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

                            FOR THE TENTH CIRCUIT                        March 12, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
CORD HOWARD LUNDGREN,

             Plaintiff-Appellant,

v.                                                         No. 12-5080
                                               (D.C. No. 4:10-CV-00501-JHP-TLW)
CAROLYN W. COLVIN, Acting                                  (N.D. Okla.)
Commissioner of the Social Security
Administration,*

             Defendant-Appellee.


                            ORDER AND JUDGMENT**


Before HARTZ, EBEL, and GORSUCH, Circuit Judges.


      Cord Howard Lundgren appeals from a judgment of the district court affirming

the Commissioner’s denial of his application for social security disability benefits.

Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.

*
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
**
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    I. Background

      At the time of the agency proceedings, Mr. Lundgren was 42 years old. He

applied for disability insurance benefits claiming he had been unable to engage in

substantial gainful employment since July 19, 2007, due to major depressive disorder

and post-traumatic stress disorder (PTSD). His claim was denied initially and on

reconsideration. He requested and received a hearing before an Administrative Law

Judge (ALJ) on July 15, 2009. After reviewing the evidence and hearing testimony

from Mr. Lundgren and a vocational expert (VE), the ALJ found that Mr. Lundgren

suffered from the severe impairments of major depressive disorder and PTSD. The

ALJ then determined that Mr. Lundgren had “the physical residual functional

capacity to perform a full range of medium work,” and that he could “understand and

carry out simple instructions under routine supervision[,] relate to coworkers and

supervisors and adapt to a work situation.” Aplt. App. Vol. II at 21. Although

recognizing his severe impairments, the ALJ nonetheless found that Mr. Lundgren

could “remain attentive and carry out work assignments.” Id. Based on his residual

functional capacity assessment, the ALJ concluded that Mr. Lundgren could not

perform his past work, but he could perform several jobs identified by the VE that

exist in significant numbers in the national economy. The ALJ therefore determined

at step five of the controlling five-step sequential evaluation process, see

Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005), that Mr. Lundgren was




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not disabled under the Social Security Act. The Appeals Council denied review and

the district court affirmed.

       On appeal to this court, Mr. Lundgren asserts (1) the ALJ erred in not

obtaining a consultative examination and in failing to give an explanation, (2) the

ALJ improperly evaluated the opinion of licensed professional counselor Daniel

Hoffman, and (3) the ALJ erred in discounting his credibility.

       Mr. Lundgren worked as a firefighter, EMT, and rescue worker in many

disasters, including the 1995 Oklahoma City bombing and Hurricane Katrina in 2005.

He also trained other rescue workers. In July of 2007, while working in Texas, he

was hospitalized following an incident wherein his arms would not move, his speech

was slowed, and he just sat and stared. The cause was unknown, but it was probably

due to extreme exhaustion and stress. He was flown home to Oklahoma, where he

initially received treatment from Mel Whittington, Ph.D., and then was treated at

Family and Children’s Services. The most recent treatment note from Family and

Children’s Services dated October 8, 2008, indicated that Mr. Lundgren had

demonstrated progress, his depressive and anxiety symptoms had improved, he had

less frequent nightmares and flashbacks, and he reported “positive coping behaviors

and improved social interactions.” Aplt. App. Vol. II at 298. In addition,

Mr. Lundgren had taken a part-time job as a volleyball coach.

       On April 2, 2008, Paul Cherry, Ph.D., completed a Psychiatric Review

Technique form and a Mental Residual Functional Capacity form for Mr. Lundgren.


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Dr. Cherry opined that even though Mr. Lundgren was moderately limited in some

areas, he could complete simple and complex tasks under routine supervision and

relate to coworkers and supervisors, as well as tolerate some involvement with the

general public. Licensed professional counselor Daniel Hoffman prepared a form for

“Work-Related Activities (Mental)” on June 5, 2008. He opined that Mr. Lundgren

had several marked limitations in his ability to work and indicated that he was not

“able to return to a competitive working environment.” Id. at 300-01.

                                      II. Discussion

      We review the Commissioner’s decision to ascertain whether it is supported by

substantial evidence in the record and to evaluate whether she applied the correct

legal standards. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010).

“Substantial evidence is such evidence as a reasonable mind might accept as adequate

to support a conclusion. It requires more than a scintilla, but less than a

preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009)

(internal quotation marks omitted).

      We first address Mr. Lundgren’s claim that the ALJ should have granted his

counsel’s request for a consultative mental evaluation. He argues that such an

examination would have been helpful given that the ALJ did not discuss all of the

evidence and he rejected Mr. Hoffman’s opinion as that of a non-acceptable medical

source. Mr. Lundgren apparently assumes that because the ALJ did not discuss each

piece of evidence, he did not consider it. It is well-established, however, that an ALJ


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is not required to “reference everything in the administrative record.” Wilson,

602 F.3d at 1148. The ALJ’s failure to discuss each piece of evidence does not mean

that he found the evidence irrelevant or that he lacked sufficient evidence to make a

decision on the issue of disability. Moreover, “[w]here, as here, the ALJ indicates he

has considered all the evidence our practice is to take the ALJ at his word.” Wall v.

Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (alteration and internal quotation marks

omitted).

      Mr. Lundgren also argues that the ALJ should have ordered a consultative

examination by an acceptable medical source because he rejected Mr. Hoffman’s

opinion as that of a non-acceptable medical source. But the ALJ relied on other,

current evidence, including evidence from Dr. Cherry, an acceptable medical source,

for his conclusion that Mr. Lundgren’s mental limitations were not disabling. Thus,

the record indicates that a consultative examination was not “necessary or helpful to

resolve the issue of impairment.” Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir.

1997). Therefore, we conclude that the ALJ acted within the “broad latitude

[afforded the Commissioner] in ordering consultative examinations.” Id. at 1166.

      Mr. Lundgren further argues that even though the ALJ tacitly decided not to

obtain a consultative examination, he was required to explain his reasons. He relies

on two unpublished district court decisions for his argument that the ALJ had a duty

to address and give reasons for denying his request for a consultative examination:

Taylor v. Astrue, No. 09-CV-0129-CVE-FHM, 2010 WL 3277426, at *2 (N.D. Okla.


                                         -5-
Aug. 17, 2010) (remanding for the ALJ to develop the record concerning the

claimant’s expanded quarters of coverage and to consider whether additional

consultative examinations were needed, given that the prior examinations were three

years old); Fortna v. Astrue, No. 05-CV-587-SAJ, slip op. at 10-13 (N.D. Okla.

May 1, 2007) (Aplt. Opening Br. Attach. C at 22-25) (remanding for the ALJ to

address whether a consultative examination would be helpful, given that the existing

test results were stale and it was doubtful whether they could be obtained).

      Another panel of this court recently addressed whether an ALJ committed

legal error when he did not explicitly rule on a request for a consultative

examination, concluding that under the circumstances of that case, no error was

committed. Harlan v. Astrue, No. 12-5082, 2013 WL 470489, at *5 & n.3 (10th Cir.

Feb. 8, 2013). There, the court discussed Taylor and Fortna, noting that the

“unpublished district court cases are not binding on this court,” id. at *3, and further

observing that neither case “cites authority requiring an ALJ to rule on a request for a

consultative examination under any set of circumstances,” id. at *4.

      The Harlan claimant did not argue that the ALJ failed to develop the record or

claim that the decision was not supported by substantial evidence, as Mr. Lundgren

does here. See id. at *5 & n.3. As addressed above, Mr. Lundgren does argue that

the ALJ failed to develop the record. But unlike in Harlan, the ALJ in this case

explained to Mr. Lundgren and his attorney at the conclusion of the hearing that if

after reviewing all the evidence he found additional development necessary, he would


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notify them. Aplt. App. Vol. II at 49. Neither Mr. Lundgren nor his attorney

objected to this proposed procedure. In the written decision, the ALJ stated explicitly

that he had considered all of the evidence. Id. at 18, 21, 22. Therefore, under these

circumstances, we agree with the Harlan panel’s conclusion that “[w]ithout 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.” 2013 WL

470489, at *4 (citing Grogan v. Barnhart, 399 F.3d 1257, 1263-64 (10th Cir. 2005)).

As stated above, we perceive no error because the ALJ acted within the broad latitude

afforded him to decide whether a consultative examination was necessary or helpful.

      We next address Mr. Lundgren’s complaint that the ALJ did not credit

Mr. Hoffman’s opinion that his ability to work was markedly limited in several areas

and that he was not able to return to work. The ALJ determined that because

Mr. Hoffman was a non-acceptable medical source, his opinion was not entitled to

significant weight.1 The ALJ explained that Mr. Hoffman’s opinion was “not

substantiated by objective testing or even subjective interpretation,” and reports from

1
      The ALJ mistakenly termed Mr. Hoffman a “non-medical source” rather than a
“non-acceptable medical source.” Nevertheless, the opinions from “other sources,”
which include “non-medical sources” and “non-acceptable medical sources,” are
evaluated using the same factors. See SSR 06-03p, 2006 WL 2329939, at *4; see
also Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007).



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Family and Children’s Services contradicted his opinions. Aplt. App. Vol. II at 23.

This explanation “is sufficient [because] it permits us to ‘follow the adjudicator’s

reasoning.’” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164 (10th Cir. 2012)

(quoting SSR 06-03p, 2006 WL 2329939, at *6). We further note that the ALJ

instead relied on the opinion of Dr. Cherry, an acceptable medical source. See

20 C.F.R. § 404.1513(a)(2). That Dr. Cherry was an acceptable medical source and

Mr. Hoffman was not “alone justifies reliance” on Dr. Cherry’s opinion.

Keyes-Zachary, 695 F.3d at 1164.2

      Finally, we consider Mr. Lundgren’s claim that the ALJ’s credibility analysis

was flawed. “Credibility determinations are peculiarly the province of the finder of

fact, and we will not upset such determinations when supported by 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.”

Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (citation, internal

quotation marks, and brackets omitted).

      As the ALJ recognized, Mr. Lundgren produced objective psychological

evidence that showed an impairment which could reasonably be expected to produce



2
       Mr. Lundgren argues that the ALJ was required to consider Mr. Hoffman’s
opinion that he also had moderate limitations in several areas. The ALJ’s
determination that Mr. Hoffman’s opinions were not entitled to significant weight
applies to that opinion, as well as to Mr. Hoffman’s view that Mr. Lundgren had
marked limitations.


                                          -8-
the symptoms alleged. See Luna v. Bowen, 834 F.2d 161, 164 (10th Cir. 1987). The

ALJ then considered all the evidence to determine that the symptoms were not

disabling, see Keyes-Zachary, 695 F.3d at 1166-67, noting Mr. Lundgren’s daily

activities and part-time job, his learning of coping behaviors, his medication, and his

progress in therapy. The ALJ found that “[e]ven with his affective disorder and

anxiety disorder, [Mr. Lundgren could] remain attentive and carry out work

assignments.” Aplt. App. Vol. II at 21. Accordingly, the ALJ determined that

Mr. Lundgren’s claims of depression, panic attacks, nightmares, and flashbacks were

“not credible to the extent they [were] inconsistent with [an ability to perform the

identified jobs].” Id. at 22. We have examined the record as a whole and we

conclude “that the ALJ’s credibility findings are closely and affirmatively linked to

substantial evidence.” Hackett, 395 F.3d at 1173. We may not “reweigh the

evidence or substitute our judgment for the Commissioner’s.” Id. at 1172.

      The judgment of the district court is affirmed.

                                                Entered for the Court


                                                David M. Ebel
                                                Circuit Judge




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