*

John J. Callahan was appointed to serve as Acting Commissioner of the

Social Security Administration, effective March 1, 1997. Pursuant to Fed. R.

App. P. 43(c), Mr. Callahan is substituted as the defendant in this action for

Shirley S. Chater, the former commissioner. 

** This order and judgment is not binding precedent, except under the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

JUN 16 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PATRICIA CHERRY, for Rollus M.

Cherry, a minor,

Plaintiff-Appellant,

v.

JOHN J. CALLAHAN, Acting

Commissioner of Social Security,*

Defendant-Appellee.

No. 97-7002

(D.C. No. CV-95-358-B)

(E.D. Okla.)

ORDER AND JUDGMENT**

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.
1 Subsequent to the ALJ’s decision in this case, the Social Security Act was

amended by the Personal Responsibility and Work Opportunity Reconciliation Act

of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (Aug. 22, 1996), which revised the

statutory definition of childhood disability, see 110 Stat. at 2188, § 211(a)

(codified as amended at 42 U.S.C. 1382c(a)(3)(C)), and mandated changes in the

childhood disability determination process, see 110 Stat. at 2189, § 211(b). The

amendments apply to cases such as this, in which judicial review was pending on

the date of enactment. See 110 Stat. at 2190, § 211(d). However, the issue raised

in this appeal does not require an application or analysis of the amended

provisions. 

-2-

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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

Plaintiff Rollus M. Cherry appeals a district court order affirming the final 

decision of the Commissioner of Social Security denying his application for

child’s supplemental security income (SSI) benefits. Rollus, who was sixteen

years old when he appeared pro se at the administrative hearing, claimed that he 

was disabled due to a foot impairment and cognitive limitations. The

administrative law judge (ALJ) applied the evaluation process then in effect1 and

determined that Rollus was not disabled within the meaning of the Social Security

Act. The Appeals Council denied review and the district court affirmed the ALJ’s

decision, following its review of the magistrate judge’s findings and

recommendations and claimants’ objections.
-3-

We review the Commissioner’s decision to determine only whether the

factual findings are supported by substantial evidence and whether correct legal

standards were applied. See Goatcher v. United States Dep’t of Health & Human 

Servs., 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh the evidence or

substitute our judgment for that of the Commissioner. See Kelley v. Chater,

62 F.3d 335, 337 (10th Cir. 1995). We exercise our jurisdiction under 28 U.S.C.

§ 1291 and 42 U.S.C. § 405(g), and we affirm. 

On appeal, Rollus does not take issue with the ALJ’s determination that the

evidence in the record was insufficient to demonstrate a disability as defined in

the Social Security Act. Instead, he argues that the ALJ breached the duty to a

pro se claimant to fully and fairly develop the record. He claims that the ALJ

failed to (1) obtain additional medical records and opinions on his foot

impairment, (2) obtain psychological testing from a medical advisor and

standardized test scores from school, for a determination on the level of his 

cognitive function, and (3) ask explicit questions on the alleged learning problem

during the disability hearing. 

In every social security case, the ALJ is responsible “‘to ensure that an

adequate record is developed during the disability hearing consistent with the

issues raised.’” Hawkins v. Chater, No. 96-5110, 1997 WL 249150, at *1 (10th

Cir. May 13, 1997) (quoting Henrie v. United States Dep’t of Health & Human
-4-

Servs., 13 F.3d 359, 360-61 (10th Cir. 1993)). This duty is heightened when a

claimant is unrepresented. Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.

1992).

“The ALJ does not have to exhaust every possible line of inquiry in an

attempt to pursue every potential line of questioning. The standard is one of

reasonable good judgment. The duty to develop is limited to fully and fairly

developing the record as to material issues.” Hawkins, 1997 WL 249150, 

at *5 (quotations and citations omitted). The ALJ is to ask sufficient questions

“‘to ascertain (1) the nature of a claimant’s alleged impairments, (2) what 

on-going treatment and medication the claimant is receiving, and (3) the impact of

the alleged impairment on a claimant’s daily routine and activities.’” Thompson

v. Sullivan, 987 F.2d 1482, 1492 (10th Cir. 1993) (quoting Musgrave, 966 F.2d at

1375).

From our review of the record, we note that Rollus’s medical records

concerning his foot impairment, during the two-year period prior to the

application date of October 6, 1992, reflect that he had surgery on both feet as an

infant and that he continued to have flat feet, for which molded heel wedges were

recommended. The consulting physician observed that Rollus could ambulate

with a normal gait. At the hearing, Rollus testified that he was able to play

basketball for thirty minutes to an hour, walk for five blocks, or run for two
-5-

blocks before he felt pain in his feet. For this pain, he used a topical over-thecounter preparation.

Rollus testified that he had no problems other than with his feet. He talked

of satisfactory situations with family relationships, peer friendships, and his

school. On his SSI application, however, his mother wrote that Rollus had sleep

problems, including nightmares at least twice a year, and wondered if he had

“mental problems.” Appellant’s App., Vol. II at 78, 81. The consulting

physician characterized Rollus as a “slow learner by history,” id. at 123, but

found “no unusual psychiatric behavior,” id. at 124. School records showed that

Rollus’s grades were predominantly D’s, although they ranged from B to F. His

school counselor reported that Rollus was making academic progress, worked

well with other students, and was able to perform like other students when he

applied himself and received one-on-one help. In interviews conducted during the

SSI application process, Rollus answered questions “readily,” id. at 83, and

“appropriately,” id. at 124. 

At the hearing, the ALJ had before him relevant and adequate records from

Rollus’s school and medical providers. The ALJ asked Rollus, his grandmother,

and his mother to testify concerning the nature of his impairments, treatment and

medication, and daily routine and activities. We hold that the ALJ sufficiently
-6-

developed the record, even after taking into account the added burden that applies

in cases in which the claimant is unrepresented. 

Therefore, the judgment of the United States District Court for the Eastern

District of Oklahoma is AFFIRMED.

Entered for the Court

Wade Brorby

Circuit Judge