William Lee Poyck v. MICHAEL J. ASTRUE, Commissioner of Social Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 1, 2011
Decided March 25, 2011
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 10‐2625
WILLIAM LEE POYCK,
Plaintiff‐Appellant,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant‐Appellee.
Appeal from the United States District
Court for the Southern District
of Indiana, Indianapolis Division.
No. 1:09‐cv‐0509‐LJM‐JMS
Larry J. McKinney,
Judge.
O R D E R
William Poyck appeals from a district court order upholding the Social Security
Administration’s denial of benefits. Poyck argues that the Administrative Law Judge failed
to develop the record adequately when he refused to order a consultative examination to
get a current evaluation of Poyck’s conditions. We conclude that the ALJ acted within the
scope of his discretion in this respect, and we therefore affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 10‐2625 Page 2
Poyck, who suffers from a range of conditions including the residual effects of two
gunshot wounds, applied for social security disability and income benefits in 2003. He
submitted medical records showing that he also suffered from prostatitis, hepatitis C,
bipolar disorder, chronic obstructive pulmonary disease, and the effects of long‐term
alcohol and marijuana use. In 2006 an ALJ held a hearing and found that Poyck’s
impairments were not severe enough to warrant benefits.
The Appeals Council vacated the ALJ’s decision and remanded the case so that he
could carry out certain tasks, including the following: obtain updated medical‐treatment
records and additional evidence concerning Poyck’s mental impairments; obtain evidence
from a medical expert who specializes in psychiatry to clarify the nature and severity of his
impairments; and give further attention to Poyck’s mental impairments in accordance with
the special technique described in 20 C.F.R. §§ 404.1520a, 416.920a. Moreover, the Appeals
Council stated, “additional evidence may include if warranted and available, a consultative
examination and medical source statement about what the claimant can still do despite the
impairments.” Consistently with the latter guidance, Poyck asked the ALJ before his
second hearing to authorize a consultative examination because he could not afford one on
his own and he wanted to have the evaluation of his conditions updated.
At a second hearing in 2008, a different ALJ heard testimony from Poyck, as well as
from a vocational expert and a medical expert specializing in psychology. Poyck submitted
updated medical records from his treating psychiatrist at Midtown Community Mental
Health Center, who opined that his mental health had improved. These records show that
just two months before the second hearing, Poyck denied experiencing symptoms of
anxiety, depression, psychosis, alcoholism, or impairment in the activities of daily living
or social functioning. The psychologist who testified at the hearing stated that she had
reviewed Poyck’s medical records and believed that his mental impairments were not
severe enough to meet the requirements of an affective disorder or a substance abuse
disorder. The psychologist also reported that a previous evaluation by another psychologist
reflected that Poyck could do simple and repetitive work. Also at the hearing, Poyck’s
counsel again asked the ALJ to order an updated evaluation of Poyck’s physical and mental
conditions. But the ALJ declined, explaining that an additional examination was
unnecessary because the record contained reports from several mental and physical
examinations, updated records from Poyck’s treating psychiatrist, and testimony from
Poyck and the psychologist who reviewed his medical history. The ALJ determined that
Poyck’s impairments were not severe enough to warrant benefits and denied his claims.

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No. 10‐2625 Page 3
The Appeals Council found no basis for changing the ALJ’s decision and denied Poyck’s
request for review.
Poyck then appealed to the district court and argued that the ALJ violated the
remand order by refusing to order an additional consultative examination; this omission,
he contended, amounted to a failure to develop the record adequately. The court, however,
found no error in the ALJ’s approach and affirmed the decision. It noted that 42 U.S.C.
§ 405(g) authorizes judicial review only of the commissioner’s final decision, not internal
agency proceedings. The question whether the ALJ complied with the remand order from
the Appeals Council was thus not properly before the court. On the merits, the court gave
several reasons why the ALJ did not abuse his discretion in denying the motion for a
consultative examination: the record already contained reports from several examinations;
Poyck submitted new medical records that were not available at the first hearing; and the
ALJ further developed the record by directly questioning Poyck about his impairments.
On appeal, Poyck renews his argument that the ALJ did not comply with the
remand order. He reiterates that the Appeals Council instructed the ALJ to obtain updated
medical treatment records and additional evidence concerning his mental impairments,
including clarification from a psychiatrist about the severity of his conditions. Without
citing specifics, he maintains, the record establishes that the ALJ failed to comply with
these instructions.
The question whether the ALJ complied with the Appeals Council’s remand order
is not, in the final analysis, of independent importance. The only question properly before
us is whether the ALJ’s decision (which the Appeals Council chose to leave undisturbed)
is supported by substantial evidence. See Skinner v. Astrue, 478 F.3d 836, 841, 844‐45 (7th
Cir. 2007); Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). Putting his procedural
concern to one side, Poyck argues that even without the remand order, the ALJ should
have ordered a consultative examination. Poyck acknowledges that ALJs are not required
to order such examinations in every case, but he maintains that one is warranted here
because the record is too incomplete to permit a determination on whether he is disabled.
Although Poyck does not argue that his condition has changed since his last examination,
he insists that the record lacks evidence of his current physical and mental condition.
This court gives deference to an ALJ’s decision about how much evidence is
sufficient to develop the record fully and what measures (including additional consultative
examinations) are needed in order to accomplish that goal. Nelms v. Astrue, 553 F.3d 1093,

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No. 10‐2625 Page 4
1098 (7th Cir. 2009); Kendrick v. Shalala, 998 F.2d 455, 458 (7th Cir. 1993). What must be
shown to obtain such an examination is addressed only generally in the federal regulations:
a consultative examination may be ordered when “the evidence as a whole, both medical
and nonmedical, is not sufficient to support a decision on [the] claim.” 20 C.F.R.
§ 416.919a(b); Skinner, 478 F.3d at 844; see also Ingram v. Astrue, 496 F.3d 1253, 1269 (11th Cir.
2007); Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (“[T]he ALJ should order a
consultative examination when evidence in the record establishes a reasonable possibility
of the existence of a disability and the result of the consultative examination could
reasonably be expected to be of material assistance in resolving the issue of disability.”);
Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994). A consultative examination is normally
required if the evidence is ambiguous, if specialized medical evidence is required but
missing from the record, or if there is a change in a condition but the current severity of the
impairment is not established. 20 C.F.R. § 416.919a(b). Particularly in counseled cases, the
burden is on the claimant to introduce some objective evidence that further development
of the record is required. Skinner, 478 F.3d at 844; Hawkins, 113 F.3d at 1167. If the ALJ
denied the request for an examination, on appeal the claimant must show prejudice by
pointing to specific medical evidence that was omitted from the record. Nelms, 553 F.3d at
1098.
Poyck’s argument fails because he has not identified how his claims were prejudiced
by the denial of an additional examination. Id. Unlike Nelms, in which a pro se claimant
argued that his condition had significantly deteriorated during a two‐year gap in the
medical records, Poyck did not assert, either in his motion for a consultative examination
or at any time at the second hearing, that any of his conditions had worsened since his last
medical exam, nor did he identify any new conditions or impairments. In fact, his recent
medical records from his treating psychiatrist state that his impairments were less
pronounced. Given these records and the lack of any evidence that Poyck’s condition had
deteriorated, the ALJ did not abuse his discretion in determining that an additional
consultative examination was unnecessary.
Accordingly, we A FFIRM the district court’s judgment upholding the ALJ’s decision.

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