* This order and judgment is not binding precedent, e xcept under the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 

### OCT 13 1999 

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

JAMES R. HOWELL,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-5186 (D.C. No. 97-CV-62-H(E)) (N.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and HENRY , 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 oral argument. SeeFed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff James R. Howell appeals the district court’s affirmance of the final decision by the Commissioner of Social Securi ty 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 appli cation for SSI benefits, alleging an inability to work due to ankylosing spo ndylitis, heart disease, keratoconus (degenerative blindness), chest pain, b ack pain, extremity pain, depression and exhaustion. After a hearing, an ALJdetermined that although plaintiff could not perform his past work, he retai ned the ability to perform a significant number of jobs in the national economy and therefore was not disabled. The Appeals Council denied review, makin g the ALJ’s decision the final decision of the Commissioner. The district c ourt affirmed, and this appeal follows. We review the agency’s decision to determine whethe r the factual findings are supported by substantial evidence and whether c orrect legal standards were applied. SeeHawkins 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 reweig h the evidence nor substitute-3-

our judgment for that of the agency.” Casias v. Se cretary 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 medica l evidence which supported plaintiff’s testimony about his limitations. He ar gues 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 fai ling to give plaintiff’s treating physicians’ opinions the required deferenc e. 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 i mpairments: (1) a back injury which may or may not be full spine ankylosin g spondylitis, but which, at a minimum, has been described as severe degenerative joint disease; (2) status postmyocardial infarction with three vessel coronary di sease and mild left ventricular dysfunction; and (3) keratoconus, resulting in no v isual acuity in the right eye and slightly impaired vision in the left eye. At the h earing, plaintiff testified to severe limitations imposed by his back and heart condition s, stating he could only stand for thirty minutes, sit for thirty minutes, or walkfor thirty minutes at a time. He also testified to severe fatigue from his heart con dition. The ALJ rejected these complaints, finding plaintiff’s testimony credible only to the extent it was-4-

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 an d symptoms; the nature, duration, frequency, and intensity of the p ain; 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 find s that the claimant is not suffering from a totally disabling pain syndrome according to the criteria established in 20 C.F.R. § and (sic) 4 16.929, 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 disab ling pain. We held there that the ALJ could not simply conclude that the plaintif f’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 showfairly consistent complaints about back pain and stiffness. The records also sh ow that despite plaintiff’s recovery from his myocardial infarction, he still h as a number of partially or completely occluded arteries which are capable of producing angina, see-5-

Appellant’s App. at 175-76, and at least one physician has accepted p laintiff’s description of his anginal pain as “reliable,” id. at 221. His treating physician opined that plaintiff’s fatigue and shortness of br eath are related to his heart condition. See id. at 209. Without any explanation to support the re jection of plaintiff’s subjective complaints, we are left to s peculate 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 remand ed for further proceedings. The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED, and the case is REMANDED f or further proceedings.

Entered for the Court

John C. Porfilio Circuit Judge