* John J. Callahan was appointed to serve as Acting C ommissioner of the

Social Security Administration, effective March 1, 1997. Pursuant to Fed. R. App. P. 43(c), Mr. Callahan is substituted as the d efendant in this action for Shirley S. Chater, the former commissioner.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### 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 Opp ortunity 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 ju dicial review was pending on the date of enactment. See 110 Stat. at 2190, § 211(d). However, the issue r aised in this appeal does not require an application or a nalysis of the amended provisions. -2- 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) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiff Rollus M. Cherry appeals a district courtorder 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 evaluati on process then in effect 1 and determined that Rollus was not disabled within the meaning of the Social Security Act. The Appeals Council denied review and the dis trict court affirmed the ALJ’s decision, following its review of the magistrate ju dge’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 evide nce 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 re weigh the evidence or substitute our judgment for that of the Commissione r. See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995). We exercise ourjurisdiction 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 demonstr ate a disability as defined in the Social Security Act. Instead, he argues that t he ALJ breached the duty to a pro se claimant to fully and fairly develop the rec ord. He claims that the ALJ failed to (1) obtain additional medical records and opinions on his foot impairment, (2) obtain psychological testing from amedical advisor and standardized test scores from school, for a determi nation 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 responsib le “‘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 dutyis 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 li ne of inquiry in an attempt to pursue every potential line of questioni ng. The standard is one of reasonable good judgment. The duty to develop is l imited to fully and fairly developing the record as to material issues.” Hawk ins , 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 alleg ed impairments, (2) what on-going treatment and medication the claimant is r eceiving, and (3) the impact of the alleged impairment on a claimant’s daily routin e and activities.’” Thompson v. Sullivan , 987 F.2d 1482, 1492 (10th Cir. 1993) (quoting Mus grave , 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-yearperiod prior to the application date of October 6, 1992, reflect that h e had surgery on both feet as an infant and that he continued to have flat feet, forwhich molded heel wedges were recommended. The consulting physician observed that Rollus could ambulate with a normal gait. At the hearing, Rollus testifi ed 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 p ain, he used a topical over-thecounter preparation. Rollus testified that he had no problems other thanwith his feet. He talked of satisfactory situations with family relationship s, peer friendships, and his school. On his SSI application, however, his mothe r wrote that Rollus had sleep problems, including nightmares at least twice a yea r, and wondered if he had “mental problems.” Appellant’s App., Vol. II at 7 8, 81. The consulting physician characterized Rollus as a “slow learner b y 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 th ey ranged from B to F. His school counselor reported that Rollus was making ac ademic progress, worked well with other students, and was able to perform l ike other students when he applied himself and received one-on-one help. In i nterviews 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 ask ed Rollus, his grandmother, and his mother to testify concerning the nature of his impairments, treatment and medication, and daily routine and activities. We h old that the ALJ sufficiently-6-

developed the record, even after taking into accoun t the added burden that applies in cases in which the claimant is unrepresented. Therefore, the judgment of the United States Distri ct Court for the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge