* On March 29, 2001, Larry G. Massanari became the Ac ting Commissioner

of Social Security. In accordance with Rule 43(c)( 2) of the Federal Rules of Appellate Procedure, Mr. Massanari is substituted f or Kenneth S. Apfel as the 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. We initially ordered the parties to brief whether w e have jurisdiction over this appeal in light of the district court’s remandof 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 administrativ e law judge (ALJ) determined that Mr. Guy was not entitled to benefits as he cou ld perform the full range of sedentary work. Mr. Guy, proceeding pro se, then commenced this act ion in district court seeking review of the Commissioner’s determination. The district court held that the ALJ had employed an incomplete analysis to conc lude 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 hav e admitted testimony from a vocational expert. Further, the court concluded th at the ALJ did not consider all the relevant factors in analyzing Mr. Guy’s credibi lity and the extent of his pain. The court ordered a remand for further consideratio n of this case.1 Appellee, citing an unpublished order and judgment, states that we should

review this appeal for an abuse of discretion. Whi le 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 revi ewed the record and determined that a remand was required. Under these circumstan ces, we employ the standard of review stated above. -3- Mr. Guy appeals arguing that the district court sho uld not have ordered a remand, but should have awarded immediate benefit s. 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 thos e 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 fa ctual findings were supported by substantial evidence in light of the e ntire record and to determine whether he applied the correct legal standards. Se e Castellano v. Sec’y of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). “Substantia l evidence is such relevant evidence as a reasonable mind might a ccept as adequate to support a conclusion.” Id. (quotations omitted). In the course of our review , we may “neither reweigh the evidence nor substitute our ju dgment for that of the agency.” Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991).-4-

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. Wh ile 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 determinati on of whether Mr. Guy should be awarded benefits. Further, the ALJ may determin e that it is necessary to obtain additional evidence on remand. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED. Mr. Guy’s motion to stay pro ceedings is DENIED.

Entered for the Court

Stephen H. Anderson Circuit Judge