149 F.

3d 1190
98 CJ C.A.R. 2955
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Wanda L. GRAHAM, Plaintiff-Appellant,

v.
Kenneth S. APFEL, Commissioner, Social Security
Administration,* Defendant-Appellee.
No. 97-6373.

United States Court of Appeals, Tenth Circuit.

June 5, 1998.

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

1ORDER AND JUDGMENT**

2

BALDOCK, C.J.

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. 34.1.9. The case is
therefore ordered submitted without oral argument.

Plaintiff appeals from the district court's order affirming the Commissioner's
decision denying her social security disability benefits. Primarily, plaintiff
argues that the administrative law judge (ALJ) did not adequately develop the
administrative record or make specific factual findings regarding the demands
of her past relevant work. "We review the [Commissioner's] decision to
determine whether [his] factual findings are supported by substantial evidence
in the record viewed as a whole and whether [he] applied the correct legal

standards. Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." Castellano v. Secretary of
Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.1994) (citation and
quotation omitted). Applying these standards, we affirm.
5

Plaintiff alleged disability due to deep vein thrombosis, blood clots in her legs,
and pain, beginning on October, 30, 1993, the date she stopped working. Her
insured status expired on December 31, 1993. Applying the Commissioner's
five-step evaluation process, see Williams v. Bowen, 844 F.2d 748, 750-52
(10th Cir.1988), the ALJ found at step four that plaintiff's impairment of
thrombosis of the left iliac vein did not prevent her from returning to her past
relevant light work through December 31, 1993. See II App. at 20, 21.
Alternatively, the ALJ determined that if plaintiff was unable to perform her
past relevant work, she could have performed the sedentary jobs mentioned by
the vocational expert at the evidentiary hearing. See id. at 20. The ALJ,
therefore, concluded plaintiff was not disabled during the relevant time period.

Plaintiff first argues that the ALJ failed to develop the record because he did
not obtain pertinent medical records, of which he had notice, from her treating
doctors. A claimant bears the burden of proving disability prior to the
expiration of her insured status. See Henrie v. United States Dep't of Health &
Human Servs., 13 F.3d 359, 360 (10th Cir.1993). See generally 20 C.F.R.
404.1512(a), (C) (claimant "must" furnish evidence regarding impairments and
their effect on ability to work). Nonetheless, "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, 76 L.Ed.2d 66 (1983) (Brennan, J., concurring)). Thus, the ALJ
bears responsibility for ensuring "an adequate record is developed during the
disability hearing consistent with the issues raised." Henrie, 13 F.3d at 360-61;
see also Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir.1997); Carter v.
Chater, 73 F.3d 1019, 1021 (10th Cir.1996). This duty applies even if the
plaintiff is represented by counsel. See Baca v. Department of Health & Human
Servs., 5 F.3d 476, 480 (10th Cir.1993); Thompson v. Sullivan, 987 F.2d 1482,
1492 (10th Cir.1993).

Typically, "[a]n ALJ has the duty to develop the record by obtaining pertinent,
available medical records which come to his attention during the course of the
hearing." Carter, 73 F.3d at 1022. See generally 42 U.S.C. 423(d)(5)(B)
(Commissioner shall develop complete medical history by obtaining medical
evidence for at least preceding twelve months); 20 C.F.R. 404.1512(d)

(same). The degree of effort required by the ALJ to develop the record does
vary from case to case, however. Cf. Battles v. Shalala, 36 F.3d 43, 45 (8th
Cir.1994) (requiring investigation of facts at hearing to be adequate under
circumstances); Lashley v. Secretary of Health & Human Servs., 708 F.2d
1048, 1052 (6th Cir.1983) (same).
8

In this case, plaintiff presented minimal relevant medical evidence to the ALJ.
Plaintiff states the record does not contain any medical records from either Dr.
Dimas, who was her treating physician before 1991, or Dr. Vogel, who was her
treating physician beginning in 1991. Compare II App. at 37 (testimony of
plaintiff that Dr. Dimas was her treating doctor from 1990 until the date of the
hearing, September 14, 1995) with id. at 96 (plaintiff reported she saw Dr.
Dimas monthly from 1988 to 1991). Additionally, plaintiff states that the
record does not contain records from her hospitalizations for problems with
thrombosis and blood thinner medication. Furthermore, plaintiff points to the
testimony of Dr. Harvey, the medical expert who reviewed the submitted
medical records and testified at the hearing, that the medical record was
incomplete. See id. at 49 ("[t]here's a lot more that we don't know here than we
know;" "don't know if she was being followed by anyone, if [clots were] being
controlled properly. It may have been, I just don't have the record on it."); id. at
50 ("on 10/5/93 ... there's a report of a bilateral venogram that was done ... and I
don't know who ordered it or why"); id. at 55 ("we don't have the records, or
whoever it was that was following her").

Alleging the ALJ knew of this presumably available medical evidence, 1

plaintiff believes the ALJ should have developed the record by obtaining this
evidence. We disagree. The administrative record shows that plaintiff submitted
some medical records both before and at the ALJ's hearing. See id. at 85 (letter
advising plaintiff to send additional medical reports before hearing if possible);
id. at 23 (permitting additional evidence to be submitted at hearing). She also
heard Dr. Harvey's testimony indicating that the medical record was
incomplete. Indeed, plaintiff's counsel informed the ALJ at the hearing that she
was attempting to obtain Dr. Dimas' records. See id. at 55. See generally 20
C.F.R. 404.944 (ALJ may reopen hearing in order to receive new and
material evidence if no decision has been rendered). Counsel did not later
submit the evidence. She, however, did submit other medical records after the
hearing, regarding plaintiff's medical treatment in 1995.

10

The administrative record shows that plaintiff was aware of the need to submit
additional medical records. At no time did she request help from the
Commissioner in obtaining any medical records. See 20 C.F.R. 404.1512(d)
(Social Security "will make every reasonable effort to help [claimant] get

medical reports from [claimant's] own medical sources when [claimant gives
Social Security] permission to request the reports"); see also II App. at 101,
108 (observation of Social Security interviewer that plaintiff needed no help in
prosecuting her claim); id. at 24 (notice of hearing stated that "[a]lthough you
have the responsibility for submitting evidence to support your claim, the
people at your local Social Security office will continue to assist you in
obtaining any additional evidence you may wish to submit").
11

Because plaintiff was "represented by counsel at the administrative hearing, the

ALJ [was] entitled to rely on [plaintiff's] counsel to structure and present [her]
case in a way that [plaintiff's] claims [were] adequately explored." Hawkins,
113 F.3d at 1167. Although the ALJ had a duty to develop the record, he did
not have a duty, under the circumstances, to act as plaintiff's advocate. See
Henrie, 13 F.3d at 361. But cf. Fishburn v. Sullivan, 802 F.Supp. 1018, 102526 (S.D.N.Y.1992) (where ALJ gave plaintiff's attorney ten days to submit
evidence of treating doctor visits and attorney said he could obtain evidence,
ALJ had duty to pursue this critical evidence himself when plaintiff's attorney
failed to follow through rather than render decision without evidence). The ALJ
could reasonably assume that plaintiff later chose not to submit additional
evidence because, perhaps, it was not relevant. See Shannon v. Chater, 54 F.3d
484, 488 (8th Cir.1995) (plaintiff's failure to later submit the records suggests
these records may only have been of minor importance).

12

Furthermore, plaintiff did not provide the alleged relevant medical evidence to
the appeals council or to the district court as proof that the record was not
adequately developed.2 Also, she did not indicate that the result of the disability
proceedings would have been different if the evidence had been presented.

13

We are not convinced that all of the missing evidence would have been relevant
to the disability determination. While we recognize that the ALJ typically must
give substantial weight to a plaintiff's treating doctor, see Washington v.
Shalala, 37 F.3d 1437, 1440 (10th Cir.1994), if Dr. Dimas was plaintiff's
treating doctor only until 1991, his medical evidence would not establish
disability during the relevant time period. Plaintiff was engaged in substantial
gainful activity after 1991. Also, the evidence concerning her hospitalizations
referred to the time period of 1986 to 1991, after which she was substantially
and gainfully employed. Thus, these records would not support her claim that
she was disabled in 1993. Cf. Crane v. Shalala, 76 F.3d 251, 255 (9th Cir.1996)
(rejecting development-of-record argument where treatment notes not
submitted concerned irrelevant time period after insured status expired).

14

The record contains no medical records for Dr. Vogel, also allegedly one of

plaintiff's treating doctors. Whether his records would have been helpful is not
certain, since the records of Dr. Codding, to whom Dr. Vogel referred plaintiff,
would not support a finding of disability.
15

Viewing the ALJ's duty to develop the record in the context of this case, we
cannot say that the ALJ failed to develop the record or that any failure to do so
was unfair or prejudicial to plaintiff. See Shannon, 54 F.3d at 488; see also
Hawkins, 113 F.3d at 1169 (dicta citing Shannon ).

16

Because we reject plaintiff's argument that the ALJ did not adequately develop
the record, we necessarily reject her argument that Dr. Harvey's testimony and
the ALJ's credibility determination were based on an inadequate record thereby
prejudicing her. Instead, we accord great deference to the ALJ's credibility
determination because it was based upon substantial evidence in the record. See
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995). Also, we conclude Dr.
Harvey's testimony was based upon substantial evidence in the record.

17

Next, plaintiff argues that the ALJ failed to make a proper step four analysis
because he did not make specific findings regarding the demands of her past
work and improperly relied on vocational expert testimony to make his ultimate
conclusions of law. See Winfrey v. Chater, 92 F.3d 1017, 1024-25 (10th
Cir.1996) (requiring fact findings regarding past work and discouraging
practice of delegating fact-finding responsibility to vocational expert). We
disagree. The ALJ found, based mostly on the vocational expert's testimony,
that all of plaintiff's relevant past work was light work. Plaintiff does not
dispute this finding. In making his step four conclusions, the ALJ permissibly
relied on the vocational expert's testimony. See id. at 1025 (vocational expert
may supply information to ALJ at step four about demands of claimant's past
work). We conclude the ALJ made a proper step four analysis.

18

Plaintiff submits any error at step four is not cured by the ALJ's alternative step
five analysis. Plaintiff contends the Commissioner could not meet his step five
burden of proving her residual functional capacity for the time prior to the
expiration of her insured status because the record was not adequately
developed. This argument is without merit since the ALJ did not fail to develop
the record or err in his step four analysis.

19

The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.

Pursuant to Fed. R.App. P. 43(c), Kenneth S. Apfel is substituted for John J.

Pursuant to Fed. R.App. P. 43(c), Kenneth S. Apfel is substituted for John J.

Callahan, former Acting Commissioner of Social Security, as the defendant in
this action

**

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

There is some question whether the evidence is available. When plaintiff was
hospitalized in August of 1995 the hospital sent for her records, which were not
found. See II App. at 164

Counsel other than the counsel who represented plaintiff before the ALJ
represented her before the appeals council, district court, and this court. The
notice of the ALJ's decision advised that if plaintiff sought to have new
evidence considered by the appeals council, she should submit that evidence
with her request for review. See II App. at 15. Plaintiff and her attorney,
therefore, were aware that new evidence could be presented to the appeals
council, yet they failed to present any new evidence. Also, plaintiff made no
effort to submit new evidence to the district court. See 42 U.S.C. 405(g)
(permitting district court to remand a case for consideration of new evidence
where evidence is material and plaintiff presents good cause for having failed
to incorporate it in administrative record)