* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 9 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DENNIS E. CAVANAUGH,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No. 98-7065

(D.C. No. CV-96-658-S)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.
1 He also filed an application for Supplemental Security Income benefits, but

that application was denied because he had too many resources. He does not

challenge this denial.

-2-

Dennis Cavanaugh appeals from the district court’s decision affirming the

Commissioner’s denial of his application for Social Security disability insurance

benefits. We review the Commissioner’s decision to determine whether factual

findings are supported by substantial evidence and whether correct legal standards

were applied. See Winfrey v. Chater , 92 F.3d 1017, 1019 (10th Cir. 1996). For

the reasons stated below, we affirm.

In December 1993, Mr. Cavanaugh filed an application for benefits

claiming disability since December 31, 1985, due to migraine headaches,

depression and hearing loss. 1 The matter came before an administrative law

judge, who found that because his insured status expired on March 31, 1990,

Mr. Cavanaugh had to prove he was disabled by that date. See Henrie v. United

States Dep’t of Health & Human Servs. , 13 F.3d 359, 360 (10th Cir. 1993). The

ALJ concluded that he had not, finding that he failed to demonstrate any severe

impairment that significantly limited his ability to work, and thus ending the

inquiry at step two of the five-step process for determining disability. See

20 C.F.R. § 404.1520. The Appeals Council denied review, making the ALJ’s

decision the final decision of the Commissioner.
-3-

On appeal, Mr. Cavanaugh first contends that the ALJ erred by finding that

there was no medical evidence supporting his claim of a disabling hearing loss. 

Specifically, he contends that an audiologist’s report dated January 30, 1986,

demonstrated that he had a severe hearing loss. That report stated that

Mr. Cavanaugh

has a moderate to severe mixed hearing loss in the right ear. In the

left ear he has a mild conductive hearing loss, in the low frequencies,

and a severe high frequency loss at 8000 hertz. His speech reception

threshold in the right ear is 55 dB and in the left ear it is 20 dB. His

discrimination scores are 90% bilaterally. The tympanograms

indicate normal middle ear systems. The reflexes were absent

bilaterally.

Appellant’s App. Vol. II at 124. 

At step two, it is the claimant’s burden to demonstrate an impairment or

combination of impairments that significantly limits his or her ability to do basic

work activities. See § 404.1520(c). The step two severity determination is based

on medical factors alone, and “does not include consideration of such vocational

factors as age, education, and work experience.” Williams v. Bowen , 844 F.2d

748, 750 (10th Cir. 1988). Although it may have been better practice for the ALJ

to have addressed the audiologist’s report, we conclude that his failure to do so is

not reversible error. As the district court noted, and Mr. Cavanaugh implicitly

acknowledges on appeal, the audiologist’s report revealed that his speech

discrimination was within normal range. More generally, the report itself does
-4-

not necessarily state that any hearing problems identified would significantly limit

Mr. Cavanaugh’s ability to do work-related activities. The only medical evidence

on this point is the conclusion by a nonexamining physician who reviewed the

report and determined that it did not indicate a severe impairment. See

Appellant’s App. Vol. II at 68-69, 71. Absent contrary evidence, we cannot say

that the ALJ erred in finding Mr. Cavanaugh’s hearing loss to be a nonsevere

impairment. Cf. Hawkins v. Chater , 113 F.3d 1162, 1165 (10th Cir. 1997)

(relying on report by nonexamining physician not mentioned in ALJ’s decision to

find substantial evidence supporting ALJ’s finding of nonsevere impairment).

Mr. Cavanaugh also contends that the ALJ failed to uphold his duty to

develop the record in two ways. First, he contends that the ALJ should have

obtained a missing page from the report of a psychiatric examination he

underwent at a Veterans Affairs outpatient clinic in 1986. Second, he contends

that the ALJ should have questioned him at the hearing regarding his pain and

other subjective complaints as they existed prior to expiration of his insured

status. 

Mr. Cavanaugh was represented by counsel at the hearing, and counsel was

given the opportunity to add to and correct the exhibits on file and to question

Mr. Cavanaugh at the hearing. With respect to the missing page from the

psychiatric examination report, there is no indication in the record or in his brief
-5-

what this missing page might show--in particular, that it might tend to

demonstrate a severe impairment--nor is there any indication Mr. Cavanaugh or

his counsel ever tried to obtain the missing page. In such circumstances, we will

not find the ALJ’s failure to obtain a missing document of unknown importance

to be reversible error. See Hawkins , 113 F.3d at 1169 (citing Shannon v. Chater ,

54 F.3d 484, 488 (8th Cir. 1995)).

Turning to the hearing, although we agree with Mr. Cavanaugh that the

focus of the ALJ’s questions at the hearing was on his condition at that time,

which would appear to be of questionable relevance since his insured status ended

five years earlier, we note that some of the ALJ’s and counsel’s questions

solicited information regarding his claimed impairments during the relevant

period. Mr. Cavanaugh was represented by counsel at the hearing, which, while

not relieving the ALJ of his duty to develop, does lessen that duty, see Henrie ,

13 F.3d at 360-61, and it was clear to all parties at the time of the hearing when

Mr. Cavanaugh’s insured status expired. Finally, Mr. Cavanaugh has never

explained what his subjective testimony would have been, nor how it would have

combined with the existing objective medical evidence to establish a severe

impairment. Cf. 20 C.F.R. § 404.1528(a) (claimant’s statements not enough to
2 Except as it related to his hearing loss, Mr. Cavanaugh does not contend on

appeal that the objective medical evidence alone demonstrated a severe

impairment due to his migraine headaches or depression. 

-6-

establish existence of impairment). 2

 Thus, we conclude that he has not shown the

ALJ committed reversible error.

The judgment of the United States District Court for the Eastern District

of Oklahoma is AFFIRMED.

Entered for the Court

Deanell Reece Tacha

Circuit Judge