                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 24 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GLORIA D. RHOTEN,

                Plaintiff-Appellant,

    v.                                                   No. 99-3251
                                                    (D.C. No. 98-CV-4167)
    KENNETH S. APFEL, Commissioner                         (D. Kan.)
    of Social Security,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , McKAY , and HENRY , 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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Plaintiff Gloria D. Rhoten appeals from an order of the district court

granting the Commissioner’s motion to remand this case to the agency for further

proceedings. We affirm.

      “We review de novo the district court’s decision to reverse the

[Commissioner], applying the same standards as those employed by the district

court.” 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. Secretary 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. Secretary of Health & Human Servs., 933 F.2d 799, 800

(10th Cir. 1991).

      Ms. Rhoten alleged disability as of June 30, 1982,   due to severe mental

impairments. She filed an application under Title II for both general disability

benefits and Childhood Disability Insurance Benefits. She also sought benefits

under Title XVI . The administrative law judge (ALJ) determined that Ms. Rhoten

was not entitled to benefits under any of the programs.


                                        -2-
      The Appeals Council held that the ALJ had incorrectly addressed the

Title XVI claims 2 and remanded that application to the ALJ. The Appeals

Council noted that the record did not support the ALJ’s finding that Ms. Rhoten’s

schizo-affective disorder had not lasted twelve months. The Appeals Council

denied review of the other applications.

      Ms. Rhoten commenced this action in district court seeking review of the

Commissioner’s denial of her Title II applications. The Commissioner requested

a remand on the grounds that the ALJ had erred in not considering her claims past

step two and that further development of the record was necessary. The district

court issued a sentence four remand.   3
                                           See 42 U.S.C. § 405(g).

      Ms. Rhoten appeals arguing that the district court should not have ordered a

remand, but should have awarded immediate benefits. Ms. Rhoten claims she is

disabled at step three due to her mental impairments.

      The record contains conflicting evidence. Some evaluators have stated that

Ms. Rhoten can hold a job. She apparently was a caretaker for the elderly,

although the record is not clear that she performed this job at a level that qualifies

2
       The ALJ determined that Ms. Rhoten was not disabled under Title XVI
at step four of the five-step sequential process, see Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1988), as Ms. Rhoten could return to her prior work as
caretaker for the elderly.
3
       Because this remand was pursuant to sentence four, the order was final
and appealable and we have jurisdiction to consider this appeal. See Sullivan v.
Finkelstein , 496 U.S. 617, 629 (1990).

                                            -3-
as substantial gainful activity. One evaluator stated that she was never employed

at a significant level and that she was a

      severely emotionally ill individual experiencing a psychosis, high
      level of severe anxiety and panics, fear of other people, fear of going
      out, with paranoid symptoms, as well as severe depression from
      which she sought relief through self medication whenever adequate
      psychiatric treatment was not available, thus only compounding her
      psychological difficulty with the addition of drugs that made her
      life worse.

Appendix at 208. The evaluator concluded that Ms. Rhoten is psychologically

disabled and is impaired in every aspect of her life.

      The evidence is conflicting and incomplete. It would be inappropriate

for us to usurp the role of the fact finder and make the initial determination

of whether Ms. Rhoten should be awarded benefits.

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                        Entered for the Court



                                                        Robert H. Henry
                                                        Circuit Judge




                                            -4-
