* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

Shirley S. Chater, former Commissioner of the Socia l Security Administration, as the defendant-appellee in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 17 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

RICKY D. TEETS,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-5031 (D.C. No. 95-CV-791) (N.D. Okla.)

ORDER AND JUDGMENT **

Before KELLY, McKAY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral1 Pursuant to 28 U.S.C. § 636(c)(1), the parties cons ented to proceed before

the magistrate judge. Accordingly, our jurisdictio n arises under § 636(c)(3) and 28 U.S.C. § 1291. -2- argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals from an order of the magistrate j udge 1 affirming the denial of social security disability insurance and supplem ental security income benefits. After determining that, despite severe diabetes mel litus with cataracts, ocular hemorrhages, and early renal failure, plaintiff ret ained the residual functional capacity to perform light work not requiring fine v ision, the administrative law judge concluded that plaintiff could perform severa l jobs identified by a vocational expert and, thus, found him not disabledat step five of the controlling sequential analysis. See generallyWilliams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). We review this decision to determine whether the operative findings rest on substantial evidence and correct l egal standards were applied.
See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Plaintiff contends the ALJ faile d to consider, and include in the dispositive hypothetical inquiry to the vocational expert, significant nonexertional impairments associated with his condition. We agre e and, accordingly, reverse and remand for further administrative proceedings.-3-

Plaintiff’s diabetes is only poorly controlled thro ugh medication. This fact is reflected by numerous hospitalizations and end o rgan damage, and expressly confirmed by plaintiff’s treating physician. See Appellant’s App. at 287, 288. Plaintiff explained the practical, everyday consequ ences of this instability at the hearing, where he described frequent episodes of we akness, disorientation, dizziness, vomiting, dehydration, etc., caused by a berrant blood sugar levels.
See id. at 48-51, 53-54, 61-62. His testimony is supporte d by the medical record, see, e.g. , id. at 319 (noting “multiple admissions for complicati ons of diabetes,” including “recurrent history of nausea, vomiting, hematemesis, and . . . gastroenteropathy”), and buttressed by pl aintiff’s history of sporadic, transitory employment repeatedly lost due to illnes s-related unreliability and absence, see id. at 37-38, 42-44, 135. His treating physician and his vocational rehabilitation counselor agree he is not employable . See id. at 287, 420. Focusing instead on plaintiff’s visual impairment, the ALJ overlooked this critical dimension of plaintiff’s disease. As a re sult, he gave no reasons for rejecting the treating physician’s opinion, which h e never acknowledged. This alone is serious error. See Goatcher v. United States Dep’t of Health & Human
Servs. , 52 F.3d 288, 289-90 & n.2 (10th Cir. 1995) (failu re to “give specific, legitimate reasons for disregarding the treating physician’s opinion” held “a miscarriage of justice” warranting reversal); se e also Miller v. Chater , 99 F.3d-4-

972, 976 (10th Cir. 1996). The ALJ also ignored pl aintiff’s testimony regarding the adverse effect of his uncontrolled diabetes on basic activities. The catch-all, conclusory statement that “claimant’s complaints ar e not consistent with the medical evidence nor the record as a whole,” Appell ant’s App. at 21, is a plainly inadequate basis for discrediting plaintiff’s testi mony. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (“[F]indings as t o credibility should be closely and affirmatively linked to substantial evidence an d not just a conclusion in the guise of findings.”) (quotation omitted). Indeed, this testimony appears, rather, to be corroborated by the medical record, the treat ing physician’s findings, plaintiff’s work history, and the judgment of his v ocational counselor. The significance of these errors is evident from th e vocational expert’s testimony. In response to the ALJ’s initial hypoth etical inquiry, which omitted any reference to problems associated with plaintiff’s poorly controlled condition, the expert identified several potential occupations . See Appellant’s App. at 66-68. But, when the hypothetical was augmentedwith a reference to such problems, the expert indicated plaintiff was unempl oyable. See id. at 68-70. As only an answer to an accurate and complete inqui ry controls, the expert’s testimony cannot, at least at this point, substanti ate a finding of nondisability.
See Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995).2 The ALJ chided plaintiff at one point for being “re peatedly noncompliant

with diet, exercise, and medication,” Appellant’s App. at 18, but then never returned to the matter. While, as it stands, this incidental criticism would be grossly deficient--substantively and procedurally-- as a basis for denying benefits under the rubric of “failure to follow prescribed treatment,” see Social Security Ruling 82-59, 1982 WL 31384; see, e.g. , Thompson v. Sullivan , 987 F.2d 1482, 1490 (10th Cir. 1993); Teter v. Heckler , 775 F.2d 1104, 1107 (10th Cir. 1985), it suggests a legitimate avenue of inquiry on reman d. -5- The analytical errors noted herein are predominatel y those of omission. We cannot rule out the possibility that a finding o f nondisability could properly be made, perhaps on the basis of additional evidenc e. 2 And, in any event, given the progressive nature of plaintiff’s disease, a particular disability onset date is not immediately evident. This is especially signif icant with respect to the matter of disability insurance benefits, for which plaintiff’s eligibility ceased after June 1986. In light of such uncertainties, we deema remand for further proceedings appropriate. Cf. Evans , 55 F.3d at 532. The judgment of the United States Magistrate Judge is REVERSED and the cause is REMANDED with instructions to remand, in turn, to the Commissioner for further proceedings consistent with this order and judgment.

Entered for the Court

Monroe G. McKay Circuit Judge