UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ B.A.Y., Plaintiff - Appellant,

v. COMMISSIONER, SSA, Defendant - Appellee. No. 23-1265 (D.C. No. 1:22- CV-02376-NYW) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BALDOCK , and McHUGH , Circuit Judges.

________________ _________________ B.A.Y. 1 appeals from the district court’ s decision upholding the agency’s denial of his application for disability in surance benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U. S.C. § 405(g), we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 and 10th Cir. R. 32.1.

1 We continue the district court’s practice of using initials to refer to the plaintiff-appellant. FILED United States Court of Appeals Tenth Circuit 

### June 5, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 12 BACKGROUND Mr. Y was an infantryman in the United States Army. On August 1, 2009, he was injured by two improvised explosive devices (IEDs) in Afghanistan, suffering a fractured skull and injuries to his shoulde r and back. The Department of Veterans Affairs (VA) assessed him w ith a service-connected disability rating of 100%, and he was honorably discharged from the Army in January 2012. Mr. Y unsuccessfully applied for Social Security benefits in 2011, with an administrative law judge (ALJ) finding him not disabled in a 2013 decision. 2 From February 2016 to February 2017, he wo rked as an armore d car driver. His employment there ended when he misplaced his firearm. Mr. Y re-applied for Social Security bene fits in June 2019, alleging an onset date of February 5, 2017. After the agency denied the applicati on initially and upon reconsideration, he had a hearing before an ALJ. Applying the agency’s five-step process for considering disability claims, see Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009); 20 C. F.R. § 404.1520(a)(4), the ALJ de nied benefits. The Appeals Council granted review and remanded, direc ting the ALJ to adequately evaluate the opinion of consultative examiner Margaret MacDonald, MD.

2 In his reply brief, Mr. Y denies that he filed for disability benefits in 2011, stating that he did not retire from the Ar my until January 2012. But the record contains a 2013 ALJ decision stating that a person of Mr . Y’s name, with the same social security number, file d an application for disabil ity insurance benefits in September 2011. See R. Vol. I at 187-202. Further, his opening brief argues that the impairment findings in the 2013 decision sh ould have been the law of the case. Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 23 On remand, the ALJ held a second hear ing. She then i ssued the decision underlying this appeal, again considering the application un der the five-step process. At Step One, the ALJ found that Mr. Y had not engaged in substantial gainful activity from his onset date (February 5, 2017), throu gh his date last insu red (June 30, 2019). At Step Two, the ALJ found that he su ffers from the severe impairments of degenerative disc disease of the cervical and lumbar spine, osteoarthritis of the right knee, and obesity. But at Step Three, she concluded that he did not have an impairment or combination of impairments that met or medically equaled the listed impairments in the Code of Federal Regula tions. Next, the ALJ assessed Mr. Y with the residual functional capacity (RFC) to perfo rm a range of light work with certain restrictions. The ALJ then found at Step Four that he could not perform his past relevant work. Finally, at Step Five, sh e found that there were other jobs in the national economy he could perform. The ALJ therefore found Mr. Y not disabled. The Appeals Council denied review, ma king the ALJ’s decision the agency’s final decision. The district court affirm ed. Mr. Y now appeal s to this court.
DISCUSSION
I. Standards of Review We review the district court’s ruling de novo. See Wall , 561 F.3d at 1052. “Thus, we independently determine whether the ALJ’s decision is free from legal error and supported by s ubstantial evidence.” Id. (internal quotation marks omitted). “In reviewing the ALJ’s decision, we neith er reweigh the evidence nor substitute our Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 34 judgment for that of the agency.” Vigil v. Colvin , 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted). “Under the substantial-evidence standa rd, a court looks to an existing administrative record and asks whether it contains suffic ient evidence to support the agency’s factual determinations.” Biestek v. Berryhill , 139 S. Ct. 1148, 1154 (2019) (brackets and internal quotation marks omit ted). “Substantial evidence . . . means— and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotati on marks omitted). Although Mr. Y now proceeds pro se, he was represented by counsel in the district court. We theref ore liberally construe only hi s pro se appellate filings. See Celli v. Shoell , 40 F.3d 324, 327 (10th Cir. 1994). We do not act as his advocate, and even as a pro se litigant, he must comply with the “fundamental requirements” of the court’s rules. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (1 0th Cir. 2008) (internal quotation marks omitted). II. Analysis Mr. Y’s opening brief makes the same two arguments he advanced in district

court. 3 After first arguing the ALJ failed to properly determine his RFC, he asserts that the deficiencies in a ssessing his RFC caused the AL J to err in her Step Five analysis.

3 We decline to consider additional argum ents that are raised for the first time in the reply brief, including belated challenges to the onset date and the date last insured. See Mays v. Colvin , 739 F.3d 569, 576 n.3 (10th Cir. 2014). Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 45 A. Determination of RFC The ALJ assessed Mr. Y with the RF C to perform light work, with the restrictions that he “can occasionally lift and/or ca rry about 20 pounds,” “can frequently lift and/or carry about 10 pounds ,” “can stand and/or walk for about 6 hours out of an 8-hour workday,” “can sit for about 6 hours out of an 8-hour workday,” “can occasionally climb, stoop, kneel, crouch, and crawl,” and can “occasionally balance.” R. Vol. I at 48. Mr. Y asserts that the ALJ improperly omitted certain impairments from his RFC. He also challenges her pain evaluation. 1. Consideration of Impairments Mr. Y asserts the ALJ improperly omitted le ft knee osteoarthritis, bilateral hip impairments, bilateral shoul der impairments, epicondylitis (tennis elbow), and the effects of a traumatic brain injury (TBI) from his RFC. Left Knee Osteoarthritis . Relying on limitations assessed by Dr. MacDonald and the opinion of nurse practitioner Jennifer Heery, FNP, Mr. Y alleges that his left knee osteoarthritis affected hi s ability to stand and walk. The ALJ did not ignore Mr. Y’s left knee. She discussed the medical evidence, reviewing X-rays and MRIs refl ecting mild changes. She noted Mr. Y’s ability, at the consultativ e exam, “to perform a good squat and rise without assistance,” R. Vol. I at 51, and that “[ t]he record does not establish significant treatment for either knee duri ng the period at issue throu gh the June 2019 date last insured,” id. at 50. She also discussed the opinion of state agency medical consultant Virginia Thommen, MD, that Mr. Y could stand and walk six of eight hours. The Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 56 ALJ found Dr. Thommen’s opinion to be pers uasive because it was consistent with Mr. Y’s medical history. This is a valid ground for evaluation. See 20 C.F.R. § 404.1520c(c)(2) (listing cons istency as a factor in cons idering medical opinions). Thus, the ALJ’s decision is s upported by substantial evidence. The ALJ discounted the limitations on walking assessed by Dr. MacDonald because the opinion was unsupported by th e doctor’s examination, was based primarily on Mr. Y’s subjec tive complaints, and was not consistent with the other evidence of record. Similarly, she discoun ted the limitations assessed by Ms. Heery because they were not supported by objectiv e evidence and were inconsistent with other evidence. These evaluations are cons istent with the applicable regulation.
See id. § 404.1520c(c)(1)-(2) (listing supportability, as well as consistency, as factors in evaluating medical opinions). Mr. Y points out that the VA gave hi m a ten percent rating for left knee osteoarthritis (and he also points out VA ratings of other impairments). But as he correctly acknowledges, “[t] he agency doesn’t have to heed another agency’s findings.” Aplt. Op ening Br. at 15. See 20 C.F.R. § 404.1504 (stating that a decision by another governmental agency is not binding on the Social Security Administration). Bilateral Hip Impairments . Mr. Y states that “[t]he same analysis applies to [his] bilateral [hip] impairme nts similarly unmentioned.” Aplt. Opening Br. at 17. But a claimant cannot simply allege he ha s an impairment; he must show how the impairment results in functional limitations. See Howard v. Barnhart , 379 F.3d 945, Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 67 947 (10th Cir. 2004); see also Hinkle v. Apfel , 132 F.3d 1349, 1352 (10th Cir. 1997) (stating, at Step Two, that a “claimant mu st show more than the mere presence of a condition or ailment”). Although Mr. Y points to me dical evidence from before February 5, 2017, and after June 30, 20 19, he does not argue how that evidence translates into functional lim itations during the relevant period. If he intended to assert such impairments affected his ability to stand or walk, as discussed above, the ALJ’s assessment that he could stand or walk for six hours out of an eight-hour workday was supported by s ubstantial evidence. Bilateral Shoulder Impairments . Mr. Y states that “[ t]he ALJ did not address [his] shoulder impairments that he testified limited his re aching to 2-3 lbs.” Aplt. Opening Br. at 17. He also relies on Dr. MacDonald’s limitation to frequent reaching and Ms. Heery’s limitation to occasional reaching. The ALJ, however, did specifically note all of these points. As stated, her rejection of the opinions of Dr. MacD onald and Ms. Heery complied with the applicable standards. See § 404.1520c(c). Her rejecti on of Mr. Y’s testimony on the ground that his allegations we re not entirely consistent with his activities and the medical evidence also complied w ith applicable standards. See 20 C.F.R. § 404.1529(c) (listing factors relevant to considering symptoms). Particularly, the ALJ indicated that his testimony about reaching was not consistent with the consultative examination, whic h “did not show signs of w eakness or significant loss of range of motion in his upper extremities,” R. Vol. I at 52, a nd was not consistent with his own function report. Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 78 Noting that medical eviden ce created after the date last insured resulted in surgery for his left shoulder in May 2021, Mr. Y further asserts that “[g]iven an absence of reported shoulder trauma betw een July 2019 – March 2020, the ALJ should have developed the reco rd regarding left shoulder impairment prior to the [date last insured].” Aplt. Opening Br. at 18. But here, the agency did order a consultative physical examination—the one performed by Dr. MacDonald. And the counsel who represented Mr. Y at both hearings did not request further development of the record. “[I]n a couns eled case, the ALJ may ordi narily require counsel to identify the issue or issues requiring further development.” Hawkins v. Chater , 113 F.3d 1162, 1167 (10th Cir. 1997). Additionally, Mr. Y states that in the 2013 decision, “the ALJ did find severe bilateral shoulder impairment and limited ov erhead reaching to occasional.” Aplt. Opening Br. at 18 (record citation omitted). And he asks whether the 2013 findings should be “the law of the case.” Id. at 20. As the Commi ssioner notes, for this argument the applicable doctrine would be res judicata rather than law of the case. See Poppa v. Astrue , 569 F.3d 1167, 1170 ( 10th Cir. 2009) (expla ining that the law of the case doctrine requires an agency “on remand from a court, [to] conform its further proceedings in the cas e to the principles set fort h in the judicial decision,” while res judicata applies “when there has b een a previous determination or decision” (internal quotation marks omitted)). But here the ALJ was deciding a new application, based on a later time period, so she was not bound to apply the findings from the 2013 decision. See id. (recognizing that “[r]es judi cata applies in the social Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 89 security context when ther e has been a previous determination or decision . . . on the same facts and on the same issue or issues ” (emphasis added) (internal quotation marks omitted)). Epicondylitis (Tennis Elbow) . Mr. Y cites medical ev idence that he suffered epicondylitis and then cites ca ses regarding the sufficiency of the ALJ’s review of the evidence. We interpret this as an argument that the ALJ did not adequately consider the evidence of epicondylitis. Again, however, it is insu fficient for a claimant to show the mere existence of a condition. Mr. Y makes no argument about functional limitations resulting from epicondylitis. Furthe r, as discussed with regard to shoulder impairments, the ALJ made findings about Mr. Y’s ability to use his arms, and those findings are supported by s ubstantial evidence. TBI Effects . At Step Two, the ALJ found Mr. Y’s history of TBI to be a non-severe impairment because “the record does not establ ish residuals causing more than a minimal effect on the claimant’s ability to perform basic work-related activities on an ongoing basis.” R. Vol. I at 45. At Step Four, she declined to assess any limitations based on TBI effects. Mr. Y posits that “[t]he ALJ’s re quirement of objective findings of neurological dysfunction is asking too much based on th e available evidence” and her “conclusion that [t]here is no evidence in th e record to corroborat e residual injuries or effects from a TBI is a medical opinion beyond her expertise.” Aplt. Opening Br. at 19 (internal quotation mark s omitted). We disagree. The ALJ’s analysis goes to Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 910 supportability and consistenc y, which, as stated above, are permissible factors in evaluating medical opinions. See § 404.1520c(c). Mr. Y also objects that the RFC did not allow for limitations assessed by Dr. MacDonald and Valeri e Besses, PsyD, who performed a consultative psychological exam. We have alr eady upheld the ALJ’s rejection of Dr. MacDonald’s opinion. In part, Dr. Besse s opined that Mr. Y “is mildly impaired in his ability [to] adapt to normal work stressors due to irr itable mood and low frustration tolerance.” R. Vo l. I at 931. Mr. Y asserts that this opinion “required such mental limitations not allowed for here.” Aplt. Opening Br. at 19. We recognize the ALJ found Dr. Besses’ opini on to be persuasive, but we find no reversible error in omitting from the RFC limitations based on Dr. Besses’ assessment. The ALJ carefully considered the evidence in assessing Mr. Y’s RFC. Mr. Y asks us to substitute our judgment for that of the agency, which we do not do.
See Vigil , 805 F.3d at 1201; Hendron v. Colvin , 767 F.3d 951, 956 (10th Cir. 2014).
2. Pain Evaluation Mr. Y. also challenges the ALJ’s pain evaluation. The Commissioner has a two-step process for evaluati ng symptoms such as pain. See SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). 4 At the first step, the ALJ de termines whether “there is an

4 Although “social security rulings do not carry the for ce and effect of law[,] [t]hey are entitled to deference . . . because they constitute Social Security Administration interpretati ons of its own regulations and the statute which it administers.” Andrade v. Sec’y of Health & Human Servs. , 985 F.2d 1045, 1051 (10th Cir. 1993) (cita tion and internal quotation marks omitted). Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 1011 underlying medically determinable physical or mental impair ment(s) that could reasonably be expected to produce an i ndividual’s symptoms, such as pain.” Id. at *3. If so, at the second step , the ALJ “evaluate[s] the in tensity and persistence of those symptoms to determine the extent to which the sy mptoms limit an individual’s ability to perform work -related activities.” Id. In making this evaluation, the ALJ considers the medical eviden ce of record, along with seve ral factors, including the claimant’s activities of daily living. See id. at *5-8. Mr. Y asserts that the ALJ’ s “analysis falls short of explaining why [his] left knee osteoarthritis, bilateral hip impair ment, bilateral shoul der impairment and epicondylitis did not constitute medically determinable impairments which could reasonably pose limitations to standing and reaching due to pain.” Aplt. Opening Br. at 20. But at the first step of symptom evaluation, the ALJ found that Mr. Y suffers from conditions that could r easonably be expected to cau se pain with regard to standing and reaching. The ALJ did not n eed to discuss specif ic impairments to move to the next step in ev aluating Mr. Y’s symptoms. Mr. Y further highlights evidence supporti ng limitations due to pain. To the extent his argument is based upon his own asse ssment of the eviden ce, rather than the ALJ’s, it “amount[s] to an argument that this court should reweigh the evidence, which we cannot do.” Hendron , 767 F.3d at 956; see also Allman v. Colvin , 813 F.3d 1326, 1333 (10th Cir. 2016) (because “the ALJ is entitle d to resolve any conflicts in the record . . . we may not displace the agency’s choice between two fairly conflicting views” (interna l quotation marks omitted)). Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 1112 Finally, Mr. Y complains that the AL J improperly relied on evidence of his daily activities. But daily ac tivities are an appropriate fact or for the ALJ to consider.
See SSR 16-3p, 2017 WL 5180304 at *7. A nd in addition to dail y activities, the ALJ also found that the medical ev idence was not entirely consis tent with his allegations of pain.
* * * For these reasons, we conclude the ALJ applied the correct legal standards and the RFC is supported by s ubstantial evidence. B. Step Five Analysis Mr. Y contends that the ALJ’s Step Fi ve analysis was deficient because the hypothetical questions she posed to th e vocational expert (VE) omitted the impairments discussed above, as well as a “[s]it/stand op tion, may need to lie down to rest” and “[t]he need to rest as need ed.” Aplt. Opening Br. at 22. An ALJ, however, need not question a VE about lim itations she has not found to exist. See Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996); see also Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995) (noting “the establis hed rule” that hypothetical questions “must include all (and only) those impa irments borne out by the evidentiary record”). Where the ALJ’s hypotheti cals are based on her RFC determination, and that determination is supported by substa ntial evidence, the hypotheticals “adequately refl ected the impairments and limitations that were borne out by the evidentiary record.” Newbold v. Colvin , 718 F.3d 1257, 1268 (10th Cir. 2013) (brackets and intern al quotation marks omitted); see also Qualls v. Apfel , Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 1213 206 F.3d 1368, 1373 (10th Cir. 2000) (holding th at hypothetical question “provided a proper basis for the ALJ’s di sability decision” when it “i ncluded all the limitations the ALJ ultimately included in his RFC assessment”).
CONCLUSION We affirm the district court’s judgment.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 23-1265 Document: 010111060696 Date Filed: 06/05/2024 Page: 13