Plaintiff seeks reversal or remand of the ALJ's decision finding that
Plaintiff is not disabled.
Upon review of the record, the Court finds that an outright reversal is
not warranted. Separately, as it relates to remand, Plaintiff alleges,
inter alia, that (1) the ALJ failed to develop a full and fair record
because he did not obtain a psychological evaluation of Plaintiff; (2)
the ALJ erred by finding that Plaintiff's hand impairment was not
"severe;" and (3) new and material evidence should be here considered;
particularly, but not limited to, the psychological report of Dr. L.S.
Boddapati. See generally, Pl.'s Mot. for S. J. & Pl's Mot. for Remand.
I. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
A. Duty to Fully Develop the Record Issue
Plaintiff initially argues that the ALJ failed to fully develop the
record because he did not obtain a psychological evaluation of Plaintiff
to determine if a mental impairment existed. Pl.'s Mem. at 8-9.
Defendant, on the other hand, argues that the ALJ was not required to
obtain a psychological evaluation because the evidence did not suggest
the presence of a mental impairment. Def.'s Mem. at 9-10.
A well-settled proposition regarding Social Security disability
hearings is that "[i]t is a basic obligation of the ALJ to develop a full
and fair record." Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991)
(citing Smith v. Secretary of Health, Education and Welfare, 587 F.2d 857,
860 (7th ir. 1978)). An ALJ does not act as counsel for claimant, but as
an examiner who throughly develops the facts. Thompson, 933 F.2d at 586
(citing Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir. 1982). "[W]here
the disability benefits claimant is unassisted by counsel, the ALJ has a
duty `scrupulously and conscientiously [to] probe into, inquire of, and
explore for all the relevant facts. . . .'" Smith, 587 F.2d at 860
(citing Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38,
43 (2d Cir. 1972)). The ALJ's obligation rises to a special or heightened
duty for an unrepresented claimant unacquainted with the hearing
process. Thompson, id. at 586-87. Failure to fulfill this duty is good
cause to remand for gathering of additional evidence. Cannon v. Harris,
651 F.2d 512, 519 (7th Cir. 1981). On the other hand, a significant
omission is usually required before a court will find that the ALJ failed
to assist pro se claimants in developing the record fully and fairly.
Luna v. Shalala, 22 F.3d 687, 692 (7th Cir. 1994). However, the
regulations provide that the ALJ will try to obtain additional evidence
if the evidence before him is insufficient to determine whether a
claimant is disabled or, if after weighing the conflicting evidence, he
cannot reach a conclusion. 20 C.F.R. § 404.1527(c)(3).
In the present case, as seen, the ALJ had a heightened duty to full
develop the record because Plaintiff appeared pro se. Significantly, as
demonstrated by the record, there were indications Plaintiff could have a
mental impairment. Plaintiff testified that she had only a sixth grade
education and that she could not read. (R. 43-46.) Relevantly, Plaintiff
told the ALJ that she had memory problems. (R. 36, 39, 44-46, 72.) In
addition, Ms. Helm, Plaintiff's non-attorney friend, informed the ALJ
that Plaintiff was "kind of slow," a slow learner, that she could not
read, that she was unable to "understand," that Ms. Helm did Plaintiff's
"paperwork for her" and that Ms. Helm had been showing Plaintiff how to
find places, phone numbers and all that. (R. 36, 39, 74-75.) Moreover, at
the July 17, 1998 administrative hearing, when the ALJ stated that he was
sending Plaintiff for a consultative
examination as to her right hand,
Ms. Helm advised the ALJ that Plaintiff needed to see a "psychiatry
doctor."*fn5 (R. 50.)
The record indicates that it is possible that Plaintiff had a mental
impairment. The ALJ had a duty to fully develop the record to determine
if Plaintiff did in fact suffer from such an impairment. Because the
Commissioner has the burden of fully developing the record, the ALJ
should have, at a minimum, ordered an appropriate consultative
psychological examination of Plaintiff and developed the evidentiary
record on this subject. See e.g., Thompson, 933 F.2d at 587-88.
Therefore, the Court finds that a remand on this issue is necessary.*fn6
B. Severe Impairment Issue
Plaintiff asserts that the ALJ erred by finding that Plaintiff's hand
impairment is not "severe." Pl.'s Mem. at 11. Defendant, however, argues
that Plaintiff's impairment is not "severe" because it did not
significantly limit her ability to perform work-related activities.
Def.'s Mem. at 10.
Step 2 of the requisite sequential analysis requires a determination of
whether the claimant has a "severe" impairment or impairments. A
disability claimant can be considered as not suffering from a severe
impairment only if the impairment is a slight abnormality having only a
minimal effect on a person's ability to perform the full range of
work-related activities. Anthony v. Sullivan, 954 F.2d 289 (5th Cir.
1992); see also McDonald v. Secretary of Health and Human Services,
795 F.2d 1118 (1st Cir. 1986); Stone v. Heckler, 752 F.2d 1099 (5th Cir.
1985). Stated otherwise, a "severe" impairment is any medically
determinable impairment that would interfere with a person's ability to
perform the full range of exertional and non-exertional work-related
The Court finds that the ALJ did not err when he determined that
Plaintiff's hand impairment was not "severe." First, as shown by the
record, Plaintiff's diagnostic studies revealed that she had no
abnormalities. (R. 160, 208.) Clinical signs and tests were negative.
(R. 183.) Plaintiff also had a full range of motion and her grip strength
was within normal limits. (R. 168, 170, 183, 192, 246.) Moreover,
Plaintiff informed her doctors that her hand felt better and that her
only limitation was that it hurt if she lifted heavy objects. (R.
Plaintiff was evaluated by several doctors who declined to prescribe
any limitations in Plaintiff's ability to do work-related activities.
(R. 166, 245, 247-49.) For instance, Dr. Allen did not cite any
limitations regarding Plaintiff's impairment. (R. 166.) In addition, Dr.
Ahstrom reported that there was no anatomical reason for
and that he "would place no restrictions on the use of [Plaintiff's]
wrist and hand whatsoever." (R. 245, 247-49.) Moreover, while Dr. Tsai
treated Plaintiff and ordered that she undergo occupational therapy for
her hand impairment, he did not render an opinion of Plaintiff's
functional capabilities. Furthermore, the fact that Plaintiff was fitted
with a splint and had been advised to wear a brace at nighttime does not
mean that her hand impairment was "severe." Thus, the ALJ concluded that
there was little or no physical impairment that produced pain or other
limitations for Plaintiff.
Therefore, the Court finds that substantial evidence supports the ALJ's
determination that Plaintiff's hand impairment was not "severe."
II. PLAINTIFF'S MOTION FOR REMAND
Plaintiff argues that a remand is warranted in this case for
consideration of new and material evidence. Pl.'s Mot. for Remand at
1-3. Specifically, Plaintiff asserts the case should be remanded so that
the ALJ can consider (1) any and all evidence developed in conjunction
with Plaintiff's subsequent application for DIB and SSI, based on
psychological conditions, which she filed on May 16, 2001, and (2) Dr.
L.S. Boddapati's (psychiatrist) February 6, 2001 letter concerning
Plaintiff's psychological state which was included as part of Plaintiff's
May 16, 2001 application.*fn7 Pl.'s Mot. for Remand at 2. Defendant,
however, argues that (1) Plaintiff has failed to show how the evidence in
the application is new and material; and (2) how Dr. Boddapati's letter
is material, as the letter does not relate to the period on or prior to
the date of the ALJ's decision. Def.'s Mem. at 2-3.
The Court may remand the case for consideration of new and material
evidence, provided that there is good cause for the failure to submit the
evidence to the agency during prior proceedings. 42 U.S.C. § 405(g);
Sample v. Shalala, 999 F.2d 1138 (7th Cir. 1993). Plaintiff bears the
burden of proof that the evidence is new and material and that good cause
exists. To establish materiality, a plaintiff must show a "reasonable
probability" that the ALJ would have reached a different disposition of
the disability claim if presented with the new evidence. See Sample v.
Shalala, 999 F.2d 1138, 1144 (7th Cir. 1993) (quoting Sears v. Bowen,
840 F.2d 394, 400 (7th Cir. 1998)). Moreover, evidence is not material if
it addresses only a claimant's condition after the ALJ issued his
decision. Kapusta v. Sullivan, 900 F.2d 94, 97 (7th Cir. 1989).
The Court finds Plaintiff's wholly conclusory and unspecified request
for remand for consideration of "all evidence" developed in conjunction
with her May 16, 2001 application unavailing. See e.g., Dubinski ex rel.
v. Van Schindel v. Bowen, 808 F.2d 611, 614 (7th Cir. 1986); Luna, 22
F.3d at 692 n. 5.
The Court also finds Plaintiff's request for remand, premised on Dr.
Boddapati's report, unavailing. Specifically, the Court notes that Dr.
Boddapati's February 6, 2001 letter addresses Plaintiff's health
condition after the ALJ's hearing decision on December 4, 1998, and does
not relate to the period on or prior to his decision.*fn8 In
Plaintiff states in her Motion for Remand that she did not submit Dr.
Boddapati's letter to the Appeals Council "because it did not meet the
standards for the Appeals Council's consideration of new evidence, as it
did not relate to the period prior to the ALJ's decision." Pl.'s Mot. for
Remand at 2. See e.g., 20 C.F.R. § 404.970(b);
20 C.F.R. § 416.1470(b). The Court, therefore, finds that Dr.
Boddapati's letter is not new, material evidence because it does not
address Plaintiff's condition at the time the ALJ made his decision.
In view of the foregoing, the Court grants Plaintiff's Motion for
Summary Judgment insofar as it requests a remand for an appropriate
consultative psychological evaluation, denies Plaintiff's Motion for
Remand, and denies Defendant's Motion for Summary Judgment. Accordingly,
the case is remanded to the Commissioner for further proceedings
consistent with this opinion.