                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 12 1997
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    ROBERT E. WARREN,

             Plaintiff-Appellant,

    v.                                                 No. 96-7069
                                                   (D.C. No. 95-CV-182)
    SHIRLEY S. CHATER,                                 (E.D. Okla.)
    COMMISSIONER, SOCIAL
    SECURITY ADMINISTRATION, *

             Defendant-Appellee.




                           ORDER AND JUDGMENT **



Before TACHA, EBEL, and BRISCOE, Circuit Judges.




*
       Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c),
Shirley S. Chater, Commissioner of Social Security, is substituted for Donna E.
Shalala, Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner for the Secretary in the caption,
in the text we continue to refer to the Secretary because she was the appropriate
party at the time of the underlying decision.
**
      This order and judgment is not binding precedent, except under the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.
      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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Claimant Robert E. Warren appeals the district court’s affirmance of the

decision by the Secretary of Health and Human Services denying his application

for social security disability insurance benefits. Because the Secretary’s decision

that claimant can perform a wide range of sedentary work is supported by

substantial evidence and no legal errors occurred, we affirm.

      Claimant filed his current application for benefits in July 1992, alleging an

inability to work after February 1989, due to degenerative disc disease. After a

hearing, the administrative law judge (ALJ) found that claimant could perform a

wide range of sedentary jobs despite his impairments. The Appeals Council

denied review, making the ALJ’s decision the final decision of the Secretary. The

district court affirmed, and this appeal followed.

      We review the Secretary’s decision to determine whether her factual

findings are supported by substantial evidence and whether correct legal standards

were applied. 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.


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(quotations and citations omitted). We may “neither reweigh the evidence nor

substitute our judgment” for that of the Secretary. Casias v. Secretary of Health

& Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).

      On appeal, claimant argues that the Secretary’s decision is not supported by

substantial evidence in light of his treating physician’s opinion that claimant

needs an occupation that would allow him to “move about” at his discretion. He

argues that this limitation required the ALJ to consider the existence of jobs that

would permit him to walk for five to ten minutes after thirty minutes of sitting.

      Claimant’s treating physician, Dr. Willis, has diagnosed claimant with

degenerative disc disease, and has issued several opinions regarding claimant’s

ability to perform work related activities. On February 13, 1990, Dr. Willis stated

that claimant “needs to refrain from prolong[ed] standing, stooping, bending or

lifting of weights greater than 25 lbs on a repetitive basis. He cannot sit longer

than two hours.” R. II at 227. On May 7, 1990, Dr. Willis opined that claimant

needed vocational retraining, and that he “needs to be in an occupation that

allows him to stand frequently, sit frequently and does not require him to have

repetitive bending or stooping of his waist or lifting of greater than 25 lbs. on a

repetitive basis.” Id. at 229. On June 15, 1994, Dr. Willis responded to questions

by claimant’s attorney as follows:

      [Claimant] would be able to work an eight hour day depending on the
      level of work. Specifically he needs to have a more sedentary type

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      job that allows him to move about at his discretion. I do not believe
      that he will be able to sit or stand for any period longer th[a]n twenty
      minutes at one time. He will need to be able to move about to unload
      the weight on his spine. He would be able to walk throughout the
      day. He needs to limit his walking to no more th[a]n twenty minutes
      at any one time.

      I do believe [claimant] would be able to work full time depending on
      the type of job. . . .

      [Claimant] would need restrictions. He would not be able to lift
      greater th[a]n ten to fifteen pounds of weight on an occasional basis.
      He needs to work at a level between his shoulders and his knees in
      addition to the above mentioned limitations.

Id. at 11. In response to a letter from claimant’s attorney, Dr. Willis noted that

“[Claimant] just needs to move about to relieve the weight on his spine. Walking

from 5-10 minutes usually accomplishes this goal.” Id. at 265.

      At the hearing, the ALJ asked a vocational expert whether there were jobs

claimant could perform given his restrictions, including the limitation that “[h]e

could sit for 30 minutes and then stand for, say, five or ten, in the work place.”

Id. at 60. The vocational expert then identified a range of sedentary assembly

jobs that would allow claimant to alternate between sitting and standing.

      The record contains support for the ALJ’s assessment of Dr. Willis’s

opinions as requiring only that claimant be given the opportunity to alternate

sitting and standing. The doctor’s May 1990 opinion specifically limited claimant

to occupations which allowed him “to stand frequently [and] sit frequently.” Id.

at 229. Since that time, Dr. Willis’s records show that claimant’s condition

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remained stable. See, e.g., id. at 232 (August 1991 -- “degenerative disc disease

remains stable”); at 233 (August 1990 -- “[claimant] is about the same”); at 235

(February 1991 -- “[h]is examination is pretty much unchanged”); at 236 (August

1992 -- “[claimant] remains about the same”); at 248 (February 1993 --

“continues to be about the same”). Although claimant’s August 1993 medical

examination revealed a new finding of radicular leg pain in the left leg, id. at 253,

it resolved with rest, id. and his next visit showed that his “DDD remains about

the same[. H]e is not having any leg pain now like he had in the past,” id. at 254.

Thus there is no medical evidence that claimant’s condition deteriorated so as to

require a new restriction that claimant be permitted to walk about intermittently.

      In addition, Dr. Willis’s note does not say that walking was medically

required, but simply that it usually accomplished the goal of relieving the weight

on claimant’s spine. Lastly, claimant testified that when his legs got numb from

sitting, he needed to “[j]ust stand for a few minutes sometimes and it will go

away and you can get right back.” Id. at 53. In light of Dr. Willis’s earlier

opinion of claimant’s abilities and claimant’s testimony regarding his restrictions,

substantial evidence supports the ALJ’s conclusion that claimant’s need to “move

about” merely required that he be able to alternate from sitting to standing at his

discretion.




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

Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Deanell Reece Tacha
                                                  Circuit Judge




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