F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 13 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JAMES R. HOWELL,
Plaintiff-Appellant,
v. No. 98-5186
(D.C. No. 97-CV-62-H(E))
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO , BARRETT , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel 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This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff James R. Howell appeals the district court’s affirmance of the
final decision by the Commissioner of Social Security denying his application for
supplemental security income (SSI). Because the administrative law judge (ALJ)
committed legal error in evaluating plaintiff’s subjective complaints, we reverse
and remand for further proceedings.
In December 1993, plaintiff filed this second application for SSI benefits,
alleging an inability to work due to ankylosing spondylitis, heart disease,
keratoconus (degenerative blindness), chest pain, back pain, extremity pain,
depression and exhaustion. After a hearing, an ALJ determined that although
plaintiff could not perform his past work, he retained the ability to perform a
significant number of jobs in the national economy and therefore was not
disabled. The Appeals Council denied review, making the ALJ’s decision the
final decision of the Commissioner. The district court affirmed, and this appeal
follows.
We review the agency’s decision to determine whether the factual findings
are supported by substantial evidence and whether correct legal standards were
applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quotation omitted). We may “neither reweigh the evidence nor substitute
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our judgment for that of the agency.” Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991).
Plaintiff argues that the agency’s decision is not supported by substantial
evidence because the ALJ selectively ignored medical evidence which supported
plaintiff’s testimony about his limitations. He argues also that the ALJ committed
legal error by failing to engage in the specific analysis required by Luna v.
Bowen , 834 F.2d 161, 163-66 (10th Cir. 1987), and by failing to give plaintiff’s
treating physicians’ opinions the required deference. Because this last issue was
not raised to the district court, we will not consider it on appeal. See Crow v.
Shalala , 40 F.3d 323, 324 (10th Cir. 1994).
The evidence shows plaintiff suffers from several impairments: (1) a back
injury which may or may not be full spine ankylosing spondylitis, but which, at a
minimum, has been described as severe degenerative joint disease; (2) status post-
myocardial infarction with three vessel coronary disease and mild left ventricular
dysfunction; and (3) keratoconus, resulting in no visual acuity in the right eye and
slightly impaired vision in the left eye. At the hearing, plaintiff testified to severe
limitations imposed by his back and heart conditions, stating he could only stand
for thirty minutes, sit for thirty minutes, or walk for thirty minutes at a time. He
also testified to severe fatigue from his heart condition. The ALJ rejected these
complaints, finding plaintiff’s testimony credible only to the extent it was
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consistent with a residual functional capacity for medium work with certain
limitations. The ALJ did not identify the evidence upon which he relied to reject
plaintiff’s testimony, however, simply setting out the following laundry list of
factors allegedly considered:
After careful evaluation of the claimant’s signs and symptoms; the
nature, duration, frequency, and intensity of the pain; the factors
precipitating and aggravating the pain; the dosage, effectiveness, and
side effects of the medication taken for relief of pain; the claimant’s
functional restrictions and the combined impact on the claimant’s
daily activities, the Administrative Law Judge finds that the claimant
is not suffering from a totally disabling pain syndrome according to
the criteria established in 20 C.F.R. § and (sic) 416.929, see also
Social Security Ruling 88-13.
Appellant’s App. at 22-23. In Kepler v. Chater , 68 F.3d 387, 390-91 (10th Cir.
1995), we reversed a decision in which an ALJ used almost exactly the same
language to reject a claimant’s complaints of disabling pain. We held there that
the ALJ could not simply conclude that the plaintiff’s subjective complaints were
incredible, but instead must make express findings linking his credibility
determination to relevant evidence in the record. See id. at 391.
Here, plaintiff’s medical records document that he suffers from a severe
back condition. From 1989 forward his records show fairly consistent complaints
about back pain and stiffness. The records also show that despite plaintiff’s
recovery from his myocardial infarction, he still has a number of partially or
completely occluded arteries which are capable of producing angina, see
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Appellant’s App. at 175-76, and at least one physician has accepted plaintiff’s
description of his anginal pain as “reliable,” id. at 221. His treating physician
opined that plaintiff’s fatigue and shortness of breath are related to his heart
condition. See id. at 209. Without any explanation to support the rejection of
plaintiff’s subjective complaints, we are left to speculate what specific evidence
led the ALJ to conclude plaintiff’s pain and fatigue are not disabling. See Kepler ,
68 F.3d at 391. Therefore, the case must be remanded for further proceedings.
The judgment of the United States District Court for the Northern District
of Oklahoma is REVERSED, and the case is REMANDED for further
proceedings.
Entered for the Court
John C. Porfilio
Circuit Judge
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