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 j udgment upholding the decision of an administrativ e law judge (ALJ) to deny hi s application for social security disability in surance benefits and supplemental security income benefits. We have jurisdiction under 28 U.S.C. § 1291 a nd 42 U.S.C. § 405(g). We affirm.

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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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

### November 30, 2016
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND Mr. Patterson, who was born in 1964, file d for disability benefits claiming he became disabled on November 11, 2010, due to various phys ical and mental impairments. On January 11, 2013, th e ALJ issued an unfavorable decision concluding that, although Mr. Patterson could not perform hi s 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 Ci r. 2009) (explaining the five-step framework for determining disability). The Appeals C ouncil received additional medical and psychological evidence and denied revi ew. The district court affirmed.
II. DISCUSSION “Under the Social Security Ac t, a claimant is disabled if [he] is unable to do any substantial gainful activ ity 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). “W e review the district court’s decision de novo and independently determine whethe r 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 wo rk-related activities.” SSR 96-8p, 1996 WL 374184, at *3 (July 2, 1996). It “considers only functional limitations and restrictions th at result from an individual ’s medically determinable impairment or combination of impairment s, including the impact of any related symptoms.” Id. at *1.3 error and supported by s ubstantial evidence.” Fischer-Ross v. Barnhart , 431 F.3d 729, 731 (10th Cir. 2005). “Substantial evid ence is more than 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 (10t h 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 j udgment 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 pr oblems met or medically equaled the severity of Listing 1.04 for di sorders of the spine. “At step three, if a claimant can show that the impairment is equivalent to a listed impair ment, he is presumed to be disabled and entitled to benefits.” Wilson , 602 F.3d at 1139 (int ernal quotation marks omitted). Mr. Patterson contends the AL J failed to explain w hy 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 spin e (e.g., herniated nucleus polposus, spinal arachnoiditis, spinal stenosis, osteoarthr itis, degenerative disc disease, facet arthritis, vertebral fracture), resulti ng in compromise of a nerve root (including the cauda equina) or the spinal cord. With A. Evidence of nerve root compre ssion characterized by neuro-anatomic distribution of pain, limitation of mo tion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by4 sensory or reflex loss and, if ther e 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 th at met or equaled the severity of listing 1.04, the ALJ obser ved that he did not have “nerve root compression (though the ev idence on this is somewh at equivocal), spinal arachnoiditis or lumbar spinal stenosis,” as the listing require s. 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, bl adder or bowel or sexual dysfunction.” Id. at 15. The ALJ noted a cerv ical-spine MRI showing “some degeneration,” but “no significant compressive radiculopathy.” Id. The ALJ cited an October 2010 lumbar-spine MRI that “showed some de generative changes in the thoracic and lumbar spine without evidence of signifi cant herniation or spinal stenosis.” Id. at 15. The ALJ also cited a March 2012 CT study that “reflected mild degenerative disease at L3-L 4 and L4-L5 with no disc prot rusion at any level, [with] angular bulging at L4-L5 . . . result[ing] in mild central spin al stenosis with no neuroforaminal stenosis.” Id. 2
Mr. Patterson relies on medical record s ranging from October 2010 through March 2013 to argue that his condition me t the requirements of Listing 1.04(A).

2 The ALJ included these findings in his an alysis 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 th at confirmed the step-three rejection of the listings was not reversible error).5 Aplt. Opening Br. at 16-18. The medi cal reports do not document one of the elements of Listing 1.04(A) – nerve root co mpression. 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 fo r at least twelve months, as required to qualify. See 20 C.F.R. §§ 404.1525(c)(3) (to satisfy listing criteria, impairment must “s atisf[y] all of the criteria of that listing” and “meet[] th e 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 Oc tober 2010 lumbar-spi ne MRI, on which the ALJ relied, correctly re flected his condition, while the March 2012 CT study, on which the ALJ also relied, wa s incorrect. He points to a March 8, 2013, report of a CT myelogram showing “severe neural fo raminal narrowing” and “a disc bulge on the left at L4-L5,” Aplt. App. Vol. 4, at 646, which he c ontends demonstrates that the March 2012 study was inaccurate. But a CT scan performed January 21, 2013, revealed equivocal findings, including “no co rd compression,” “na rrowing 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 ce ntral 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] nerv e 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 pur suant 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 subs titute [a claimant’s] allega tions of pain . . . for a missing or deficient sign or la boratory finding to raise the se verity 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 AL J improperly evaluated the medical evidence because he did not co nsider 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 consid ered a matter” (internal quotation marks omitted)). Substantial evidence supports the ALJ’s c onclusion that Mr. Patterson did not meet his burden to establish that he satisfied Lis ting 1.04(A). His failure to satisfy all of the listing’s criteria means th at 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 determ ination of his RFC at Step 4. The ALJ determined that Mr. Patt erson retained the RFC to pe rform less than a full range of light work. The ALJ sp ecified restrictions on his physical abilities, including lifting, carrying, standing, wa lking, sitting, and reaching. The ALJ determined that Mr. Patterson could “perform simple, unskilled work invol ving 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 activitie s, his inconsistent statements in the record, the report from his employer, and other credibility factors. As discussed above, Mr. Pa tterson contends his back impairment was disabling at step three. He does not further argue th at the restrictions th e ALJ found at step four were inappropriate. Mr. Patterson next claims the ALJ failed to take into account his limitations in social functioning and concentr ation, persistence, and pace. He bases this argument on the ALJ’s step-three finding that these lim itations were modera te. 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 se quential evaluation process.” SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996). The ALJ’s findi ng of moderate limitations at step three “does not necessari ly translate to a work-related functional limitation for8 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 pe rformed a consultative psychological evaluation. According to Dr. Klemens, Mr. Patterson’s social functioning did not appear to be limited, he had no difficulty in understandi ng instructions or recalling information, he had average attention and concentration, and his social functioning did “not appear to be limite d.” Aplt. App. Vol. 3, at 425. The state agency medical consultants, Drs. Wilkinson, Cohen, a nd Timmerman opined that Mr. Patterson was capable of simple, routine, light work. The ALJ gave s ubstantial 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 Cent er 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 ca tegory 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 li mitations had lasted or coul d be expected to last at9 least twelve months. See Wilson , 602 F.3d at 1140 (stati ng disability requires a mental impairment to last for “a continuous period of not less than 12 months”). Moreover, Mr. Makings’ assess ment is inconsistent with the other psychological evidence in the record. Ther efore, 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 revers ible error in the ALJ’s reliance on the psychological opinions indica ting lesser limitations. Th e evidence in the record regarding Mr. Patterson’s mental status supports the ALJ’s RFC determination that limiting him to “simple, unsk illed work involving routin e, 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 limi tations in concentration, persistence, and pace in the RFC assessmen t 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 ev aluation was not required b ecause the ALJ considered the work restrictions neces sary to accommodate Mr. Patte rson’s mental limitations. Cf. Hendron , 767 F.3d at 956-57 (holding ALJ’s failure to perform explicit functionby-function analysis was not error wher e ALJ did not overlook limitations or restrictions pertinen t to the work the claimant could do).10 Next, Mr. Patterson complains that th e state agency medi cal consultants’ opinions were issued before much of the medical evidence concerning his spine disorders was generated. But he cite s no rule preventing the ALJ from giving substantial weight to the stat e agency expert’s opinions. Ra ther, he seeks to have this court reweigh the evidence to hi s 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 activitie s and finding that some of his statements were inconsistent; (3) sugges ting that he worked 24 hour s a week, when in fact he worked only ten hours a week at most; a nd (4) not discussing in full the report from his employer. “Credibility de terminations are peculiarly the province of the finder of fact, and we will not upset such determ inations when supp orted by substantial evidence. However, findings as to credib ility should be closel y 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 th at his treating physician recommended physical therapy but “ultimately . . . acquiesced to [Mr. Patterson’s] wi shes” for epidural steroid injections instead. Ap lt. App. Vol. 4, at 598. It was not improper for the ALJ to consider this circumstance in as sessing Mr. Patterson’s credibility. See Decker v.11 Chater , 86 F.3d 953, 955 (10th Cir. 1996) (stating ALJ legi timately 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 Ci r. 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 activ ities and his explan ations of why his statements were not incons istent, 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 wo rk 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 administrativ e proceedings, although in the past he had worked longer hours. See Aplt. App. Vol. 1, at 18. In addition, the ALJ acknowledged Mr. Patter son’s testimony that he “might miss a couple days [of work] a week, which, supp osedly, was fine with his employer,” and recognized that the employe r’s report “noted some di fficulty with function.” Id. Mr. Patterson asserts that the ALJ was requi red to discuss all of the remarks in the employer’s report, such as di fficulty maintaining adequate pace and adapting to work changes. These limitations were ade quately addressed by the psychological12 evidence. Moreover, the ALJ did not, as Mr. Patterson argues, conclude that Mr. Patterson could perform full-time wo rk based only on his part-time work at Sonic. Rather, the ALJ’s discussion of the evidence and hi s reasons for his conclusions demonstrate that he considered all the eviden ce in formulating the RFC. Mr. Patterson contends the ALJ improperl y noted that no physician had stated he was disabled. In the context of the AL J’s overall analysis, this was not error. Cf. Wall , 561 F.3d at 1068-69 (holding that a less extensive anal ysis is required where no medical evidence conflicted wi th the ALJ’s conclusion that the claimant could perform light work and no ph ysician indicated that the claimant was disabled). Therefore, we conclude that the ALJ’s cr edibility findings are supported by substantial evidence in the record as a whole. C. Evidence Submitted to the Appeals Council Finally, Mr. Patterson argues the evid ence he submitted to the Appeals Council after the ALJ issued his decision on January 11, 2013, was relevant to his claims. The Appeals Coun cil 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 impair ment dated November 19, 2012, through March 8, 2013, as discussed above. The A ppeals Council did not receive or consider additional medical records dated April 8, 2013, through August 27, 2013. Mr. Patterson argues the additional medica l 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 seve rity 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