                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          June 15, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    HOWARD CONNICK,

                Plaintiff-Appellant,

    v.                                                   No. 04-2119
                                                (D.C. No. CIV-02-592-JB/LCS)
    JO ANNE B. BARNHART,                                  (D. N.M.)
    Commissioner of Social Security,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , BALDOCK , and KELLY , Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Appellant Howard L. Connick challenges a decision terminating his

disability benefits. We affirm.


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      This order and judgment is not binding precedent, except under the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

      Connick injured his back twice in 1991. As a result of the second injury,

he underwent two operations.

      In 1994, the Social Security Administration (“the Administration”) ruled

that Connick was disabled and began paying benefits to him. Nearly five years

later, however, the Administration determined that Connick had recuperated from

his surgeries and that his condition had improved enough to warrant termination

of his disability benefits. Connick appealed this decision. Following an

evidentiary hearing, an administrative law judge (ALJ) upheld the termination of

benefits. Connick appealed again, but the ALJ’s decision was affirmed by the

Appeals Council.

      Connick then petitioned for review in district court. A magistrate judge

recommended that the court deny Connick’s petition, and the district court

adopted this recommendation.



                                           II.

      Construing Connick’s pro se brief liberally, see Cannon v. Mullin, 383 F.3d

1152, 1160 (10th Cir. 2004), cert. denied, 125 S. Ct. 1664 (2005), we conclude

that he has raised the following claims:

      (a)    The Administration failed to consider information from
             Connick’s regular physician.

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      (b)    The ALJ’s finding that Connick is capable of lifting up to
             thirty pounds is not supported by the evidence.

      (c)    The Administration erred in relying on inconsistent testimony
             by the vocational expert.

In examining these claims, “[w]e review the district court’s decision de novo,”

Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001), and

examine the underlying termination of benefits to determine “whether the factual

findings are supported by substantial evidence in the record as a whole and

whether the correct legal standards were applied,” Howard v. Barnhart, 379 F.3d

945, 947 (10th Cir. 2004).

                                          A.

      In his initial claim, Connick faults the ALJ for failing to consider

information from a physician who “is, and has been my Doctor for some time

now.” Aplt’s Br. at 2. It is difficult to read the name of this physician in

Connick’s brief, but it appears that his name is either Sloan or Stoan. It is also

possible that Connick intended to refer to Dr. Perry Stearns, who treated Connick

for his first injury in 1991 (which did not, by itself, cause Connick to become

disabled). Regardless of which of these possibilities is correct, Connick’s claim

is unavailing.

      Because disability proceedings are non-adversarial, the hearing judge is

responsible for ensuring that the record is fully developed. See Hawkins v.


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Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Thus, even when a claimant fails

to provide pertinent information, the ALJ “has the duty to develop the record by

obtaining pertinent, available medical records which come to his attention during

the course of the hearing.” Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996)

(emphasis added). Application of this principle does not assist Connick, however,

as no information about any doctor named Sloan or Stoan was brought to the

ALJ’s attention, nor is there any indication in the record that Connick received

treatment from Dr. Stearns after 1991. Accordingly, the ALJ had no duty to seek

records from a doctor named Sloan or Stoan, or to seek additional records from

Stearns.

      To the extent that Connick seeks to reopen administrative proceedings in

order to expand the record, we hold that he has not made the requisite showing.

A disability claimant who wishes to add evidence to the record must show that the

evidence is new, that it is material, and that “there is good cause for the failure to

incorporate such evidence into the record in a prior proceeding.” 42 U.S.C.

§ 405(g); see also Longworth v. Comm’r, 402 F.3d 591, 598 (6th Cir. 2005).

Connick’s representation that the doctor in question has been treating him for a

long time indicates that records from this doctor would not constitute new

evidence. Moreover, Connick has neither demonstrated that information from this




                                          -4-
doctor would be material nor justified his failure to mention this doctor earlier.

For these reasons, Connick’s first claim provides no basis for relief.

                                          B.

      Connick’s second claim challenges the ALJ’s reliance on a determination

by Dr. Barry Diskant that Connick is “capable of lifting up to 30 pounds

occasionally.” R. at 25. In fact, however, the ALJ made a more limited

assumption but still found that Connick was able to perform a wide range of jobs.

      After conducting a full medical evaluation in August 1997, Diskant

concluded that Connick “reached maximum medical improvement by 05-10-95,”

and that, since that date, Connick has been capable of lifting thirty pounds

occasionally, fifteen pounds frequently, and ten pounds constantly. Id. at 335.

This assessment was subsequently corroborated by Dr. Eugene Toner. See id. at

418. Other evaluations on or after May 10, 1995, established that Connick could

lift between twenty and thirty-five pounds occasionally. See id. at 347, 353, 411.

      The ALJ’s opinion upholding the termination of benefits adopted the most

limited assessment–namely, that Connick could only lift twenty pounds

occasionally. See id. at 26. As noted above, this finding was supported by the

opinions of several doctors and was not controverted by any evidence in the

record. This finding therefore provides no basis for reversal of the

Administration’s decision.


                                         -5-
                                         C.

      In his final claim, Connick asserts that the ALJ erred in relying on

testimony from a vocational expert that contradicted earlier statements by the

same witness. Connick has not identified any inconsistencies, however, and we

have not discovered any in our own review of the record. Accordingly, we

decline to reverse the Administration’s decision based on this claim.



                                        III.

      For the foregoing reasons, we affirm the decision of the district court

upholding the termination of Connick’s disability benefits.



                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




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