ALJ's Failure to Supplement Record With Unrepresented Claimant's Current Medical Records Leads to Reversal of Benefits Denial
NELMS V. ASTRUE (January 28, 2009)
Theodis Nelms was admitted to the hospital in May 2002. He was diagnosed with several health problems, including pneumonia, respiratory failure and inflammation of the heart. He had open-heart surgery and was released in June. Nelms applied for social security benefits. He listed as his impairments his recovery from surgery, asthma and pneumonia. The Social Security Administration twice denied him benefits. In late 2002 and again in early 2003, Nelms was seen by an agency physician. Each doctor concluded that Nelms could perform light duties. Nelms was granted a hearing on his request in 2005. Nelms did not have a lawyer. The hearing lasted twenty minutes. Nelms listed his impairments in order of severity – heart, back, legs and asthma. He described his conditions and his pain, specifically noting that his asthma strikes when he is exposed to dust, pollen, hot or cold. The ALJ concluded that Nelms was not disabled, concluding that he was able to do light work. He relied on his smooth recovery from surgery, his only sporadic pain, his slight asthma, and his capacity to do light work. The Appeals Council denied review and the district court affirmed. Nelms appeals.
In their opinion, Judges Ripple, Evans and Tinder reversed and remanded. The Court first addressed Nelms’ position that the ALJ did not adequately develop the record. Although a benefits claimant has the burden of proving disability, the ALJ has a duty, particularly when claimant is without counsel, to make sure there is a fully developed record. The ALJ must supplement the record, if necessary. The ALJ has quite a bit of leeway in a determination of the completeness of the record. Here, the Court noted, the record was almost silent on Nelms’ medical progress from 2003 – 2005. Nelms filed an appendix of medical records from those years which had not been before the ALJ. The documents describe a fairly serious deterioration of Nelms’ health in several respects. In the Court’s view, they support a conclusion that the ALJ would have found Nelms disabled had he seen the records. The absence of the records and the ALJ’s failure to probe Nelms about his more recent treatment led to the conclusion that the decision was not supported by substantial evidence. The Court rejected Nelms’ alternative arguments that the ALJ failed to consider the combined effect of his impairments and that the ALJ was required to enlist the aid of a vocational expert.
Brian Ketelboeter was a truck driver. He claims that he was injured in 1995, although he continued working until 2003. During those eight years, he complained of several additional injuries and increasing pain. Many physicians examined Ketelboeter over those years. Most tests showed no physical problems, at least none consistent with the degree of pain Ketelboeter claimed to experience. Dr. Dickson began treating Ketelboeter in 2002. Dickson treated his pain with muscle relaxants and therapy. Dickson reported that Ketelboeter’s pain was not consistent with the objective physical findings. Ketelboeter stopped working in June of 2003 and applied for disability in September. A hearing was held in April of 2005. The record contained the medical conclusions of Dickson and a state medical expert who reviewed Ketelboeter’s records. A vocational expert opined that, although Ketelboeter could no longer perform his truck driving job, he could perform other jobs. The vocational expert relied on the testimony of the medical expert in reaching his conclusion. He admitted that Dickson’s testimony would support an opinion that Ketelboeter would not be able to perform any job. The ALJ denied Ketelboeter’s claim. The ALJ granted Ketelboeter a second hearing based on additional testimony from Dickson. Again, a state-agency expert testified. He testified that there was little objective evidence of Ketelboeter’s pain. The vocational expert identified several additional jobs that Ketelboeter could perform. Again, the ALJ denied Ketelboeter’s claim. The ALJ placed more weight on the testimony of non-treating experts than Ketelboeter’s treating physician. He did so because of the lack of objective evidence of pain and Dickson’s own conclusions that Ketelboeter’s reports of pain were not supported by physical findings. Ketelboeter appeals.
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