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** This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 30 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GEORGE A. GUY,

Plaintiff-Appellant,

v.

LARRY G. MASSANARI, * Acting

Commissioner of the Social Security

Administration,

Defendant-Appellee.

No. 00-6148

(D.C. No. 98-CV-1392-R)

(W.D. Okla.)

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
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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.
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.

-3-

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).
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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