F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 30 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GEORGE A. GUY,
Plaintiff-Appellant,
v. No. 00-6148
(D.C. No. 98-CV-1392-R)
LARRY G. MASSANARI, * Acting (W.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT **
Before HENRY , ANDERSON , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
On March 29, 2001, Larry G. Massanari became the Acting Commissioner
of Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Massanari is substituted for Kenneth S. Apfel as the
appellee in this action.
**
This order and judgment is not binding precedent, except under the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.
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.
We initially ordered the parties to brief whether we have jurisdiction over
this appeal in light of the district court’s remand of this case to the Commissioner
for further proceedings. However, because this is a sentence four remand, see 42
U.S.C. § 405(g), the order was final and appealable and we have jurisdiction to
consider the appeal. See Sullivan v. Finkelstein , 496 U.S. 617, 629 (1990).
Mr. Guy alleged disability as of September 30, 1991, due to arthritic
impairments to his hip and knee. The administrative law judge (ALJ) determined
that Mr. Guy was not entitled to benefits as he could perform the full range of
sedentary work.
Mr. Guy, proceeding pro se, then commenced this action in district court
seeking review of the Commissioner’s determination. The district court held that
the ALJ had employed an incomplete analysis to conclude that Mr. Guy could
perform the full range of sedentary work. The court determined that the ALJ
should not have relied on the grids, but should have admitted testimony from a
vocational expert. Further, the court concluded that the ALJ did not consider all
the relevant factors in analyzing Mr. Guy’s credibility and the extent of his pain.
The court ordered a remand for further consideration of this case.
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Mr. Guy appeals arguing that the district court should not have ordered
a remand, but should have awarded immediate benefits. Mr. Guy claims he is
disabled at step three of the five-step analysis. See Williams v. Bowen , 844 F.2d
748, 750-52 (10th Cir. 19 88) .
“We review de novo the district court’s decision to reverse the
[Commissioner], applying the same standards as those employed by the district
court.” 1 Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th Cir. 1994). We review the
Commissioner’s decision to determine whether his factual findings were
supported by substantial evidence in light of the entire record and to determine
whether he applied the correct legal standards. See Castellano v. Sec’y of Health
& Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). “Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (quotations omitted). In the course of our review, we may
“neither reweigh the evidence nor substitute our judgment for that of the agency.”
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).
1
Appellee, citing an unpublished order and judgment, states that we should
review this appeal for an abuse of discretion. While we review the district court’s
decision on a motion to remand for abuse of discretion, see Wainwright v. Sec’y
of Health & Human Servs. , 939 F.2d 680, 682 (9th Cir. 1991), here no such
motion was extant. Rather, the district court reviewed the record and determined
that a remand was required. Under these circumstances, we employ the standard
of review stated above.
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We have reviewed the record in light of the parties’ briefs and the
applicable law. We agree with the district court that the ALJ did not properly
evaluate Mr. Guy’s impairments and credibility. While we can award immediate
benefits where the record supports that result, see Sorenson v. Bowen , 888 F.2d
706, 713 (10th Cir. 1989), here it would be inappropriate for us to usurp the role
of the fact finder and make the initial determination of whether Mr. Guy should
be awarded benefits. Further, the ALJ may determine that it is necessary to
obtain additional evidence on remand.
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED. Mr. Guy’s motion to stay proceedings is DENIED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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