* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### JUN 8 1998 

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

SHERLIE NUNN,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-7121 (D.C. No. 96-CV-659) (E.D. Okla.)

ORDER AND JUDGMENT **

Before TACHA , LOGAN , and LUCERO , 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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Claimant Sherlie Nunn alleges disability due to bac k pain, carpal tunnel syndrome, and problems with her right shoulder and elbow. The Administrative Law Judge (ALJ) found that claimant has the residua l functional capacity to perform light work not involving repetitive overhea d reaching or more than occasional bending, twisting, stooping, crouching, or climbing. Appellant’s App. Vol. II at 34. After considering the testimony of a vocational expert at step five of the relevant sequential analysis, see Williams v. Bowen , 844 F.2d 748, 751 (10th Cir. 1988), the ALJ further found that claimant could perform a significant number of jobs in the national economy. She theref ore did not qualify for disability benefits. The Appeals Council and the d istrict court affirmed that conclusion. On appeal, Ms. Nunn asserts that the ALJ failed to evaluate properly her pain, thus tainting his conclusion that she could d o light work. She further takes exception to the determination that there are a sig nificant number of other jobs which she could perform within her functional capac ity. We review this decision to determine only whether the relevant findings are supported by substantial evidence and whether the C ommissioner applied correct legal standards. See Hargis v. Sullivan , 945 F.2d 1482, 1486 (10th Cir. 1991).-3-

“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. We will not reweigh the evidence or substitute our judgment for that of the Commissioner. See id. As mentioned above, the ALJ found claimant capable of performing light work which, by definition, requires the ability to stand six out of eight hours. See S.S.R. 83-10, 1983 WL 31251, at *6. It is this standing component which, along with a greater lifting requirement, differentiates light work from sedentary work.
See id. at *5. Because of claimant’s age and lack of tran sferrable skills, if she cannot do prolonged standing and can only do sedent ary work, she is disabled.
See 20 C.F.R. Pt. 404, Subpt. P., App. 2, Rule 201.14. Claimant argues that the ALJ failed to analyze her ability to stand for prol onged periods. We agree and reverse and remand for further findings. Claimant asserts that she can stand for only three to four minutes at a time. Her medical history indicates she suffers from “mul ti-level degenerative disc disease with annular disc bulge and protrusions, mo st prominent at the L4, 5 L5- S1 levels.” Appellant’s App. Vol. II at 214. An E MG revealed denervation in the right S1 innervated muscles. See id. at 215. Claimant’s records establish her attempts to obtain relief from back pain for more than a year before her alleged onset date. See id. at 168. This objective evidence is sufficient to prove the existence of a pain-producing impairment, see Winfrey v. Chater , 92 F.3d 1017,-4-

1020 (10th Cir. 1996), thus triggering the need for the analysis required by Luna
v. Bowen , 834 F.2d 161 (10th Cir. 1987), and ultimately the need for the ALJ to explain why the “specific evidence . . . led him to conclude claimant’s subjective complaints were not credible,” Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). Part of the ALJ’s analytical task here was to determine claimant’s residual functional capacity (RFC), defined as what she coul d still do despite her limitations. See 20 C.F.R. § 404.1545 (a). In arriving at an RFC, agency rulings require that an ALJ must provide a narrative discus sion describing how the evidence supports his or her conclusion. See S.S.R. 96-8p, 1996 WL 374184, at *7. The ALJ must “discuss the individual’s abilityto perform sustained work activities in an ordinary work setting on a regularand continuing basis . . . and describe the maximum amount of each work-related ac tivity the individual can perform based on the evidence available in the case record.” Id. Specifically, in a case such as this where pain is alleged, the ALJ must “[s]et forth a logical explanation of the effects of the symptoms, includi ng pain, on the individual’s ability to work. The RFC assessment must include adiscussion of why reported symptom-related functional limitations and restrict ions can or cannot reasonably be accepted as consistent with the medical or other evidence.” Id. A function-byfunction evaluation is necessary in order to arrive at an accurate RFC. See id. at-5-

*4. If the ALJ simply did not believe claimant’s a llegations about her inability to stand, he should have articulated that conclusion s o that this court could review it. “Findings as to credibility should be closely and a ffirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” Houston
v. Bowen , 838 F.2d 1125, 1133 (10th Cir. 1988) (footnote om itted). The closest the ALJ comes to citing specific eviden ce is a reference to claimant’s treatment by Dr. Karasek who noted that, after having reported strong improvement following steroid injections, claimant presented with new and general complaints. Dr. Karasek theorized that the re might have been be a functional component afoot and that secondary gain issues may have played a role. Here, again, however, the ALJ did not link any of this to claimant’s ability to stand six out of eight hours. The ALJ implicitly concluded that claimant can stan d for prolonged periods because he found her capable of doing light work. He did not specify the evidence supporting that conclusion, however, thus running afoul of this circuit’s law as particularly discussed in Kepler , 68 F.3d at 390-91. As a final note, claimant argues that, even if she could perform light work, the jobs proffered by the vocational expert in this case cannot be used as evidence to meet the commissioner’s burden at step five wher e he must demonstrate that claimant can do other work existing in substantial numbers in the national-6-

economy. Even assuming that claimant’s objections to some of the jobs identified by the vocational expert are well taken, if claimant can stand for the prolonged periods required by light work, she has advanced noreason why she cannot perform the jobs of cashier, see Dictionary of Occupational Titles, 211.462-010 (4th ed. 1991), or arcade attendant, see id. at 342.667-014. Should the ALJ, on remand, be able to articulate properly why claimant ’s back condition does not preclude prolonged standing and/or walking, he can rely on these jobs identified by the vocational expert to find claimant not disab led. The judgment of the United States District Court fo r the Eastern District of Oklahoma is REVERSED, and this case is REMANDED to that court with instructions to remand to the Commissioner for the limited purpose of making express findings consistent with this order and jud gment.

Entered for the Court

Deanell Reece Tacha Circuit Judge