* This order and judgment is not binding precedent, except under the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.

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, 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. 
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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 postmyocardial 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