claimant further testified that he is not capable of engaging in any activity, id. at 35-36, that he can only stand on his feet for ten to fifteen minutes, id. at 37, and that he spends most of his time in bed, id. at 35-36. ³ Claimant stated that he had gained approximately 150 pounds since the accident. Id. at 33. ⁴

"This court reviews the Secretary's decision 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) (citing Bernal v. Bowen, 851 F.2d 297, 302-03 (10th Cir.1988)). Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989). In order to determine whether the Secretary's decision is supported by substantial evidence, we must meticulously examine the record. However, we may neither reweigh the evidence nor substitute our discretion for that of the Secretary. Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991).

In order to determine whether a claimant is under a disability, the Secretary applies a five-step inquiry: (1) whether the claimant is currently working; (2) whether the claimant suffers from a severe impairment; (3) whether the impairment meets an impairment listed in appendix 1 of the relevant regulation; (4) whether the impairment prevents the claimant from continuing his past relevant work; and (5) whether the impairment prevents the claimant from doing any kind of work. 20 C.F.R. §§ 404.1520, 416.920; see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988) (providing an in-depth discussion of the five steps). "If at any point in the process the Secretary finds that a person is disabled or not disabled, the review ends." Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir.1988). In this case, the ALJ terminated the review at step four by concluding that Claimant was capable of returning to his past relevant work as a nurse's aide or a janitor. Decision, Appellant's App. Vol. II at 12-13.

Initially, Claimant argues that the ALJ failed in his duty to fully develop the record due to the brevity of Claimant's hearing. "[A] Social Security disability hearing is a nonadversarial proceeding, in which the ALJ has a basic duty of inquiry, 'to inform himself about facts relevant to his decision and to learn the claimant's own version of those facts.' " Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir.1987) (quoting Heckler v. Campbell, 461 U.S. 458, 471, 471 n. 1, 103 S.Ct. 1952, 1959, 1959 n. 1, 76 L.Ed.2d 66 (1983) (Brennan, J., concurring)). Although Claimant had designated his brother as his representative, see Appellant's App. Vol. II at 19, he appeared at the hearing pro se. The ALJ's duty to develop the record is heightened when a claimant is unrepresented. Dixon v. Heckler, 811 F.2d at 510. However, a claimant's pro se status does not, in and of itself, mandate a reversal. Born v. Secretary of Health & Human Servs., 923 F.2d 1168, 1172 (6th Cir.1990).

The length, or brevity, of a benefits hearing is not dispositive of whether or not the ALJ met the heightened obligation to fully develop the record in a case where the claimant is unrepresented. We conclude that the more important inquiry is whether the ALJ asked sufficient questions to ascertain (1) the nature of a claimant's alleged impairments, (2) what on-going treatment and medication the claimant is receiving, and (3) the impact of the alleged impairment on a claimant's daily routine and activities. See, e.g., Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir.1991) (hearing which lasted for twenty-six minutes was adequate when ALJ questioned pro se plaintiff about his condition, treatment, medication, and daily routines); Born v. Secretary of Health & Human Servs., 923 F.2d at 1172 (brevity of hearing not dispositive when claimant failed to indicate what information or evidence would have been produced by further questioning); Cruz v. Sullivan, 912 F.2d 8, 11-12 (2d Cir.1990) (ALJ failed to ask sufficient questions to fulfill duty to develop record for pro se claimant).

At the opening of the hearing, the ALJ ascertained that Claimant understood his right to representation "by a lawyer or other qualified person of [Claimant's] choice." Appellant's App. Vol. II at 23. The ALJ further elicited Claimant's waiver of his right to representation and ascertained that Claimant desired to proceed without the presence of his brother.

The ALJ questioned Claimant regarding his condition, id. at 28, the accident which Claimant alleges precipitated his back problems, id. at 31-32, his recent medical treatment, id. at 29-30, his pain, id. at 30-33, and his daily activities, id. at 33-37. The ALJ also questioned Claimant regarding his obesity. Id. at 33.

When the ALJ inquired as to whether Claimant had recently received any medical treatment, Claimant replied that he had not seen any doctors other than the social security consultants. Id. at 30. The ALJ noted that the record contained an undated report from Dr. Donald Dingle, a chiropractor, in which, in a very short, cursory paragraph, Dr. Dingle opined that Claimant was disabled due to back pain and obesity. Id. at 212. Claimant did not remember when he had seen Dr. Dingle. Dr. Dingle's brief, conclusory opinion is not supported by any medical evidence.

Unlike the plaintiff in Dixon, who was deemed illiterate, Claimant in this case is educated and articulate. There is no indication that Claimant is unable to read or to write effectively. See, e.g., Dixon v. Heckler, 811 F.2d at 510. The record indicates that Claimant understood and effectively responded to the ALJ's questions.

Claimant admits that he presented "very little in the way of medical evidence." Appellant's Br. at 9. He contends, however, that the ALJ erred in failing to give greater weight to the fact that the Veteran's Administration had previously awarded Claimant service-related disability payments based on its conclusion that Claimant is twenty percent disabled. Disability determinations by other agencies, however, are not binding on the Secretary. 20 C.F.R. §§ 404.1504, 416.904; see Mandrell v. Weinberger, 511 F.2d 1102, 1103 (10th Cir.1975) (although entitled to consideration, finding of disability by...