Theodis Nelms, Jr. v. Michael Astrue ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1774
T HEODIS N ELMS, JR.,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:06-cv-00273-CNC—Charles N. Clevert, Jr., Judge.
A RGUED O CTOBER 16, 2008—D ECIDED JANUARY 28, 2009
Before R IPPLE, E VANS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Theodis Nelms, Jr., sought Social
Security disability benefits, but an administrative law
judge determined that he can perform light work. On
appeal Nelms, who was without counsel before the ALJ,
contends that the ALJ did not adequately develop the
record in violation of his duty to unrepresented claimants.
Additionally, Nelms argues that the ALJ ignored certain
environmental restrictions when assessing Nelms’s resid-
2 No. 08-1774
ual functional capacity. We agree with Nelms that the
record is inadequate and therefore remand for further
proceedings before the agency.
Background
Nelms applied for Supplemental Security Income
benefits in June 2002. He listed as impairments pneumonia,
recovery from open-heart surgery, and asthma. In his
application Nelms wrote, “If I walk, lift or do anything too
strenuous I get out of breath.” After the Social Security
Administration twice denied his application, Nelms
requested a hearing.
A. Hearing
Nelms appeared at his hearing in June 2005 without
counsel. After a few questions about Nelms’s work history,
the ALJ addressed the possibility of representation,
explaining that “I don’t give somebody credit just because
they have an attorney”; still, the ALJ continued, the
Social Security Administration believes “that having an
attorney is a good idea.” The ALJ explained the role of an
attorney but also noted the ALJ’s independent duty to
create a record:
I think the thinking must be that an attorney can
talk to you, keep you company at the hearing, ask
additional questions when I’m done, look over
your file, see if it looks reasonably complete and so
on. It looks pretty complete. You’ve brought in
No. 08-1774 3
additional information here and so on. We do
much of that anyway.
After the ALJ described the costs typically associated with
an attorney in the Social Security setting, Nelms replied,
“I’d rather talk to you.”
Proceeding with the hearing, the ALJ asked Nelms to
rank his medical problems. Nelms stated that his heart
was the worst, followed by his back, his legs, and his
asthma, in that order. Regarding his heart Nelms ex-
plained, “I have shortness of the breath and, you know,
that also happen[s] with asthma and plus they cut me
open. I got a stent in my heart, you know.” Nelms de-
scribed an inability to sleep at night because of severe
pain, which he believes to be the onset of arthritis. Nelms
also reported that his doctor had prescribed Methadone
to alleviate the pain in his back and in his legs, although
the medication was “not helping that much.” Nelms
testified, moreover, that he experiences soreness in his
lower back “[a]ll day every day,” with a brief respite
only immediately after taking the medication. As for his
respiratory problems, Nelms mentioned that his asthma
strikes when he is near dust or pollen outside and when
he is hot or cold. Nevertheless, Nelms exercises and
walks every day per his doctor’s instructions, albeit with
limitations. “I can walk probably about a good two
blocks before I really get messed up,” Nelms testified, “but
here lately, you know, since I’ve been hurting, you know,
I can’t walk half a block.” Furthermore, Nelms stated
that since surgery he has done “little odd jobs,” including
raking leaves and shoveling snow. Nelms described his
4 No. 08-1774
daily activities in detail—how each morning he cooks
himself breakfast, cleans up, goes for a walk, does
laundry, and, later, perhaps goes to the grocery store
with his step-mother before cooking himself dinner.
Although Nelms “used to party a lot,” he testified that
his drinking is down to two or three beers each day and
he is generally home by 9:00 p.m.
After approximately twenty minutes of questioning,
the ALJ remarked, “I can’t think of anything else to ask.
Anything else I should know?” Nelms clarified a few
points about his education and work history, and with
that the hearing ended.
B. Medical Evidence
In May 2002 Nelms was admitted to a hospital in Mil-
waukee, Wisconsin, after he was found unresponsive
in his home. He was diagnosed with pneumonia, respira-
tory failure, overheating (hyperthermia), inflammation
of the heart (endocarditis), delirium likely caused by
alcohol withdrawal (delirium tremens), an abnormally
low concentration of sodium in the blood (hyponatremia),
and low blood pressure (hypotension). During his
hospital stay, Nelms’s doctors replaced his mitral valve (a
heart valve) with a mechanical substitute, and the
surgery was a success. Nelms was discharged from the
hospital in June 2002.
Over the next four months Nelms attended
cardiopulmonary rehabilitation sessions, where he would
walk on a treadmill, lift weights, and ride a stationary
No. 08-1774 5
bicycle. The parties agree that “Mr. Nelms generally
tolerated the exercises well.”
In December 2002 Dr. Patricia Chan, a non-examining
state-agency physician, assessed Nelms’s residual func-
tional capacity. Dr. Chan opined that Nelms could
perform the lifting, sitting, and standing exertions associ-
ated with light work.
Nelms was hospitalized again in March 2003—this time
for intra-abdominal bleeding, over-anticoagulation, and
kidney failure (renal insufficiency) resulting from a
mixture of alcohol and prescription anticoagulants. He
was discharged one week later with instructions to
abstain from alcohol and “not to double dose.”
Five months later Dr. Robert Callear, another non-
examining state-agency physician, assessed Nelms’s
residual functional capacity. Like Dr. Chan, Dr. Callear
concluded that Nelms could perform the duties
associated with light work. Dr. Callear did note, however,
that Nelms should avoid concentrated exposure to
fumes, odors, dust, gases, and poor ventilation.
From 2002 to 2003 Nelms met with a number of other
doctors, often to seek pain relief or for check-ups related
to his surgery. Of those visits, two appear to be signifi-
cant. In April 2003 Dr. Ijaz Malik reported that Nelms
was not yet ready to return to work following
several episodes of internal bleeding. And in May 2003
Dr. Marcin Turecki prescribed a stronger prescription
pain medication when Tylenol proved insufficient to
treat Nelms’s back pain.
6 No. 08-1774
The record is silent on Nelms’s condition from mid-2003
to 2005 (his hearing date) with one exception—a four-line
report from Nelms’s primary-care physician, Dr. Pablo
Bozovich, dated April 2005. Dr. Bozovich wrote that
Nelms’s condition is “stable” with respect to his mitral-
valve replacement. Furthermore, Dr. Bozovich noted,
Nelms suffers from mild spinal stenosis and chronic back
pain, but his pain is “controlled w/ oral medication,” and
his asthma is stable as well.
C. ALJ Decision
The ALJ began his written decision by acknowledging
that Nelms had not engaged in substantial gainful activity
since his alleged onset date. Still, the ALJ noted that
Nelms’s heart surgery went “beautifully well,” that his
rehabilitation indicated a smooth recovery, and that his
complaints of debilitating pain were sporadic. According
to the ALJ, the medical record documented steady im-
provement since Nelms’s hospitalization in 2002:
[The record] paints a picture of a bad medical
episode in the Spring of 2002, which lasted much
less than a year. It also paints a picture of recov-
ered capacity for work even with the continued
substance abuse and paints a picture of a situation
well within the scope of the light capacity voca-
tional rules. It also shows strong causal contribu-
tions of substance abuse to the claimant’s reduced
condition but not anything like a disabling condi-
tion even with the substance abuse. More than that,
No. 08-1774 7
the record shows that, were the claimant not to
drink and not to smoke, to follow a better diet, and
to use his medicines as prescribed, his capacity
might even approach full medium exertional
levels.
The ALJ compared the favorable reports of Drs. Chan and
Callear with the lesser capacity alleged by Nelms but
discounted Nelms’s testimony because “he is not very
credible.” Nelms’s testimony regarding his symptoms
was unconvincing and inconsistent, the ALJ wrote. Ac-
cording to the ALJ, Nelms’s resistance to medical advice
and his continued drinking—however reduced—also
undermined his claim.
Ultimately the ALJ agreed with Nelms that his heart
condition, his asthma, his alcohol abuse, and his back pain
are severe impairments—but these impairments do not,
according to the ALJ, meet or otherwise equal a listed
impairment. Next the ALJ found that Nelms cannot
perform any of his past relevant work, which was “me-
dium or greater in exertional demands and had other
demands.” But, the ALJ continued, Nelms retains the
residual functional capacity “for a full range or nearly
full range of light jobs and for some medium jobs at
the exertionally lower end of the medium range.”
The ALJ concluded that Nelms’s asthma does not
prevent him from light work because it is “slight” and not
a “significant environmental impairment.” Nelms listed
his asthma as the least significant of his impairments.
And it is not a new problem, according to the ALJ, nor
did it prevent Nelms from working in the past. The ALJ
8 No. 08-1774
did, however, acknowledge that heat and some outdoor
conditions can aggravate Nelms’s condition. “[E]ven if
the claimant should avoid outdoor work on warm,
humid days or avoid work in hot work places,” the ALJ
wrote, “nevertheless the sedentary and light categories
of work contain great numbers of jobs and many occupa-
tional opportunities still open to the claimant.” Thus, the
ALJ found that Nelms is not disabled on account of his
ability to perform light work found in the national econ-
omy.
The Appeals Council denied Nelms’s subsequent
request for review. The district court affirmed the deci-
sion of the Commissioner.
Analysis
If the Appeals Council denies a request for review, as it
did here, the ALJ’s decision becomes the final decision
of the Commissioner of Social Security. Getch v. Astrue,
539 F.3d 473, 480 (7th Cir. 2008). This court will reverse
an ALJ’s denial of disability benefits only if the decision is
not supported by substantial evidence or is based on an
error of law. 42 U.S.C. § 405(g); Skinner v. Astrue, 478
F.3d 836, 841 (7th Cir. 2007); Rice v. Barnhart, 384 F.3d 363,
368-69 (7th Cir. 2004). Substantial evidence includes
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation and quotation
marks omitted); see Getch, 539 F.3d at 480.
Nelms first asserts that the ALJ did not adequately
develop the record—an obligation that was heightened by
No. 08-1774 9
Nelms’s decision to proceed without counsel. In particular
Nelms takes issue with the absence, save for Dr. Bozovich’s
note, of any medical records from mid-2003 to 2005—a
period in which, Nelms argues, some of his impairments
worsened. Medical documents from that period, Nelms
contends, attest to severe degenerative changes in
Nelms’s back and hips and “strongly support” a finding of
disability. Nelms also points to the length of the hear-
ing—25 minutes—as further proof that the ALJ did not
fully and fairly develop the record in this case.
While a claimant bears the burden of proving disability,
the ALJ in a Social Security hearing has a duty to develop
a full and fair record. See Smith v. Apfel, 231 F.3d 433, 437
(7th Cir. 2000); Thompson v. Sullivan, 933 F.2d 581, 585
(7th Cir. 1991). This duty is enhanced when a claimant
appears without counsel; then the ALJ must “ ‘scrupu-
lously and conscientiously [ ] probe into, inquire of, and
explore for all the relevant facts.’ ” Thompson, 933 F.2d at
585-86 (quoting Smith v. Sec. of Health, Educ. & Welfare, 587
F.2d 857, 860 (7th Cir. 1978)); see Nelson v. Apfel, 131 F.3d
1228, 1235 (7th Cir. 1997). Although pro se litigants must
furnish some medical evidence to support their claim, see
Johnson v. Barnhart, 449 F.3d 804, 808 (7th Cir. 2006), the
ALJ is required to supplement the record, as necessary, by
asking detailed questions, ordering additional examina-
tions, and contacting treating physicians and medical
sources to request additional records and information.
20 C.F.R. §§ 416.912(d)-(f), 416.919, 416.927(c)(3); see Reefer
v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003) (holding 700-
page record inadequate because it lacked detail about
certain impairments); Thompson, 933 F.2d at 587.
10 No. 08-1774
This court generally upholds the reasoned judgment of
the Commissioner on how much evidence to gather, even
when the claimant lacks representation. See Luna v. Shalala,
22 F.3d 687, 692 (7th Cir. 1994); Binion v. Shalala, 13 F.3d
243, 246 (7th Cir. 1994). Accordingly, “a significant omis-
sion is usually required before this court will find that
the [Commissioner] failed to assist pro se claimants in
developing the record fully and fairly.” Luna, 22 F.3d at
692. And an omission is significant only if it is prejudicial.
See Nelson, 131 F.3d at 1235. “Mere conjecture or specula-
tion that additional evidence might have been obtained
in the case is insufficient to warrant a remand.” Binion,
13 F.3d at 246. Instead a claimant must set forth
specific, relevant facts—such as medical evidence—that the
ALJ did not consider. Nelson, 131 F.3d at 1235; see Binion,
13 F.3d at 245 (“Prejudice may be demonstrated by show-
ing that the ALJ failed to elicit all of the relevant infor-
mation from the claimant.”); Echevarria v. Sec’y of Health &
Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (significant
gaps in the record may preclude a fair and adequate
hearing).
Nelms argues that the two-year evidentiary gap is a
significant omission, and we agree. Nelms filed, in this
court, a separate appendix of medical records from 2003,
2004, and 2005 for the limited purpose of demonstrating
prejudice. That appendix contains various examination
reports and diagnoses from the same Wisconsin hospital
where Nelms had his surgery. The documents, moreover,
support Nelms’s theory that the ALJ likely would have
No. 08-1774 11
found Nelms disabled had he considered them 1 —or even
if he had simply asked more questions about recent
developments. See Binion, 13 F.3d at 246. For example, a
CT scan in January 2004 revealed, for the first time, degen-
eration of Nelms’s thoracic and lumbar spine with a
“diffuse disk bulge” and “posterior spurring.” Although
subsequent notes convey that Nelms “has good control [of
his back pain] with Ultran 50 mg once daily as needed”
and “this pain is getting better,” Nelms later reported that
“[i]t is worse when [he] sits and gets better when he
stands up.” And by February 2005, Nelms’s back pain was
acute, “especially when he stands up. He feels weak,
especially when he has to do that. . . . This is due to disc
disease.” Moreover, Nelms began to experience a
limited range of motion in his hips sometime in 2004,
which turned out to be from “[s]evere degenerative
changes of both hips.” An examination revealed “severe
joint space narrowing, along with spurring of the
femoral head” in Nelms’s left hip, as well as “marked
joint space narrowing, along with femoral spurring” in
Nelms’s right hip.
1
The government accuses Nelms of “selectively omitt[ing]”
some medical evidence from 2003 to 2005 that suggests that
his back pain was manageable (with medication). But that
charge is baseless, and it misses the point. Nelms does not
purport to enter new evidence into the record at this stage;
rather, he furnishes just enough evidence to establish that the
ALJ did not fulfill his duty to create a fair and full record—one
that will include both favorable and unfavorable informa-
tion once complete.
12 No. 08-1774
These are precisely the sort of specific, relevant facts that
an ALJ is expected to consider when determining
disability in a pro se claimant. See Binion, 13 F.3d at 246.
No doubt a “complete” record is always elusive, see John-
son, 449 F.3d at 808; Luna, 22 F.3d at 692; Kendrick v. Shalala,
998 F.2d 455, 456-57 (7th Cir. 1993), and there is no
absolute requirement that an ALJ update the medical
records to the time of the hearing, see Luna, 22 F.3d at 692-
93. But here the ALJ was aware that Nelms was still
receiving treatment in 2005 and that his back pain was
severe and continuing. His leg pain persisted as well. Yet
the ALJ did not probe, in any depth, Nelms’s recent past
at the hearing or gather any medical evidence to fill
the two-year gap in the record. Had the ALJ done so, he
would have uncovered documentation of orthopedic
decline. This is particularly troubling in light of the ALJ’s
assurances that he would independently assemble a
“reasonably complete” record. Unlike in previous cases,
this was not a “marginal hearing” that nevertheless
provided “a fairly complete picture” of Nelms’s impair-
ments. See Nelson, 131 F.3d at 1236. Nor was it a situa-
tion in which an unrepresented claimant reassured the
ALJ that no additional medical records exist. See Johnson,
449 F.3d at 808. Thus, we cannot say that the ALJ ade-
quately developed the record.
There is a secondary matter that also deserves com-
ment. Nelms also argues that the ALJ did not consider the
combined effects of Nelms’s impairments when deter-
mining disability. He asserts in his brief, “it was illogical
for the ALJ to on one hand find Plaintiff’s asthma was a
severe impairment, but on the other hand, include no
symptoms or limitations related to asthma in Plaintiff’s
No. 08-1774 13
RFC.” Nelms insists further that “the ALJ included no
environmental restrictions in[ ] Plaintiff’s residual func-
tional capacity assessment.” But the ALJ’s opinion devotes
considerable attention to Nelms’s respiratory limita-
tions—and concludes that “even if the claimant should
avoid outdoor work on warm, humid days or avoid work
in hot work places, nevertheless the sedentary and light
categories of work contain great numbers of jobs and
many occupational opportunities still open to the claim-
ant.” To this Nelms offers essentially two responses: first,
that the ALJ should have explicitly addressed his need to
avoid concentrated exposure to dust, pollen, fumes, odors,
and gases, and second, that the ALJ could not assume
that such jobs exist without the assistance of a vocational
expert.
Nelms’s arguments on this point are unpersuasive. The
ALJ pressed Nelms on his environmental restrictions at
length—and Nelms himself emphasized that his asthma
manifests when he is exposed to dust and pollen outside.
When it does, Nelms overheats, and his solution is to go
inside. The ALJ’s discussion of restrictions on outside
work in warm environments speaks directly to these
respiratory limitations, and it is clear from the record
that the ALJ considered Nelms’s environmental restric-
tions in tandem with his other impairments. See Getch,
539 F.3d at 481 (ALJ does not have to provide complete
written evaluation of every piece of testimony and evi-
dence).
Nelms cites Warmoth v. Bowen, 798 F.2d 1109 (7th Cir.
1986), in support of his argument that a vocational expert
was needed. In Warmoth this court rejected an ALJ’s
14 No. 08-1774
conclusory determination that most sedentary jobs do
not expose workers to any environmental irritants. Id. at
1110. After an accident in which an industrial machine
spilled toxic chemicals on his face, Warmoth was unable
to tolerate even the slightest amount of second-hand
smoke or perfume. Id. at 1110-11. Notably, though, this
court did not require that the ALJ consult a vocational
expert on remand: “we only require that there be
reliable evidence of some kind that would persuade a
reasonable person that the limitations in question do not
significantly diminish the employment opportunities
otherwise available.” Id. at 1112; see also 20 C.F.R.
§ 416.966(e); Binion, 13 F.3d at 246 (explaining that use of
a vocational expert is discretionary).
This case is not so severe. In essence the ALJ assumed
that some light work exists in the national economy that
does not present a threat of concentrated exposure to
dust, pollen, fumes, gases, odors, or poor ventilation. Of
course, a vocational expert would be uniquely qualified to
answer this question—and the ALJ may wish to enlist
one on remand—but the ALJ’s assumption alone is not so
outlandish as to warrant reversal. See Luna, 22 F.3d at
691 (“this court has said that in cases where a non-
exertional limitation might substantially reduce a range
of work an individual can perform, the ALJ must consult
a vocational expert.”) (emphasis added); Social Security
Ruling 85-15, 1985 WL 56857, at *8 (Nov. 30, 1984) (“Where
a person has a medical restriction to avoid excessive
amounts of noise, dust, etc., the impact on the broad world
of work would be minimal because most job environ-
ments do not involve great noise, amounts of dust, etc.”)
(emphasis added).
No. 08-1774 15
So, although the ALJ’s treatment of the combined effects
of Nelm’s impairments does not justify reversal, his
failure to develop the record as discussed above does.
Therefore, because substantial evidence does not support
the ALJ’s decision, we R EVERSE the judgment of the
district court and R EMAND for further proceedings
before the agency.
R IPPLE, Circuit Judge, concurring. I am pleased to join the
judgment and the comprehensive opinion of the court.
I write separately simply to underline the inherent unfair-
ness in the ALJ’s having assured Mr. Nelms that the
judge had an independent responsibility to develop the
record and then leaving such a wide gap in the develop-
ment of the relevant medical history.
Although the cold record is difficult to assess on this
matter, I am concerned here that the ALJ’s colloquy with
Mr. Nelms may well have had the unintentional effect of
dissuading him from retaining counsel. An ALJ must be
very circumspect, and even-handed, in his advice to a
litigant and, here, Mr. Nelms may well have interpreted
the ALJ’s advice as expressing the ALJ’s personal view that
no attorney was needed.
1-28-09