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

                            FOR THE TENTH CIRCUIT                         June 22, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
WENDY K. BIAS,

             Plaintiff-Appellant,

v.                                                         No. 11-7073
                                                 (D.C. No. 6:10-CV-00256-KEW)
MICHAEL J. ASTRUE, Commissioner,                           (E.D. Okla.)
Social Security Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges.



      Claiming that she is unable to work, Wendy Bias seeks social security

disability benefits. An administrative law judge rejected Ms. Bias’s application,

however, concluding that Ms. Bias’s anxiety and depression are not severe and do not

impose any limitation on her ability to work. After a hearing, the ALJ also

concluded that while Ms. Bias suffers from severe degenerative disc disease of the


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
lumbar spine and a shoulder injury, she retains the “residual functional capacity” to

perform light work, with the restriction that she can only occasionally stoop and

should avoid work above the shoulder level. With the assistance of a vocational

expert, the ALJ determined that Ms. Bias could perform jobs that exist in significant

numbers in the national economy. Ms. Bias appealed this decision, but the Social

Security Administration’s Appeals Council upheld the ALJ and, later, so did a district

court. In the end, we agree with the unanimous judgment of those who have come to

this case before us.

         Ms. Bias argues that the ALJ erred in finding her not disabled at “step five” of

the sequential disability evaluation process because he did not acknowledge or refer

to her anxiety and depression in the hypothetical he posed to the vocational expert.

Of course, an ALJ must take into account any non-severe but medically determinable

mental impairments when seeking to determine a claimant’s capacity to work. See 20

C.F.R. § 416.945(a)(2). But, when it comes to posing a hypothetical to a vocational

expert, if substantial evidence supports an ALJ’s finding that a “non-severe”

impairment does not create any work-related limitations, the ALJ is not required to

include that impairment in his hypothetical. See Qualls v. Astrue, 428 F. App’x 841,

851 (10th Cir. 2011) (unpublished); Buckner v. Astrue, 646 F.3d 549, 561 (8th Cir.

2011).

         That’s the case here. The ALJ determined Ms. Bias’s anxiety and depression

were not severe and “would have no more than a minimal effect” on her ability to


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work. Aplt. App., Vol. 2 at 15. He did so, moreover, based on a “thorough review of

[her] medical records and allegations [which] indicate[d] no vocational impairments

due to” those conditions. Id.; see also 20 C.F.R. § 416.921(a) (stating that an

impairment that “does not significantly limit [the claimant’s] physical or mental

ability to do basic work activities” is classified as non-severe). To be sure, Ms. Bias

disputes whether the ALJ’s review was based on substantial evidence. In particular,

she contends that the ALJ failed to employ the Psychiatric Review Technique

required by 20 C.F.R. § 416.920a when assessing the severity of mental impairments.

But, in fact, the record before the ALJ did include an evaluation using this technique

by a physician who found no medically determinable mental impairments arising

from Ms. Bias’s anxiety and depression that might limit her ability to work. So it is

that the ALJ was within his rights not to make mention of them in his hypothetical to

the vocational expert.

      Separately, we see no error in the district court’s conclusion that the ALJ

properly weighed and considered the opinion of the consultative examiner,

Dr. Quadeer, and sufficiently tied his credibility findings to the evidence in the

record. Rather than repeat it here, we can say simply that after careful review we

agree with and adopt that court’s analysis on these questions as our own.

      Affirmed.

                                                Entered for the Court

                                                Neil M. Gorsuch
                                                Circuit Judge

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