* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. App. P. 43(c), John J. Callahan, Acting Commissioner of Social Security, i s substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. Although we have substituted the Commissioner for the Secretary in this caption, in the text we continue to refer to the Secretary b ecause she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 8 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

NORMAN BREEDLOVE,

Plaintiff-Appellant,

v. JOHN J. CALLAHAN, Acting Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-7024 (D.C. No. CV-95-394-S) (E.D. Okla.)

ORDER AND JUDGMENT **

Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Norman Breedlove appeals from an order of the district court affirming the Secretary’s determination that he is not entitled to disability benefits. We affirm. “We review the Secretary’s decision to determine wh ether her factual findings are supported by substantial evidence in t he record viewed as a whole and whether she applied the correct legal standards . Substantial evidence is such relevant evidence as a reasonable mind might acceptas adequate to support a conclusion.” Castellano v. Secretary of Health & H uman Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994) (citation and quotation omitt ed). Mr. Breedlove alleged disability due to Reflex Symp athetic Dystrophy caused by a crushing injury to his left dominant ha nd in 1993 and residual pain from a prior leg injury. The administrative law ju dge (ALJ) determined at step five of the five-step sequential process, see Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), that Mr. Breedlove was notdisabled as he could perform sedentary and light work.-3-

On appeal, Mr. Breedlove argues that, under the hei ghtened duty owed pro se claimants, the ALJ should have obtained addi tional relevant medical records, including records from the twelve months p rior to the ALJ’s decision, and should have ordered a consultative examination. He also argues the Appeals Council erred in disregarding the medical evidence he submitted to it. Although the ALJ has a duty to develop the record, "it is not the ALJ's duty to be the claimant's advocate." Henrie v. United S tates Dep’t of Health & Human Servs. , 13 F.3d 359, 361 (10th Cir. 1993). The ALJ's duty is only "one of inquiry and factual development." Id. This duty includes the requirement that the ALJ develop a complete medical record by obtaining medi cal evidence for at least the twelve months prior to the date the claimant filed the application for benefits. See 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. §§ 404.1512(d) & 416.912(d). Further, Social Security rulings do not require the ALJ to update medical records to the time of the hearing. See Luna v. Shalala , 22 F.3d 687, 693 (7th Cir. 1994). Mr. Breedlove does not indicate what records the AL J should have obtained. In fact, he testified that he had no oth er records to submit, and that he had not been treated by any physician since the pre vious August, approximately two months after his injury. See R. Vol. II at 47-48. He stated that since August, physicians had only recommended that he soak his hand in Epsom salt. See id. at-4-

47. The records themselves contained no informatio n indicating Mr. Breedlove had been treated by any other physicians. The ALJ had no duty to seek out additional records here. We will not send the ALJ on a fishing expedition to try to find reco rds which might or might not exist. See Carter v. Chater , 73 F.3d 1019, 1022 (10th Cir. 1996) (ALJ has dutyto obtain “pertinent, available medical records which come to his attention during . . . hearing”) (citing 20 C.F.R. § 404.944); cf. Vazquez Vargas v. Secretary of Health & Human Servs. , 838 F.2d 6, 9 (1st Cir. 1988) (no error occurred when ALJ did not obtain additional records as claimant w as on notice that, absent her assistance, ALJ would not supplement the record). No reversible error occurred because the ALJ did not obtain records of which he was unaware. Likewise, the ALJ was under no duty to obtain any c onsultative examinations. The ALJ has broad latitude in determ ining whether to order a consultative examination. See Diaz v. Secretary of Health & Human Servs. , 898 F.2d 774, 778 (10th Cir. 1990). Consultative e xaminations are necessary only to resolve conflicts in the medical evidence or to secure additional evidence needed to support a decision. See 20 C.F.R. §§ 404.1519a & 416.919a. A claimant must raise the issue he later argues sho uld have been developed, sufficiently so that, on its face, it appears to be substantial. See Hawkins v. Chater , 113 F.3d 1162, 1167 (10th Cir. 1997).-5-

Specifically, the claimant has the burden to make s ure there is, in the record, evidence sufficient to suggest a reasonable possibility that a severe impairment exists. When the claimant has satisfied his or her burden in that regard, it then, and only then, beco mes the responsibility of the ALJ to order a consultative e xamination if such an examination is necessary or helpful to resolve t he issue of impairment. Id. Mr. Breedlove did not indicate that any of his impa irments were so severe as to be disabling. The ALJ had no duty to order aconsultative examination. We also reject Mr. Breedlove’s suggestion that the fact that he had worked since his leg injury occurred was irrelevant. Unde r the regulations, a claimant who has worked with a claimed impairment is not dis abled. See 20 C.F.R. §§ 404.1520(b) & 416.920(b). Absent evidence, or e ven testimony from Mr. Breedlove that his leg had worsened since he la st worked, the ALJ was under no duty to seek further evidence regarding his leg injury. Mr. Breedlove also argues the Appeals Council erredby failing to consider the new evidence he submitted to it. Pursuant to 2 0 C.F.R. § 404.970(b), the Appeals Council shall consider evidence submitted w ith a request for review if the evidence is new, material, and “relates to the period on or before the date of the [ALJ's] decision,” without regard to whether th e claimant can show good cause for submitting new evidence to the Appeals Co uncil. O’Dell v. Shalala , 44 F.3d 855, 858 (10th Cir. 1994). If the evidence does not relate to the relevant-6-

time period, the Appeals Council will not consider it, although the claimant may file a new application for benefits covering the re levant time period. See 20 C.F.R. § 404.976(b). The ALJ entered his opinion November 14, 1994. The report Mr. Breedlove submitted to the Appeals Council was dated March 29, 1995. In this report, Dr. Ruffin diagnosed Mr. Breedlove as having Reflex Sympathetic Dystrophy. The report contained no information ass erting that this condition had existed during the time period for which Mr. Breedl ove sought benefits. As this evidence did not specifically relate to the relevan t time period, the Appeals Council properly did not consider it. The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge