Zumwalt v. Astrue

220 F. App'x 770
Court of Appeals for the Tenth Circuit·Decided March 22, 2007·No. No. 06-6049·Published·Cited by 22 cases

Opinion

ORDER AND JUDGMENT**

HARRIS L. HARTZ, Circuit Judge.

Carie Zumwalt appeals from an order of the district court affirming the Commissioner’s denial of her applications for Social Security disability and Supplemental Security Income benefits. Ms. Zumwalt was born on July 14, 1963. Her left foot was crushed in an automobile accident in 1986 and she has a long history of being diagnosed with and treated for depression and anxiety. Her last three jobs were as a housekeeper between June 1988 and August 1997.

On June 4, 2001, Ms. Zumwalt filed her applications alleging that she had become disabled on July 15, 1997. She claimed that she was unable to work because of problems with her foot, depression, problems with memory and concentration, and anxiety. Her applications were administratively denied initially and on reconsideration. She then requested and received a hearing before an administrative law judge (ALJ). The ALJ determined that Ms. Zumwalt retained the residual functional capacity (RFC) to perform light exertional work, but that she was limited to simple, routine work because of her mental limitations. The ALJ found that she could therefore perform her past relevant work as a housekeeper despite her “medically [773] determinable depression, anxiety and fractured left lower extremity.” ApltApp. at 27. The Appeals Council denied review, making the ALJ’s decision the Commissioner’s final decision. See Jensen v. Barnhart, 436 F.3d 1163, 1164 (10th Cir.2005). Ms. Zumwalt then sought relief from the district court, which adopted a magistrate judge’s recommendation that the Commissioner’s decision be affirmed. Ms. Zumwalt appeals.

On appeal Ms. Zumwalt argues that the ALJ’s RFC finding was not supported by substantial evidence because her mental impairments required more than a limitation to simple, routine work. In support of this argument she directs this court to the medical evidence from licensed professional counselor (LPC) Kimberly FerontiDickinson; from Dr. Gary Dickinson, who treated her; and from Dr. J. Ronald Cruse, an agency expert consulting physician, who performed a mental-status exam (MSE). Ms. Zumwalt’s main argument is that Dr. Dickinson was a treating source and that the ALJ erred in not giving his medical opinion controlling weight or, at least, failed to make the proper findings explaining why controlling weight was not given and what weight was given. She also argues that supporting evidence from LPC Feronti-Dickinson and Dr. Cruse was ignored and that when the evidence from these three professionals is properly considered, it proves her disability.

Ordinarily, we review on appeal the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. See Andrade v. Sec’y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir.1993). But here we agree with the Commissioner that Ms. Zumwalt’s objections to the magistrate judge’s report and recommendation were not specific enough to preserve for review the arguments she makes on appeal. We hold that these arguments have been waived and affirm the district court.

I.

The earliest medical record is a form from St. Anthony Hospital in Oklahoma City, dated September 27, 1996, showing that an LPC at the hospital diagnosed Ms. Zumwalt with depression and adult attention deficit disorder (ADD). The LPC recommended individual psychotherapy and a referral to a primary care provider for ADD medication. The LPC expected a positive response to treatment.

The next records are from Dr. Clinton Winslow, who treated Ms. Zumwalt from January 22 through August 18, 1997. Only two of Dr. Winslow’s records reference Ms. Zumwalt’s mental health. The first notes that she was emotionally stable at the time but had reported a history of depression and alcoholism and that Dr. Winslow gave her a prescription for a refill of Paxil, which she reported she had been taking “for some time” for her depression. Aplt.App. at 141. The second of these records shows that during an August 18, 1997, appointment to treat her allergies, Dr. Winslow observed that she “denie[d] homicidal or suicidal ideation,” was “[w]ell groomed,” had “[njormal thought processes,” and “[njormal affect,” and was “stable.” Id. at 133. Dr. Winslow diagnosed her as having “[djepression (stable)” and gave her another prescription for Paxil. Id.

Ms. Zumwalt received medical care at the Oklahoma City Indian Clinic between November 20, 1997, and April 13, 2001. The clinic’s records show that Ms. Zumwalt received treatment for a number of physical and mental complaints, including depression and chronic pain in her left foot. At times she was denied medication [774] for depression and adult ADD and referred to outside psychiatric services; but on other occasions she was prescribed antidepressants by other providers at the clinic. The records do not show what psychiatric evaluation methods were used by these providers to diagnose Ms. Zumwalt’s psychiatric disabilities, nor do the records contain any medical opinions about the severity of Ms. Zumwalt’s mental limitations.

LPC Feronti-Dickinson met with Ms. Zumwalt for the first time on April 30, 2001, and completed her professional assessment the next day. That assessment is summarized in a letter dated May 10, 2001. She diagnosed Ms. Zumwalt with “adult ADD, acute anxiety/depression and PTSD [posttraumatic stress disorder].” ApltApp. at 145. The letter said that “[Ms. Zumwalt] was earlier diagnosed with acute anxiety and was placed on Paxil but now appears to be intolerant of any benefit from this medication,” and that “[s]he is completely unable to function and has been basically condemend [sic] to her home for at least the past two (2) years.” Id. LPC Feronti-Dickinson determined that Ms. Zumwalt “is at this time completely disabled and needs some sort of assistance to be able to achieve a productive future.” Id.

LPC Feronti-Dickinson’s notes and the record of the MSE performed on Ms. Zumwalt’s first visit reveal similar findings, including a determination that Ms. Zumwalt had a global assessment of functioning (GAF) score of 40.1 LPC FerontiDickinson referred Ms. Zumwalt to Dr. Dickinson, a family practice doctor, to evaluate her for psychotropic medication and medication management.

Dr. Dickinson’s records show three appointments with Ms. Zumwalt in a 45-day period. The first was on May 1, 2001, the day after her first appointment with LPC Feronti-Dickinson and a month before she filed her applications for benefits. At the initial appointment Dr. Dickinson was told that she had been previously treated for depression and had “taken Paxil ... daily for about the past 10 years”; that she suffered from “depression, anxiety, irritability, and anxiety attacks”; and that she had been previously diagnosed with attention deficit hyperactivity disorder (ADHD), but never formally treated. Id. at 164. He noted that Ms. Zumwalt was “alert and oriented” and wrote:

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Zumwalt v. Astrue, 220 F. App'x 770 (10th Cir. 2007).

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