Herrera v. Massanari ( 2003 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUL 10 2003
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    SERRAFIN JOE HERRERA,
    Plaintiff-Appellant,
    v.                                                 No. 01-1446
    (D.C. No. 98-S-2456)
    JO ANNE B. BARNHART, *                              (D. Colo.)
    Commissioner of Social Security,
    Defendant-Appellee.
    ORDER AND JUDGMENT         **
    Before O’BRIEN and PORFILIO , Circuit Judges, and       KANE , *** Senior
    District Judge.
    *
    On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
    Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
    Appellate Procedure, Ms. Barnhart is substituted for Larry G. Massanari as the
    appellee in this action.
    **
    This order and judgment is not binding precedent, except under the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.
    ***
    The Honorable John L. Kane, Senior District Judge, United States District
    Court for the District of Colorado, sitting by designation.
    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.
    Plaintiff-appellant Serrafin Joe Herrera appeals from an order of the district
    court affirming the Commissioner’s decision denying his application for Social
    Security disability and Supplemental Security Income benefits (SSI).
    Appellant applied for these benefits with protected filing dates, respectively, of
    February 17, 1995, and April 20, 1995. He alleged disability based on pain in his
    upper extremities, his shoulder, and his back, cramping of his joints in both arms,
    and swelling of his hands and fingers. The agency denied his applications
    initially and on reconsideration.
    On September 17, 1996, appellant received a de novo hearing before an
    administrative law judge (ALJ). The ALJ determined that appellant’s residual
    functional capacity (RFC) was limited by his inability to do work around heights
    or dangerous machinery and to perform tasks requiring fine hearing acuity or
    extensive background noise. The ALJ further found that, while appellant has no
    limitations on his ability to sit, stand, or walk, he should only occasionally bend
    and stoop, should perform no above-the-shoulder activity, can lift and carry no
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    more than ten pounds frequently and twenty pounds occasionally, and should not
    use his upper extremities for repetitive grasping, handling, and fingering.
    The ALJ determined that appellant could not return to his past relevant
    work as a sheet metal polisher and buffer. At the time of the ALJ’s decision, the
    claimant was fifty-two years old, had a limited education, and did not have
    transferable work skills. The ALJ determined, however, that there were a
    significant number of other jobs which he could perform in the national or
    regional economy. Applying the Medical-Vocational Guidelines, 20 C.F.R.
    pt. 404, Subpt. P, App. 2, rule 202.11 (the grids) as a framework, the ALJ
    concluded that appellant was not disabled within the meaning of the Social
    Security Act. The Appeals Council considered additional evidence submitted
    by appellant and denied review, making the ALJ’s decision the Commissioner’s
    final decision.
    We review 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. Andrade v. Sec’y of Health & Human
    Servs., 
    985 F.2d 1045
    , 1047 (10th Cir. 1993). Substantial evidence is “such
    relevant evidence as a reasonable mind might accept as adequate to support
    a conclusion.” Fowler v. Bowen, 
    876 F.2d 1451
    , 1453 (10th Cir. 1989)
    (quotations omitted).
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    The Commissioner follows a five-step sequential evaluation process
    to determine whether a claimant is disabled. Williams v. Bowen, 
    844 F.2d 748
    ,
    750-52 (10th Cir. 1988). The claimant bears the burden of establishing
    a prima facie case of disability at steps one through four. See 
    id.
     at 751 & n.2.
    If the claimant successfully meets this burden, the burden of proof shifts to the
    Commissioner at step five to show that the claimant retains sufficient RFC to
    perform work in the national economy, given his age, education and work
    experience. See 
    id.
    Appellant raises two issues on appeal. He contends that the Commissioner
    failed to meet her burden at step five of the sequential analysis, because the ALJ’s
    hypothetical question to the VE did not relate with precision all of his
    impairments. He also argues that the Commissioner violated the treating
    physician rule or otherwise failed to make a proper assessment of his pain.
    At the outset, we are faced with a jurisdictional question involving the
    timeliness of appellant’s notice of appeal. The district court entered final
    judgment in this case on July 11, 2001. The sixty-day deadline for filing a timely
    notice of appeal expired on Monday, September 10, 2001. Fed. R. App. P.
    4(a)(1)(B), 26(a)(3). Appellant filed his notice of appeal eight days later, on
    September 18, 2001. Appellant subsequently requested an extension of time to
    file the notice, by a motion filed within the thirty-day period provided in
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    Fed. R. App. P. 4(a)(5). The district court granted the motion on October 4, 2001.
    The district court’s approval of appellant’s timely motion to extend related back
    to validate his prior notice of appeal.   Hinton v. City of Elwood, Kan. , 
    997 F.2d 774
    , 778 (10th Cir. 1993). We conclude that the notice of appeal was timely and
    that we have jurisdiction.
    Before the district court, appellant argued that the VE hypothetical was
    deficient because it did not include any limitations regarding hearing limitations
    or pain. Aplt. App., Vol. II at 393-95;    see also id. at 415-17. In his brief in this
    court, he seeks to expand his argument to include omitted limitations on walking
    over uneven surfaces; on stooping, squatting, twisting or climbing; on the need to
    sit and stand alternatively because of back pain; on the ability to cope with
    occurrence of dizziness, black-outs and blurred vision; on cold intolerance; and
    on grip strength. Aplt. Opening Br. at 19-21. We will confine ourselves to those
    issues presented to and ruled upon by the district court.    Crow v. Shalala , 
    40 F.3d 323
    , 324 (10th Cir. 1994).
    A hypothetical question to the VE “must reflect with precision all of [the
    claimant’s] impairments, but [it] need only reflect impairments and limitations
    that are borne out by the evidentiary record.”     Decker v. Chater , 
    86 F.3d 953
    , 955
    (10th Cir. 1996). The ALJ’s hypothetical question did include a hearing
    limitation. The ALJ asked the VE to assume that appellant should avoid
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    “environments with excessive background noise.” Aplt. App., Vol. I at 72.
    Appellant complains that this limitation is inconsistent with the ALJ’s RFC
    finding that he cannot perform tasks requiring “fine hearing acuity or extensive
    background noise.”    Id. at 21. Basically, he complains that the VE hypothetical
    should have included a limitation on fine hearing acuity in addition to the
    background noise restriction.
    We reject this argument. A hearing impairment leading to inability to
    tolerate excessive background noise implies a concomitant lack of fine hearing
    acuity. Appellant’s attempt to draw a distinction between the two conditions is
    unsupported by any cogent argument. As the district court noted, the VE was
    present for the hearing, at which appellant’s hearing restrictions were discussed in
    some detail. Id. at 68. This being the case, the effect of a slight and technical
    omission or ambiguity in the hypothetical question, if any, was minimal.      See Diaz
    v. Sec’y of Health & Human Servs.    , 
    898 F.2d 774
    , 777 (10th Cir. 1990).
    Appellant also complains that the ALJ did not mention his back and hand
    pain in the VE hypothetical. In his decision, the ALJ assessed the effect of
    appellant’s pain on his RFC. He found appellant’s testimony about pain not fully
    credible, and determined that appellant has “no limitations on his ability to sit,
    stand, or walk.” Aplt. App., Vol. I at 21. The ALJ’s hypothetical question
    reflected this lack of limitation, and was consistent with his RFC determination.
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    The ALJ also incorporated into both his RFC determination and his VE
    hypothetical limitations on appellant’s ability to perform above the shoulder
    activity, and to use his upper extremities to perform repetitive grasping, handling,
    and fingering. We conclude that the VE hypothetical adequately reflected the
    ALJ’s conclusions concerning the effect of pain on appellant’s ability to work.
    The ALJ was required to include only those impairments borne out by the
    evidentiary record.   Decker , 
    86 F.3d at 955
    .
    Appellant next argues that the ALJ breached the “treating physician rule”
    by failing to give controlling weight to the opinions of Dr. Parks and Dr. Seidl.
    Dr. Parks described the impairment of appellant’s upper extremities, opining that
    it was “not likely [appellant] could return to physical labor in a competitive
    environment” and that he could no longer work as a sheet metal worker. Aplt.
    App., Vol. I at 246. He noted that appellant “has increased pain with increased
    effort along with chronic flexor tendon inflammation, aggravated with sustained
    gripping, grasping, twisting, turning, lifting, and carrying.”   
    Id.
     We perceive no
    inconsistency between Dr. Parks’ opinions and the ALJ’s conclusions concerning
    appellant’s RFC. Like Dr. Parks, the ALJ concluded that appellant could not
    return to his past work as a sheet metal worker or perform other forms of
    “physical labor” more strenuous than light and sedentary work. The ALJ also
    concluded that appellant was restricted from performing repetitive grasping,
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    handling, or fingering, a conclusion not inconsistent with Dr. Parks’ opinion that
    sustained performance of such activities caused appellant pain.
    Dr. Seidl opined in a medical source statement that appellant could only sit,
    stand, and walk for two hours each in an eight-hour work day, and could not work
    at a competitive pace for eight hours a day, five days a week.     Id. at 383. He
    described appellant’s pain as “frequently debilitating” and stated appellant could
    use a screwdriver, but not a wrench.     Id. at 385. In a medical re-examination
    report submitted to the Colorado Department of Human Services, Dr. Seidl
    diagnosed appellant with major depression in addition to his other ailments, and
    certified that appellant would be unable to work at any job for a period of twelve
    or more months due to a disabling physical or mental impairment.         Id. at 382.
    Dr. Seidl’s medical source statement and medical re-examination report
    were not available at the time of the ALJ’s decision. They were submitted to the
    Appeals Council, and thereby became part of the record for our review.         O’Dell v.
    Shalala , 
    44 F.3d 855
    , 859 (10th Cir. 1994). There is a limit to our use of this
    after-acquired medical evidence, however. The new evidence is only relevant to
    the extent it relates to the time period on or before the date of the ALJ’s decision,
    November 25, 1996. 
    20 C.F.R. §§ 404.970
    (b); 416.1470(b).
    The record does not show that Dr. Seidl saw appellant or became his
    treating physician prior to December 1996. Dr. Seidl’s medical source statement
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    and re-examination report purport to detail appellant’s work limitations as they
    existed in the fall of 1997, nearly a year after the ALJ’s decision. In reaching his
    conclusion in the medical source statement that appellant was disabled, Dr. Seidl
    relied on “new studies,” Aplt. App., Vol. I at 383, apparently including nerve
    conduction studies performed on June 3, 1997.     
    Id. at 376
    .
    Appellant argues, however, that in reaching his opinion, Dr. Seidl also
    relied on a 1997 MRI test that showed “stable” findings from a prior August 6,
    1996, CT scan. 
    Id. at 340
    . While this factor ties Dr. Seidl’s opinion back to
    evidence received during the relevant period, the “stable” finding is problematic
    for appellant. The ALJ had the August 6, 1996, CT scan results in front of him
    when he made his decision, and he discounted them in light of the other evidence
    concerning the severity of the alleged back impairment. New evidence does not
    require a change in the ALJ’s decision if that decision remains supported by
    substantial evidence.   O’Dell , 
    44 F.3d at 859
    . To the extent Dr. Seidl relied on
    CT scan results that had already been discounted by the ALJ, the Appeals Council
    could easily have found that Dr. Seidl’s opinion was not sufficiently supported
    and consistent with other medical evidence to be entitled to controlling weight.
    See 
    20 C.F.R. §§ 404.1527
    (d)(2) (treating physician rule); 416.927(d)(2) (same).
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    Finally, appellant includes several free-standing arguments about the ALJ’s
    evaluation of his pain. These arguments were not presented in his district court
    briefs. We therefore decline to consider them.
    The judgment of the United States District Court for the District of
    Colorado is AFFIRMED.
    Judge Kane dissents.
    Entered for the Court
    Terrence L. O’Brien
    Circuit Judge
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