UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CASSANDRA M. BELL, Plaintiff - Appellant,

v. CAROLYN W. COLVIN, acting Commissioner of Social Security Administration, Defendant - Appellee. No. 15-3161 (D.C. No. 6:13- CV-01310-EFM) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , LUCERO , and McHUGH , Circuit Judges.

________________ _________________ Cassandra Bell appeals from a dist rict court order affirming the Commissioner’s decision denying her applicati on for disability in surance benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. I Bell applied for benefits in November 2009 . After the admini strative denial of her claims, she received a h earing before an administra tive law judge (“ALJ”), at

* 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

### April 7, 2016 Elisabeth A. Shumaker Clerk of Court2 which Bell and a vocational expe rt testified. After the hearing, the ALJ received interrogatory responses from a medical expert. The ALJ found at step two of the five-step evaluation process, see Lax v. Astrue, 489 F.3d 10 80, 1084 (10th Cir. 2007), that Bell had several severe impairments. Howe ver, the ALJ further found that Bell had the residual functional capacity (“RFC”) to perform light work subject to several limitations. Base d on her RFC, the ALJ found at step four that Bell was unable to perform her past relevant work. At step five, the ALJ f ound that there were jobs in the national economy that Bell could perform and t hus determined that Bell was not disabled. The Appeals Council declined to review the ALJ’s decision, the district court upheld the decision, and this appeal followed. Bell c ontends the determination of non-disability must be reve rsed because the ALJ erroneous ly determined her RFC. She also contends the case should be remanded because of new and material evidence that did not exist at the time of the ALJ hearing. II We review de novo the district court’ s ruling in a social security case and “independently determine whether the ALJ’s decision is free from legal error and supported by substantial evid ence.” Wall v. Astrue, 56 1 F.3d 1048, 1052 (10th Cir. 2009) (quotation omitted). “Sub stantial evidence is more th an a mere scintilla and is such relevant evidence as a reasonable mi nd might accept as adequate to support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Ci r. 2007) (quotation omitted). To determine whethe r the substantiality test ha s been met, we meticulously3 examine the record as a whole, but we do not rewe igh the evidence or substitute our judgment for that of th e ALJ. Id. at 1070-71. We review for abuse of di scretion the district court’s denial of Bell’s motion to remand the case based on new and material evidence. See Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). A Bell advances several arguments with resp ect to her RFC. First, she contends that the RFC determination fails to account for the ALJ’s findings at step three that she often required assistance with pe rsonal hygiene, did not leave home independently, and had a marked limitation in her activities of daily living (“ADLs”). However, the evaluation of mental impa irments at steps two and three of the evaluation process is analytically distinct from an RFC assess ment. See 20 C.F.R. § 416.920a (describing the “s pecial technique” for evaluati ng the severity of mental impairments). At these earl y steps of the process, the ALJ rates the degree of the claimant’s impairment in four functional areas. See Wilson, 602 F.3d at 1141. These ratings “are not an RFC assessment but are used to rate the se verity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the sequential evalua tion process requires a more detailed assessment . . . .” SSR 96-8p, 1996 WL 374184, at *4. The ALJ followed the proper procedure by first applying the special technique to evaluate the severity of Bell’s mental impairments, then separately assessing her RFC. Although the ALJ found that she had a marked restricti on in her ADLs, the4 ALJ also found that the “paragraph B” crit eria were not satisfied. See generally Carpenter v. Astrue, 537 F. 3d 1264, 1268-69 (10th Cir. 2008). In assessing Bell’s RFC, the ALJ considered the extent to wh ich her impairments limited her ability to function. In the absence of objective medi cal evidence supporting her allegations of disabling impairments, the AL J proceeded to weigh the cr edibility of her statements about the intensity, persis tence, and limiting effect s of her symptoms. See Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987) (“The absence of an objective medical basis which supports the degr ee of severity of subjective complaints alleged is just one factor to be considered in eval uating the credibility of the testimony and complaints.” (quotation omitted)); see also SSR 96-7p, 1996 WL 374186, at *1 (adjudicator must carefully consider self reports of pain and all other evidence in making credibility determination if obj ective evidence is not dispositive). Guided by 20 C.F.R. § 404. 1529(c) and the factors set forth in Social Security Ruling 96-7p, the ALJ concluded that Be ll’s statements a bout the intensity, persistence, and limiting effect s of her symptoms were credib le only to the extent that she could perform light work with certain limitations. We reject Bell’s contention that this conclusion was precluded by the AL J’s determination at step three that she had a “marked limitation” in her ADLs. Our review of disability cases requires us to “consider whether the ALJ foll owed the specific rules of la w that must be followed in weighing particular types of evidence.” Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). We do not agree that an RFC to perform light work with limitations is inherently incompatible with a “marked” limitation in just one of the four5 functional limitations areas delineated in the special technique—particularly if the ALJ finds no limitations in the other three functional areas. Bell has not shown the ALJ applied an incorrect legal standard. See Lax, 489 F.3d at 1084. Bell further argues that the ALJ failed to properly consider the psychological component of her physical symptoms when assessing her RFC and that the ALJ erred by minimizing her somatoform disorder. The absence of objective medical findings alone cannot be used to rule out claims of disabling pain because “[s]omatoform disorders are characterized by physical co mplaints for which appropriate medical evaluation fails to reveal a physical pathology, or when such complaints, and any resulting impairment, is grossl y in excess of what would be expected from a patient’s diagnosis.” Wall, 561 F.3d at 1059 n.18. However, “[a] claimant’s subjective allegation of pain is not sufficient in itse lf to establish disability.” Branum v. Barnhart, 385 F.3d 1268, 1273 (10th Cir. 2004) (quotation omitted). In discussing Bell’s diagnosis of a soma toform disorder, th e ALJ considered a psychological assessment showing the ab sence of any psychiatric disorders, above-average memory function, and no difficulties with at tention and concentration. According to the asse ssment, Bell did not have any s ubstantial cognitiv e difficulties and was not expected to have difficulty pa rticipating in a pain rehabilitation center program at the Mayo Clinic. The ALJ also considered a psychiatric assessment, based in significant part on Bell’s own reports about her condition, noting the absence of symptoms for several disorders. And the ALJ considered Bell’s expressed reluctance to pursu e certain approaches to he r care and her failure to6 follow up on recommended treatment options for her pain, such as a psychological and physical rehabilitative appr oach or seeing a psychiatrist. 1 We note further that the ALJ assigned less weight to one of th e medical opinions in the record for the precise reason that it did not address Bell’s somatoform di sorder. In light of this discussion and analysis, Bell ’s contention that the ALJ completely overlooked her somatoform disorder in making the RFC determination is unavailing. Our limited scope of review precludes us from rewe ighing the evidence or substituting our judgment for that of the AL J. Wall, 561 F.3d at 1070. Bell also argues that the ALJ erred by failing to take into consideration her fibromyalgia diagnosis. We disagree. “The burden to pr ove disability in a social security case is on the claima nt, and to meet this burden, the claimant must furnish medical and other evidence of the existe nce of the disability .” Branum, 385 F.3d at 1271. Although the diagnosis is mentione d in some of the me dical records, the record supports the conclusion that it was encompassed within her later diagnosis for somatoform disorder. “[C]omplaints of severe pain that do not readily lend themselves to analysis by objective medical tests are notoriously difficult to diagnose and treat, and the diagnoses themselves are often overlapping. ” Wilson, 602 F.3d at 1143. At the hearing before the ALJ, Bell did not mention her fibromyalgia. She

1 To the extent Bell argues that her decision not to pursue treatment options was irrelevant, we disagree. An “individual’s statements may be less credible if the level or frequency of treatment is inconsistent with the leve l of complaints, or if the medical reports or records s how that the individual is not following the treatment as prescribed and there are no good reasons fo r this failure.” SSR 96-7p, 1996 WL 374186, at *7.7 makes no showing that her fibromyalgia qua lifies as a severe impairment. And she makes no argument or showing as to how th e RFC determination in this case would have been different if the ALJ had listed fibromyalgia as a se vere impairment. Bell further contends that the ALJ err oneously evaluated he r activities without considering the difficulties she had with th em. Her argument that the ALJ ignored factors favorable to her credib ility is closely related. We are persuaded by neither. Bell’s purported difficulties with her ADL s were supported mostly by her own statements and testimony, which the ALJ fo und to be only partially credible for the reasons already discussed. See Wall, 561 F.3d at 1070 (having found claimant not fully credible, ALJ was permitted not to tr eat her testimony as strong evidence of her disability). An ALJ’s credib ility findings are entitled to special deference. White v. Barnhart, 287 F.3d 903, 910 (1 0th Cir. 2001) (an ALJ “is uniquely able to observe the demeanor and gauge the physical abi lities of the claimant in a direct and unmediated fashion”). Nor are we persuaded by Bell’s ar guments concerning the ALJ’s characterization of some ev idence. The ALJ’s common- sense observation that many of her hobbies were sedent ary activities does not constitu te improper speculation. And it was not inaccurate for the ALJ to fi nd that she was currently studying based on her testimony that she was s till in school and had only f our classes left to finish her degree. Further, the AL J’s finding that Bell did not have significant limitations in the areas of social functi oning or sustained concentrati on or pace is consistent with evidence in the record, incl uding medical opinions, and is not contradicted by her8 role as a youth director at her church. There is substantial evidence to support the ALJ’s conclusions, and to the extent Bell points out evidentiary conflicts in the record, they were for th e ALJ to resolve. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1172 (10t h Cir. 2012). Factors favorable to her cr edibility that Bell contends were ignored by the ALJ include the difficulties she faced from a young age, her doctor’s belief that her symptoms were real, her good work histor y, and her efforts to obtain relief by traveling to the Mayo Clinic. However, “[ t]he ALJ is not required to discuss every piece of evidence.” Wall, 561 F.3d at 10 67 (quotation omitted). Assuming these factors are relevant, we declin e to reweigh the evidence in this case or substitute our judgment for that of the ALJ. S ee Flaherty, 515 F.3d at 1070-71. Bell claims that the ALJ evaluated erroneously severa l medical opinions in the case. These opinions are all addressed in the ALJ’s detailed and thorough, sixteenpage decision. Bell’s argumen ts to the contrary are underd eveloped and conclusory. In brief, we reject Bell’s argum ent that Dr. Morparia’s opinion 2 was not adequately considered because Bell fails to explain how that opinion is inconsistent with the ALJ’s RFC assessment. The ALJ permissibly assigned little weight to the opinion of Dr. Fleming because he offered no specifi c functional limitations and very little rationale for his opinion. Dr. Netherton’s opinion was given little weight because it lacked support in the record and was incons istent with Dr. Netherton’s own treatment

2 Although Dr. Morparia is not mentione d by name in the ALJ’s decision, it is clear that her examination is discussed at two different points in the decision based on the exhibit citation as well as the date, place, a nd type of examination.9 notes. The ALJ noted that Dr. St. Loui s’ opinion was based in part on Bell’s subjective reports about her symptoms, whic h the ALJ had already deemed not fully credible, and was not consistent with other evidence in the record. Dr. Rees’ overall opinion was accorded some weight, but the ALJ was not persuaded by Dr. Rees’ conclusion that Bell needed a chairlift for her basement stairs, fi nding that limitation was not supported by other evidence in the record. Finally, the ALJ did not err in giving substantial weight to Dr. Parsons’ opinion that Bell had the capacity to perform the requirements for light work because it was c onsistent with the evidence as a whole. The ALJ did not rely exclus ively on Dr. Parsons’ opinion, but considered and gave substantial weight to two other medical opinions. We thus conclude that the ALJ appropriately considered and weig hed the medical opinion evidence. “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s fi ndings from being supp orted by substantial evidence.” Zoltanski v. F.A.A., 372 F. 3d 1195, 1200 (10th Ci r. 2004) (quotation omitted). Lastly, we reject Bell’s contention th at the ALJ failed to consider the combined effect of her impairments. She has failed to support th is contention with a developed argument. See Wa ll, 561 F.3d at 1065. Moreove r, the ALJ’s decision is based on a thorough review of the evidence in the record, including findings of nine severe impairments, and opinions and st atements from more th an a dozen doctors, specialists, and thir d-party reporters.10 B After the ALJ’s decision was issued, Bell was diagnosed with Bechet’s Syndrome and avascular necrosis. She ar gues that these diagnoses constitute new and material evidence warranting a remand under 42 U.S.C. § 405(g). We are not persuaded. In this context, evidence is material if the AL J’s decision “might reasonably have been different had the new evidence been be fore him when his decision was rendered.” Wilson, 602 F.3d at 1148 (quotation omitted). However, Bell offers only mere speculation as to how these diagnoses are re lated to symptoms she experienced during the relevant time period. “[A] retrospective diagnosis without evidence of actual disability is insufficient.” Coleman v. Chater, 58 F.3d 577, 579 (10th Cir. 1995) ( quotation omitted). She does not point to any objective medical opinions connecting th ese diagnoses to her earlie r symptoms. Although she suggests the diagnoses would have st rengthened her credibility, she makes no argument as to how they could have cha nged the ALJ’s RFC determination. Under these circumstances, the dist rict court did not abuse it s discretion by denying Bell’s request to remand the case to the ALJ. III The judgment of the district court is AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge