* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously to grant the parties’ request for a dec ision 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 Secur ity 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 applicatio n 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 fail ed to demonstrate any severe impairment that significantly limited his ability t o 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 r eview, making the ALJ’s decision the final decision of the Commissioner.-3-

On appeal, Mr. Cavanaugh first contends that the AL J erred by finding that there was no medical evidence supporting his claim of a disabling hearing loss. Specifically, he contends that an audiologist’s rep ort dated January 30, 1986, demonstrated that he had a severe hearing loss. Th at 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. Hi s speech reception threshold in the right ear is 55 dB and in the leftear it is 20 dB. His discrimination scores are 90% bilaterally. The tympanograms indicate normal middle ear systems. The reflexes w ere absent bilaterally. Appellant’s App. Vol. II at 124. At step two, it is the claimant’s burden to demonst rate an impairment or combination of impairments that significantly limit s his or her ability to do basic work activities. See § 404.1520(c). The step two severity determinatio n is based on medical factors alone, and “does not include con sideration 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 be en better practice for the ALJ to have addressed the audiologist’s report, we conc lude 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 re vealed that his speech discrimination was within normal range. More gener ally, the report itself does-4-

not necessarily state that any hearing problems ide ntified would significantly limit Mr. Cavanaugh’s ability to do work-related activiti es. The only medical evidence on this point is the conclusion by a nonexamining p hysician 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 cont rary evidence, we cannot say that the ALJ erred in finding Mr. Cavanaugh’s heari ng 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 me ntioned 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 psychi atric examination he underwent at a Veterans Affairs outpatient clinic i n 1986. Second, he contends that the ALJ should have questioned him at the hear ing regarding his pain and other subjective complaints as they existed prior t o expiration of his insured
status.Mr. Cavanaugh was represented by counsel at the hea ring, and counsel was given the opportunity to add to and correct the exh ibits on file and to question Mr. Cavanaugh at the hearing. With respect to the missing page from the psychiatric examination report, there is no indicat ion 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 i ndication 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 docu ment 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 impairm ents 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, M r. Cavanaugh has never explained what his subjective testimony would have been, nor how it would have combined with the existing objective medical eviden ce to establish a severe impairment. Cf. 20 C.F.R. § 404.1528(a) (claimant’s statements not enough to2 Except as it related to his hearing loss, Mr. Cavan augh does not contend on

appeal that the objective medical evidence alone de monstrated a severe impairment due to his migraine headaches or depress ion. -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 fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge