Jaramillo v. Massanari

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS SEP 24 2001
FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk
VERONICA JARAMILLO,
Plaintiff-Appellant,
v. No. 01-2033
(D.C. No. CIV-99-1425 LH/LCS)
LARRY G. MASSANARI, Acting (D. N.M.)
Commissioner of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.
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This order and judgment is not binding precedent, except under the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. 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.
Plaintiff Veronica Jaramillo appeals from an order of the district court
affirming the Commissioner’s determination to terminate his prior award of
Social Security disability benefits. 1 We affirm.
We review the Commissioner’s decision to terminate benefits to determine
whether substantial evidence supports the decision and whether correct legal
standards were applied. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
“We examine the record as a whole, including whatever in the record fairly
detracts from the weight of the [Commissioner’s] decision and, on that basis,
determine if the substantiality of the evidence test has been met.” Id. (quotation
omitted).
An eight-part sequential evaluation process is used in termination reviews.
See 20 C.F.R. § 404.1594(f)(1) through (8). The Commissioner bears the burden
of showing medical improvement by establishing that the claimant’s medical
condition has improved, the improvement is related to a claimant’s ability to
work, and the claimant is currently able to engage in substantial gainful activity.
Glenn , 21 F.3d at 987 (citing regulations). In deciding whether to terminate
benefits, a claimant’s impairments are considered together. See id.1
After a claimant has been awarded disability benefits, the Commissioner is
required to review the case periodically to determine whether there has been any
medical improvement in the claimant’s condition and whether that improvement
affects the claimant’s ability to work. 20 C.F.R. § 404.1594(a).
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Ms. Jaramillo was originally found to be disabled as of December 11, 1991,
due to sacroiliac arthritis, chronic pain syndrome, fibrositis, and depression; the
result of automobile accidents in 1990. Her disability was determined to have
ceased as of September 1, 1996, after the administrative law judge (ALJ)
ascertained she was not disabled as she could return to her prior work. See
§ 404.1594(7). Ms. Jaramillo had previously been employed by the New Mexico
Department of Labor as an interviewer.
On appeal, Ms. Jaramillo argues that the ALJ should have obtained current
medical evidence in order to secure an intelligent and voluntary waiver of her
right to counsel or, in the alternative, should have conducted a full and fair
hearing. She also contends the ALJ’s finding that her depression had improved
was not supported by substantial evidence and any improvement of her depression
was not related to her ability to work. She asserts her testimony was credible and
she does not have the residual functional ability to perform her past job.
Ms. Jaramillo argues her waiver of representation was not intelligent and
voluntary. Ms. Jaramillo admitted she had been sent a notice advising her of her
right to representation and she waived that right. App., Vol. II at 28. Neither the
pertinent statute, see 42 U.S.C. § 406(c), nor the regulations, see 20 C.F.R. §
404.1706, nor our previous cases require any more advisement than was given in
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this case, see Carter v. Chater , 73 F.3d 1019, 1021 (10th Cir. 19 96) .
Consequently, the advisement satisfied the Commissioner’s duty.
Ms. Jaramillo is correct in stating that the Commissioner has the duty to
develop an adequate record relevant to the issues raised. See Hawkins v. Chater ,
113 F.3d 1162, 1164 (10th Cir. 1997). “This duty is especially strong in the case
of an unrepresented claimant.” Carter , 73 F.3d at 1021. The claimant is
responsible, however, for furnishing medical evidence of claimed impairments.
See 20 C.F.R. § 404.1512(a), (c). Ms. Jaramillo looked at the record submitted to
the ALJ and did not indicate that she disagreed with any of the materials in the
record or that any records were missing. She has not identified medical providers
from whom records were missing nor did she ask assistance in obtaining any
records. On appeal, she has failed to identify the evidence she claims the ALJ
should have obtained. The ALJ did not violate the duty to develop the record.
Ms. Jaramillo argues that the ALJ did not compare her physical
impairments at the time she was awarded benefits with her current physical
impairments. She admits, however, that the ALJ did determine that her physical
condition had not improved. The residual functional ability forms from 1992,
R. Vol. II, at 267, and 1996, id. at 176, show that Ms. Jaramillo retained the same
physical functional abilities.
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She also contends that the ALJ’s finding that her depression had improved
was not supported by substantial evidence and any improvement of her depression
was not related to her ability to work. The psychiatric review technique form of
1992 shows that Ms. Jaramillo suffered from a depressive syndrome with four
manifestations and experienced slight to moderate restrictions in her daily
activities due to her psychiatric symptoms; she had decompensated in work
settings several times. Id. at 283, 287. The form from 1996 shows that her
limitations in activities were due to her physical problems, not her psychiatric
symptoms and that she did not decompensate. Id. at 173. Further, Dr. Balcazar,
an examining physician, noted that she could plan a work sequence and perform
one- or two-step repetitive tasks at a competitive rate. Id. at 157. Dr. Cowley,
a consulting psychiatrist concluded “there is medical improvement of her mental
impairment that is now non-severe.” Id. at 198.
Ms. Jaramillo asserts her testimony was credible and no physician has
questioned the veracity of her descriptions of her pain. “Credibility
determinations are peculiarly the province of the finder of fact, and we will not
upset such determinations when supported by substantial evidence.” Kepler v.
Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted ). In evaluating
a claimant’s credibility regarding pain, the ALJ must consider the level of
medication the claimant uses and its effectiveness, the claimant’s attempts to
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obtain relief, the frequency of medical contacts, the claimant’s daily activities,
subjective measures of the claimant’s credibility, “and the consistency or
compatibility of nonmedical testimony with objective medical evidence.” Id.
at 391 (quotation omitted). The inability to work pain-free is not sufficient
reason to find a claimant disabled. See Gossett v. Bowen , 862 F.2d 802, 807
(10th Cir. 1988).
The medical evidence does not support a finding that Ms. Jaramillo’s
pain is disabling. Ms. Jaramillo did not visit a physician from 1993 until 1996,
about the time she received notification that her benefits were being terminated.
R. Vol. II, at 35, 36. Her testimony of her daily activities is not compatible with
the medical records. We will not disturb the ALJ’s credibility finding.
Finally, Ms. Jaramillo contends she does not have the residual functional
ability to perform her past job. The VE testified that Ms. Jaramillo’s previous
work was performed at the sedentary level and was of a skilled nature. The ALJ
determined that Ms. Jaramillo could work at the light level. No error occurred
because t he record contains substantial evidence to support the ALJ’s
determination.
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The judgment of the United States District Court for the District of
New Mexico is AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Chief Judge
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