* 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### JAN 28 1998 

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

ROBERT S. MCINTIRE,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-6181 (D.C. No. 96-CV-469) (W.D. Okla.)

ORDER AND JUDGMENT **

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

Claimant Robert S. McIntire appeals from the distri ct court’s order affirming the Commissioner’s decision denying his application for disability*** 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. 34.1.9. The c ase is therefore ordered submitted without oral argument. -2- benefits and supplemental security income. *** Claimant alleged disability from December 1993, due to insulin-dependant diabetes, d iabetic retinopathy resulting in a marked loss of vision, and back pain. In whatbecame the final decision of the Commissioner, the administrative law judge (ALJ ) concluded, at step four of the sequential analysis, see 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), that claimant could return to his past relevant work. On appeal, claimant asserts that (1) the ALJ failed to include all of claimant’s visual impairments in his residual funct ional capacity (RFC) assessment; (2) the ALJ’s credibility determinationwas not supported by substantial evidence; and (3) the ALJ’s step-four d etermination of no disability was based on inappropriate reliance on the incorrec t testimony of the vocational expert. We have jurisdiction over this appeal pursuant to 4 2 U.S.C. § 405(g) and 28 U.S.C. § 1291. We review the Commissioner’s decisi on to determine whether his factual findings are supported by substantial evide nce in the record viewed as a whole and whether he applied the correct legal stan dards. See Andrade v.-3-

Secretary of Health & Human Servs. , 985 F.2d 1045, 1047 (10th Cir. 1993). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Castellano v . Secretary of Health & Human
Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994) (citations an d quotation omitted). “In addition to a lack of substantial evidence, the [Co mmissioner’s] failure to apply the correct legal standards, or to show us that [he ] has done so, are also grounds for reversal.” Winfrey v. Chater , 92 F.3d 1017, 1019 (10th Cir. 1996). Claimant initially alleges that the ALJ failed to p roperly consider his vision impairments in his RFC assessment. When determinin g disability at step four of the sequential analysis, the ALJ must first assess claimant’s RFC and then determine whether claimant can perform his past rel evant work in light of the limitations found. See id. at 1023-25 (discussing the three phases of step fo ur in detail). The ALJ complied with the first phase by finding that claimant could do “light work that does not involve unprotected heights or dangerous moving machinery.” Appellant’s App., Vol. II at 20. The ALJ further found that, as described in the regulations, light work required “ ‘lifting no more than 20 pounds at a time with frequent lifting or carrying of obje cts weighing up to 10 pounds[,]’” . . . and “‘a good deal of walking or s tanding, or sitting most of the time with some pushing and pulling of arm or leg co ntrols.’” Id. (quoting 20 C.F.R. §§ 404.1567(b) and 416.967(b)). The ALJ fou nd claimant’s subjective1 Despite the fact that claimant’s representative cor rected the ALJ and the

vocational expert at the hearing, see Appellant’s App., Vol. II at 60-61, in his decision, the ALJ referred to claimant’s past relev ant work as “manager for a feed lot,” id. at 21. Our review of the record indicates that cl aimant’s only work experience at a feed lot was a two-week job putting up fence posts. His job for approximately twenty-one years was as manager of a grain facility. -4- complaints to be “inconsistent with the hearing rec ord as a whole,” and unsupported by objective medical evidence. Id. Because we determine that this case requires remand due to errors in the second ph ase of the step-four analysis, we will discuss claimant’s challenge to the ALJ’s d ecision at the first phase later in this order and judgment. At the second phase of the step-four analysis, the ALJ must develop the record with “‘factual information’” regarding the a ctual work demands of claimant’s past relevant work, and whether, given c laimant’s physical and/or mental limitations, claimant can meet those demands . Winfrey , 92 F.3d at 1024 (quoting SSR 82-62, Soc. Sec. Rep. Serv. Rulings 19 75-1982, at 812). Here, the ALJ merely stated that “[w]ithin the last fifteen y ears, the claimant worked as a manager for a feed lot,” 1 and because the vocational expert had testified th at this job was in the light work category, and did not inv olve heights or moving machinery, he could return to this work activity. Appellant’s App., Vol. II at 21. From the record it appears that twenty-one years of claimant’s past work history was spent as manager of the same grain faci lity. Claimant testified that a-5-

majority of his duties involved keeping grain accou nts and inventory records, and working in the retail store. Although claimant adm itted that he was let go from this job due to a restructuring, he also testified that he probably could not return to the job because of his failing eyesight. He als o testified that he could no longer get work operating farm machinery because he could not see well enough to drive. The ALJ did not obtain any information about the sp ecific demands of claimant’s past relevant work that would have a bearing, not only on his exertional abilities, but also on his restricted vi sion and poorly-controlled diabetes. The vocational expert’s response to the ALJ’s hypothetical did not elaborate on or provide any information regarding the demands of claimant’s past work, either as claimant actually performed it or a s the work is generally performed in the national economy. As we stated inWinfrey , [r]equiring the ALJ to make specific findings on th e record at each phase of the step four analysis provides for meanin gful judicial review. When, as here, the ALJ makes findings onlyabout the claimant’s limitations, and the remainder of the st ep four assessment takes place in the VE’s head, we are left with noth ing to review. 92 F.3d at 1025. Thus, because the ALJ failed to adequately develop the record, he was unable to make the necessary findings of fac t as to whether, given claimant’s impairments, he could meet those demands . Therefore, we must reverse and remand for further proceedings.-6-

Having determined the necessity of remand, we return to claimant’s contention that the ALJ erred in not including clai mant’s visual impairment in his RFC assessment. The medical evidence supports cla imant’s contention that he suffered with diabetes for many years, was dependant on insulin injections twice a day, and had frequent fluctuations in his blood sug ar level. On January 6, 1994, claimant’s optometrist, Steve T. Cauble, referred c laimant to his medical doctor because he observed “multiple microaneurysms and do t blot hemorrhages” in claimant’s eyes. Appellant’s App., Vol. II at 162. At that time Dr. Cauble recommended that claimant not drive “because of los s of central visual acuity.” Id. Claimant was then referred to Dr. Stephen R. Franse n, an ophthalmologist in the Health Sciences Center at the University of Oklahoma. Dr. Fransen diagnosed claimant as having “profuse, bilateral di abetic macular edema.” Id. at 137. Dr. Fransen reported that claimant complainedof “blurring in both eyes with significantly more difficulty on cloudy days o r in dim illumination.” Id. He further found that claimant’s vision fluctuated con siderably. Dr. Fransen recommended that claimant undergo lasertreatment which he opined would not reverse the damage, but would offe r him a fifty-percent chance of preserving his central vision. On April 15, 199 4, following laser treatment on both eyes, Dr. Fransen stated that claimant “sees 2 0/80+1 on the right side, [and]-7-

20/100 on the left.” Id. at 151. He recommended that claimant wait four mo nths before deciding whether additional laser treatment would be required. During a follow-up examination on August 2, 1994, D r. Fransen tested claimant as seeing 20/80 on the right side and 20/1 60 on the left. He opined that the “edema appears to be resolving on both sides,” but that “as the fluid resolves the lipid precipitates out,” it may settle in the c entral fovea of the left eye, a side effect which could not be prevented by further lase r treatment. Id. at 167. Dr. Fransen therefore recommended no further treatment as long as claimant’s vision remained stable. He requested that claimant return in four months for follow-up. At the hearing, claimant testified that it was no l onger safe for him to drive because of his eyesight, see id. at 39, and that he could not obtain work operating farm machinery because he “can’t see what’s going o n and read the instruments,” id. at 48. He further testified that he could not rea d “unless it’s big print.” Id. at 52. Although the medical evidence clearly supports clai mant’s allegations of visual impairment, the ALJ’s assessment of claimant ’s RFC is completely devoid of any discussion of these limitations. The magistrate judge found that the ALJ’s inclusion of the impairments in his hypothetical to the vocational expert at the hearing was sufficient. We do not agree. “[W]hile the ALJ may rely on information supplied by the VE at step four,” Winfr ey , 92 F.3d at 1025, he may-8-

not “abdicate[] his fact finding and evaluation res ponsibilities to the VE,” id. at 1026. On remand, in addition to developing the record andmaking the requisite findings regarding the demands of claimant’s past r elevant work, we direct the agency to reconsider the medical evidence of claima nt’s visual impairments and to include an evaluation and discussion of those impairments when reassessing claimant’s RFC. Moreover, because of our decision in this case, the ALJ may need to reassess the credibility of claimant’s test imony regarding the restrictions imposed by his impairments. We note, however, thatour intent here is not to dictate any result, but simply to assure “that the correct legal standards are invoked in reaching a decision based on the facts o f this case.” Huston v. Bowen , 838 F.2d 1125, 1132 (10th Cir. 1988). The judgment of the United States District Court fo r the Western District of Oklahoma is REVERSED and REMANDED to the district c ourt with directions to remand the case to the agency for further proceedin gs consistent with this order and judgment.

Entered for the Court

Carlos F. Lucero Circuit Judge