* This order and judgment is not binding precedent, e xcept under the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

### JUN 23 2000 

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

MICHAEL R. LOWE,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 99-7104 (D.C. No. 98-CV-417-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , EBEL , 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 oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.1 The ALJ also made an alternate finding at step five that, assuming claimant

could not perform his past relevant work, there was other work that he could perform. See Appellant’s App. at 24-25. -2- Claimant Michael R. Lowe appeals the district court ’s decision affirming the Commissioner of Social Security’s denial of ben efits at step four of the sequential evaluation process, finding that claimant retained the residual functional capacity (RFC) to perform his past relevant work. 1 See 20 C.F.R. § 404.1520 (describing five-step evaluation process); Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (same). Exer cising jurisdiction pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 1291, we affirmin part, reverse in part, and remand for further proceedings consistent with this order and judgment. Claimant applied for social security benefits underTitle II of the Social Security Act on September 5, 1996, alleging that he was disabled as of July 16, 1996, based on leg pain, psoriasis, shortness of br eath, and associated problems. On the date of the ALJ’s decision now under review, claimant, a high school graduate, was forty one years old, and had worked a s a driver, policeman, farm manager, hand tool (wrench) assembler, and painter. The Commissioner denied claimant benefits initially , on reconsideration, and after a de novo hearing was held before an admi nistrative law judge (ALJ) on July 17, 1997. Thereafter, the Appeals Council denied claimant’s request for review and he filed this action in federal court. On the magistrate judge’s2 Menetrier’s disease is defined as “gastric mucosal hyperplasia, either

mucoid or glandular.” Stedman’s Medical Dictionary500 (26th ed. 1995). -3- recommendation, the district court affirmed the Com missioner’s denial of benefits. We review the Commissioner’s decision for substanti al evidence in the record and to ascertain whether the Commissioner ap plied the correct legal standards. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). “[W]e neither reweigh the evidence nor substitute our jud gment for that of the agency.” Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). “Substantial evidence is ‘such relevant evi dence as a reasonable mind might accept as adequate to support a conclusion.’” Soliz v. Chater , 82 F.3d 373, 375 (10th Cir. 1996) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971)) (further quotation omitted). Claimant’s relevant medical history is as follows. Claimant suffers from psoriasis and cellulitis (skin disorders), has had two strokes with related transient paralysis, and has had blood clots in his neck and stomach. Claimant has also been diagnosed with a number of other conditions in cluding anemia, chronic vascular disease, hypoalbuminemia, abnormal gastric folds, and/or Menetrier’s disease. 2See Appellant’s App. at 117. Claimant was hospitalize d twice for his-4-

conditions; in February 1996, following a stroke, and a second time in April 1996, primarily for cellulitis. He continued to work, ho wever, until July 16, 1996. Claimant raises the following issues on appeal: (1 ) the ALJ failed to evaluate the medical evidence properly; (2) claimant does not have the RFC to perform substantial gainful activity; (3) claimant meets the listings; and (4) the ALJ’s credibility analysis is wrong. We address fi rst claimant’s listings argument.
Listings “At step three, the ALJ determines whether the clai mant’s impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges as so severe as to preclude substantial gainful activity.” Clifton v. Chater , 79 F.3d 1007, 1009 (10th Cir. 1996) (quotation om itted). The ALJ found that “claimant’s impairment(s) neither meet nor equ al the criteria of any impairment in the Listing of the Impairments.” App ellant’s App. at 25. Because the ALJ did not specify what listings he considered , it is difficult to review that determination. See Clifton , 79 F.3d at 1009 (stating “bare conclusion” that a claimant does not meet a listing is “beyond meani ngful judicial review”). On appeal, claimant contends that he should be pres umed disabled under the listing found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 5.08. The Commissioner argues that claimant did not raise thi s argument below, and3 Claimant’s brief to the Appeals Council states as f ollows: Claimant next argues that his psoriasis and aortic stenosis meet the listings. The record reflects his aortic stenosis has caused claimant to lose a significant amount of weight. Likewise, h is psoriasis has a significant impact on his feet. Claimant submits the medical evidence establishes that he meets the listings, an d therefore, he is presumed disabled. Appellant’s App. at 176.

4 The Supreme Court’s decision in Sims has majority, plurality, concurring and dissenting opinions. Despite this fragmentatio n, the majority opinion unequivocally holds that there is no administrative issue exhaustion requirement at the Appeals Council level on which judicial revi ew is conditioned. -5- therefore waived it pursuant to James v. Chater , 96 F.3d 1341 (10th Cir. 1996), in which this court held that “issues not brought t o the attention of the Appeals Council on administrative review may, given suffici ent notice to the claimant, be deemed waived on subsequent judicial review.” 3 Id. at 1344. We need not decide whether claimant sufficiently pr eserved his listings issue before the Appeals Council because the Suprem e Court’s recent decision in Sims v. Apfel , No. 98-9537, 2000 WL 712806 (U.S. June 5, 2000), eliminates
James’s administrative issue exhaustion requirement, there by overruling that decision. See Sims , 2000 WL 712806, at *2 (holding that “a claimant p ursuing judicial review has [not] waived any issues that he did not include in [the] request” for Appeals Council review of the ALJ’s denial of benefits). 4 Accordingly, claimant has not waived his listings argument.-6-

The listing claimant raises relates to weight loss and gastrointestinal (GI) problems and provides, in relevant part, as follows : 5.08 Weight loss due to any persisting gastrointestinal disorder: (The following weights are to be demonstrated to have pe rsisted for at least 3 months despite prescribed therapy and expec ted to persist at this level for at least 12 months.) With: A. Weight equal to or less than the values specified in table I [men] or II [women]; or B. Weight equal to or less than the values specified in table III [men] or IV [women] and one of the following abnorm al findings on repeated examinations: 1. Serum albumin of 3.0 gm. per deciliter (100 ml.) o r less; or 2. Hematocrit of 30 percent or less[.] 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 5.08. In order to meet the listing, claimant must “meet all of the specified medical criteria.” Sullivan v. Zebley , 493 U.S. 521, 530 (1990) (noting further that “[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify”). Although the ALJ que stioned claimant about his low weight and GI problems, he did not discuss either in his decision. See Appellant’s App. at 44-45. Claimant is 5’7” and, accordingly, to meet the requ irements of table I he must weight 106 pounds or less. See § 5.08, Table I. To meet the requirement of table III, he must weigh 112 pounds or less, see id. at Table III, in combination-7-

with one of the other criteria enumerated in the listing. The medical evidence in the record shows that claimant weighed between 104 and 107 pounds during his hospitalization in April 1996, see Appellant’s App. at 123, 125; 106 pounds on May 3, 1996, see id. at 146; 105 pounds on July 24, 1996; see id. at 161; between 105 and 108 pounds in August 1996, see id. at 156-59; and 106 pounds on September 3, 1996, see id. at 156. At the July 1997 hearing, claimant testif ied that he weighed between 95 and 100 pounds and that he had weighed less than 110 pounds for approximately one year. See id. at 34. In addition, on the date of his hospital admission in February 1996, claimant’s hematocrit level was 20.2, see id. at 98, and his serum albumin was 2.2, see id. at 99. On April 17, 1996, his albumin level was 1.8. See id. at 126. Claimant’s April 1996 hospital records seem to indicate that his hematocrit level had impr oved since his February 1996 hospitalization. See id. at 121 (stating somewhat cryptically that claimant ’s “hematocrit has improved to 11.8 and 36.1”). Claimant’s documented weights and his testimony dem onstrate his weight was below that specified in table III of the listin g for at least twelve months, but not below that specified in table I. See § 5.08, Tables I & III. On the record before us, however, we cannot determine whether his low albumin and/or hematocrit levels were expected to persist for a period of twelve months. See id. at § 5.08. Nor can we determine whether claimant f ollowed a particular therapy-8-

for three months related to his low weight, GI, andlow albumin and/or hematocrit problems, despite which the problems persisted. See id. Hence, we remand for further consideration of the listing(s); the ALJ sh ould consider whether claimant’s impairments meet or equal the listings (either § 5. 08 or any other listing that may be applicable). In doing so, the ALJ should develo p the record on claimant’s weight loss, GI, and low albumin and/or hematocrit problems, as appropriate, including, if necessary, a consultative examination. See 20 C.F.R. § 404.1519a(b) (“A consultative examination may be purchased when the evidence as a whole, both medical and nonmedical, is not sufficient to s upport a decision on [the] claim.”); Hawkins , 113 F.3d at 1166 (acknowledging Commissioner’s “b road latitude in ordering consultative examinations” andstating further “where additional tests are required to explain a diagnosi s already contained in the record, resort to a consultative examination may be necessary”).-9- Medical Evidence Claimant argues that the ALJ did not properly evalu ate the medical evidence in the record. We agree to the extent the ALJ failed to consider the evidence in the record relating to claimant’s weight loss, low albumin and/or hematocrit levels, and GI problems, in combination with his other impairments. On remand, if the ALJ does not find claimant impair ed under the listings, the ALJ will have to consider whether claimant is impaired at a subsequent step of the sequential evaluation process. This will entail co nsidering all of claimant’s medical evidence. Clifton , 79 F.3d at 1010 (“[I]n addition to discussing the evidence supporting his decision, the ALJ also mustdiscuss the uncontraverted evidence he chooses not to rely upon, as well as si gnificantly probative evidence he rejects.”). Accordingly, if the ALJ proceeds pa st step three, the ALJ must “set out his specific findings and his reasons for accepting or rejecting evidence.” Id.

RFC Based on our disposition on appeal, we need not rea ch claimant’s argument that the ALJ committed reversible error in finding he has the RFC to perform substantial gainful activity. We note, however, th at should the ALJ proceed past step three, there will have to be a new RFC determi nation, reflecting any new findings elicited in conjunction with the ALJ’s con sideration of claimant’s listing argument. See Hargis v. Sullivan , 945 F.2d 1482, 1491 (10th Cir. 1991)-10-

(“A claimant’s . . . impairment must also be evaluated in combination with the effects of other impairments.”).
Credibility To be disabling, pain must be severe enough--eitherby itself or in combination with other impairments--to preclude any substantial gainful employment. See Brown v. Bowen , 801 F.2d 361, 362-63 (10th Cir. 1986). This court has enumerated for consideration the followin g factors when analyzing a claimant’s pain evidence: (1) [W]hether Claimant established a pain-producing impairment by objective medical evidence; (2) if so, whether ther e is a “loose nexus” between the proven impairment and the Claimant’s subjective allegations of pain; and (3) if so, whether, consid ering all the evidence, both objective and subjective, Claimant’s pain is in fact disabling. Musgrave v. Sullivan , 966 F.2d 1371, 1376 (10th Cir. 1992) (citing Luna v.
Bowen , 834 F.2d 161, 163-64 (10th Cir. 1987)). Objectiv e evidence includes physiological and psychological evidence that can b e verified by external testing.
See Thompson v. Sullivan , 987 F.2d 1482, 1488-89 (10th Cir. 1993). Subject ive evidence comprises statements from the claimant andother witnesses that are evaluated on their credibility. See id. at 1489. The ALJ’s decision states that he considered claimant’s allegations of pain and other limitations pursuant to 20 C.F.R. § 404.1 529 and 20 C.F.R. § 416.929.-11-

See Appellant’s App. at 23. He found the allegations “not fully credible because, but not limited to, the objective findings, or the lack thereof, by treating and examining physicians, the lack of medication for se vere pain, the frequency of treatments by physicians and the lack of discomfortshown by the claimant at the hearing.” Id. The ALJ noted further “more specifically, the cla imant is not credible because he was able to work after his ‘str oke,’ etc., and quit only when he developed cellulitis on his left foot.” Id. The ALJ specifically noted that claimant’s skin condition was clearing and he had n ot sought any further medical
treatment. See id. at 23. Under the standard set forth above, the AL J’s pain determination is supported by substantial record ev idence. We note, however, the ALJ may have to reconsider his pain determination o n remand, if the record so requires. For the foregoing reasons we AFFIRM in part, REVERS E in part, and REMAND the case for further proceedings as necessary.

Entered for the Court

David M. Ebel Circuit Judge