# 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 NONPRECEDENTIAL DISPOSITION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. 32.1No. 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.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,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.