                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            MAR 24 2003
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk


    RICKY J. TOLLETT,

                Plaintiff-Appellant,

    v.                                                     No. 02-7065
                                                     (D.C. No. 01-CV-386-P)
    JO ANNE B. BARNHART,                                   (E.D. Okla.)
    Commissioner of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before LUCERO , McKAY , and BALDOCK , Circuit Judges.



         Ricky J. Tollett appeals the denial of his application for Social Security

supplemental-income and disability-insurance benefits. Social Security

regulations implement a five-step sequential process to evaluate a disability

claim. See Williams v. Bowen , 844 F.2d 748, 750–52 (10th Cir. 1988) (detailing



*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
steps). Finding that Tollett retained the residual functional capacity to perform

sedentary work limited by an inability to work around moderate to severe levels

of pulmonary irritants, the administrative law judge (ALJ) denied benefits at step

five. Based on the vocational expert’s testimony, the ALJ further found that there

were a significant number of jobs in the national economy that Tollett could

perform. After the ALJ issued a decision denying benefits, Tollett submitted

additional medical records. The Appeals Council considered those records, as

well as the materials that were before the ALJ, and denied review. This denial

was affirmed by the district court. Exercising jurisdiction over this appeal

pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.

      Our review is limited to evaluating whether the factual findings are

supported by substantial evidence and whether the correct legal standards were

applied. Goatcher v. United States Dep’t of Health & Human Servs.     , 52 F.3d 288,

289 (10th Cir. 1995). Tollett challenges the ALJ’s denial of benefits on two

grounds. First, he contends that the new evidence submitted to the Appeals

Council requires a finding of disability. Second, he argues that the ALJ failed

properly to assess his capacity to perform work at the sedentary level.

      A claimant may submit new and material evidence in his appeal to the

Appeals Council “[i]f the evidence relates to the period on or before the date of

the [ALJ’s] decision.”   O’Dell v. Shalala , 44 F.3d 855, 858 (10th Cir. 1994)


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(citing 20 C.F.R. § 404.970(b)). The new evidence is included in the

administrative record to be evaluated as a whole.    See id. at 859.

      Tollett’s new evidence related to his heart condition and major depression.

Because the records pertaining to his depression were created in October 1999

and January 2000, after the ALJ’s July 9, 1999 decision, we do not consider those

records. See id. at 858. We note, however, that the evidence does not

demonstrate that Tollett was disabled by depression as of the date of the ALJ’s

decision because it does not indicate that he was suffering from depression prior

to October 1999.

      The new evidence concerning Tollett’s heart condition does relate to the

period on or before the date of the ALJ’s decision. Consequently, we review this

new evidence when evaluating the record as a whole. Tollett was hospitalized in

June 1999 for chest pain. Dr. Schmidt performed a cardiac catheterization on

July 2, 1999, which showed “[n]ormal LV function [and] [m]ild CAD.” (1 R. at

172.) In his July 3, 1999 discharge summary, Dr. Schmidt concluded that “aortic

valve disease was not the culprit for his symptoms of severe dyspnea.”   Id. at 163.

He recommended “low dose after load reduction therapy” to “forestall any

progression of ventricular dysfunction,” but recommended no further intervention.

Id. at 163-64.




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      Tollett argues that the new medical evidence compels reconsideration of the

ALJ’s decision to deny benefits because it renders incorrect the ALJ’s statement

that Tollett “was not referred to a cardiologist, and coronary care has never been

given to the claimant other than his one episode of chest pain [in May 1997].”

Id. at 35, 37. But the ALJ also evaluated the evidence pertaining to Tollett’s

heart condition, including the pulmonary function studies the consulting physician

performed on March 24, 1998, which were normal, and an abnormal

electrocardiogram.   See id. at 37. He concluded that Tollett’s heart condition was

not disabling. The new evidence, considered with the existing record, shows that

Tollett had a second episode of chest pain in June 1999. He points to no evidence

demonstrating that his condition in June and July 1999 was disabling, and our

review of the evidence has revealed no such evidence. We conclude that the

ALJ’s determination remains supported by substantial evidence.

      Tollett next claims that the ALJ erred in finding that he was able to perform

sedentary work, even with the restriction imposed by the ALJ that he not work

around moderate to severe levels of pulmonary irritants. Tollett maintains that

the ALJ failed to consider his breathing limitation, heart condition and inability to

stand or walk for more than five minutes at a time. He claims that the jobs

identified as appropriate for him did not accommodate his restrictions: the gate

guard position would expose him to exhaust fumes, and the clerical sorter and


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optical assembler jobs would be eliminated due to his shortness of breath. In

addition, Tollett asserts that the hypothetical questions posed to the vocational

expert did not include all of his limitations.

       Contrary to Tollett’s argument that the ALJ did not take into account his

limitations, the ALJ recognized that he could no longer perform his past work,

which was classified as “heavy” or “medium,” (1 R. at 64-65), and found that his

limitations permitted him to perform only sedentary work.     See 20 C.F.R.

§§ 404.1567(a) and 416.967(a) (describing physical requirements of sedentary

work). Therefore, we turn to his challenge to the hypothetical questions posed to

the vocational expert.

       A vocational expert’s testimony can provide a proper basis for an ALJ’s

determination where the claimant’s impairments are reflected adequately in the

hypothetical inquiries to the expert.   Gay v. Sullivan , 986 F.2d 1336, 1341

(10th Cir. 1993). The ALJ is required to accept and include in the hypothetical

question only those limitations supported by the record.    Shepherd v. Apfel ,

184 F.3d 1196, 1203 (10th Cir. 1999).

       Tollett maintains that his shortness of breath eliminated the clerical sorter

and optical assembler positions because those jobs required repetitive motions.

In response to Tollett’s attorney’s question, the vocational expert testified that an

inability to perform repetitive work of the upper extremities would eliminate the


                                            -5-
optical assembler job and probably the clerical sorter job. But there was no

evidence that Tollett could not perform repetitive motions. Therefore, the ALJ

properly rejected this restriction.

      Tollett also argues that the gate guard position was eliminated because

it would probably expose him to exhaust fumes. The vocational expert did

not suggest that exhaust fumes would preclude Tollett from performing as a

gate guard. To the contrary, she included the gate guard job as one that could be

performed by someone who needed “to avoid exposure to chemical fumes,

perfumes, and other such types of pulmonary irritants.” (    Id. at 65-66.) Therefore,

the vocational expert’s testimony provided a proper basis for the ALJ’s disability

decision.

      We conclude that the agency applied the correct legal standards and that

substantial evidence supports the agency’s decision. Accordingly, the judgment

is AFFIRMED .


                                                 Entered for the Court



                                                 Carlos F. Lucero
                                                 Circuit Judge




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