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

John J. Callahan, former Acting Commissioner of Social Security, as the

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** This order and judgment is not binding precedent, except under the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

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, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral
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argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument. 

Claimant Sherlie Nunn alleges disability due to back pain, carpal tunnel

syndrome, and problems with her right shoulder and elbow. The Administrative

Law Judge (ALJ) found that claimant has the residual functional capacity to

perform light work not involving repetitive overhead 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 therefore did not qualify for

disability benefits. The Appeals Council and the district 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 do light work. She further takes

exception to the determination that there are a significant number of other jobs

which she could perform within her functional capacity. 

We review this decision to determine only whether the relevant findings are

supported by substantial evidence and whether the Commissioner applied correct

legal standards. See Hargis v. Sullivan , 945 F.2d 1482, 1486 (10th Cir. 1991). 
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“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 transferrable skills, if she

cannot do prolonged standing and can only do sedentary 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 prolonged 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 “multi-level degenerative disc

disease with annular disc bulge and protrusions, most prominent at the L4, 5 L5-

S1 levels.” Appellant’s App. Vol. II at 214. An EMG 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,
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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 could 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 discussion 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 ability to perform sustained work

activities in an ordinary work setting on a regular and continuing basis . . . and

describe the maximum amount of each work-related activity 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, including pain, on the individual’s

ability to work. The RFC assessment must include a discussion of why reported

symptom-related functional limitations and restrictions 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
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*4. If the ALJ simply did not believe claimant’s allegations about her inability to

stand, he should have articulated that conclusion so that this court could review it. 

“Findings as to credibility should be closely and affirmatively 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 omitted). 

The closest the ALJ comes to citing specific evidence 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 there 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 stand 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 where he must demonstrate that

claimant can do other work existing in substantial numbers in the national
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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 no reason 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 disabled.

The judgment of the United States District Court for 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 judgment.

Entered for the Court

Deanell Reece Tacha 

Circuit Judge