FILED United States Court of Appeals Tenth Circuit
UNITED STATES CO URT O F APPEALS October 31, 2007 Elisabeth A. Shumaker FO R TH E TENTH CIRCUIT Clerk of Court
BEATRICE GUTIERREZ,
Plaintiff-Appellant,
v. No. 07-2057 (D.C. No. CIV-06-16-JH/KBM ) M ICHAEL J. ASTRUE, Commissioner (D . N.M .) of the Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.
Beatrice Gutierrez appeals an order of the district court that affirmed a final
decision of the Commissioner of the Social Security Administration
(C ommissioner) that she was not disabled and thus not entitled to benefits.
W e have jurisdiction under 28 U.S.C. § 1291 and we affirm.
* 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Background
In the mid-1990’s, M s. Gutierrez w as diagnosed w ith diabetes,
hypertension, hypothyroidism, edema, and obesity. After working for the State of
New M exico for twenty-five years as a caseworker supervisor, she retired in 1997
to spend more time with her family. Following retirement, she worked briefly in
1998 as a waitress and cashier at a restaurant; however, she left that job after she
hurt her knee and the business closed. Because she “was just burnt out,” A plt.
App. at 416, she did not look for any work until 1999.
On January 29, 2004, M s. Gutierrez filed an application for disability
benefits in which she alleged disability as of September 1, 2001, due to CREST
syndrome, 1 osteopenia, lymphedema, diabetes, and hypothyroidism. Following
the administrative denial of her application, she appeared with a lay
representative for an administrative hearing on M arch 21, 2005. On M ay 23,
2005, an administrative law judge (ALJ) issued a written decision denying her
application. Thereafter, the Appeals Council denied her request for review.
Acting on her complaint filed in federal district court, a magistrate judge issued a
report and recommendation that affirmed the Commissioner’s decision. The
report and recommendation was adopted by the district court and this appeal
followed.
1 CREST syndrome is “a variant of systemic sclerosis characterized by calcinosis, Raynaud phenomenon, esophageal motility disorders, sclerodactyly, and telangiectasia.” Stedman’s M edical Dictionary 1751 (27th ed. 2000).
-2- M edical Record
On June 15, 2001, M s. Gutierrez saw her treating physician, David
Cummings, M .D., about her edema. In a follow-up visit on June 22, she reported
“doing much better,” id. at 301, however, she did have bursitis in her right elbow .
Dr. Cummings next saw M s. Gutierrez on July 6, 2001, when he treated her
for a “mild crush injury to her right foot,” id. at 298, suffered in a motorcycle
accident. At this same appointment, and on the basis of her report of morning
stiffness and prior lab tests that showed “mild anemia,” Dr. Cummings
“wonder[ed] if this might be an anemia of chronic disease.” Id. Therefore, he
ordered further lab tests to rule out autoimmune disease.
M s. Gutierrez returned to Dr. Cummings on August 9, 2001. There was
fluid on her right elbow and lab results showed the need for further assessment of
a possible autoimmune condition. Dr. Cummings referred her to Roderick Fields,
M .D. for the autoimmune condition and an orthopedist for removal of the fluid.
However, she did not follow up with Dr. Fields until nearly five months after the
referral. In the meantime, she saw Dr. Cummings on two occasions, but did not
report any symptoms of autoimmune disease.
W hen Dr. Fields first examined M s. Gutierrez on January 3, 2002, he
though it “likely” that she had CREST syndrome, id. at 218, and he prescribed
hydroxychloroquine. As of July 23, 2003, Dr. Fields was still of the opinion that
she “probably [has] CREST syndrome.” Id. at 179. Although Dr. Fields
-3- continued to see M s. Gutierrez every few months through 2004, none of his notes
indicate that her condition prevented her from working. In fact, through
mid-2004, his records show no joint swelling, deformity, limited range of motion,
tenderness, crepitus, or trigger points in either her upper or lower extremities.
Similarly, although M s. Gutierrez continued to see Dr. Cummings on a
regular basis for treatment of her diabetes, hypertension, hypothyroidism, edema,
and obesity, none of his notes say that any of these conditions prevented her from
working. To the contrary, the notes reflect that M s. Gutierrez continued to w ork
through 2003, 2 and that her conditions w ere generally well-controlled with
medications. 3
On December 29, 2003, two days before the last date she was insured for
disability benefits, she saw Dr. Cummings, who admitted her to the hospital. The
admission diagnosis was “gastrointestinal hemorrhage,” id. at 143, and the results
2 For example: (1) on April 4, 2001, M s. Gutierrez reported trying to quit smoking and that “[w]ith [] changes in the law it is going to be hard for her to smoke anyway while she is working,” id. at 306; (2) on June 22, 2001, she reported “wear[ing] her compression stockings at work,” id. at 301; (3) on January 18, 2002, she was “having trouble m anaging her diabetes because she is under a lot of stress having to look after her mother[,] . . . helping with her deceased sister’s husband and continuing to work,” id. at 292; (4) on February 7, 2003, “[s]he was ambulating at work when she . . . felt a tw ist in her knee,” id. at 134; and (5) on October 30, 2003, she asked for a “note to return to work. She has been off after her fall [on September 11, 2003] and injury to her foot,” id. at 247. 3 Control of M s. Gutierrez’s diabetes varied as a result of her inconsistent efforts to follow a proper diet, test her blood-sugar levels, or take her medication.
-4- of an upper gastrointestinal endoscopy revealed “[e]sophageal varices [and]
[m]inimal gastritis.” Id. at 146. On a follow up visit to Dr. Cummings on
January 26, 2004, M s. Gutierrez complained of weakness and dizziness and he
referred her to D ominic W ong, M .D. who later diagnosed her w ith biliary
cirrhosis and esophageal varices secondary to CREST syndrome. At various
times throughout 2004, Dr. W ong performed four successful out-patient
procedures to treat the varices.
M id-way through Dr. W ong’s treatment and following the administrative
denial of her claim, Dr. Cummings wrote a letter on M ay 28, 2004 to the
Commissioner offering his opinion that M s. Gutierrez was disabled.
M s. Gutierrez has applied for disability and apparently has been turned down. She has autoimmune disease, which has caused multiple joint and muscle symptoms. In the past this has disabled her from working.
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FILED United States Court of Appeals Tenth Circuit
UNITED STATES CO URT O F APPEALS October 31, 2007 Elisabeth A. Shumaker FO R TH E TENTH CIRCUIT Clerk of Court
BEATRICE GUTIERREZ,
Plaintiff-Appellant,
v. No. 07-2057 (D.C. No. CIV-06-16-JH/KBM ) M ICHAEL J. ASTRUE, Commissioner (D . N.M .) of the Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.
Beatrice Gutierrez appeals an order of the district court that affirmed a final
decision of the Commissioner of the Social Security Administration
(C ommissioner) that she was not disabled and thus not entitled to benefits.
W e have jurisdiction under 28 U.S.C. § 1291 and we affirm.
* 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Background
In the mid-1990’s, M s. Gutierrez w as diagnosed w ith diabetes,
hypertension, hypothyroidism, edema, and obesity. After working for the State of
New M exico for twenty-five years as a caseworker supervisor, she retired in 1997
to spend more time with her family. Following retirement, she worked briefly in
1998 as a waitress and cashier at a restaurant; however, she left that job after she
hurt her knee and the business closed. Because she “was just burnt out,” A plt.
App. at 416, she did not look for any work until 1999.
On January 29, 2004, M s. Gutierrez filed an application for disability
benefits in which she alleged disability as of September 1, 2001, due to CREST
syndrome, 1 osteopenia, lymphedema, diabetes, and hypothyroidism. Following
the administrative denial of her application, she appeared with a lay
representative for an administrative hearing on M arch 21, 2005. On M ay 23,
2005, an administrative law judge (ALJ) issued a written decision denying her
application. Thereafter, the Appeals Council denied her request for review.
Acting on her complaint filed in federal district court, a magistrate judge issued a
report and recommendation that affirmed the Commissioner’s decision. The
report and recommendation was adopted by the district court and this appeal
followed.
1 CREST syndrome is “a variant of systemic sclerosis characterized by calcinosis, Raynaud phenomenon, esophageal motility disorders, sclerodactyly, and telangiectasia.” Stedman’s M edical Dictionary 1751 (27th ed. 2000).
-2- M edical Record
On June 15, 2001, M s. Gutierrez saw her treating physician, David
Cummings, M .D., about her edema. In a follow-up visit on June 22, she reported
“doing much better,” id. at 301, however, she did have bursitis in her right elbow .
Dr. Cummings next saw M s. Gutierrez on July 6, 2001, when he treated her
for a “mild crush injury to her right foot,” id. at 298, suffered in a motorcycle
accident. At this same appointment, and on the basis of her report of morning
stiffness and prior lab tests that showed “mild anemia,” Dr. Cummings
“wonder[ed] if this might be an anemia of chronic disease.” Id. Therefore, he
ordered further lab tests to rule out autoimmune disease.
M s. Gutierrez returned to Dr. Cummings on August 9, 2001. There was
fluid on her right elbow and lab results showed the need for further assessment of
a possible autoimmune condition. Dr. Cummings referred her to Roderick Fields,
M .D. for the autoimmune condition and an orthopedist for removal of the fluid.
However, she did not follow up with Dr. Fields until nearly five months after the
referral. In the meantime, she saw Dr. Cummings on two occasions, but did not
report any symptoms of autoimmune disease.
W hen Dr. Fields first examined M s. Gutierrez on January 3, 2002, he
though it “likely” that she had CREST syndrome, id. at 218, and he prescribed
hydroxychloroquine. As of July 23, 2003, Dr. Fields was still of the opinion that
she “probably [has] CREST syndrome.” Id. at 179. Although Dr. Fields
-3- continued to see M s. Gutierrez every few months through 2004, none of his notes
indicate that her condition prevented her from working. In fact, through
mid-2004, his records show no joint swelling, deformity, limited range of motion,
tenderness, crepitus, or trigger points in either her upper or lower extremities.
Similarly, although M s. Gutierrez continued to see Dr. Cummings on a
regular basis for treatment of her diabetes, hypertension, hypothyroidism, edema,
and obesity, none of his notes say that any of these conditions prevented her from
working. To the contrary, the notes reflect that M s. Gutierrez continued to w ork
through 2003, 2 and that her conditions w ere generally well-controlled with
medications. 3
On December 29, 2003, two days before the last date she was insured for
disability benefits, she saw Dr. Cummings, who admitted her to the hospital. The
admission diagnosis was “gastrointestinal hemorrhage,” id. at 143, and the results
2 For example: (1) on April 4, 2001, M s. Gutierrez reported trying to quit smoking and that “[w]ith [] changes in the law it is going to be hard for her to smoke anyway while she is working,” id. at 306; (2) on June 22, 2001, she reported “wear[ing] her compression stockings at work,” id. at 301; (3) on January 18, 2002, she was “having trouble m anaging her diabetes because she is under a lot of stress having to look after her mother[,] . . . helping with her deceased sister’s husband and continuing to work,” id. at 292; (4) on February 7, 2003, “[s]he was ambulating at work when she . . . felt a tw ist in her knee,” id. at 134; and (5) on October 30, 2003, she asked for a “note to return to work. She has been off after her fall [on September 11, 2003] and injury to her foot,” id. at 247. 3 Control of M s. Gutierrez’s diabetes varied as a result of her inconsistent efforts to follow a proper diet, test her blood-sugar levels, or take her medication.
-4- of an upper gastrointestinal endoscopy revealed “[e]sophageal varices [and]
[m]inimal gastritis.” Id. at 146. On a follow up visit to Dr. Cummings on
January 26, 2004, M s. Gutierrez complained of weakness and dizziness and he
referred her to D ominic W ong, M .D. who later diagnosed her w ith biliary
cirrhosis and esophageal varices secondary to CREST syndrome. At various
times throughout 2004, Dr. W ong performed four successful out-patient
procedures to treat the varices.
M id-way through Dr. W ong’s treatment and following the administrative
denial of her claim, Dr. Cummings wrote a letter on M ay 28, 2004 to the
Commissioner offering his opinion that M s. Gutierrez was disabled.
M s. Gutierrez has applied for disability and apparently has been turned down. She has autoimmune disease, which has caused multiple joint and muscle symptoms. In the past this has disabled her from working. Initially she was doing better with medications started by the rheumatologist back in 2001. She unfortunately had an upper GI bleed earlier this year and subsequently was found to have biliary cirrhosis and esophageal varices secondary to her autoimmune disease. This has limited our ability to use a number of medications with her and her diabetes has subsequently become poorly controlled. Her autoimmune disease, diabetes, obesity and liver cirrhosis with pulmonary hypertension all go together to effectively disable her from gainful employment.
I am going to ask the patient to get letters from her rheumatologist, Dr. Fields, and her gastroenterologist, Dr. W ong, regarding her conditions. Thanks for your consideration[].
Id. at 226.
-5- Dr. Fields wrote to the Commissioner on October 24, 2004, that
M s. Gutierrez “has CRST syndrome, primary biliary cirrhosis with a history of
bleeding esophageal varices, and fibromyalgic pain. I agree with disability
evaluation for the patient.” Id. at 349. The record reveals that Dr. Fields’
diagnosis of fibromyalgia was not made until June 6, 2004, at the earliest.
No letter was received from Dr. W ong.
The ALJ’s Decision
The ALJ determined that M s. Gutierrez’s date last insured was
December 31, 2003. He considered all of the conditions mentioned in her medical
records, and found they were not severe or did not meet any of the
Commissioner’s Listing of Impairments. Based on the testimony of a vocational
expert, he further found that she retained the residual functional capacity to
perform a limited range of sedentary work. He concluded that she was not
disabled and denied benefits.
Analysis
W e review the ALJ’s decision “to determine whether the factual findings
are supported by substantial evidence in the record and whether the correct legal
standards were applied. Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation and citation omitted).
-6- M s. Gutierrez argues first that the ALJ should have recontacted
Dr. Cummings pursuant to 20 C.F.R. § 404.1512(e) on the basis of his M ay 28,
2004, letter that opined she was disabled. W e disagree because the duty to
recontact a medical source is not triggered unless the evidence “is inadequate . . .
to determine whether [the claimant is] disabled.” Id.; see also White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2002). There was not only adequate, but substantial
evidence in the record to support the ALJ’s conclusion that M s. Gutierrez was not
disabled. Also, the decision regarding disability is reserved to the Commissioner,
id. at 907, and the fact that Dr. Cummings had a different opinion than the ALJ is
not the type of evidentiary conflict or ambiguity that required further contact.
The next alleged error is the ALJ’s failure to call a medical expert pursuant
to Social Security Ruling 83-20, 1983 W L 31249 (S.S.A. 1983) (SSR 83-20) to
determine the onset date of M s. Gutierrez’s disability. This argument also fails
because the need to determine an onset date is relevant only where a claimant has
been found disabled: “The onset date of disability is the first day an individual is
disabled as defined in the Act and the regulations.” Id. at *; see also Blea v.
Barnhart, 466 F.3d 903, 908-10 (10th Cir. 2006) (applying SSR 83-20 in a case
where the claimant was found disabled but the onset date w as unclear).
Last, M s. Gutierrez asserts that the ALJ’s hypothetical question to the
vocational expert was deficient because it did not properly define her alleged
inability to concentrate. W e agree that “[t]estimony elicited by hypothetical
-7- questions that do not relate with precision all of a claimant’s impairments cannot
constitute substantial evidence to support the [Commissioner’s] decision.”
Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (quotation omitted).
However, “such inquiries must include all (and only) those impairments borne out
by the evidentiary record.” Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995).
Because the ALJ found that M s. Gutierrez’s depression (from which she claimed
her inability to concentrate stemmed) was not severe, he was not required to
include this limitation in his hypothetical question to the vocational expert.
The judgment of the district court is AFFIRMED.
Entered for the Court
Bobby R. Baldock Circuit Judge
-8-