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

                             FOR THE TENTH CIRCUIT                         December 14, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
AUTUMN E. ROSE,

      Plaintiff - Appellant,

v.                                                         No. 15-6031
                                                    (D.C. No. 5:13-CV-00887-C)
CAROLYN W. COLVIN, Acting                                  (W.D. Okla.)
Commissioner of the Social Security
Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Autumn E. Rose seeks reversal of the district court’s judgment upholding the

decision of an administrative law judge (ALJ) to deny her application for social

security disability benefits. We have jurisdiction under 28 U.S.C. § 1291 and

42 U.S.C. § 405(g). We affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
                                  I.   BACKGROUND

       Ms. Rose claims she is disabled by injuries she sustained in a motor vehicle

accident on May 10, 2008, in which her mother, who was driving the vehicle, died.

Ms. Rose suffered very serious injuries in the accident and required five weeks’

hospitalization, numerous surgeries, and a long recovery period. She alleges

disability due to a shunt in her brain, problems with her left arm, low back and neck

pain, depression, and associated problems. Her insured status for the purpose of

disability insurance benefits expired on December 31, 2010. She was then 27 years

old.

       Ms. Rose requested and received a hearing before an ALJ at which she was

represented by counsel. Ms. Rose, her uncle, and a vocational expert (VE) testified.

The ALJ found Ms. Rose’s severe impairments were the residual effects of the

injuries she sustained in the automobile accident: a “close[d] head injury with

contusions that resulted in right lower lateral rectus weakness, skull fracture with the

laceration, C1 and T2 cervical fractures, bilateral rib fractures, sternal fracture, left

clavicle fracture, bilateral pulmonary conclusions [sic], bilateral pneumoth[o]races[,]

liver laceration[, and] obesity.” Aplt. App. vol. II at 12. The ALJ further found that

these impairments did not meet or equal the listings for presumptive disability. The

ALJ then concluded that although Ms. Rose could not perform her past work, she had

the residual functional capacity (RFC) to perform a limited range of sedentary work.

The VE identified jobs a person with Ms. Rose’s RFC could do that existed in

significant numbers in the national economy. Consequently, the ALJ determined at

                                             2
step five of the controlling five-step sequential evaluation process, see Wall v.

Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (explaining the five-step framework for

determining disability), that Ms. Rose was not disabled under the Social Security

Act. The Appeals Council denied review. Ms. Rose appealed to the district court,

which affirmed the agency’s denial of benefits.

                             II. LEGAL STANDARDS

      “We review the district court’s decision de novo and independently determine

whether the ALJ’s decision is free from legal error and supported by substantial

evidence.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).

“Substantial evidence is more than a mere scintilla and is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Flaherty v.

Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal quotation marks omitted). We

examine the record as a whole, but we do not reweigh the evidence. Id. We also do

not “substitute our judgment for that of the agency.” Bowman v. Astrue, 511 F.3d

1270, 1272 (10th Cir. 2008) (internal quotation marks omitted).

      In this context, “disability” requires both an “inability to engage in any

substantial gainful activity” and a “physical or mental impairment, which provides

reason for the inability.” Barnhart v. Walton, 535 U.S. 212, 217 (2002) (internal

quotation marks omitted). “Under the Social Security Act, a claimant is disabled if

she is unable to do any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to last for a

continuous period of not less than 12 months.” Wilson v. Astrue, 602 F.3d 1136,

                                           3
1140 (10th Cir. 2010) (ellipsis and internal quotation marks omitted).

                                 III. DISCUSSION

      On appeal, Ms. Rose advances four challenges to the ALJ’s finding that she is

not disabled: (1) the ALJ did not properly evaluate her mental impairments, (2) the

ALJ failed to develop the record, (3) the ALJ did not properly analyze her obesity,

and (4) the ALJ’s credibility analysis was flawed.

   A. Evaluation of Mental Impairments

      We first address Ms. Rose’s argument that the ALJ did not properly evaluate

the evidence of her mental impairments. Three consulting psychologists conducted

mental evaluations—Dr. Cruse on December 1, 2008, Dr. Swink on May 7, 2009, and

Dr. Repanshek on May 13, 2010. In addition, two state agency medical consultants,

Dr. Scott and Dr. Lochner, reviewed Ms. Rose’s records and submitted opinions on

her mental condition. The ALJ summarized all of those reports.

      Ms. Rose contends the ALJ did not determine that her mental impairments

were severe at step two, so his step four RFC analysis that included mental

limitations was confusing or contradictory. It was not improper for the ALJ to

include non-severe mental limitations in his RFC determination because “even if the

ALJ determines that a claimant’s medically determinable mental impairments are

‘not severe,’ he must further consider and discuss them as part of his residual

functional capacity (RFC) analysis at step four,” Wells v. Colvin, 727 F.3d 1061,

1064 (10th Cir. 2013).



                                           4
      Ms. Rose next points out that at step three the ALJ did not complete a

psychiatric review technique (PRT) form or make the findings about her mental

limitations required by 20 C.F.R. § 404.1520a. This “special technique” requires the

ALJ to evaluate the claimant’s symptoms, signs, and laboratory findings, id.

§ 404.1520a(b), and rate in four broad areas the degree of functional limitation, id.

§ 404.1520a(c), to determine the severity of the claimant’s mental impairments, id.

§ 404.1520a(d). The ALJ must “document application of the technique in the

decision.” Carpenter v. Astrue, 537 F.3d 1264, 1268 (10th Cir. 2008) (internal

quotation marks omitted).

      The ALJ’s decision does not document the required technique, but we

conclude the error was harmless. See Fischer-Ross, 431 F.3d at 734 (finding

harmless error where “confirmed or unchallenged findings made elsewhere in the

ALJ’s decision confirm the step three determination under review”). The ALJ

determined at step four that Ms. Rose’s psychological impairments limited her ability

to sustain concentration such that she could perform only unskilled work and “she

must work in a relatively isolated environment with limited contact with peers and

supervisors and the general public.” Aplt. App. vol. II at 13. The ALJ’s assessment

of Ms. Rose’s mental impairments is consistent with the opinions of Drs. Cruse,

Swink, Repanshek, Scott, and Lochner.1


      1
         Ms. Rose argues that Dr. Lochner’s PRT form designating “moderate”
limitations in various activities and functioning indicated a “severe” mental
impairment. We do not find this argument persuasive given Dr. Lochner’s opinion
                                                                            (continued)
                                           5
      Ms. Rose does not cite to evidence that her mental impairments met a listing,

but argues only that Dr. Cruse’s December 2008 global assessment of functioning

(GAF) of 402 could support a finding that her mental impairments met listing 12.02

or 12.04. See 20 C.F.R. pt. 404, Subpt. P, App. 1. The low GAF score, standing

alone, is insufficient because the Commissioner does not consider GAF scores to

“have a direct correlation to the severity requirements in our mental disorders

listings,” Revised Medical Criteria for Evaluating Mental Disorders and Traumatic

Brain Injury, 65 Fed. Reg. 50746, 50764–65 (Aug. 21, 2000), and the current

Diagnostic and Statistical Manual of Mental Disorders, 16 (5th ed. 2013) has

discontinued its use because of “its conceptual lack of clarity . . . and questionable

psychometrics in routine practice.”

      Ms. Rose further argues that because the ALJ did not state the weight he gave

each psychological opinion, his decision cannot be upheld. But as noted above, the

mental-status evidence supports the ALJ’s RFC determination. “When the ALJ does

not need to reject or weigh evidence unfavorably in order to determine a claimant’s

RFC, the need for express analysis is weakened.” Howard v. Barnhart, 379 F.3d

945, 947 (10th Cir. 2004). Thus, no reasonable factfinder could conclude that

Ms. Rose’s mental limitations met a listing.

that Ms. Rose’s “current cognitive deficits appear to be non-severe.” Aplt. App.
Vol. IV at 660.
      2
       “The GAF is a subjective determination based on . . . the clinician’s
judgment of the individual’s overall level of functioning.” Langley v. Barnhart,
373 F.3d 1116, 1122 n. 3 (10th Cir. 2004) (internal quotation marks omitted).

                                            6
   B. Failure to Develop the Record

      Ms. Rose requested the ALJ to order an additional consultative psychological

evaluation for the purpose of administering a specific test: the Luria-Nebraska

Neuropsychological Battery. While acknowledging that she had three consultative

psychological examinations by Drs. Cruse, Swink and Repanshek, she contends that

none of those examinations adequately addressed her cognitive limitations.

Consequently, she contends the ALJ failed in his duty to develop the record by

refusing to order the test she requested.

      A social-security claimant bears the burden to establish her disability. Wall,

561 F.3d at 1062. The procedure is nonadversarial and “the ALJ has a duty to ensure

than an adequate record is developed during the disability hearing consistent with the

issues raised.” Id. at 1062-63 (internal quotation marks omitted). Even so, the duty

“is not unqualified.” Id. at 1063.

      The psychological evaluators administered various cognitive tests and

analyzed the results. In addition to the evaluators’ analyses, two non-examining state

agency consultants reviewed the records. The evidence does not indicate that

Ms. Rose suffers from a severe cognitive impairment or mental-functioning

limitations not accounted for in the RFC assessment. Consequently, “there was no

need to further develop the record because sufficient information existed for the ALJ

to make [his] disability determination.” Cowan v. Astrue, 552 F.3d 1182, 1187

(10th Cir. 2008).



                                            7
   C. Evaluation of Obesity

      Next, Ms. Rose faults the ALJ for his evaluation of her obesity. She claims

that although the ALJ found her obesity to be a severe impairment, he failed to

properly consider its effects in formulating her RFC.

      The ALJ is required to consider the effects of obesity when assessing the

claimant’s RFC. See SSR 02-1p, 2002 WL 34686281, at *1 (Sept. 12, 2002). The

ALJ may not, however, “make assumptions about the severity or functional effects of

obesity combined with other impairments.” Id. at *6. Rather, the ALJ must

“evaluate each case based on the information in the case record.” Id. The ALJ did

not specifically mention obesity in the RFC determination, but included specific

limitations and restrictions for stooping, kneeling, and crouching.

      Ms. Rose points to no medical evidence indicating that her obesity resulted in

functional limitations. Moreover, her hearing testimony did not describe limitations

due to obesity. She testified that she can bend at the waist and she can squat,

although her knees bother her due to injuries from the accident. Therefore, “the

factual record does not support [Ms. Rose’s] position that her obesity, either alone or

in combination with other conditions, precludes her from performing [a limited range

of sedentary] work.” Howard, 379 F.3d at 948.

   D. Credibility Determination

      Finally, Ms. Rose asserts that the ALJ erred in his analysis of her pain and

subjective complaints. “Credibility determinations are peculiarly the province of the

finder of fact, and we will not upset such determinations when supported by

                                           8
substantial evidence. However, findings as to credibility should be closely and

affirmatively linked to substantial evidence and not just a conclusion in the guise of

findings.” Newbold v. Colvin, 718 F.3d 1257, 1267 (10th Cir. 2013) (internal

quotation marks omitted). The framework for evaluating a claimant’s evidence of

pain is: “(1) whether Claimant established a pain-producing impairment by objective

medical evidence; (2) if so, whether there is a loose nexus between the proven

impairment and the Claimant’s subjective allegations of pain; and (3) if so, whether,

considering all the evidence, both objective and subjective, Claimant’s pain is in fact

disabling.” Wilson, 602 F.3d at 1144 (internal quotation marks omitted).

      The ALJ determined that Ms. Rose’s medically determinable impairments

could reasonably be expected to cause pain and discomfort. The ALJ then itemized

the reasons he found her pain claims not entirely credible, referring to both physical

and psychological symptoms.

      Ms. Rose argues that the ALJ erred in not discussing her testimony regarding

her subjective complaints, but she cites to no testimony establishing that those

complaints were disabling or even severe. She stated that she has constant headaches

and dizzy spells, her shoulder gives her constant pain, her neck and back are sore and

stiff, and it takes her a little longer to work through her school work. She also

testified that she is attending automotive-repair school, she sleeps eight to ten hours a

night, she is not taking medication, and she is able to use public transportation. She

did not claim that any of her subjective complaints are so severe that they interfere

with her ability to work. See Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir.

                                            9
1993) (stating “pain must interfere with the ability to work”). “[D]isability requires

more than mere inability to work without pain.” Brown v. Bowen, 801 F.2d 361, 362

(10th Cir. 1986).

       The ALJ found Ms. Rose’s testimony concerning her subjective complaints not

entirely credible. This determination is affirmatively linked to substantial evidence

in the record including: the hearing testimony described above; medical findings

demonstrating that she can perform sedentary to light work3 and has a full range of

motion in her joints with decreased back flexion; psychological findings indicating

that she has normal thought processes and borderline to low-average intellectual

functioning; and a finding that her ability to engage in activities of daily living is not

so eroded as to prohibit all work. Therefore, the ALJ’s credibility determination was

supported by substantial evidence.

                                  IV. CONCLUSION

    The judgment of the district court is affirmed.



                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge




       3
        The applicable regulations provide that a person who can do light work can
also do sedentary work. 20 C.F.R. § 404.1567(b).

                                            10
