Maureen Bigpond v. Michael Astrue , 280 F. App'x 716 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 30, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
MAUREEN BIGPOND,
Plaintiff-Appellant,
v. No. 07-6275
(D.C. No. 5:06-CV-01140-D)
MICHAEL J. ASTRUE, Commissioner (W.D. Okla.)
of the Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and BRISCOE, Circuit Judges.
Maureen Bigpond appeals from a district court order affirming the
Commissioner’s denial of her application for Social Security disability benefits.
Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Ms. Bigpond alleged disability beginning on June 1, 1997. Her last insured
date was on June 30, 1997. Thus, the critical issue is whether she was disabled
during the one-month period prior to her last insured date. An administrative law
judge (ALJ) found that she had severe impairments of diabetes mellitus with
sequelae, arthritis, and hypertension, but concluded that she had a residual
functional capacity for a wide range of light work during the relevant period.
Addressing the medical evidence, the ALJ found that
[i]n essence, she appears to have been in the beginning stages of
disease processes which would later dramatically worsen as of 2004,
when she was found disabled. 1 However, as of and prior to the date
last insured . . . of June 30, 1997, there is no reason the claimant
would have been unable to perform a wide range of light exertional
tasks.
Aplt. App., Vol. II at 26. The ALJ held that, as of June 30, 1997, Ms. Bigpond
could perform her past relevant work, as well as a significant number of other
jobs, and was therefore not entitled to disability benefits. The district court
affirmed the ALJ’s determination.
“We review the district court’s decision de novo and independently
determine whether the ALJ’s decision is free from legal error and supported by
substantial evidence.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir.
1
Ms. Bigpond also applied for and was granted Supplemental Security
Income benefits. The ALJ’s reference here to 2004 appears to be a typographic
error because, as the ALJ acknowledged elsewhere in the decision, Ms. Bigpond
was found to be disabled under Title XVI as of April 1, 2003.
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2005). On appeal, Ms. Bigpond raises two claims of legal error, both of which
relate to her cardiac condition. She asserts that the ALJ erred by (1) failing to
discuss her cardiac problems in the decision and (2) failing to consult with a
medical advisor regarding the onset date of her cardiac disability.
The Commissioner does not dispute that Ms. Bigpond ultimately became
disabled in 2003, but contends that substantial evidence supports the ALJ’s
determination that she was not disabled six years earlier, when she last met the
insured status requirements. It is clear, despite the Commissioner’s assertion to
the contrary, that the ALJ did not discuss Ms. Bigpond’s cardiac condition, either
as it existed during the relevant period in June 1997, or thereafter. In fact, there
is no mention of any evidence related to her cardiac problems in the ALJ’s
decision. But the question is whether that omission resulted in legal error.
We turn first to Ms. Bigpond’s contention that the ALJ was required to
consult with a medical advisor regarding the onset date of her cardiac disability.
For this proposition she relies on Social Security Ruling 83-20 and our decision in
Blea v. Barnhart, 466 F.3d 903 (10th Cir. 2006). SSR 83-20 provides that an ALJ
should consult a medical advisor at the hearing when the onset date of a disability
must be inferred. See 1983 WL 31249, at *3. In Blea we held, with respect to the
onset date of a disability, that an ALJ “may not make negative inferences from an
ambiguous record; rather, it must call a medical advisor pursuant to SSR 83-20.”
466 F.3d at 913. “[T]he issue of whether the ALJ erred by failing to call a
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medical advisor turns on whether the evidence concerning the onset of [the
claimant’s] disabilities was ambiguous, or alternatively, whether the medical
evidence clearly documented the progression of his conditions.” Id. at 912.
Blea is factually distinguishable from this case. The claimant in Blea
sought no medical treatment during an eighteen-month period that included his
last insured date. Id. at 912-13. Therefore, there were no contemporaneous
medical records for the ALJ to consider. We held under those circumstances that
the ALJ could not reasonably draw negative inferences from the lack of medical
records. Id. at 912. In contrast, Ms. Bigpond has medical records both before
and after June 1997. Indeed, she points to some of these records in support of her
contention that the medical evidence is ambiguous regarding the onset date of her
cardiac disability. Thus, in contrast to Blea, this is not a case where the medical
evidence is ambiguous because adequate medical records are not available.
Ms. Bigpond nonetheless argues that the evidence regarding the onset date
of her cardiac disability is ambiguous. We note that the ambiguity must relate to
the relevant time period. We consider “whether the evidence is ambiguous
regarding the possibility that the onset of her disability occurred before the
expiration of her insured status.” Id. at 911 (quotation omitted). “Disability” is
defined as the “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous
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period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Here the question
is whether the evidence shows any possibility that Ms. Bigpond’s cardiac
problems were disabling as of June 30, 1997. The Commissioner argues that the
evidence clearly documents the progression of her cardiac problems, showing that
they did not become disabling until long after her last insured date.
Ms. Bigpond contends that medical records from 1997 indicate ambiguity
regarding whether her cardiac problems were disabling at that time. Although she
recites what these records say, she does not explain how they show that her
cardiac problems made her unable to engage in any substantial gainful activity in
June 1997. She emphasizes several ECG reports with notations that an
abnormality found “may be [a] normal variant.” Aplt. App., Vol. II at 187, 599,
619 (all caps omitted). One of those ECG reports also indicated, “Inferior
myocardial infarction . . . probably old,” with a warning that “[d]ata quality may
affect interpretation.” Id. at 187 (all caps omitted). In October 1997,
Ms. Bigpond sought treatment for light-headedness and left-arm pain. The
examination showed a regular heart rate and rhythm. The record states “angina”
as one of the purposes of her visit. Id. at 601. She was given a prescription for
nitroglycerin and referred for a cardiology examination. The notes from the
cardiology consultation indicate that she had “multiple complaints” and that her
diabetes and hypertension were “poorly controlled.” Id. at 289. The cardiologist
acknowledged her reports of fatigue and dizziness, but stated, “In listening to her
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complaints of chest pain there [were] several varieties and I did not think there
was a strong history of angina pectoris.” Id. He scheduled Ms. Bigpond for an
exercise tolerance test once her diabetes and hypertension were better controlled.
There is no indication in the record that Ms. Bigpond followed up with an
exercise tolerance test. But, as the Commissioner points out, her extensive
medical records over the next several years show no cardiovascular complaints, as
well as normal heart examinations with the exception of some further abnormal
ECG reports. In July 2003 she reported a “history of exertional chest discomfort
recently occurring.” Id. at 266 (emphasis added). At that time she was referred
for a cardiac catheterization and she ultimately underwent bypass surgery in
May 2004. We agree with the Commissioner that the evidence is not ambiguous.
It fails to show a possibility that Ms. Bigpond’s cardiac problems were disabling
as of June 30, 1997. Therefore, the ALJ did not err in failing to consult with a
medical advisor regarding the onset date of her cardiac disability.
We conclude as well that the ALJ did not err in failing to discuss
Ms. Bigpond’s cardiac problems in the decision. “[A]n ALJ is not required to
discuss every piece of evidence.” Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996). But Ms. Bigpond argues that an ALJ “must discuss the
uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.” Id. at 1010. As our above discussion illustrates,
however, the evidence of her cardiac problems was not significantly probative of
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whether she was disabled as of June 30, 1997. Nor did the ALJ ignore
uncontroverted evidence of a cardiac disability during the relevant time period.
See Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (rejecting claim that
ALJ was required to discuss all the evidence where none of the medical evidence
conflicted with ALJ’s conclusion claimant could perform light work). Therefore,
we hold that the ALJ did not commit legal error in failing to discuss
Ms. Bigpond’s cardiac problems. 2
The judgment of the district court is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
2
We also reject Ms. Bigpond’s assertion that, in responding to her claims of
error, the Commissioner engaged in post hoc justification of the ALJ’s decision.
She raised issues regarding what the ALJ failed to do. We have simply reviewed
the record in order to determine whether, and then to illustrate why, the ALJ’s
omissions were not legal error. The ALJ was not required to provide grounds in
the decision for failing to do what was not required. Thus, neither we nor the
Commissioner have relied on a substitute rationale for upholding the ALJ’s
decision.
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