                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       February 8, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
MONICA HARLAN,

             Plaintiff-Appellant,

v.                                                         No. 12-5082
                                               (D.C. No. 4:10-CV-00726-JHP-TLW)
MICHAEL J. ASTRUE, Commissioner                            (N.D. Okla.)
of the Social Security Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.


      Monica Harlan appeals from the district court’s affirmance of the

Commissioner of Social Security’s denial of disability insurance benefits and

supplemental security income benefits. She argues that the Administrative Law

Judge (ALJ) erred in failing to rule on her request for a consultative mental



*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
examination. Reviewing under the authority of 28 U.S.C. § 1291 and 42 U.S.C.

§ 405(g), we affirm.

       Ms. Harlan alleged disability due to depression, bipolar disorder,

schizophrenia, and leg and back problems. Her initial applications were denied

because the medical evidence was insufficient for a determination, as she had failed

to appear for scheduled consultative examinations. Reconsideration was denied

because the provided medical evidence did not show a serious condition that would

preclude her from working. Ms. Harlan asked for an evidentiary hearing before an

ALJ.

       Before the hearing was held, she sought additional mental health treatment.

She was seen at the Tulsa Center for Behavioral Health with suicidal ideation,

hallucinations, and depression. She was referred to Family and Children’s Services

(FCS), which referred her to Hillcrest Medical Center, where she was admitted for

inpatient psychiatric treatment for four days. While hospitalized, she began taking

medications that helped control her moods and hallucinations, and eliminated her

suicidal ideation. She was diagnosed with major depressive disorder with psychosis

and post-traumatic stress disorder. At her hospital discharge, she was stable and

directed to follow up with FCS. For one month, she sought outpatient treatment from

FCS. In the FCS Discharge Summary, completed four months later, after she did not

attend regular appointments or respond to attempts to reach her, it was noted that she




                                         -2-
made no progress in treatment because she failed to attend appointments. It was

recommended that she continue using prescribed medications.

      Thereafter, the ALJ held an evidentiary hearing, at which both Ms. Harlan and

a vocational expert testified and medical evidence was admitted. During the hearing,

Ms. Harlan’s counsel requested that the ALJ order a consultative mental examination.

The ALJ took the request under advisement.

      Sometime later, the ALJ issued a denial decision without addressing the

request for a consultative examination. The ALJ denied benefits at step five of the

sequential evaluation process. See Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir.

2010) (describing five-step process). At steps one and two, he found that Ms. Harlan

had not been working since her alleged disability onset date and that she suffered

from the severe impairments of depression and post-traumatic stress syndrome.

Relying on Ms. Harlan’s representations, the ALJ determined at step three that her

impairments did not meet the listings. The ALJ found that she has mild restriction in

activities of daily living; moderate difficulty with social functioning; mild difficulty

with concentration, persistence, or pace; and no episodes of decompensation of an

extended duration.

      At step four, the ALJ determined that Ms. Harlan retained the residual

functional capacity to perform medium work involving simple, repetitive tasks and

only incidental contact with the public. In making this determination, the ALJ

reviewed the medical evidence and noted that Ms. Harlan had been scheduled for


                                          -3-
mental and physical consultative examinations, but she did not appear for either and

she did not respond to several written, email, or voice-mail attempts to contact her.

Further, the ALJ questioned Ms. Harlan’s credibility due to various inconsistencies in

her representations and noted that her failure to follow-up with mental health

treatment suggested her symptoms may not have been as serious as she alleged.

Recognizing that she has no past relevant work and relying on the vocational expert’s

testimony, the ALJ found at step five that Ms. Harlan can perform work that is

available in significant numbers in the national economy, such as a bus person,

dishwasher, or bench assembler.

      The ALJ’s decision became the final decision of the Commissioner after the

Appeals Council denied review. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.

2003). On judicial review, the district court upheld the Commissioner’s decision.

      Our review is limited to the Commissioner’s final decision. See 42 U.S.C.

§ 405(g). “We review [that] decision to determine whether the factual findings are

supported by substantial evidence in the record and whether the correct legal

standards were applied.” Doyle, 331 F.3d at 760; see also 42 U.S.C. § 405(g)

(stating that agency findings are conclusive if supported by substantial evidence and

that where claim has been denied because claimant has not submitted proof

conforming to regulation, court will review only question of conformity with

regulation and validity of regulation). An ALJ’s decision is not supported by

substantial evidence if there are not sufficient facts before the ALJ upon which to


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make a decision. See Henrie v. U.S. Dep’t of Health & Human Servs., 13 F.3d 359,

361 (10th Cir. 1993). “We consider whether the ALJ followed the specific rules of

law that must be followed in weighing particular types of evidence in disability cases,

but we will not reweigh the evidence or substitute our judgment for the

Commissioner’s.” Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008) (internal

quotation marks omitted).

      Ms. Harlan argues that the ALJ erred in disregarding her counsel’s requests for

a consultative examination by failing to mention her request for a consultative mental

examination or to give reasons if he rejected the request. She faults the ALJ for

ignoring the findings in the initial and reconsideration decisions that there was

insufficient evidence of her mental illness to make findings. She notes that because

there were no findings, there was no Psychiatric Review Technique (PRT) form in

the record for the ALJ to rely on when assessing her residual mental capacity. In

addition, she contends that she was pro se when she missed the consultative

examinations, but, upon representation by counsel, she learned the importance of

attending examinations and would do so in the future. Further, Ms. Harlan contends

that the ALJ reasonably could have concluded that a consultative examination would

be helpful due to the new evidence of her breakdown and inpatient treatment.

Finally, Ms. Harlan argues that the ALJ’s failure to address or give reasons for

apparently rejecting her request for development of the record should not be subject

to harmless error analysis. According to Ms. Harlan, the ALJ’s failure to rule on and


                                          -5-
provide reasons gives this court nothing to review and conflicts with the requirement

of 42 U.S.C. § 405(b)(1) that the Commissioner provide reasons for the agency’s

decision.1 She clarifies, however, that she is not arguing that the ALJ had a legal

duty to order the requested consulting examination; she is arguing only that he was

obligated to consider the request and give reasons for his decision.

      Ms. Harlan cites no statute or regulation specifically requiring an ALJ to rule

on a request for a consultative examination or to give reasons for the ruling. And our

research has disclosed none. Section 405(b)(1), which she does refer to, requires an

ALJ to discuss the evidence and the reasons for the ALJ’s decision. It does not

require a discussion of the reasons for denying a consultative examination.

      Ms. Harlan cites two unpublished district court decisions to support her

argument that the ALJ had a duty to address and give reasons for denying her request

for a consultative examination. See Taylor v. Astrue, No. 09-CV-0129-CVE-FHM,

2010 WL 3277426 (N.D. Okla. Aug. 17, 2010); Fortna v. Astrue,

No. 05-CV-587-SAJ (N.D. Okla. May 1, 2007) (Aplt. Br., Tab J). These unpublished

district court cases are not binding on this court. Nonetheless, we will address them.



1
      In relevant part, § 405(b)(1) provides that a
      decision by the Commissioner of Social Security which involves a
      determination of disability and which is in whole or in part unfavorable
      to such individual shall contain a statement of the case, in
      understandable language, setting forth a discussion of the evidence, and
      stating the Commissioner’s determination and the reason or reasons
      upon which it is based.

                                         -6-
      In Taylor, the claimant’s attorney asked the ALJ at the hearing to update the

claimant’s earnings record with new quarters of coverage that would extend the

claimant’s insured status to June 2008 and to schedule new consultative examinations

for the claimant as the prior consultative examinations were three years old.

2010 WL 3277426, at *1. The ALJ took the requests under advisement, but he failed

to rule on them in the written decision and used the earlier last-insured date in his

analysis. Id. On appeal to the district court, the claimant argued that (1) the ALJ’s

finding concerning the last-insured date was not supported by substantial evidence;

and (2) the ALJ abused his discretion in not ordering mental and physical

consultative examinations requested by the claimant, with the consequence that there

was not substantial evidence in the record to support a conclusion regarding the

nature and severity of the claimant’s impairments. Id. at *2. The court remanded for

development of the record concerning the claimant’s quarters of coverage and for the

ALJ to consider in the first instance whether additional consultative examinations

were needed. Id. at *2 & n.1. The court stated:

      The ALJ failed to consider plaintiff’s request for consultative
      examinations and the ALJ, not the Court, should be permitted to
      consider plaintiff’s request for consultative examination in the first
      instance. If the ALJ had addressed plaintiff’s request for consultative
      examinations, the ALJ’s decision would be entitled to deference and
      could be reversed only for an abuse of discretion. There is little or no
      medical evidence in the record dating from late 2005 to June 2008 and it
      is possible that the ALJ would have found additional consultative
      examinations helpful or necessary to review plaintiff’s claim for
      disability benefits based on a revised [date last insured]. The ALJ did
      not consider whether plaintiff was disabled as of June 2008 and it is not
      clear that the record contains sufficient evidence to make this

                                          -7-
       determination. Thus, the errors identified by plaintiff are not harmless
       and the case should be remanded for further proceedings based on the
       updated [date last insured] and for consideration of plaintiff’s requests
       for consultative examinations.

Id. at *2 (footnote omitted) (citations omitted).

       In Fortna, the claimant requested that the ALJ order additional psychological

testing. The previous testing was stale, it was doubtful whether the previous testing

results could be obtained, and the mental diagnoses in the record were based only on

interviews and history. See Aplt. Br., Tab J, at 11. The ALJ did not rule on the

request. On appeal to the district court, the claimant argued that the ALJ failed to

properly develop and evaluate his alleged mental impairment. Id. at 1. The district

court remanded for the ALJ to develop the record in order to perform a proper

analysis of the claimant’s alleged disability. Id. at 11-13. The court did not state that

a consultative examination was required, but the court did state that the ALJ erred by

failing to rule on the request for psychological testing and to explain why he did not

order the testing. Id. at 10, 13.

       In comparison, in this case, there are no issues about the date last insured or

stale evidence. Relevant, current mental health evidence became available between

the time of the reconsideration denial and the ALJ proceedings. And Ms. Harlan

does not argue that the ALJ’s decision was not supported by substantial evidence or

that the record was insufficient for the ALJ to make a decision without further




                                          -8-
developing the record.2 Neither Taylor nor Fortna cites authority requiring an ALJ

to rule on a request for a consultative examination under any set of circumstances.

The decisions in both cases rest on their own unique facts, as should the decision in

this case.

       Ms. Harlan also cites several Tenth Circuit cases requiring an ALJ to explain

the ALJ’s reasoning. See Aplt. Br. at 29 (citing cases). Those cases concern the

ALJ’s findings at various steps in the five-step review process, the weight to give to a

treating doctor, and the credibility of the claimant. These are matters the regulations

specifically require an ALJ to address with reasoning when making a disability

determination. See 20 C.F.R. §§ 404.1520(a)(4) (five-step process); 416.920(a)(4)

(same); 404.1527(c) (weighing medical opinions); 416.927(c) (same); 404.1529

(credibility); 416.929 (same).

       Without a statute, regulation, or case requiring an ALJ to rule on a request for

a consultative examination or to provide reasons for the ALJ’s ruling, the appropriate

inquiry continues to be whether the ALJ met his responsibility to ensure the record

was sufficiently developed to decide the issues presented at the hearing. See Grogan

v. Barnhart, 399 F.3d 1257, 1263-64 (10th Cir. 2005). “[W]here the medical

evidence in the record is inconclusive, a consultative examination is often required


2
      In the district court, Ms. Harlan also argued that (1) the ALJ failed to evaluate
her medical evidence and articulate the weight given to it; and (2) the ALJ’s findings
were not supported by substantial evidence. She has abandoned these arguments on
appeal.


                                          -9-
for proper resolution of a disability claim.” Hawkins v. Chater, 113 F.3d 1162, 1166

(10th Cir. 1997) (citation omitted); see also 20 C.F.R. §§ 404.1519a(b) (stating

agency may purchase consultative examination if evidence is insufficient for a

decision), 416.919a(b) (same). In other words, after the claimant satisfies her burden

to show a reasonable possibility of a severe impairment, the ALJ bears responsibility

to order a consultative examination if it is necessary to resolve the impairment issue.

Hawkins, 113 F.3d at 1167. But the ALJ “has broad latitude in ordering a

consultative examination.” Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774,

778 (10th Cir. 1990); see also Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir.

1993) (stating ALJ has discretion to order consultative examination).

      Based on Ms. Harlan’s arguments and under the circumstances of this case, we

cannot conclude the ALJ erred in failing to rule on the request for a consultative

examination. As indicated above, she does not argue that the ALJ failed to meet his

duty to develop the record or that there was not substantial evidence to support the

ALJ’s decision. The ALJ’s failure to point out that the initial and reconsideration

decisions found insufficient evidence of a mental impairment and therefore made no

findings is of no consequence. Much more medical evidence was available to the

ALJ at the time of the hearing than was available to the reviewers at the initial and

reconsideration stages. And the ALJ further developed the record at the hearing with

testimony and the new medical evidence. Moreover, Ms. Harlan fails to adequately

explain why the new mental health evidence required a consultative examination.


                                         - 10 -
Also, the fact that there was no PRT form in the record is of no consequence. The

regulations permit an ALJ to consider and document in the ALJ’s decision the items

listed on a PRT form without obtaining a medical expert’s opinion. See 20 C.F.R.

§§ 404.1520a(d)(2), (e)(4); 416.920a(d)(2), (e)(4).3

      Accordingly, we affirm the district court’s judgment.


                                                 Entered for the Court


                                                 Bobby R. Baldock
                                                 Circuit Judge




3
      Because we conclude there was no error, we need not address the parties’
harmless-error arguments. Furthermore, we limit our holding to the facts of this case.
We do not express an opinion on whether an ALJ must rule on a consultative
examination request and give reasons when a claimant argues on judicial review that
the ALJ failed to develop the record or the ALJ’s decision is not supported by
substantial evidence.


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