Thompson received a letter detailing his right to representation and the possibility of obtaining it free of charge or on a contingent basis, but omitting discussion of the 25% fee limitation. The ALJ's explanation of the claimant's right to representation, however, was far more cursory than in this case; he failed to tell the claimant about any of the benefits representation might bring, or about free or contingent representation. 933 F.2d at 585 ("The dialogue regarding counsel also evidences the ALJ's failure to fully discuss the benefits of legal representation or the possibility of contingency arrangements.") Moreover, the claimant's dialogue with the ALJ, combined with the fact that he attempted to get an attorney through legal aid, "strongly suggested" that he wanted representation but thought that he could not afford it. Id. Here, in contrast, Scott expressed a desire to "continue on myself" after the ALJ clearly explained that free representation was an option. Consequently, a number of factors distinguish this case from Thompson. We are not denying that money is an issue for Scott; indeed, it likely is given that Scott has been unemployed since 1991. Our determination is simply that the ALJ and Scott's exchange makes it far more likely that Scott understood the possibility of free representation and validly waived it. See Husbands v. Chater, 1996 U.S. Dist. LEXIS 3996, 1996 WL 153879, at *2 (N.D. Ill. Apr. 1, 1996) (finding valid waiver where plaintiff indicated that he understood the possibility of free representation because "information about an attorney who would take only limited fees would have been unlikely to alter plaintiff's decision").
B. The ALJ's Duty to Develop the Record
We need not definitively resolve the waiver issue, however, because we find that the Commissioner has met his burden of proving that the ALJ developed the record fully and fairly. "The ALJ's duty to develop the record fully and fairly where the claimant proceeds without counsel is met if the ALJ probes the claimant for possible disabilities and uncovers all of the relevant evidence." Binion, 13 F.3d at 245. Scott argues that the ALJ's factual probing is deficient in two respects: 1) the ALJ did not assist Scott in getting updated information from Dr. Dizon "even though the last contact that the SSA had with Dr. Dizon was 2 years before the ALJ's decision"; and 2) the ALJ failed to inquire further into Scott's alleged memory loss, nervousness, and unwillingness to be around people, difficulties which "would affect Plaintiff's ability to perform the mental demands of work." Pl. Br. at 6. Neither argument has merit.
In Luna v. Shalala, 22 F.3d 687 (7th Cir. 1994), the Seventh Circuit squarely rejected the contention that SSA regulations require the ALJ to "update objective medical evidence to the time of [the] hearing." Id. at 693. The ALJ discharges his duty to develop a complete medical history if he obtains records from the claimant's medical sources for at least twelve months preceding the date that the claimant files for benefits. Id.; see 20 C.F.R. § 404.1512(d). Here, the ALJ did just that. Scott filed for DIB and SSI benefits most recently in June 1992. The record contains extensive documentation from Scott's hospitalizations between February 1990 and May 1992, the last time Scott was hospitalized. Results of an EKG and chest X-ray taken in May 1993 -- almost a year after Scott filed for benefits -- are also included. As for information from Dr. Dizon, the ALJ obtained two reports dated September 1992 and May 1993, in which Dr. Dizon described Scott's diagnoses, symptoms, and medications, as well as rendered an opinion on functional restrictions. Moreover, the ALJ secured Scott's records from Oak Park hospital, where Dr. Dizon works as an attending physician, dating from 1991 to May 1993. Given these facts, the ALJ exceeded the requirements for compiling a complete medical history. This is especially true given that Scott told the ALJ that his condition had not changed since Dr. Dizon submitted his report in May 1993.
Scott nevertheless insists that, given the time lag between Dr. Dizon's latest report and the hearing (one year and four months), the ALJ should at least have recontacted Dr. Dizon or ordered a consultative examination. But the ALJ need only recontact a treating physician when the treating physician's evidence does not provide an adequate basis for a disability determination. 20 C.F.R. § 404.1512(e). Dr. Dizon's reports provided such a basis. The ALJ had before him two reports post-dating Scott's benefits filing from a physician who had monthly contact with Scott and extensive knowledge of his condition. These reports contain Dr. Dizon's diagnoses of hypertension and obesity, examination results (e.g., no pulmonary edema, dyspnea; slight peripheral edema and some cardiomegaly), blood pressure over time, medications, and an opinion about how Scott's condition affected his ability to engage in work-type activities. Consequently, Dr. Dizon's reports meet SSA requirements: "Medical reports should include -- (1) Medical history; (2) Clinical findings (such as the results of physical or mental status examinations); (3) Laboratory findings (such as blood pressure, x-rays); (4) Diagnosis (statement of disease or injury based on its signs and symptoms); (5) Treatment prescribed; (6) A statement about what you can still do despite your impairment(s) . . . ." 20 C.F.R. § 404.1513(b). And they are "complete" in that the information in them allowed the ALJ to determine the effects of Scott's impairments and his ability to do work-related activities. Id. 404.1513(d).
Because these reports meet regulatory dictates and because Scott fails to point out anything about these reports that would render them inadequate, we cannot say that the ALJ was under a duty to recontact Dr. Dizon. Likewise, it was unnecessary for the ALJ to order a consultative examination because the record contained enough evidence to support a disability determination. See 20 C.F.R. § 404.1519a(b).
Nor did the ALJ fail to probe sufficiently for evidence of a mental impairment, as Scott maintains. Proof of a mental impairment must be established "by medical evidence, consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of symptoms." 20 C.F.R. § 404.1508. Here, we have only Scott's subjective allegations in his hearing request -- statements from which he retreated at the hearing and which were omitted from both his applications for disability benefits -- that he is experiencing memory loss, nervousness, and not wanting to be around other people or maintain his hygiene. Nowhere are these statements substantiated by medical evidence. This fact was driven home by the ALJ's questioning: Scott admitted that Dr. Dizon, whom he was still seeing at the time of the hearing, had never recommended psychiatric treatment or prescribed psychiatric medication of any kind. "Although the ALJ has an obligation to develop a full and fair record, it was [the claimant's] responsibility to provide medical evidence of a mental impairment." Webb v. Shalala, 1994 U.S. Dist. LEXIS 107, at *14, 1994 WL 11652, at *4 (N.D. Ill. Jan. 6, 1994) (citing 20 C.F.R. §§ 404.1514, 404.1508). The unsupported statements in Scott's hearing request do not satisfy this requirement.
The Seventh Circuit has announced that "a significant omission is usually required before this court will find that the [Commissioner] failed to assist pro se claimants in developing the record fully and fairly." We find no significant omission here. The ALJ questioned Scott at the hearing about the status of both his physical and mental conditions, and Scott replied that his physical condition remained unchanged from Dr. Dizon's last examination and that he had not been diagnosed or treated for any mental impairment. The ALJ probed into all the other relevant areas as well, asking detailed questions about how Scott's condition affected his ability to work, and inquiring into Scott's daily activities, his medication, physical abilities, and various hospitalizations. Even though Scott was the only witness, the hearing was lengthy, lasting 1 hour and ten minutes. See Binion, 13 F.3d at 245 (characterizing a one hour and twenty minute hearing as "comprehensive"). The documentary evidence was likewise well-developed: the ALJ compiled all the relevant medical records up to and past the time that Scott filed for benefits, and sought the opinion of an agency medical expert on Scott's RFC. While the ALJ has a heightened duty to assist an unrepresented claimant by developing the record, "how much evidence to gather is a subject on which we generally respect the [Commissioner's] reasoned judgment." Luna, 22 F.3d at 692. We find that the Commissioner has met his burden of proving a fully and fairly developed record here.
C. Scott's Opportunity to Rebut by Showing an Evidentiary Gap
Determining that the Commissioner met his burden of proving that the ALJ fully and fairly developed the record is not conclusive. Scott may rebut this showing by pointing to an evidentiary gap in the record. Binion, 13 F.3d at 245. According to Scott, the record contains an evidentiary gap because the ALJ determined Scott could perform the full range of sedentary work without the benefit of testimony discussing Scott's ability to sit for prolonged periods. Social Security Rulings make clear that sedentary work demands an ability to sit for at least six hours in an eight-hour workday, at approximately two-hour intervals. Social Security Ruling ("SSR") 96-9p, 61 Fed. Reg. 34,478, 34,482 (July 2, 1996); SSR 83-10, at 179 (cum. ed. 1983).
Scott contends that the ALJ's question whether he could "sit all right" (followed by his affirmative response) is insufficient to fill this gap because it did not elicit how long Scott can sit at one time.
That might be true were the record devoid of any other evidence on this issue. But Scott ignores the RFC assessment performed by Dr. Feinerman, the agency-retained medical consultant, opining in September 1992 and again in May 1993 that Scott can sit, with "normal breaks," up to six hours in an eight-hour workday. Dr. Feinerman also found on both occasions that Scott is capable of lifting up to ten pounds on a regular basis, can stand and/or walk for at least two hours in an eight-hour workday, has an unlimited capacity to push and pull, and suffers no nonexertional limitations. These capabilities are compatible with the demands of sedentary work. See SSR 96-9p, 61 Fed. Reg. 34,478, 34,480 (July 2, 1996). And the ALJ was entitled to rely on Dr. Feinerman's opinion in determining that Scott is able to perform the full range of sedentary work. See 20 C.F.R. § 404.1527(f) (stating that ALJs may consider findings of nonexamining state agency medical consultants at the hearing level in making findings of fact and conclusions of law).
Scott argues that supporting the ALJ's finding with Dr. Feinerman's assessment is an impressible post-hoc rationalization because the ALJ never mentioned Dr. Feinerman's report in the opinion. ALJs "must explain the weight given to these [state agency physician] opinions in their decisions." SSR 96-6p, 61 Fed. Reg. 34,466, 34,467 (July 2, 1996). Since the ALJ's opinion does not explicitly reference Dr. Feinerman's RFC assessment, Scott maintains, the ALJ must have rejected his opinion. We disagree. Although the ALJ does not mention Dr. Feinerman or his report by name, he clearly relied on it in holding that Scott can perform sedentary work: "Based on the medical evidence, the claimant can perform sedentary work, for example, lift 10 pounds and sit or stand and walk at least two hours in an eight-hour day on a sustained basis." (R.27) The source from which this information comes is Dr. Feinerman's report; by relying on it, the ALJ implicitly credited Dr. Feinerman's opinion, and it is clear from the ALJ's language that he gave it substantial weight. It bears mentioning that the ALJ is not required "to evaluate in writing every piece of testimony and evidence submitted." Zalewski v. Heckler, 760 F.2d 160, 166 (7th Cir. 1985). We require only "a minimal level of articulation by the ALJ as to his assessment of the evidence." Id. The ALJ's express reliance on the contents of Dr. Feinerman's RFC assessment meets this standard.
Furthermore, the record contains no evidence calling into question Scott's ability to sit for prolonged periods. In particular, Scott's January 1991 X-ray showing "minor degenerative disease" in the spine following his car accident does not do so. No doctor opined that Scott suffered any functional restrictions whatsoever as a result, nor did any physician recommend follow-up treatment for this condition. See 20 C.F.R. § 404.1527(a)(1) ("You can only be found disabled if you are unable to do any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . ."). Indeed, the ALJ pointed out in his opinion that Scott testified to having taken an eight-hour car trip to Memphis without apparent difficulty just a few months before the hearing (R.25) -- this testimony undermines any assertion that Scott is unable to sit for six hours in an eight-hour workday. Scott's speculation that a more searching inquiry might have revealed that Scott had difficulty sitting through the trip is just that -- speculation.
In concluding that Scott has failed to demonstrate an evidentiary gap with regard to his sitting ability, leaving intact our holding that the ALJ met his duty to prove full and fair development of the record, we find the Seventh Circuit's determination in Binion instructive:
Plaintiff has not pointed to any specific facts that were not brought out during the hearing nor has she provided any new medical evidence. Mere conjecture or speculation that additional evidence might have been obtained in the case is insufficient to warrant a remand.
13 F.3d at 246. Similarly, remand is inappropriate in this case.
III. Substantial Evidence Review
Scott's second point of appeal requests this Court to reverse the ALJ's ruling on the ground that it is not supported by substantial evidence. In reviewing the ALJ's decision for substantial evidentiary support, we are not permitted to substitute our own judgment for the ALJ's; rather, "we look only for 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Perkins v. Chater, 107 F.3d 1290, 1293 (7th Cir. 1997) (quoting Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995)). Thus, "if a sketchy opinion assures us that the ALJ considered the important evidence, and the opinion enables us to trace the path of the ALJ's reasoning, the ALJ has done enough." Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985). Judicial review under this standard is quite limited. Id.
Our task is to determine whether substantial evidence supports the ALJ's conclusion that Scott is not disabled. In general, it is the claimant's duty to prove to the ALJ that he is disabled. 20 C.F.R. § 404.1512(a). "This means that [the claimant] must furnish medical and other evidence that the ALJ can use to reach conclusions about his medical impairment and its effect on his ability to work on a sustained basis." Luna, 22 F.3d at 693. A finding of disabled is warranted only if the claimant is "unable to do any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . ." 20 C.F.R. § 404.1527.
We hold that substantial evidence supports the ALJ's ruling that Scott is not disabled. Scott cannot point to a medically determinable impairment that prevents him from engaging in substantial gainful activity; neither his testimony, work history, nor medical records sustain his claims. During the hearing, Scott was questioned repeatedly how his hypertension or enlarged heart prevented him from working, but could not supply an answer. Despite his history of multiple hospitalizations, severe hypertension and heart problems -- which medical records indicate date back to the 1980s -- Scott maintained a full-time job. Hospital records and treating physician reports list no functional restrictions on work-related activities; in fact, Scott was encouraged to increase his activity after being treated for severe hypertension at Thorek Hospital in February 1990. Finally, both Scott's treating physician, Dr. Dizon, and the SSA medical consultant opined that Scott could engage in activities compatible with sedentary work. The record reveals that the only time Scott's condition became unmanageable were periods when he was not taking medication. Each time he was admitted to the hospital and given medication, he improved within a few days. Given these facts, the ALJ was substantially supported in finding that Scott's medical condition does not prevent him from performing substantial gainful activity. See Oliveras v. Shalala, 870 F. Supp. 411, 414 (D. Mass. 1994) ("[A] claimant is not guaranteed disability benefits merely because [he] suffers from a medically verifiable impairment. A claimant also must show that, due to [his] impairment, [he] is precluded from engaging in any substantial gainful activity within the entire national economy.") (citing Bowen v. Yuckert, 482 U.S. 137, 142, 96 L. Ed. 2d 119, 107 S. Ct. 2287 (1987)).
In addition, the ALJ's opinion demonstrates that he considered all the evidence and based his conclusion on sound reasoning. As noted above, the ALJ went through the required five-step analysis. When he reached step five, the ALJ considered Scott's subjective assessments of his limitations as mandated by SSA regulations. See 20 C.F.R. § 404.1529. Weighing Scott's complaints against the medical records, expert physician opinions and Scott's testimony regarding his daily activities, the ALJ found that Scott's allegations of disability were not credible. Neither Scott's demeanor nor the medical signs, findings and abnormalities were consistent with Scott's claims. Dr. Dizon, the physician most familiar with Scott's condition, stated that Scott was capable of doing "work-related activities such as sitting, standing, moving about, lifting, carrying, handling objects, hearing, speaking, traveling." The SSA's retained expert came to the same conclusion, and no other medical evidence was to the contrary. Moreover, Scott admitted to undertaking light household chores, such as vacuuming, cooking, and making the beds, which undermined his claims that his condition left him unable to engage in sedentary work.
"[A] claimant must provide credible testimony to obtain disability benefits based on pain or other symptoms, and the objective medical findings must show a condition that would reasonably be expected to produce that pain or those other symptoms." Edwards v. Sullivan, 985 F.2d 334, 337 (7th Cir. 1993) (citations and internal quotations omitted). Normally, a reviewing court will not upset the ALJ's credibility determination if it finds some support in the record and is not patently wrong. Id. at 337-38. However, appellate review is more broad if the determination rests on "objective factors" as opposed to "subjective considerations," i.e., "elements that leave no trace that can be discerned in this or any other transcript." Herron v. Shalala, 19 F.3d 329, 335 (7th Cir. 1994). Here, the ALJ based his negative credibility assessment on both subjective considerations (Scott's demeanor) and objective considerations (comparison of Scott's claims to medical findings and self-reported activities). With regard to the ALJ's evaluation of Scott's demeanor, we are in no position to say it was patently wrong. And we uphold the ALJ's objectively grounded credibility determination, based on our analysis that Scott's claims of disabling impairment are out of line with the objective medical evidence and Scott's reported daily activities. See Connor v. Shalala, 900 F. Supp. 994, 1002 (N.D. Ill. 1995) ("Dr. Vad's reports and Connor's daily regimen are substantial evidence to uphold the ALJ's conclusion that Connor was exaggerating the extent of his limitations.").
Scott's answer to all this is that the ALJ must be reversed because he failed to consider two other impairments -- Scott's respiratory afflictions, which may impose environmental restrictions on his ability to work, and peripheral edema that causes Scott's hands to swell, which may limit his bilateral manual dexterity. According to Scott, these are potentially disabling nonexertional limitations. Therefore, the ALJ erred in relying on the Grid to direct his disability determination. See SSR 85-15, 1985 WL 56857, at *1-*2 (ruling that the ALJ cannot use the Grid to direct a finding if the claimant has any nonexertional limitations). This argument fails because the record contains no evidence that Scott experiences these limitations to a degree that even approaches a disabling impairment.
As evidence of respiratory impairment, Scott points to one test result from May 1993 -- a chest X-ray showing dyspnea and findings compatible with pneumonia and emphysema. However, this X-ray did not lead to a firm diagnosis. The voluminous medical records in this case nowhere indicate that Scott was being treated for any respiratory ailments; indeed, no doctor recommended follow-up on these findings. Dr. Dizon, who was the physician most intimately familiar with Scott's condition, did not indicate such problems in his reports.
Nor did any physician note that Scott's work should be restricted due to respiratory ailments, for example, by recommending a smoke- or dust-free work environment. Scott's applications for benefits likewise mention nothing about respiratory problems, and he did not bring them to the ALJ's attention when the ALJ asked Scott if Scott wanted the ALJ to consider additional evidence in making his ruling. Thus, Scott's repeated comparison of himself to a patient with severe chronic obstructive pulmonary disease is unsupported by the record. The ALJ did not err in omitting discussion of respiratory impairments.
Scott's contention of disabling swelling in his hands due to peripheral edema is equally infirm. First, it is undermined by his hearing testimony that he is able to bathe, feed, and dress himself every day. Second, while the record contains evidence that Scott suffers occasionally from peripheral edema, no medical evidence corroborates Scott's claim of swollen hands. Scott cannot assume the manifestations of peripheral edema without pointing to some objective medical evidence confirming it. Finally, even assuming that peripheral edema inevitably results in swollen hands, nothing in the record indicates that Scott was functionally restricted in his bilateral manual dexterity, as Scott speculates.
In sum, the ALJ was not required to take notice of these alleged impairments because the record does not support their existence. Therefore, the ALJ did not err in turning to the Grid for a disability determination. Our comprehensive review of the entire record has failed to reveal any material evidentiary gaps in the ALJ's decision.
For the reasons stated above, the ALJ fulfilled his duty to fully and fairly develop the record, and thus any question about the validity of Scott's waiver of representation does not require a remand. The ALJ's determination that Scott is not disabled is supported by substantial evidence. Accordingly, we deny Scott's motion for summary judgment and grant the Commissioner's motion for summary judgment. The decision of the ALJ is affirmed. The Clerk of the Court is directed to enter judgment, pursuant to Fed. R. Civ. P. 58, in favor of the defendant Commissioner and against plaintiff Scott.
United States District Judge
September 10, 1997