UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_______________
No. 95-50629
(Summary Calendar) _______________
DOUGLAS R BROCK,
Plaintiff-Appellant,
versus
SHIRLEY S CHATER, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
_______________________________________________
Appeal from the United States District Court For the Western District of Texas (94-CV-608) _______________________________________________ April 17, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff Douglas R. Brock appeals the district court's order
affirming the decision of the Commissioner of Social Security
("Commissioner") denying Brock's claim for supplemental security
income ("SSI") benefits. We affirm.
I
Brock applied for SSI benefits, alleging a disability which
prevented gainful employment. After an administrative hearing, at
* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. which Brock represented himself, the administrative law judge
("ALJ") found that Brock was not disabled and denied Brock's claim
for benefits. Brock exhausted his administrative remedies and then
filed a claim in district court. The district court granted
summary judgment for the Commissioner and affirmed the ALJ's
decision to deny Brock's claim. Brock filed a timely notice of
appeal.
II
Brock argues that the district court erred when it granted the
Commissioner's motion for summary judgment. We review a district
court's grant of summary judgment de novo, applying the same
standard as the district court. Bodenheimer v. PPG Indus. Inc., 5
F.3d 955, 956 (5th Cir. 1993). Summary judgment is appropriate in
cases in which there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. FED. R. CIV. P.
56(c). In applying this standard to the decision of an ALJ
regarding SSI benefits, our review is limited to two inquiries: (1)
whether there is substantial evidence in the record to support the
decision; and (2) whether the decision comports with relevant legal
standards. Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991).
The ALJ owes a duty to a claimant to develop the record fully
and fairly to ensure that his decision is an informed decision
based on sufficient facts. Kane v. Heckler, 731 F.2d 1216, 1219
(5th Cir. 1984). When a claimant is not represented by counsel,
the ALJ owes a heightened duty to "scrupulously and conscientiously
probe into, inquire of, and explore for all relevant facts." Id.
-2- at 1219-20 (citations and internal quotation marks omitted). We
will reverse the decision of an ALJ as not supported by substantial
evidence if the claimant shows (1) that the ALJ failed to fulfill
his duty to adequately develop the record, and (2) that the
claimant was prejudiced thereby. Id. at 1220.
After his hearing, Brock wrote a letter to the ALJ stating
that he suffered from depression and the effects of past drug
abuse. Brock contends that the ALJ failed to adequately develop
the record by not ordering a consultative examination to
investigate these claims of non-exertional impairment. An ALJ must
order a consultative evaluation when such an evaluation is
necessary to enable the ALJ to make the disability determination.
Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977). A
consultative evaluation becomes "necessary" only when the claimant
presents evidence sufficient to raise a suspicion concerning a non-
exertional impairment. Jones v. Bowen, 829 F.2d 524, 526 (5th Cir.
1987). We have previously held that isolated comments by a
claimant are insufficient, without further support, to raise a
suspicion of non-exertional impairment. See Pierre v. Sullivan,
884 F.2d 799, 802-03 (5th Cir. 1989) (holding isolated comments
about claimant's low intelligence insufficient to raise suspicion
that claimant was mentally retarded). Brock's only references to
depression and drug abuse were made in his post-hearing letter to
the ALJ. He did not mention non-exertional impairments in his
original request for benefits; he never sought medical treatment
for such impairments; and he did not mention these impairments at
-3- his hearing. Therefore, we find that Brock's allegations of non-
exertional impairments were the kind of isolated comments which are
insufficient to raise a suspicion of non-exertional impairment.
Consequently, the ALJ was not required to order a consultative
examination in order to fulfill his duty to adequately develop the
record.
We must now determine whether, in other respects, the ALJ at
Brock's hearing satisfied his heightened duty to elicit all
relevant facts. In James v. Bowen, 793 F.2d 702, 704-05 (5th Cir.
1986), we held that the ALJ satisfied this heightened duty by
questioning the claimant about his medical condition, asking about
his ability to perform various tasks and daily activities, and
inviting the claimant to include anything else in the record.
Similarly, in Carrier v. Sullivan, we held that the ALJ satisfied
this heightened duty by questioning the claimant about his medical
condition, asking about the effectiveness of attempted treatments,
and inquiring about how the claimant's daily routine had been
affected. 944 F.2d at 245. During the hearing at issue in this
case, the ALJ extensively questioned Brock about his education,
training, and past work history; about the circumstances of his
injury; and about his daily routine, pain, and physical
limitations. The ALJ also considered a medical report obtained
from Brock's treating physician and invited Brock to add other
relevant evidence to the record. Based on the foregoing, we find
that the ALJ satisfied his heightened duty to fully develop the
-4- We also find that Brock has failed to show that he was
prejudiced by the ALJ's alleged failure to fully develop the
record. To establish prejudice, a claimant must show that he
"could and would have adduced evidence that might have altered the
result." Kane, 731 F.2d at 1220. Brock points to no evidence
that, had the ALJ developed the record further, would have been
adduced at the hearing and that could have changed the result. We
will not reverse the decision of an ALJ for lack of substantial
evidence where the claimant makes no showing that he was prejudiced
in any way by the deficiencies he alleges. Id.1
III
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UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_______________
No. 95-50629
(Summary Calendar) _______________
DOUGLAS R BROCK,
Plaintiff-Appellant,
versus
SHIRLEY S CHATER, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
_______________________________________________
Appeal from the United States District Court For the Western District of Texas (94-CV-608) _______________________________________________ April 17, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff Douglas R. Brock appeals the district court's order
affirming the decision of the Commissioner of Social Security
("Commissioner") denying Brock's claim for supplemental security
income ("SSI") benefits. We affirm.
I
Brock applied for SSI benefits, alleging a disability which
prevented gainful employment. After an administrative hearing, at
* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. which Brock represented himself, the administrative law judge
("ALJ") found that Brock was not disabled and denied Brock's claim
for benefits. Brock exhausted his administrative remedies and then
filed a claim in district court. The district court granted
summary judgment for the Commissioner and affirmed the ALJ's
decision to deny Brock's claim. Brock filed a timely notice of
appeal.
II
Brock argues that the district court erred when it granted the
Commissioner's motion for summary judgment. We review a district
court's grant of summary judgment de novo, applying the same
standard as the district court. Bodenheimer v. PPG Indus. Inc., 5
F.3d 955, 956 (5th Cir. 1993). Summary judgment is appropriate in
cases in which there is no genuine issue of material fact and the
movant is entitled to judgment as a matter of law. FED. R. CIV. P.
56(c). In applying this standard to the decision of an ALJ
regarding SSI benefits, our review is limited to two inquiries: (1)
whether there is substantial evidence in the record to support the
decision; and (2) whether the decision comports with relevant legal
standards. Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991).
The ALJ owes a duty to a claimant to develop the record fully
and fairly to ensure that his decision is an informed decision
based on sufficient facts. Kane v. Heckler, 731 F.2d 1216, 1219
(5th Cir. 1984). When a claimant is not represented by counsel,
the ALJ owes a heightened duty to "scrupulously and conscientiously
probe into, inquire of, and explore for all relevant facts." Id.
-2- at 1219-20 (citations and internal quotation marks omitted). We
will reverse the decision of an ALJ as not supported by substantial
evidence if the claimant shows (1) that the ALJ failed to fulfill
his duty to adequately develop the record, and (2) that the
claimant was prejudiced thereby. Id. at 1220.
After his hearing, Brock wrote a letter to the ALJ stating
that he suffered from depression and the effects of past drug
abuse. Brock contends that the ALJ failed to adequately develop
the record by not ordering a consultative examination to
investigate these claims of non-exertional impairment. An ALJ must
order a consultative evaluation when such an evaluation is
necessary to enable the ALJ to make the disability determination.
Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977). A
consultative evaluation becomes "necessary" only when the claimant
presents evidence sufficient to raise a suspicion concerning a non-
exertional impairment. Jones v. Bowen, 829 F.2d 524, 526 (5th Cir.
1987). We have previously held that isolated comments by a
claimant are insufficient, without further support, to raise a
suspicion of non-exertional impairment. See Pierre v. Sullivan,
884 F.2d 799, 802-03 (5th Cir. 1989) (holding isolated comments
about claimant's low intelligence insufficient to raise suspicion
that claimant was mentally retarded). Brock's only references to
depression and drug abuse were made in his post-hearing letter to
the ALJ. He did not mention non-exertional impairments in his
original request for benefits; he never sought medical treatment
for such impairments; and he did not mention these impairments at
-3- his hearing. Therefore, we find that Brock's allegations of non-
exertional impairments were the kind of isolated comments which are
insufficient to raise a suspicion of non-exertional impairment.
Consequently, the ALJ was not required to order a consultative
examination in order to fulfill his duty to adequately develop the
record.
We must now determine whether, in other respects, the ALJ at
Brock's hearing satisfied his heightened duty to elicit all
relevant facts. In James v. Bowen, 793 F.2d 702, 704-05 (5th Cir.
1986), we held that the ALJ satisfied this heightened duty by
questioning the claimant about his medical condition, asking about
his ability to perform various tasks and daily activities, and
inviting the claimant to include anything else in the record.
Similarly, in Carrier v. Sullivan, we held that the ALJ satisfied
this heightened duty by questioning the claimant about his medical
condition, asking about the effectiveness of attempted treatments,
and inquiring about how the claimant's daily routine had been
affected. 944 F.2d at 245. During the hearing at issue in this
case, the ALJ extensively questioned Brock about his education,
training, and past work history; about the circumstances of his
injury; and about his daily routine, pain, and physical
limitations. The ALJ also considered a medical report obtained
from Brock's treating physician and invited Brock to add other
relevant evidence to the record. Based on the foregoing, we find
that the ALJ satisfied his heightened duty to fully develop the
-4- We also find that Brock has failed to show that he was
prejudiced by the ALJ's alleged failure to fully develop the
record. To establish prejudice, a claimant must show that he
"could and would have adduced evidence that might have altered the
result." Kane, 731 F.2d at 1220. Brock points to no evidence
that, had the ALJ developed the record further, would have been
adduced at the hearing and that could have changed the result. We
will not reverse the decision of an ALJ for lack of substantial
evidence where the claimant makes no showing that he was prejudiced
in any way by the deficiencies he alleges. Id.1
III
Having carefully reviewed the record, we conclude that the
decision of the ALJ, denying Brock's claim for SSI disability
benefits, is supported by substantial evidence and comports with
relevant legal standards. Accordingly, the order of the district
court granting the Commissioner's motion for summary judgment is
AFFIRMED.
1 Brock also alleges that he did not receive adequate notice of his right to counsel, and thus that the district court erred by finding that Brock waived his right to counsel at his hearing before the ALJ. An SSI claimant is entitled to adequate notice of his right to counsel at a hearing before an ALJ. Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir. 1981). Generally, without adequate notice a claimant cannot be held to have validly waived his right to counsel. Id. at 404. However, as in the case of an unrepresented claimant generally, a claimant who does not validly waive his right to counsel must prove that he was prejudiced thereby in order to merit reversal of the ALJ's decision. Kane, 731 F.2d at 1220 (citing Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972)). Brock points to no evidence that would have been adduced and that could have changed the result had Brock been represented by counsel. Thus, even assuming that Brock did not validly waive his right to counsel, his lack of representation does not require us to find that the decision of the ALJ was not supported by substantial evidence.
-5-