UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MONICA HARLAN, Plaintiff-Appellant,

v. MICHAEL J. ASTRUE, Commissioner of the Social Secur ity Administration, Defendant-Appellee. No. 12-5082 (D.C. No. 4:10-CV-00726-JHP-TLW) (N.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.
Monica Harlan appeals from the di strict court’s affirmance of the Commissioner of Social Security’s denial of disability insu rance benefits and supplemental security income benefits. She argue s that the Administrative Law Judge (ALJ) erred in failing to rule on her request for a consultative mental

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 8, 2013 Elisabeth A. Shumaker Clerk of Court- 2 - examination. Reviewing under the author ity of 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. Ms. Harlan alleged disability due to depression, bipolar disorder, schizophrenia, and leg and back problems. Her initial applications were denied because the medical ev idence was insufficient for a determination, as she had failed to appear for scheduled c onsultative examinations. R econsideration was denied because the provided medical evidence did not show a serious condition that would preclude her from working. Ms. Harlan as ked for an evidentiary hearing before an ALJ. Before the hearing was held, she sought additional mental h ealth treatment. She was seen at the Tulsa Center for Beha vioral Health with suicidal ideation, hallucinations, and depression. She was refe rred to Family and Children’s Services (FCS), which referred her to Hillcrest Me dical Center, where she was admitted for inpatient psychiatric treatme nt for four days. While hospitalized, she began taking medications that helped control her moods and hallucinations, and eliminated her suicidal ideation. She was diagnosed with major depressi ve disorder with psychosis and post-traumatic stress disorder. At he r hospital discharge, she was stable and directed to follow up with FCS. For one month, she sought outpatient treatment from FCS. In the FCS Discharge Summary, comple ted four months late r, after she did not attend regular appointments or re spond to attempts to reach her, it was noted that she- 3 - made no progress in treatment because she failed to attend appo intments. It was recommended that she continue using prescribed medications. Thereafter, the ALJ held an evidentiary hearing, at which both Ms. Harlan and a vocational expert testified and medical evidence was admi tted. During the hearing, Ms. Harlan’s counsel requested that the ALJ order a consultative me ntal examination. The ALJ took the request under advisement. Sometime later, the ALJ issued a denial decision without addressing the request for a consultative examination. The ALJ denied benefits at step five of the sequential evaluation process. See Wilson v. Astrue , 602 F.3d 1136, 1139 (10th Cir. 2010) (describing five-step pro cess). At steps one and two, he found that Ms. Harlan had not been working since her alleged disability onset date and that she suffered from the severe impairments of depressi on and post-traumatic stress syndrome. Relying on Ms. Harlan’s repr esentations, the ALJ determined at step three that her impairments did not meet the li stings. The ALJ found that she has mild restriction in activities of daily living; moderate difficul ty with social functi oning; mild difficulty with concentration, persistence, or pace; and no episodes of decompensation of an extended duration. At step four, the ALJ determined th at Ms. Harlan retained the residual functional capacity to perform medium work involving simple, repetitive tasks and only incidental contact with the public. In making this dete rmination, the ALJ reviewed the medical evidence and noted th at Ms. Harlan had been scheduled for- 4 - mental and physical consultative examinations , but she did not appear for either and she did not respond to several written, email, or voice-mail attempts to contact her. Further, the ALJ questioned Ms. Harlan’s cr edibility due to various inconsistencies in her representations and noted that her fa ilure to follow-up with mental health treatment suggested her symptoms may not ha ve been as serious as she alleged. Recognizing that she has no past relevant work and relyi ng on the vocational expert’s testimony, the ALJ found at step five that Ms. Harlan can perform work that is available in significant numbers in the national economy, such as a bus person, dishwasher, or bench assembler. The ALJ’s decision became the final decision of the Commissioner after the Appeals Council denied review. Doyal v. Barnhart , 331 F.3d 758, 759 (10th Cir. 2003). On judicial review, the district court upheld the Commissioner’s decision. Our review is limi ted to the Commissione r’s final decision. See 42 U.S.C. § 405(g). “We review [that] decision to determine whether the factual findings are supported by substantial ev idence in the record and whether the correct legal standards were applied.” Doyle , 331 F.3d at 760; see also 42 U.S.C. § 405(g) (stating that agency finding s are conclusive if supporte d by substantial evidence and that where claim ha s been denied becau se claimant has not submitted proof conforming to regulation, court will review only ques tion of conformity with regulation and validity of regulation). An ALJ’s decision is not supported by substantial evidence if ther e are not sufficient facts be fore the ALJ upon which to- 5 - make a decision. See Henrie v. U.S. Dep’t of Health & Human Servs ., 13 F.3d 359, 361 (10th Cir. 1993). “We c onsider whether the ALJ follo wed the specific rules of law that must be followed in weighing partic ular types of evidence in disability cases, but we will not reweigh the evidence or substitute our judgment for the Commissioner’s.” Cowan v. Astrue , 552 F.3d 1182, 1185 (10t h Cir. 2008) (internal quotation marks omitted). Ms. Harlan argues that the ALJ erred in disregarding her c ounsel’s requests for a consultative examination by failing to men tion her request for a consultative mental examination or to give reasons if he reje cted the request. She faults the ALJ for ignoring the findings in the initial and re consideration decisions that there was insufficient evidence of her me ntal illness to make findings . She notes that because there were no findings, there was no Psychiatric Review Technique (PRT) form in the record for the ALJ to re ly on when assessing her resi dual mental capacity. In addition, she contends that she was pr o se when she misse d the consultative examinations, but, upon representation by c ounsel, she learned the importance of attending examinations and would do so in th e future. Further, Ms. Harlan contends that the ALJ reasonably could have concl uded that a consultativ e examination would be helpful due to the new evidence of her breakdown and inpatient treatment. Finally, Ms. Harlan argues that the ALJ’s failure to address or give reasons for apparently rejecting her reque st for development of the r ecord should not be subject to harmless error analysis. According to Ms. Harlan, the ALJ’s failure to rule on and- 6 - provide reasons gives this c ourt nothing to review and conf licts with the requirement of 42 U.S.C. § 405(b)(1) that the Commi ssioner provide reasons for the agency’s decision. 1 She clarifies, however, that she is not arguing that the ALJ had a legal duty to order the requested consulting examin ation; she is arguing only that he was obligated to consider the request a nd give reasons for his decision. Ms. Harlan cites no statut e or regulation specifically requiring an ALJ to rule on a request for a consultative examination or to give reas ons for the ruling. And our research has disclosed none. Section 405(b )(1), which she does re fer to, requires an ALJ to discuss the evidence and the reasons for the ALJ’s decision. It does not require a discussion of the reasons for denying a consultative examination. Ms. Harlan cites two unpublished dist rict court decisions to support her argument that the ALJ had a duty to address and give reasons for denying her request for a consultative examination. See Taylor v. Astrue , No. 09-CV-0129-CVE-FHM, 2010 WL 3277426 (N.D. Okla. Aug. 17, 2010); Fortna v. Astrue , No. 05-CV-587-SAJ (N.D. Okla. May 1, 2007) (Aplt. Br., Tab J). These unpublished district court cases are not bi nding on this court. Nonethel ess, we will address them.

1 In relevant part, § 405(b)(1) provides that a decision by the Commissioner of Soci al Security which involves a determination of disability and which is in whole or in part unfavorable to such individual shall contai n a statement of the case, in understandable language, setting fort h a discussion of the evidence, and stating the Commissioner’s determin ation and the reason or reasons upon which it is based.- 7 - In Taylor , the claimant’s a ttorney asked the ALJ at th e hearing to update the claimant’s earnings record with new quart ers of coverage that would extend the claimant’s insured status to June 2008 and to schedule ne w consultative examinations for the claimant as the prior consultative examinations were three years old. 2010 WL 3277426, at *1. The ALJ took th e requests under advisement, but he failed to rule on them in the writte n decision and used the earlie r last-insured date in his analysis. Id . On appeal to the dist rict court, the claimant argued that (1) the ALJ’s finding concerning the last-ins ured date was not supporte d by substantial evidence; and (2) the ALJ abused his discretion in not ordering mental and physical consultative examinations requested by the cl aimant, with the cons equence that there was not substantial evidence in the reco rd to support a conclusion regarding the nature and severity of the claimant’s impairments. Id. at *2. The court remanded for development of the record concerning the clai mant’s quarters of coverage and for the ALJ to consider in the fi rst instance whether additiona l consultative examinations were needed. Id . at *2 & n.1. The court stated: The ALJ failed to consider plain tiff’s request for consultative examinations and the ALJ, not the Court, should be permitted to consider plaintiff’s request for c onsultative examination in the first instance. If the ALJ had addressed plaintiff’s request for consultative examinations, the ALJ’s decision wo uld be entitled to deference and could be reversed only for an abuse of discretion. There is little or no medical evidence in the record dating from late 2005 to June 2008 and it is possible that the ALJ would have found additional consultative examinations helpful or necessary to review plain tiff’s claim for disability benefits based on a revise d [date last insured]. The ALJ did not consider whether plai ntiff was disabled as of June 2008 and it is not clear that the record contains su fficient evidence to make this- 8 - determination. Thus, the errors id entified by plaintiff are not harmless and the case should be remanded for further proceedings based on the updated [date last insured] and for consideration of plaintiff’s requests for consultative examinations. Id . at *2 (footnote omitted) (citations omitted). In Fortna , the claimant requested that the ALJ order additional psychological testing. The previous testing was stale, it was doubtful whether the previous testing results could be obtained, and the mental diagnoses in the reco rd were based only on interviews and history. See Aplt. Br., Tab J, at 11. The ALJ did not rule on the request. On appeal to the district court, the claimant argued that the ALJ failed to properly develop and evaluate hi s alleged mental impairment. Id . at 1. The district court remanded for the ALJ to develop th e record in order to perform a proper analysis of the claimant ’s alleged disability. Id . at 11-13. The court did not state that a consultative examination was required, bu t the court did state that the ALJ erred by failing to rule on the request for psychologi cal testing and to explain why he did not order the testing. Id . at 10, 13. In comparison, in this case, there are no issues about the date last insured or stale evidence. Relevant, cu rrent mental health eviden ce became available between the time of the reconsideration denial and the ALJ proceedings. And Ms. Harlan does not argue that the ALJ’s decision was not supported by substantial evidence or that the record was insuffi cient for the ALJ to make a decision without further- 9 - developing the record. 2 Neither Taylor nor Fortna cites authority requiring an ALJ to rule on a request for a consultative exam ination under any set of circumstances. The decisions in both cases re st on their own unique facts, as should the decision in this case. Ms. Harlan also cites several Tenth Ci rcuit cases requiring an ALJ to explain the ALJ’s reasoning. See Aplt. Br. at 29 (citing cases) . Those cases concern the ALJ’s findings at various steps in the five-ste p review process, the weight to give to a treating doctor, and the credibility of the cl aimant. These are matters the regulations specifically require an ALJ to address with reasoning when making a disability determination. See 20 C.F.R. §§ 404.1520(a)(4) (fi ve-step process); 416.920(a)(4) (same); 404.1527(c) (weighing medical opinions); 416.927(c) (same); 404.1529 (credibility); 416. 929 (same). Without a statute, regulati on, 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 me t his responsibility to ensure the record was sufficiently developed to decide th e issues presented at the hearing. See Grogan v. Barnhart , 399 F.3d 1257, 1263-64 (10th Ci r. 2005). “[W]here the medical evidence in the record is in conclusive, a consultative ex amination is often required

2 In the district court, Ms . Harlan also argued that (1) the ALJ failed to evaluate her medical evidence and artic ulate the weight given to it; and (2) the ALJ’s findings were not supported by substantial eviden ce. She has abandoned these arguments on appeal.- 10 - for proper resolution of a disability claim.” Hawkins v. Chater , 113 F.3d 1162, 1166 (10th Cir. 1997) (citation omitted); see also 20 C.F.R. §§ 404.1519a(b) (stating agency may purchase consulta tive examination if evid ence is insufficient for a decision), 416.919a(b) (same). In other words, after the claimant satisfies her burden to show a reasonable possibility of a seve re impairment, the AL J bears responsibility to order a consultative examination if it is necessary to resolve th e impairment issue. Hawkins , 113 F.3d at 1167. But the ALJ “has broad latitude in ordering a consultative examination.” Diaz v. Sec’y of Health & Human Servs ., 898 F.2d 774, 778 (10th Cir. 1990); see also Thompson v. Sullivan , 987 F.2d 1482, 1491 (10th Cir. 1993) (stating ALJ has discretion to order consultative examination). Based on Ms. Harlan’s argum ents and under the circumst ances of this case, we cannot conclude the ALJ erred in failing to rule on the request for a consultative examination. As indicated a bove, she does not argue that the ALJ failed to meet his duty to develop the record or that there was not substantial ev idence to support the ALJ’s decision. The ALJ’s fa ilure to point out that th e initial and reconsideration decisions found insufficient evidence of a mental impairment a nd therefore made no findings is of no cons equence. Much more medical evidence was ava ilable to the ALJ at the time of the heari ng than was available to the reviewers at the initial and reconsideration stages. And the ALJ further developed the record at the hearing with testimony and the new medical evidence. Mo reover, Ms. Harlan fails to adequately explain why the new mental health eviden ce required a consultative examination.- 11 - Also, the fact that there wa s no PRT form in the record is of no consequence. The regulations permit an ALJ to consider and document in the ALJ’s decision the items listed on a PRT form without obtain ing a medical expe rt’s opinion. See 20 C.F.R. §§ 404.1520a(d)(2), (e)(4 ); 416.920a(d)(2), (e)(4). 3 Accordingly, we affirm th e district court’s judgment.

Entered for the Court
Bobby R. Baldock Circuit Judge

3 Because we conclude there was no erro r, we need not address the parties’ harmless-error arguments. Furthe rmore, we limit our holding to the facts of this case. We do not express an opini on on whether an ALJ mu st rule on a consultative examination request and give reasons when a claimant argues on judicial review that the ALJ failed to develop the record or the ALJ’s decision is not supported by substantial evidence.