UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SCOTTY D. FULTON, Plaintiff - Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant - Appellee. No. 15-6054 (D.C. No. 5:13-CV-01108-HE) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PORFILIO , and PHILLIPS , Circuit Judges.

________________ _________________ Scotty D. Fulton appeals from the district court’ s judgment affirming the Commissioner’s denial of his applications fo r disability insurance benefits (DIB) and supplemental security income (SSI) benefits. Exerci sing jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### November 9, 2015
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND Mr. Fulton applied for DIB and SSI in 2005, alleging he became disabled on January 1, 2003, when he was twenty-nine years old. An admi nistrative law judge (ALJ) denied the claims, but the Appeals Council remanded for a new hearing. The ALJ held a new hearing and again denied benefits. The Appeals Council denied review, but the district court re manded for further proceedings. On remand, a new ALJ held a hearing and denied benefits. 1 At steps two and three of the agency’s famili ar five-step sequential eval uation, the ALJ determined that Mr. Fulton had several se vere impairments (discogeni c and degenerative spinal disorders; major depressive disorder, recurrent and m oderate; social phobia; and polysubstance abuse), but none of them (singly or in combination) met or equaled an impairment listed in 20 C.F.R. Part 404, S ubpart P, Appendix 1 (the Listings). The ALJ found that Mr. Fulton had the residua l functional capacity (RFC) to perform sedentary work 2 subject to the following limitations: occasionally climb ramps and stairs, bala nce, and stoop; never climb ropes, ladders, and scaffolds, kneel, crouch, or crawl; avoid exposure to vibration; can sit for about 30 minutes at any on e time before standing briefly at the workstation for less than 5 minutes; understand, remember, and carry out only simple instructions; make simple work related decisions; deal with only occasional changes in work pr ocesses and environment; should be

1 For DIB purposes, Mr. Fulton had to show he was disabled on or before his date last insured, Decemb er 31, 2006, but the ALJ c onsidered medical evidence up through the date of his decision (August 27, 2013) for the purpose of SSI benefits.

2 “Sedentary work involv es lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. §§ 404.1567(a), 416.967(a).3 working with things and objects inst ead of people and, thus, have no contact with the general public and have only incidental, superficial work-related type contact with co-wor kers and supervisors; and for any work task, should not be required to read above the 6th grade level and should not be required to write or use mathematics above the 3rd grade level. Aplt. App. Vol. III, Admin. R. at 411. With this RFC, the ALJ concluded that Mr. Fulton could not perform a ny of his past relevant work as a fast food cook, prep cook, roofer helper, or housek eeper, but was able to work as a surveillance system monitor or final assembler. The Appeals Council denied review, and the district court affirmed. Mr. Fulton appeals. DISCUSSION Our task in this appeal is limited to determining whether substantial evidence supports the agency’s fact ual findings and whether the agency applied the correct legal standards. Barnett v. Apfel , 231 F.3d 687, 689 (10th Cir. 2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks om itted). We cannot “reweigh the evidence” or “substitute our judgm ent for that of the agency.” Id. (internal quotation marks omitted). I. Mental impairments A. Medical sources Mr. Fulton contests the ALJ’s assessme nt of reports and opinions by several medical sources concerning hi s mental impairments. We address each in turn.4 1. Drs. Lynch and Krieger Mr. Fulton argues that the ALJ erred in not discussing the diagnosis of an examining, state-agency consultant, Darr ell Lynch, Ph.D., and the records of a treating physician, Michael Krieger, M.D. Dr. Lynch concluded that Mr. Fulton has panic disorder with agoraphobia and avoidant personality disorder, see Aplt. App. Vol. II, Admin. R. at 192-94, and Dr. Kr ieger prescribed anti-depressants several times in response to his complain ts of depression and anxiety, see id. at 230. But neither doctor gave an opinion about the f unctional limitations, if any, that these conditions imposed (which would be relevant at steps four and five of the sequential evaluation process), and Mr. Fulton has not argued that any of these conditions meets or equals a Listing (which w ould be relevant at step thr ee). Hence, the diagnoses by themselves are not significantly probative ev idence the ALJ had to reject in order to find Mr. Fulton was not disabled, and therefor e the ALJ did not need to discuss them. See Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996) (explaining that although “an ALJ is not required to discuss ev ery piece of evidence,” he must discuss “the evidence supporting his decision, . . . uncontroverted evidence he chooses not to rely upon, [and] significantly pr obative evidence he rejects”). To the extent Mr. Fulton asserts a step-t wo error in the ALJ’ s failure to assess whether his panic disorder with agoraph obia or avoidant personality disorder (as diagnosed by Dr. Lync h) were severe ( see Aplt. Opening Br. at 23-26), such error was harmless because the ALJ found at least one other severe impairme nt at step two. See Carpenter v. Astrue , 537 F.3d 1264, 1266 (10th Ci r. 2008) (concluding that a5 step-two error is harmless where an ALJ properly determ ines that a claimant cannot be denied benefits at step two and proceeds to step three). Moreover, a nonexamining, state-agency consulta nt, Karen Kendall, Ph.D., considered Dr. Lynch’s diagnoses and e xpressed opinions on the associ ated degree of functional limitation. As we proceed to discu ss, the ALJ adequately accounted for Dr. Kendall’s limitations, and we therefore reject Mr. Fu lton’s argument that the ALJ erred in not considering what effect, if any, Dr. Lynch’ s diagnoses had on Mr. Fulton’s RFC ( see Aplt. Reply Br. at 3-5). 2. Dr. Kendall Mr. Fulton claims that the ALJ erred in discussing and weighing Dr. Kendall’s opinions regarding his mental impairments. In Section I of a Mental Residual Functional Capacity Assessment form (M RFCA) she completed in January 2006, Dr. Kendall checked boxes indi cating that Mr. Fulton was (1 ) moderately limited in his “ability to work in coordination with or proximity to ot hers without being distracted by them,” Aplt. App. Vol. II, Admin. R. at 196; (2) moderately limited in his “ability to respond appropriately to changes in the work setting,” id. at 197; and (3) markedly limited in his “ability to interact appropria tely with the general public, id. In Section III of the MRFCA, Dr. Ke ndall wrote that Mr. Fulton is “able to perform simple and some complex tasks under ordinary supervision,” “able to interact with coworkers a nd supervisors for incidental work purposes but should avoid public contact,” and “able to adapt to some work change.” Id. at 198. In an accompanying Psychiatric Review Technique (PRT) form, Dr. Kenda ll noted that she6 had reviewed Dr. Lynch’s report, acknowledge d his diagnosis of a voidant personality disorder and panic disorder with agor aphobia, and checked boxes indicating Mr. Fulton was moderately limited in act ivities of daily living and maintaining concentration, persistence, or pace, and markedly limit ed in maintaining social functioning. The ALJ purported to give minimal wei ght to Dr. Kendall’s opinions because later medical evidence rendered them “moot.” Id. Vol. III, Admin. R. at 413. The ALJ mentioned Dr. Kendall’s Section III opi nion that Mr. Fulton was “capable of simple and some complex work under ordinary supervision,” id. at 402, but Mr. Fulton criticizes the AL J’s failure to mention the other three limitations Dr. Kendall found in Section I of the MRFCA. This argument overlooks an important distinction betw een Sections I and III. According to the MRFCA, Section I “is for recording summary c onclusions,” whereas Section III is for recording a “[d]etailed explanation of the degree of limitation fo r each [Section I] category.” Id. Vol. II, Admin. R. at 196. Where a psychologist’s Section III narrative does not contradict any Section I limitations a nd describes the effect each Section I limitation would have on the clai mant’s mental RFC, the ALJ may properly look to only the Section III narrative as the psychologis t’s opinion regarding mental
RFC. Carver v. Colvin , 600 F. App’x 616, 618-19 (10th Cir. 2015). 3 The ALJ did so here, acknowledging in a footnot e the distinction between S ection I and Section III.

3 Carver is unpublished and ther efore not precedential, but we cite it for its persuasive value. See Fed. R. App. P. 32. 1; 10th Cir. R. 32.1.7 See Aplt. App. Vol. III, Admin. R. at 413 n. 3. And we do not s ee any contradiction between Sections I and III of Dr. Kendall’s MRFCA or any failure to describe in Section III the effects of any Section I li mitations on Mr. Fulton’s capacity for work. 4 Accordingly, we reject Mr. Fulton’s argum ent that the ALJ erred in not mentioning the three other Section I limitations. In addition, we conclude that, regard less of the ALJ’s statement that he afforded minimal weight to Dr. Kendall’ s opinions, the ALJ’s RFC adequately accounted for all the limitations Dr. Kendall set forth in S ection III of her MRFCA. Dr. Kendall thought Mr. Fulton could “perform simple and some complex tasks under ordinary supervision,” id. Vol. II, Admin. R. at 198; the ALJ limited him to simple work. Dr. Kendall thought Mr. Fulton could “interact w ith coworkers and supervisors for incidental work purpo ses but should avoid public contact,” id. ; the ALJ limited him to work lacking any public contact and involv ing only objects and incidental, superficial work -related contact with cowork ers and supervisors. And Dr. Kendall thought Mr. Fulton could “adapt to some work change,” id. , and the ALJ limited him to “only occasional changes in work processes and environment,” id. Vol. III, Admin. R. at 411. Because th e RFC adequately captured the limitations Dr. Kendall set out in Section III of her MR FCA (and, for that matter, the limitations

4 We view Dr. Kendall’s Section III opi nion that Fulton has the ability “to interact with coworkers and supervisors for incidental wo rk purposes,” Aplt. App. Vol. II, Admin. R. at 198, as adequately describing th e effect of the moderate limitation in his “ability to work in coordina tion with or proximity to others without being distracted by them,” id. at 196, that Dr. Kenda ll marked in Section I.8 she indicated on her PRT form), we need not address Mr. Fulton’s other attacks on the ALJ’s statement that he would afford Dr. Kendall’s opinions minimal weight or that they were moot or of no practical effect. See Aplt. Opening Br. at 17-23. 3. Case manager Hull Mr. Fulton takes issue with the ALJ’s re asons for affording little weight to the opinion of Mandy Hull, who was his case manager and part of his mental-health treatment team at Red Rock West Behavi oral Health Services from September 2010 to September 2011. In Ms. Hull’s view, Mr . Fulton had marked re strictions in daily living activities, social func tioning, and concentration, and he would be unable to work. The ALJ gave three reasons for affording Ms. Hull’s opinion little weight: (1) she was not an ac ceptable medical source; 5 (2) the ALJ gave gr eater weight to the opinion of an acceptable medical source, st ate-agency examining consultant Cynthia Repanshek, Psy. D., that Mr . Fulton had only moderate symptoms; and (3) Ms. Hull’s opinion was inconsistent with treatment notes from Red Rock. In Mr. Fulton’s view, the ALJ’s second and third reasons are flawed, leaving the fact that Ms. Hull was an unacceptable medical source as the sole, and therefore improper, reason for afford ing her opinion little weight. We are not persuaded.

5 Acceptable medical sources include licensed physicians and licensed or certified psychologists. See 20 C.F.R. §§ 404.1513(a), 416. 913(a). “Medical sources who are not ‘acceptable medi cal sources’” include “nur se practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapists.” SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006).9 First, Mr. Fulton claims that the AL J failed to weigh Ms. Hull’s opinion against medical opinions using the fact ors of 20 C.F.R. §§ 404.1527(c) and 416.927(c) 6 and therefore violated Social Secu rity Ruling 06-03p, 2006 WL 2329939 (Aug. 9, 2006) (SSR 06-03p). Although thos e factors “explicitly apply only to the evaluation of medical opinions from ‘accep table medical sources,’ ” they “represent basic principles that apply to the consideration of all opinions from medical sources who are not ‘acceptable medical sources.’” Id. at *4. 7 But not every factor will apply in every case, id. at *5, and an ALJ is not requi red to expressly discuss those factors in his decision: “In the case of a nonacceptable medical source[,] . . . the ALJ’s decision is sufficient if it permits us to ‘follow th e adjudicator’s reasoning.’” Keyes-Zachary v. Astrue , 695 F.3d 1156, 1164 (10th Ci r. 2012) (quoting SSR 06-03p, 2006 WL 2329939, at *6). Here, the ALJ’ s discussion allows us to follow his reasoning.

6 Those factors are: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and exte nt of the treatment relationship, including the treatment pr ovided and the kind of examination or testing performed; (3) the degree to which the physician’s opinion is supported by relevant evidence; (4) consistency betw een the opinion and the record as a whole; (5) whether or not the physic ian is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ’s attention which tend to suppor t or contradict the opinion. Watkins v. Barnhart , 350 F.3d 1297, 1301 (10th Cir. 2003) (quotation omitted).

7 Under SSR 06-03p, opinions from nonacceptable medical sources “are important and should be eval uated on key issues such as impairment severity and functional effects.” SSR 06- 03p, 2006 WL 2329939, at *3.10 Second, Mr. Fulton contends that the ALJ misread Dr. Repanshek’s report as noting moderate symptoms when instead the report’s only reference to anything being “moderate” was to the degree of Mr. Fulton’s depression. As a matter of semantics, we will not faul t the ALJ for interpreting Dr. Repanshek’s opinion to mean that Mr. Fulton’s “moderate” depr ession causes some sort of moderate symptoms. Moreover, Mr. Fulton’s argumen t overlooks that Dr. Repanshek also thought he had a GAF score of 56, which indicates moderate symptoms, see Am. Psychiatric Ass’n, Diagnostic and Statistical Man ual of Mental Disorders 34 (4th ed., Text Revision 2000), and the ALJ noted that score in his decision, see Aplt. App. Vol. III, Admin R. at 406. We ther efore see no factual e rror in this regard. As Mr. Fulton points out, the ALJ did not expressly discuss the length-of-treatment factor. However, the ALJ did not have to expressly discuss any of the applicable factors. See Keyes-Zachary , 695 F.3d at 1164. But even if we equate the ALJ’s failure to expr essly discuss that factor with a failure to consider that Ms. Hull was part of a te am that had more contact with Mr. Fulton than Dr. Repanshek, who examined him only one time , that alone is not a basis to fault the ALJ. SSR 06-03p posits that an ALJ can afford more weight to the opinion of a nonacceptable medical source than to the opinion of an acceptable medical source where the nonacceptable medi cal source saw the claimant “more often than the treating source and has provided better supporting evidence and a better explanation for [the] opinion.” SSR 06-03p, 2006 WL 232 9939 at *5 (emphasis added). In this regard, the ALJ discussed treatment notes that were inconsistent with Ms. Hull’s11 opinion. 8 Mr. Fulton does not fault the ALJ’ s interpretation of those notes but instead argues that the ALJ overlooked hi s admission and discharge documents, which show that his condition did not change during the one year he was treated at Red Rock. While that might reflect on the effectiveness of his Red Rock treatment, it is not evidence that supports Ms. Hull’s opi nion as to the degree of limitations caused by Mr. Fulton’s mental impairments. We further note that the admission document contains summary indications that Mr. Fulton had a variety of impairments and problems, but there is no e xplanation for these opinions, and they specify no degree of impairment. The assessment at discharg e—that Mr. Fulton is “seriously mentally ill,” Aplt. App. Vol. IV, Admin. R. at 569— suffers from these sa me shortcomings. Accordingly, these documents do not cause us to question the ALJ’s decision to give little weight to Ms. Hull’s opinion. Because the record suppor ts the ALJ’s additional re asons for affording little weight to Ms. Hull’s opinion, it was not impr oper for the ALJ to al so rely on the fact that Ms. Hull was a nonaccep table medical source. See SSR 06-03p, 2006 WL 2329939, at *5 (“The fact that a medica l opinion is from an ‘acceptable medical

8 The ALJ accurately observed that those notes showed Mr. Fulton “was compliant with medications, had no side effects, no invol untary movements, and no suicidal ideation”; had an “appropriate physical appearance, normal speech, appropriate affect, and was fu lly oriented and alert”; “h ad normal thoughts” without “[d]elusions [or] hallucinati ons”; and “was cooperative.” Aplt. App. Vol. III, Admin. R. at 414. “The only symptoms noted we re anxious mood” on four occasions, and Mr. Fulton “was able to focus during sessions.” Id.12 source’ is a factor that may justify giving that opinion great er weight than an opinion from a medical source who is not an ‘acceptable medical source[.]’”). B. Ability to handle stress and to co ncentrate, persist, or maintain pace Mr. Fulton faults the ALJ for not ade quately considering how his alleged inability to handle stress bears on his ability to work, particularly regarding the final assembler job. He largely relies on a provision of Social Security Ruling 85-15 stating that “the knowledge that one’s work is being j udged and evaluated, even when the supervision is remote or indirect, can be intolerable for some mentally impaired persons,” SSR 85-15, 1985 WL 56857, at *6 (1985). He points to statements he made on his benefits applica tion that he is not good with stress and that stress causes problems with memory, concentration, follo wing instructions, and getting along with others; his mother’s similar testimony at the ALJ hearing; a 1999 Red Rock evaluation that he had a “low tolerance to stress,” Aplt. App. Vol. III, Admin. R. at 257-58; and Dr. Repanshek’s comment th at “[h]e seems to become angry and agitated in social situations or when he feels that he is being watched or scrutinized,” id. Vol. IV, Admin. R. at 605. But this evidence says not hing about the degree of his limitations with regard to stress, and as we have already said, the ALJ’s RFC adequately accounted for Dr. Kendall’s opini on that Mr. Fulton can perform simple tasks under ordinary supervision, intera ct with coworkers and supervisors for incidental work purposes, ne ver interact with the public , and adapt to some work changes. Accordingly, we see no error with regard to stress.13 Mr. Fulton similarly criticizes the ALJ for not incorporating any limitation in his RFC finding that account ed for his step-three findi ng that Mr. Fulton had “no greater than ‘moderate’ difficulties” with concentration, persistence, or pace. Id. Vol. III, Admin. R. at 410. The ALJ a pparently based that finding on PRT forms completed by Dr. Kendall in 2006 and Debo rah Hartley, Ph.D., in 2011—each found that, for purposes of whether the “paragraph B” criteria of the Listings were met, Mr. Fulton had moderate difficulties in th e broad functional ar ea of maintaining concentration, persistence, or pace. However, “paragra ph B” limitations “are not an RFC assessment but are used to rate the se verity of mental impa irment(s) at steps 2 and 3 of the sequential evaluation proce ss.” SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996). The MRFCA “used at step s 4 and 5 of the sequential evaluation process requires a more detailed assessme nt by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings.” Id. In Section I of the MRFCAs that acco mpanied their PRT forms, Drs. Kendall and Hartley each checked boxes indicati ng that Mr. Fulton was not significantly limited in his ability to (1) maintain attention and c oncentration for extended periods and (2) complete a normal workday without interruptions from the symptoms of his mental impairments and to pe rform at a consistent pace. 9 They also marked boxes for

9 Those mental activities fall within the MRFCA’s broader category of sustained concentration and pe rsistence and appear to be the activities within that category most germane to Mr. Fulton’s argument.14 moderate or marked limitations in other mental activities within that category, ostensibly representing the m oderate difficulties in the related functional area they marked on their PRT forms for “paragraph B” purposes. Thus, neither Dr. Kendall nor Dr. Hartley concluded in Section III of their MRFCA (i.e., in their RFC assessment) that Mr. Fulton ha d a significant limitation in c oncentration, persistence, or pace, and as discussed above, Dr. Kendall’s Section III narrative accounted for the moderate limitation in Mr. Fulton’s ability to work alongside others without being distracted by them that she ma rked in Section I. Further, Mr. Fulton has not pointed to any competing evidence supporting a m oderate limitation in these ab ilities for RFC purposes. 10 Hence, we reject his contenti on that the ALJ erred by not including in his RFC finding a moderate limitation in concentration, pers istence, or pace. II. Physical impairments Moving to his physical impairments, Mr . Fulton claims that the ALJ erred in not addressing the July 2006 findings of Samantha Lewellen, M.D., that he had tenderness in his lower back and sacroiliac joints, pain ra diating into his hips with straight leg raising, and a gait that favored his right si de as evidenced by signs of wear on his left foot. But Dr. Lewelle n did not assess any specific functional limitations, and in any event, at step two the ALJ found that Mr. Fulton had severe

10 Mr. Fulton directs us to Ms. Hull’s opini on that he has marked difficulties in these abilities, but we have already reject ed his challenge to the ALJ’s finding that her opinion was entitled to little weight . And although Dr. Repanshek opined that Mr. Fulton had moderate depr ession and a GAF score indi cating moderate symptoms, she did not further specify how his ment al impairments mani fested themselves symptomatically or functionally.15 spinal disorders, which he accounted for in his RFC findi ng by limiting Mr. Fulton to sedentary work with a variety of acco mmodating postural limitations. Hence any error in failing to discuss Dr . Lewellen’s findings at step tw o, or as part of the RFC finding, was harmless. 11 See Mays v. Colvin , 739 F.3d 569, 578-79 (10th Cir. 2014) (“[A]n ALJ’s failure to weigh a medical opi nion involves harmless error if there is no inconsistency between the opinion and the ALJ’s assessment of [RFC].”). Similarly, we see no revers ible error in the weight the ALJ afforded to the opinions of several state-agency, nonexamini ng consultants. Mr . Fulton claims the ALJ erred in giving great weight to the Fe bruary 2006 opinion of J. Isaacson, M.D., that his back impairments we re non-severe because (1) Dr . Isaacson did not have the benefit of Dr. Lewellen’s la ter findings and (2) he did not specifically address the examination findings of Frank Thomas, M.D ., which, as the ALJ noted, showed some tenderness and significant muscle spasms near Mr. Fulton’s le ft sacroiliac joint. But again, the ALJ found Mr. Fulton had severe spinal disorders, and his RFC took those into consideration. We ther efore see no reversible error w ith respect to Dr. Isaacson. See Allen v. Barnhart , 357 F.3d 1140, 1145 (10th Cir. 2004) (explaining that an ALJ’s error is harmless “where, based on mate rial the ALJ did at least consider (just not properly), we [can] confidently say th at no reasonable admini strative factfinder,

11 Mr. Fulton also argues that the ALJ should have considered Dr. Lewellen’s findings as part of his determination that he was not fully credible. We will address that in later our decision.16 following the correct analysis, could have resolved the factual matter in any other way”). Likewise, the ALJ did not commit revers ible error when he afforded great weight to the opinions of Lawrence Kuo, M. D., and Evette Budrich, M.D., that there was insufficient evidence to rate the DIB porti on of Mr. Fulton’s claim. 12 Mr. Fulton bases his argument on an assumption that ne ither Dr. Kuo nor Dr. Budrich considered the findings of Drs. Lewellen and Thomas . To be sure, Drs. Kuo and Budrich provided very brief, conclusory statemen ts regarding the state of the medical evidence and did not discuss any of that ev idence. But we see nothing that bears out Mr. Fulton’s assumption that they did not consider the examination findings of Drs. Lewellen and Thomas. Mr. Fulton’s real point appears to be that Drs. Kuo and Budrich were wrong because the findings of Drs. Lewellen and T homas support that he was disabled prior to the expiration of his insu red status, and therefore the ALJ should not have afforded their opinions great weight but instead should have foun d Mr. Fulton disabled based on the Lewellen/Thomas findings. However, we have rejected the notion that the ALJ failed to account for Dr. Lewellen’s examination findings. And we see nothing so telling in Dr. Thomas’s findings as to suggest that Drs. Kuo and Budrich erred in concluding that there was insufficient medi cal evidence to rate the disability portion

12 Notably, through step four of the sequential evaluation process, Mr. Fulton had the burden to produce evid ence that he was disabled. See Musgrave v. Sullivan , 966 F.2d 1371, 1376 (10th Cir. 1992).17 of Mr. Fulton’s claim, or that those fi ndings should have led the ALJ to award benefits. In addition to finding that Mr. Fulton had low-back tenderness and spasms, Dr. Thomas observed that his straight-leg raising test wa s negative and that he had full range of motion, except fo r the lumbar spine. Dr. Thomas noted that Mr. Fulton had never had any x-rays or other testing, had never tried physical therapy, and complained that his back pa in made it difficult to do manual labor, which of course the ALJ ruled out by limiting Mr. Fulton to sedentary work. Given the limited and relatively benign nature of Dr . Thomas’s findings, and taki ng into consideration that the ALJ in fact rated the DIB portion of Mr . Fulton’s claim, we cannot agree that the ALJ committed reversible error in affording great weight to the opinions of Drs. Kuo and Budrich. III. Reliance on testimony of vocational expert Mr. Fulton next contends the ALJ er red in relying on the testimony of a vocational expert (VE) that, with his RF C for only simple work, Mr. Fulton could work as a surveillance syst em monitor. He points out that the Dictionary of Occupational Titles (DOT) ascr ibes a reasoning level of “3 ” to that job, and in Hackett v. Barnhart , 395 F.3d 1168, 117 6 (10th Cir. 2005) , we viewed that reasoning level as inconsistent with an RFC that limited a claimant to simple work. Here, the ALJ failed to inquire of th e VE as to any possible conf lict between the DOT and the VE’s testimony, or otherwise resolve the conflict, as required by Social Security Ruling 00-4p, 2000 WL 1898704, at *4 (D ec. 4, 2000). The Commissioner concedes18 this error but argues that the other job th e ALJ relied on—final assembler—satisfies the Commissioner’s step-five burden. We agree with the Commissioner. The VE testified that ther e were 900 to 1,000 fina l assembler jobs in the Oklahoma region and 100,000 su ch jobs nationally. The re levant test is whether there is a significant number of jobs in either the regional or national economy. Raymond v. Astrue , 621 F.3d 1269, 1275 n.2 (10th Cir. 2009). Mr. Fulton does not contest the legal significance of 100,000 final assemb ler jobs in the national economy, but he contends the ALJ was wr ong to rely on those jobs because the dispositive hypothetical the ALJ posed to th e VE did not include all of his mental impairments, namely, his alleged moderate limitation in concentr ation, persistence, and pace; the moderate limitations Dr. Ke ndall noted in his ability to work in coordination with or proximity to others without being distract ed and to respond appropriately to changes in the work setting; Dr. Lync h’s diagnosis of avoidant personality disorder; and Dr. Repanshek’ s observation that Mr. Fulton becomes agitated or angry when he feels he is bei ng watched or scrutinized. Because we have already concluded that the ALJ was not require d to include any of those limitations in his RFC finding (or, in the case of Dr . Kendall, that the ALJ’s RFC finding accounted for the limitations she found in Mr . Fulton’s ability to work with others and respond to changes), the ALJ’s hypot hetical to the VE was not flawed. See Bean v. Chater , 77 F.3d 1210, 1214 (10th Cir. 199 5) (explaining that a hypothetical question should contain “onl y . . . those impairments bor ne out by the evidentiary record”).19 IV. Credibility The ALJ found that Mr. Fulton’s cred ibility was “diminished for several reasons.” Aplt. App. Vol. III, Admin. R. at 413. Mr. Fulton test ified that he could not read or write well, but the ALJ found se veral instances in th e record where he “had completed forms and responded to quest ions,” indicating “s ignificant reading and writing ability.” Id. Mr. Fulton testified that his back and neck pain prevented him from working, but the AL J pointed to his testimony th at “until recently he spent many hours in bars playing pool.” Id. And as for Mr. Fulton’ s testimony that he has a poor memory, the ALJ observed that he ha d “completed several reports saying that he needs no reminders for personal needs a nd grooming or taking medicine,” and that the Red Rock reports showed an ability to focus and normal mental-status examinations except for anxiety. Id. “Credibility determinations are peculiarl y the province of the finder of fact, and we will not upset such de terminations when supported by substantial evidence.” Diaz v. Sec’y of Health & Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990). “Findings as to credibility s hould be closely and affirmat ively linked to substantial evidence and not just a conclusi on in the guise of findings.” Huston v. Bowen , 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote omitted). It is the relationship of credibility to RFC that drives our analysis. See Poppa v. Astrue , 569 F.3d 1167, 1171 (10th Cir. 2009) (“Since the purpose of the credibility evaluati on is to help the ALJ assess a claimant’s RFC, the ALJ’s credibility and RFC de terminations are inherently intertwined.”).20 In challenging the credibility findi ng on his reading and writing ability, Mr. Fulton points to other parts of the record showing he had help completing forms. But that does not convert the ALJ’s relian ce on evidence that Mr. Fulton could read and complete rather lengthy forms himself into the sort of improper “picking and choosing” we have criticized. See, e.g. , Keyes-Zachary , 695 F.3d at 1166; Hardman v. Barnhart , 362 F.3d 676, 681 (10th Ci r. 2004). His ability to read and write is not like an impairment whose severity might wax and wane or occasionally evade detection, thereby permitting an ALJ to selectively (and improperly) rely only on those medical reports showing the absence of disabling symptoms. And in any event, the ALJ limited Mr. Fulton to jobs that di d not require reading above the sixth-grade level or writing above the third-grade level, an assessment Mr. Fulton has not taken issue with. Much the same can be said for Mr. Fulton’s challenge to the ALJ’s credibility finding regarding his claim to have a poor memory. As Mr. Fulton points out, there is evidence that his wi fe prepared a daily planner for his medication and that he told Dr. Hartley he needed medication reminde rs. But he does not question the ALJ’s observation that, in a number of forms, he said he did not need reminders. And his reliance on the statements in his Red Rock admissi on and discharge documents (discussed above) is unpersuasive, since we have already dispatched with the materiality of those records. Moreover, Mr. Fulton’s testimony that he has a poor memory lacked detail, so even if believed, it says litt le about how poor his memory21 is. 13 Consistent with the simple work th e ALJ limited Mr. Fulton to, Drs. Kendall and Hartley considered Mr. Fulton not signifi cantly limited in his ability to remember very short and simple instructions, and Dr. Hartley expressly opined that he had “adequate cognitive functioning to perform at least simple work related task[s],” Aplt. App. Vol. IV, Admin. R. at 634. Finally, we see no error in the ALJ’s re liance on Mr. Fulton’s pool playing to diminish the credibility of his claim that back and neck pain prevent him from working. Mr. Fulton testified that over a four-month period ending a little more than a year before the ALJ hearing, he had gone to bars to drink and play pool three times a month, spending ten hours on one occasion. He now char acterizes these outings as the sort of irregular, “sporadic divers ions” not involving “p rolonged physical activity” that we have said are not the so rt of activities that show a claimant is capable of “substantia l gainful activity.” Byron v. Heckler , 742 F.2d 1232, 1235 (10th Cir. 1984). But in Byron , the “diversions” at issue were some jogging and occasional work for an hour as a janito r, there was favorab le medical evidence regarding pain, and the Appeals Council foun d that the claimant was able to perform light work. See id. at 1235-36. Here, Mr. Fulton’s billiards activities (particularly

13 Mr. Fulton’s only testimony regarding his memory came when the ALJ asked whether he could remember what mont h in 2003 he last worked. Mr. Fulton said he could not remember and that he “can’t remember very well.” Aplt. App. Vol. V, Admin. R. at 970. When the ALJ asked him if his memory was so bad that “most of what you’re telling me isn’t going to be reliabl e,” Mr. Fulton responded that he was “not saying that at all, I’ m just . . . not good with dates.” Id.22 his ten-hour stint 14 ) were longer in duration, Mr. Fulton has not shown that the medical evidence (which the AL J discussed at lengt h) is consistent with his claim of disabling pain, and the ques tion is whether he can perf orm sedentary work with numerous postural accommodations, not light work. The ALJ was justified in concluding that Mr. Fulton’s pool playing was inconsistent w ith an inability to perform such work. As noted in footnote 11, supra , Mr. Fulton argues that, when evaluating the credibility of his comp laints of disabling back pain, the ALJ should have considered Dr. Lewellen’s examination findings (low-back tenderness, radiating pain to the hips with straight leg raising, and a gait favoring his right si de). Those findings, however, have little bearing on credibili ty because Dr. Lewellen di d not assess any degree of functional limitation (or even indicate the se verity of the symptoms she observed) that might support the credibility of Mr. Fulton’s subjective complaints. CONCLUSION The district court’s judgment is affirmed.

Entered for the Court

John C. Porfilio Circuit Judge

14 Mr. Fulton faults the ALJ for not i nquiring how many of the ten hours were spent actually playing pool, but at the h earing, Mr. Fulton responded affirmatively when the ALJ asked if he had “spent 10 h ours in a bar playing pool.” Aplt. App. Vol. V, Admin. R. at 993.