UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KENNETH L. PATTERSON, 

 Plaintiff - Appellant, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

 Defendant - Appellee. 

No. 16-3029 

(D.C. No. 6:14-CV-01312-JWL) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, HOLMES, and MORITZ, Circuit Judges. 

_________________________________ 

Kenneth Patterson seeks reversal of the district court’s judgment upholding the 

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

security disability insurance benefits and supplemental security income 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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 30, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

I. BACKGROUND 

Mr. Patterson, who was born in 1964, filed for disability benefits claiming he 

became disabled on November 11, 2010, due to various physical and mental 

impairments. On January 11, 2013, the ALJ issued an unfavorable decision 

concluding that, although Mr. Patterson could not perform his past relevant work, he 

had the residual functional capacity (RFC) to perform other work that existed in 

substantial numbers in the national economy.1

 Accordingly, the ALJ denied benefits 

at step five of the 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). The Appeals Council received additional medical and 

psychological evidence and denied review. The district court affirmed. 

II. DISCUSSION 

“Under the Social Security Act, a claimant is disabled if [he] 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, 1140 (10th Cir. 2010) (ellipsis 

and internal quotation marks omitted). “We review the district court’s decision 

de novo and independently determine whether the ALJ’s decision is free from legal 

 1

 “The RFC assessment is a function-by-function assessment based upon all of 

the relevant evidence of an individual’s ability to do work-related activities.” SSR 

96-8p, 1996 WL 374184, at *3 (July 2, 1996). It “considers only functional 

limitations and restrictions that result from an individual’s medically determinable 

impairment or combination of impairments, including the impact of any related 

symptoms.” Id. at *1. 
3 

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). 

A. Listing 1.04(A) 

Mr. Patterson argues that his back problems met or medically equaled the 

severity of Listing 1.04 for disorders of the spine. “At step three, if a claimant can 

show that the impairment is equivalent to a listed impairment, he is presumed to be 

disabled and entitled to benefits.” Wilson, 602 F.3d at 1139 (internal quotation marks 

omitted). Mr. Patterson contends the ALJ failed to explain why his back condition 

did not meet this listing and failed to recognize the medical evidence supporting his 

claim. 

Listing 1.04 applies to 

[d]isorders of the spine (e.g., herniated nucleus polposus, spinal 

arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet 

arthritis, vertebral fracture), resulting in compromise of a nerve root 

(including the cauda equina) or the spinal cord. With 

A. Evidence of nerve root compression characterized by neuro-anatomic 

distribution of pain, limitation of motion of the spine, motor loss (atrophy 

with associated muscle weakness or muscle weakness) accompanied by 
4 

sensory or reflex loss and, if there is involvement of the lower back, 

positive straight-leg raising test (sitting and supine); 

. . . . 

20 C.F.R. Pt. 404, subpt. P, App. 1, § 1.04 (emphasis omitted). 

In determining Mr. Patterson did not have an impairment that met or equaled 

the severity of listing 1.04, the ALJ observed that he did not have “nerve root 

compression (though the evidence on this is somewhat equivocal), spinal 

arachnoiditis or lumbar spinal stenosis,” as the listing requires. Aplt. App. Vol. 1, at 

11. The ALJ further observed that in September 2010 Mr. Patterson had reported 

pain for the previous six months, but no “numbness, weakness, bladder or bowel or 

sexual dysfunction.” Id. at 15. The ALJ noted a cervical-spine MRI showing “some 

degeneration,” but “no significant compressive radiculopathy.” Id. The ALJ cited an 

October 2010 lumbar-spine MRI that “showed some degenerative changes in the 

thoracic and lumbar spine without evidence of significant herniation or spinal 

stenosis.” Id. at 15. The ALJ also cited a March 2012 CT study that “reflected mild 

degenerative disease at L3-L4 and L4-L5 with no disc protrusion at any level, [with] 

angular bulging at L4-L5 . . . result[ing] in mild central spinal stenosis with no 

neuroforaminal stenosis.” Id.2

 

Mr. Patterson relies on medical records ranging from October 2010 through 

March 2013 to argue that his condition met the requirements of Listing 1.04(A). 

 2

 The ALJ included these findings in his analysis at step four. Mr. Patterson 

acknowledges that this procedure was not erroneous. See Fischer-Ross, 431 F.3d at 

733 (holding ALJ’s findings made at steps four and five that confirmed the step-three 

rejection of the listings was not reversible error). 
5 

Aplt. Opening Br. at 16-18. The medical reports do not document one of the 

elements of Listing 1.04(A) – nerve root compression. And even if the conditions he 

claims are equivalent to nerve root compression qualify under the listing, see id. at 

17, the evidence does not establish that all of the medical conditions were present at 

the same time for at least twelve months, as required to qualify. See 20 C.F.R. 

§§ 404.1525(c)(3) (to satisfy listing criteria, impairment must “satisf[y] all of the 

criteria of that listing” and “meet[] the duration requirement”); 404.1509 (durational 

requirement means the impairment “is expected to result in death, [or] it must have 

lasted or must be expected to last for a continuous period of at least 12 months”). 

Mr. Patterson also asserts that the October 2010 lumbar-spine MRI, on which 

the ALJ relied, correctly reflected his condition, while the March 2012 CT study, on 

which the ALJ also relied, was incorrect. He points to a March 8, 2013, report of a 

CT myelogram showing “severe neural foraminal narrowing” and “a disc bulge on 

the left at L4-L5,” Aplt. App. Vol. 4, at 646, which he contends demonstrates that the 

March 2012 study was inaccurate. But a CT scan performed January 21, 2013, 

revealed equivocal findings, including “no cord compression,” “narrowing of the left 

C4-5 neural foramen,” “mild narrowing of the left C5-6 in the left C6-7 neural 

foramina,” “no evidence of significant central spinal stenosis,” and “[n]o other 

potential focal disc protrusions.” Id. at 649. Thus, the 2013 reports do not rebut the 

ALJ’s finding that there was “[no] nerve root compression (though the evidence on 

this is somewhat equivocal),” id. Vol. 1, at 11. 
6 

Mr. Patterson further argues that pain can substitute for a medical finding 

required by a listing. He relies on 20 C.F.R. § 404.1526, which explains how an 

impairment can be medically equivalent to a listed impairment. A claimant’s 

symptoms, including pain, are evaluated pursuant to 20 C.F.R. 404.1529(d)(3). See

§ 404.1526(b)(4) (referring to § 404.1529(d)(3)). Section 404.1529(d)(3) specifies 

that the agency “will not substitute [a claimant’s] allegations of pain . . . for a 

missing or deficient sign or laboratory finding to raise the severity of [the claimant’s] 

impairment(s) to that of a listed impairment.” Thus, Mr. Patterson’s pain complaints 

cannot substitute for medical findings to satisfy medical equivalence. 

Mr. Patterson maintains that the ALJ improperly evaluated the medical 

evidence because he did not consider all of the evidence or discuss the evidence he 

chose not to rely on. But the ALJ was not required to discuss every piece of 

evidence. Hendron v. Colvin, 767 F.3d 951, 955 (10th Cir. 2014). Furthermore, the 

ALJ stated that he had considered all of the evidence and we take him at his word. 

See Flaherty, 515 F.3d at 1071 (We “take a lower tribunal at its word when it 

declares that it has considered a matter” (internal quotation marks omitted)). 

Substantial evidence supports the ALJ’s conclusion that Mr. Patterson did not meet 

his burden to establish that he satisfied Listing 1.04(A). His failure to satisfy all of 

the listing’s criteria means that he cannot prevail at step three as a matter of law. See 

Sullivan v. Zebley, 493 U.S. 521, 530 (1990). 
7 

B. Residual Functional Capacity 

Mr. Patterson challenges the ALJ’s determination of his RFC at Step 4. The 

ALJ determined that Mr. Patterson retained the RFC to perform less than a full range 

of light work. The ALJ specified restrictions on his physical abilities, including 

lifting, carrying, standing, walking, sitting, and reaching. The ALJ determined that 

Mr. Patterson could “perform simple, unskilled work involving routine, repetitive 

tasks.” Aplt. App. Vol. 1, at 13. Mr. Patterson asserts that these restrictions fail to 

properly account for his back condition as discussed above, as well as his mental 

impairments. He argues the ALJ erred in his assessment of the state agency 

physicians’ opinions, Mr. Patterson’s activities, his inconsistent statements in the 

record, the report from his employer, and other credibility factors. 

 As discussed above, Mr. Patterson contends his back impairment was disabling 

at step three. He does not further argue that the restrictions the ALJ found at step 

four were inappropriate. 

 Mr. Patterson next claims the ALJ failed to take into account his limitations in 

social functioning and concentration, persistence, and pace. He bases this argument 

on the ALJ’s step-three finding that these limitations were moderate. But this finding 

was not an RFC assessment; rather it was “used to rate the severity of mental 

impairment(s) at steps 2 and 3 of the sequential evaluation process.” SSR 96-8p, 

1996 WL 374184, at *4 (July 2, 1996). The ALJ’s finding of moderate limitations at 

step three “does not necessarily translate to a work-related functional limitation for 
8 

the purposes of the RFC assessment.” Vigil v. Colvin, 805 F.3d 1199, 1203 (10th Cir. 

2015). 

 In determining Mr. Patterson’s mental RFC, the ALJ considered the opinion of 

Michael Klemens, Ph.D., L.P., who performed a consultative psychological 

evaluation. According to Dr. Klemens, Mr. Patterson’s social functioning did not 

appear to be limited, he had no difficulty in understanding instructions or recalling 

information, he had average attention and concentration, and his social functioning 

did “not appear to be limited.” Aplt. App. Vol. 3, at 425. The state agency medical 

consultants, Drs. Wilkinson, Cohen, and Timmerman opined that Mr. Patterson was 

capable of simple, routine, light work. The ALJ gave substantial weight to those 

assessments. 

Mr. Patterson claims the March 2013 narrative report by his treating 

psychologist, John Makings, M.S., L.M.L.P, demonstrated that his mental 

impairments were more severe than the ALJ found. Mr. Makings’ report and some 

treatment notes from the Center for Counseling and Consultation were submitted to, 

and reviewed by, the Appeals Council after the ALJ issued his decision. 

Mr. Makings assessed Mr. Patterson as “Markedly Limited” in all areas of 

functioning, the most severe category available on the form. See Aplt. App. Vol. 4, 

at 662-63. Mr. Makings’ treatment notes describe psychological problems caused by 

Mr. Patterson’s arrest on criminal charges. See id. at 512, 499, 497. But his 

narrative report does not refer to this situational stressor, nor does it indicate that 

Mr. Patterson’s psychological limitations had lasted or could be expected to last at 
9 

least twelve months. See Wilson, 602 F.3d at 1140 (stating disability requires a 

mental impairment to last for “a continuous period of not less than 12 months”). 

Moreover, Mr. Makings’ assessment is inconsistent with the other psychological 

evidence in the record. Therefore, there is no reasonable possibility that the evidence 

would have changed the outcome if the ALJ had considered it. 

Having noted above that the ALJ was not bound by his step-three assessment 

of moderate limitations, we find no reversible error in the ALJ’s reliance on the 

psychological opinions indicating lesser limitations. The evidence in the record 

regarding Mr. Patterson’s mental status supports the ALJ’s RFC determination that 

limiting him to “simple, unskilled work involving routine, repetitive tasks,” Aplt. 

App. Vol. 1, at 13, would adequately account for his limitations in social functioning, 

and in concentration, persistence, and pace. Cf. Vigil, 805 F.3d at 1204 (holding that 

the ALJ properly accounted for the claimant’s moderate limitations in concentration, 

persistence, and pace in the RFC assessment by limiting him to unskilled work). 

 Mr. Patterson also complains that the ALJ did not perform the function-byfunction evaluation contemplated by SSR 96-8p, 1996 WL 374184, at *3. But an 

explicit function-by-function evaluation was not required because the ALJ considered 

the work restrictions necessary to accommodate Mr. Patterson’s mental limitations. 

Cf. Hendron, 767 F.3d at 956-57 (holding ALJ’s failure to perform explicit functionby-function analysis was not error where ALJ did not overlook limitations or 

restrictions pertinent to the work the claimant could do). 
10 

 Next, Mr. Patterson complains that the state agency medical consultants’ 

opinions were issued before much of the medical evidence concerning his spine 

disorders was generated. But he cites no rule preventing the ALJ from giving 

substantial weight to the state agency expert’s opinions. Rather, he seeks to have this 

court reweigh the evidence to his benefit, which we do not do, see Flaherty, 515 F.3d 

at 1070. 

Mr. Patterson also challenges the ALJ’s credibility determination. He asserts 

that the ALJ improperly found him less than fully credible by (1) relying on the fact 

that he had not participated in physical therapy or undergone back surgery; 

(2) incorrectly describing his daily activities and finding that some of his statements 

were inconsistent; (3) suggesting that he worked 24 hours a week, when in fact he 

worked only ten hours a week at most; and (4) not discussing in full the report from 

his employer. “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.” 

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

omitted).

Mr. Patterson concedes that his treating physician recommended physical 

therapy but “ultimately . . . acquiesced to [Mr. Patterson’s] wishes” for epidural 

steroid injections instead. Aplt. App. Vol. 4, at 598. It was not improper for the ALJ 

to consider this circumstance in assessing Mr. Patterson’s credibility. See Decker v. 
11 

Chater, 86 F.3d 953, 955 (10th Cir. 1996) (stating ALJ legitimately factored into 

credibility determination the claimant’s failure to follow prescribed treatment). And 

although Mr. Patterson had back surgery, the surgery did not take place until June 20, 

2013, well after the ALJ’s decision, and the surgical report did not specify that the 

findings applied to the pre-ALJ-decision period. See Chambers v. Barnhart, 

389 F.3d 1139, 1142 (10th Cir. 2004) (holding agency must consider evidence 

submitted after the ALJ’s decision if, among other things, the evidence related to the 

period on or before the date of the ALJ’s decision). Thus, we perceive no reversible 

error in the ALJ’s consideration of this credibility factor. 

As for the description of his daily activities and his explanations of why his 

statements were not inconsistent, Mr. Patterson asks this court to reweigh the 

evidence in his favor. Again, we do not do so. See Flaherty, 515 F.3d at 1070. 

Next, Mr. Patterson contends the ALJ misperceived his work situation. On the 

contrary, the ALJ clearly recognized that Mr. Patterson was working ten hours a 

week as a cook at the Sonic restaurant at the time of the administrative proceedings, 

although in the past he had worked longer hours. See Aplt. App. Vol. 1, at 18. In 

addition, the ALJ acknowledged Mr. Patterson’s testimony that he “might miss a 

couple days [of work] a week, which, supposedly, was fine with his employer,” and 

recognized that the employer’s report “noted some difficulty with function.” Id. 

Mr. Patterson asserts that the ALJ was required to discuss all of the remarks in the 

employer’s report, such as difficulty maintaining adequate pace and adapting to work 

changes. These limitations were adequately addressed by the psychological 
12 

evidence. Moreover, the ALJ did not, as Mr. Patterson argues, conclude that 

Mr. Patterson could perform full-time work based only on his part-time work at 

Sonic. Rather, the ALJ’s discussion of the evidence and his reasons for his 

conclusions demonstrate that he considered all the evidence in formulating the RFC. 

Mr. Patterson contends the ALJ improperly noted that no physician had stated 

he was disabled. In the context of the ALJ’s overall analysis, this was not error. Cf. 

Wall, 561 F.3d at 1068-69 (holding that a less extensive analysis is required where no 

medical evidence conflicted with the ALJ’s conclusion that the claimant could 

perform light work and no physician indicated that the claimant was disabled). 

Therefore, we conclude that the ALJ’s credibility findings are supported by 

substantial evidence in the record as a whole. 

C. Evidence Submitted to the Appeals Council

Finally, Mr. Patterson argues the evidence he submitted to the Appeals 

Council after the ALJ issued his decision on January 11, 2013, was relevant to his 

claims. The Appeals Council received and considered the records and report 

submitted by the treating psychologist, Mr. Makings, as well as medical records 

pertaining to Mr. Patterson’s back impairment dated November 19, 2012, through 

March 8, 2013, as discussed above. The Appeals Council did not receive or consider 

additional medical records dated April 8, 2013, through August 27, 2013. 

Mr. Patterson argues the additional medical records should have been considered 

because they showed what his condition had been all along. 
13 

 “[T]he Appeals Council must consider evidence submitted with a request for 

review if the additional evidence is (a) new, (b) material, and (c) related to the period 

on or before the date of the ALJ’s decision.” Chambers, 389 F.3d at 1142 (brackets 

and internal quotation marks omitted). If the additional evidence does not meet these 

criteria, “it plays no further role in judicial review of the Commissioner’s decision.” 

Id. Although the additional medical records related to his ongoing back condition, 

they did not establish the severity of the condition on or before January 11, 2013, the 

date of the ALJ’s decision. Accordingly, the Appeals Council properly declined to 

consider these records. 

III. CONCLUSION 

The judgment of the district court is affirmed. 

Entered for the Court 

Jerome A. Holmes 

Circuit Judge