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 insurance benefits. Exercising 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 that oral argument would not materially 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 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. 

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

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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 shoulder and back. The Department of Veterans 

Affairs (VA) assessed him with 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 worked as an armored car driver. His 

employment there ended when he misplaced his firearm. 

Mr. Y re-applied for Social Security benefits in June 2019, alleging an onset 

date of February 5, 2017. After the agency denied the application 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 denied benefits. The Appeals 

Council granted review and remanded, directing 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 Army 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, filed an application for disability 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 should have been the law of the case. 

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On remand, the ALJ held a second hearing. She then issued the decision 

underlying this appeal, again considering the application under 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), through his date last insured (June 30, 2019). 

At Step Two, the ALJ found that he suffers 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 Regulations. Next, the ALJ assessed Mr. Y with 

the residual functional capacity (RFC) to perform 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, she 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, making the ALJ’s decision the agency’s 

final decision. The district court affirmed. Mr. Y now appeals 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 substantial evidence.” Id. (internal quotation marks omitted). 

“In reviewing the ALJ’s decision, we neither reweigh the evidence nor substitute our 

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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 standard, a court looks to an existing 

administrative record and asks whether it contains sufficient evidence to support the 

agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 

(brackets and internal quotation marks omitted). “Substantial evidence . . . means—

and means only—such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Id. (internal quotation marks omitted). 

Although Mr. Y now proceeds pro se, he was represented by counsel in the 

district court. We therefore liberally construe only his 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 (10th 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 assessing his RFC caused the ALJ to err in her Step Five 

analysis. 

3

 We decline to consider additional arguments 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). 

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A. Determination of RFC 

The ALJ assessed Mr. Y with the RFC to perform light work, with the 

restrictions that he “can occasionally lift and/or carry 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 left knee osteoarthritis, bilateral hip 

impairments, bilateral shoulder 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 his 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 reflecting mild changes. She noted Mr. Y’s 

ability, at the consultative 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 during the period at issue through 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 

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ALJ found Dr. Thommen’s opinion to be persuasive 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 consistency as a factor in considering medical opinions). 

Thus, the ALJ’s decision is supported by substantial evidence. 

The ALJ discounted the limitations on walking assessed by Dr. MacDonald 

because the opinion was unsupported by the doctor’s examination, was based 

primarily on Mr. Y’s subjective complaints, and was not consistent with the other 

evidence of record. Similarly, she discounted the limitations assessed by Ms. Heery 

because they were not supported by objective evidence and were inconsistent with 

other evidence. These evaluations are consistent 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 him 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. Opening 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] impairments similarly unmentioned.” Aplt. Opening Br. at 17. 

But a claimant cannot simply allege he has an impairment; he must show how the 

impairment results in functional limitations. See Howard v. Barnhart, 379 F.3d 945, 

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947 (10th Cir. 2004); see also Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997) 

(stating, at Step Two, that a “claimant must show more than the mere presence of a 

condition or ailment”). Although Mr. Y points to medical evidence from before 

February 5, 2017, and after June 30, 2019, he does not argue how that evidence 

translates into functional limitations 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 substantial evidence. 

Bilateral Shoulder Impairments. Mr. Y states that “[t]he ALJ did not address 

[his] shoulder impairments that he testified limited his reaching 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. MacDonald and Ms. Heery complied with the 

applicable standards. See § 404.1520c(c). Her rejection of Mr. Y’s testimony on the 

ground that his allegations were not entirely consistent with his activities and the 

medical evidence also complied with 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, which “did not show signs of weakness or significant loss 

of range of motion in his upper extremities,” R. Vol. I at 52, and was not consistent 

with his own function report. 

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Noting that medical evidence 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 between July 2019 – March 2020, the ALJ 

should have developed the record 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 counseled case, the ALJ may ordinarily 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 overhead 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 Commissioner 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) (explaining that the law 

of the case doctrine requires an agency “on remand from a court, [to] conform its 

further proceedings in the case to the principles set forth in the judicial decision,” 

while res judicata applies “when there has been 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 judicata applies in the social 

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security context when there 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 evidence that he suffered 

epicondylitis and then cites cases 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 insufficient for a claimant to 

show the mere existence of a condition. Mr. Y makes no argument about functional 

limitations resulting from epicondylitis. Further, 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 substantial 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 establish 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 requirement of objective findings of 

neurological dysfunction is asking too much based on the available evidence” and her 

“conclusion that [t]here is no evidence in the record to corroborate residual injuries 

or effects from a TBI is a medical opinion beyond her expertise.” Aplt. Opening Br. 

at 19 (internal quotation marks omitted). We disagree. The ALJ’s analysis goes to 

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supportability and consistency, 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 Valerie Besses, PsyD, who performed a consultative 

psychological exam. We have already upheld the ALJ’s rejection of 

Dr. MacDonald’s opinion. In part, Dr. Besses opined that Mr. Y “is mildly impaired 

in his ability [to] adapt to normal work stressors due to irritable mood and low 

frustration tolerance.” R. Vol. 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’ opinion 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 evaluating symptoms such as pain. See SSR 16-3p, 2017 WL 

5180304 (Oct. 25, 2017).4

 At the first step, the ALJ determines whether “there is an 

4

 Although “social security rulings do not carry the force and effect of law[,] 

[t]hey are entitled to deference . . . because they constitute Social Security 

Administration interpretations 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) (citation and internal quotation marks omitted). 

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underlying medically determinable physical or mental impairment(s) that could 

reasonably be expected to produce an individual’s symptoms, such as pain.” Id. at 

*3. If so, at the second step, the ALJ “evaluate[s] the intensity and persistence of 

those symptoms to determine the extent to which the symptoms limit an individual’s 

ability to perform work-related activities.” Id. In making this evaluation, the ALJ 

considers the medical evidence of record, along with several 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 impairment, bilateral shoulder 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 reasonably be expected to cause pain with regard to 

standing and reaching. The ALJ did not need to discuss specific impairments to 

move to the next step in evaluating Mr. Y’s symptoms. 

Mr. Y further highlights evidence supporting limitations due to pain. To the 

extent his argument is based upon his own assessment of the evidence, 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 entitled to resolve any conflicts in 

the record . . . we may not displace the agency’s choice between two fairly 

conflicting views” (internal quotation marks omitted)). 

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Finally, Mr. Y complains that the ALJ improperly relied on evidence of his 

daily activities. But daily activities are an appropriate factor for the ALJ to consider. 

See SSR 16-3p, 2017 WL 5180304 at *7. And in addition to daily activities, the ALJ 

also found that the medical evidence was not entirely consistent with his allegations 

of pain. 

* * * 

For these reasons, we conclude the ALJ applied the correct legal standards and 

the RFC is supported by substantial evidence. 

B. Step Five Analysis 

Mr. Y contends that the ALJ’s Step Five analysis was deficient because the 

hypothetical questions she posed to the vocational expert (VE) omitted the 

impairments discussed above, as well as a “[s]it/stand option, may need to lie down 

to rest” and “[t]he need to rest as needed.” Aplt. Opening Br. at 22. An ALJ, 

however, need not question a VE about limitations 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 established rule” that hypothetical 

questions “must include all (and only) those impairments borne out by the 

evidentiary record”). Where the ALJ’s hypotheticals are based on her RFC 

determination, and that determination is supported by substantial evidence, the 

hypotheticals “adequately reflected 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 internal quotation marks omitted); see also Qualls v. Apfel, 

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206 F.3d 1368, 1373 (10th Cir. 2000) (holding that hypothetical question “provided a 

proper basis for the ALJ’s disability decision” when it “included 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 

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