Cavenaugh v. Apfel ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 9 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DENNIS E. CAVANAUGH,
Plaintiff-Appellant,
v. No. 98-7065
(D.C. No. CV-96-658-S)
KENNETH S. APFEL, Commissioner, (E.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , BARRETT , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Dennis Cavanaugh appeals from the district court’s decision affirming the
Commissioner’s denial of his application for Social Security disability insurance
benefits. We review the Commissioner’s decision to determine whether factual
findings are supported by substantial evidence and whether correct legal standards
were applied. See Winfrey v. Chater , 92 F.3d 1017, 1019 (10th Cir. 1996). For
the reasons stated below, we affirm.
In December 1993, Mr. Cavanaugh filed an application for benefits
claiming disability since December 31, 1985, due to migraine headaches,
depression and hearing loss. 1
The matter came before an administrative law
judge, who found that because his insured status expired on March 31, 1990,
Mr. Cavanaugh had to prove he was disabled by that date. See Henrie v. United
States Dep’t of Health & Human Servs. , 13 F.3d 359, 360 (10th Cir. 1993). The
ALJ concluded that he had not, finding that he failed to demonstrate any severe
impairment that significantly limited his ability to work, and thus ending the
inquiry at step two of the five-step process for determining disability. See
20 C.F.R. § 404.1520. The Appeals Council denied review, making the ALJ’s
decision the final decision of the Commissioner.
1
He also filed an application for Supplemental Security Income benefits, but
that application was denied because he had too many resources. He does not
challenge this denial.
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On appeal, Mr. Cavanaugh first contends that the ALJ erred by finding that
there was no medical evidence supporting his claim of a disabling hearing loss.
Specifically, he contends that an audiologist’s report dated January 30, 1986,
demonstrated that he had a severe hearing loss. That report stated that
Mr. Cavanaugh
has a moderate to severe mixed hearing loss in the right ear. In the
left ear he has a mild conductive hearing loss, in the low frequencies,
and a severe high frequency loss at 8000 hertz. His speech reception
threshold in the right ear is 55 dB and in the left ear it is 20 dB. His
discrimination scores are 90% bilaterally. The tympanograms
indicate normal middle ear systems. The reflexes were absent
bilaterally.
Appellant’s App. Vol. II at 124.
At step two, it is the claimant’s burden to demonstrate an impairment or
combination of impairments that significantly limits his or her ability to do basic
work activities. See § 404.1520(c). The step two severity determination is based
on medical factors alone, and “does not include consideration of such vocational
factors as age, education, and work experience.” Williams v. Bowen , 844 F.2d
748, 750 (10th Cir. 1988). Although it may have been better practice for the ALJ
to have addressed the audiologist’s report, we conclude that his failure to do so is
not reversible error. As the district court noted, and Mr. Cavanaugh implicitly
acknowledges on appeal, the audiologist’s report revealed that his speech
discrimination was within normal range. More generally, the report itself does
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not necessarily state that any hearing problems identified would significantly limit
Mr. Cavanaugh’s ability to do work-related activities. The only medical evidence
on this point is the conclusion by a nonexamining physician who reviewed the
report and determined that it did not indicate a severe impairment. See
Appellant’s App. Vol. II at 68-69, 71. Absent contrary evidence, we cannot say
that the ALJ erred in finding Mr. Cavanaugh’s hearing loss to be a nonsevere
impairment. Cf. Hawkins v. Chater , 113 F.3d 1162, 1165 (10th Cir. 1997)
(relying on report by nonexamining physician not mentioned in ALJ’s decision to
find substantial evidence supporting ALJ’s finding of nonsevere impairment).
Mr. Cavanaugh also contends that the ALJ failed to uphold his duty to
develop the record in two ways. First, he contends that the ALJ should have
obtained a missing page from the report of a psychiatric examination he
underwent at a Veterans Affairs outpatient clinic in 1986. Second, he contends
that the ALJ should have questioned him at the hearing regarding his pain and
other subjective complaints as they existed prior to expiration of his insured
status.
Mr. Cavanaugh was represented by counsel at the hearing, and counsel was
given the opportunity to add to and correct the exhibits on file and to question
Mr. Cavanaugh at the hearing. With respect to the missing page from the
psychiatric examination report, there is no indication in the record or in his brief
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what this missing page might show--in particular, that it might tend to
demonstrate a severe impairment--nor is there any indication Mr. Cavanaugh or
his counsel ever tried to obtain the missing page. In such circumstances, we will
not find the ALJ’s failure to obtain a missing document of unknown importance
to be reversible error. See Hawkins , 113 F.3d at 1169 (citing Shannon v. Chater ,
54 F.3d 484, 488 (8th Cir. 1995)).
Turning to the hearing, although we agree with Mr. Cavanaugh that the
focus of the ALJ’s questions at the hearing was on his condition at that time,
which would appear to be of questionable relevance since his insured status ended
five years earlier, we note that some of the ALJ’s and counsel’s questions
solicited information regarding his claimed impairments during the relevant
period. Mr. Cavanaugh was represented by counsel at the hearing, which, while
not relieving the ALJ of his duty to develop, does lessen that duty, see Henrie ,
13 F.3d at 360-61, and it was clear to all parties at the time of the hearing when
Mr. Cavanaugh’s insured status expired. Finally, Mr. Cavanaugh has never
explained what his subjective testimony would have been, nor how it would have
combined with the existing objective medical evidence to establish a severe
impairment. Cf. 20 C.F.R. § 404.1528(a) (claimant’s statements not enough to
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establish existence of impairment). 2
Thus, we conclude that he has not shown the
ALJ committed reversible error.
The judgment of the United States District Court for the Eastern District
of Oklahoma is AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
2
Except as it related to his hearing loss, Mr. Cavanaugh does not contend on
appeal that the objective medical evidence alone demonstrated a severe
impairment due to his migraine headaches or depression.
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