Hanson v. Apfel ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 24 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WAYNE C. HANSON,
Plaintiff-Appellant,
v. No. 98-5127
(D.C. No. 96-CV-1100-EA)
KENNETH S. APFEL, (N.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and BRISCOE , 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This order and judgment is not binding precedent, except under the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.
Wayne C. Hanson appeals from the district court’s decision affirming the
Commissioner’s denial of his applications for Social Security disability insurance
benefits and Supplemental Security Income benefits. We review the
Commissioner’s decision to determine whether the factual findings are supported
by substantial evidence and whether the correct legal standards were applied. See
Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th
Cir.1994).
Hanson was apparently diagnosed with non-insulin dependent diabetes
mellitus in 1989, although the record contains no medical evidence of his diabetes
(or any other medical condition) prior to August 1993. Hanson applied for
benefits in October 1993 claiming disability since August 1991 primarily due to
fatigue and other limitations imposed by his diabetes. Because his insured status
expired on December 31, 1992, he had to be found disabled by that date to be
entitled to disability insurance benefits under Title II of the Social Security Act.
See Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d 359, 360
(10th Cir. 1993).
Following a hearing in August 1994, an administrative law judge
determined that Hanson was not disabled. The ALJ found that he was severely
impaired by diabetes with mild neuropathy, and that he could not perform his past
relevant work as a welding and manufacturing engineer and electrical mechanic,
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which was performed at the medium exertional level. The case thus proceeded to
step five of the five-step process for determining disability. See 20 C.F.R. §§
404.1520, 416.920. The ALJ concluded that despite his diabetes, Hanson could
still perform the full range of light work restricted only by an inability to climb.
Relying on the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P., App.
2, Rules 202.15, 202.05, and 202.07, and the testimony of a vocational expert, the
ALJ found there were other jobs available Hanson could perform and thus was not
disabled. After considering additional evidence submitted by Hanson, the
Appeals Council denied review, thus making the ALJ’s decision the final decision
of the Commissioner.
On appeal, Hanson raises three related arguments. First, he contends that
the ALJ failed to comply with 20 C.F.R. § 404.1512(d)(2) and obtain medical
records covering the period relevant to his Title II claim, that is, from the date of
his application for benefits to the time his insured status expired. As a result, he
contends, the ALJ did not have the evidence necessary to meet the
Commissioner’s step-five burden of showing he retained the functional capacity
to work. Second, he contends that the ALJ’s determination with respect to his
SSI claim that he could perform nearly the full range of light work is not
supported by substantial evidence because there is insufficient evidence he could
perform the standing requirement of light work, especially in light of the
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additional evidence he submitted to the Appeals Council. Third, Hanson claims
that in affirming the ALJ’s decision, the district court failed to apply the correct
step-five burden.
Hanson’s first contention begins with what is essentially a duty-to-develop
argument. A claimant is responsible for furnishing medical evidence of claimed
impairments, see § 404.1512(a), (c), but the Commissioner also has the duty to
ensure that an adequate record is developed relevant to the issues raised, see
Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). Consistent with this
duty, 20 C.F.R. § 404.1512(d) states that the Commissioner will make “every
reasonable effort” to help a claimant get records from his or her medical sources.
On the disability report Hanson filed when applying for benefits, which
asked him to identify doctor, hospital and clinic treatment related to his claimed
impairments, he did not identify any treatment for any alleged impairment prior to
August 1993. See Appellant’s App. Vol. II at 136-38. The ALJ was well aware
of the lack of medical evidence covering Hanson’s insured period from the
application date to the date Hanson’s insured status expired, and stated to
Hanson’s counsel at the close of the hearing:
As I reviewed the file I seem to have, see a problem area or a
potential problem area, the date last insured, December 31st of ’92.
What I would like for you to help me on is help me to understand
what evidence most strongly supports disability from the alleged
onset date to the date last insured.
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Id. at 79. Counsel responded that “[t]hat’s the evidence we’re trying to obtain.”
Id. at 80. Counsel apparently never did, at least he never submitted it, nor did he
request assistance from the ALJ in obtaining the evidence.
Despite his failure to present any relevant medical evidence, Hanson
contends that a medical history taken from Hanson in 1993 indicating that he had
been “started on micronase by Dr. Sweeden in Grove, Ok.” at some unknown
time, id. at 167, and that he had eye surgery by Dr. Cole in 1992 at some unknown
location, see id. at 170, should have prompted the ALJ to obtain the relevant
records of these treatments. As already noted, Hanson did not identify these
treatments or doctors on his disability report. Moreover, there is no indication
that Hanson or his counsel has ever tried to obtain the medical records he claims
the ALJ should have obtained, which casts considerable doubt on the relevance of
the evidence and existence of any prejudice he may have suffered from the ALJ’s
not obtaining it. See Hawkins , 113 F.3d at 1169 (citing Shannon v. Chater , 54
F.3d 484, 488 (8th Cir. 1995)). Given Hanson’s failure to identify his medical
providers for the relevant period, to provide the evidence himself or ask the
Commissioner for assistance, and to show the relevance of any evidence he claims
the ALJ should have obtained, we conclude he has not demonstrated the ALJ
violated the duty to develop.
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The second part of Hanson’s Title II argument is that the absence of
medical evidence from his insured period precluded the Commissioner from
meeting his step-five burden of showing that he could still work despite his
diabetes. This argument proves too much. Hanson had the burden of producing
medical evidence showing the severity of his impairment, see 20 C.F.R. §
404.1512(a), (c); we have already rejected his contention the ALJ failed to
adequately develop the record. As he recognizes, the record does not contain any
relevant medical evidence. Only his own statements supported his claim that he
had diabetes during this period, and there is no medical evidence of its severity.
While with this absence of medical evidence, we are at a loss to explain how his
Title II claim proceeded beyond even step two, see id. § 1528(a) (claimant’s
statements alone insufficient to establish existence of impairment); Williams v.
Bowen , 844 F.2d 748, 750 (10th Cir.1988), 1
the ALJ did not err by not identifying
evidence of Hanson’s abilities in light of the unknown effect of a controllable
impairment like diabetes. 2
1
In his decision, the ALJ did not segregate and separately analyze the two
relevant periods--the Title II period and the subsequent SSI period. There is
substantial evidence in the record for step-two purposes regarding the severity of
Hanson’s diabetes in the latter period.
2
Although only directly relevant to his SSI claim, the ALJ found that
Hanson had a lackadaisical attitude toward following the prescribed regimen for
controlling his diabetes.
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With respect to his SSI claim, Hanson argues that substantial evidence does
not support the ALJ’s finding that he retained the capacity to perform the standing
required by the performance of light work, and that the district court failed to
recognize that in this step-five case, the Commissioner has the burden on this
issue. The ALJ noted that, although his doctor had restricted him to
“nonweightbearing” activities for several months due to a foot ulcer, the doctor
concluded that the ulcer had completely healed by December 1993. His doctors
discussed foot care and orthotics with him, but never indicated there were any
further limitations in his ability to stand or bear weight. The consultative medical
examiner found that there was diminution of sensation in both feet, but that his
gait was safe and stable. Hanson testified that he did yard work and could walk
half a mile, and the ALJ found his credibility to be suspect and his assessment of
his abilities to be understated. The evidence submitted to the Appeals Council
regarding foot pain, spasms and numbness did not indicate any new or worsening
symptoms. We conclude that substantial evidence supports the ALJ’s finding
regarding Hanson’s capacity to do light work, and that neither the ALJ nor district
court erred in applying the appropriate burden.
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The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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