                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 29 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROBERT CASEY,

                Plaintiff-Appellant,

    v.                                                   No. 03-5001
                                                   (D.C. No. 01-CV-692-CL)
    JO ANNE B. BARNHART,                               (N.D. Oklahoma)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HARTZ , BALDOCK , and McCONNELL , 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      This order and judgment is not binding precedent, except under the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.
       Claimant Robert Casey challenges the Commissioner’s decision denying his

application for supplemental security income benefits for a closed period,

September 27, 1999 to July 31, 2001.     1
                                             Mr. Casey, a person closely approaching

advanced age (age 50-54), alleged that he was disabled during that period due to

amputation of his right lower leg, and also alleged back and joint pain, high blood

pressure, headaches, high cholesterol, sleep deprivation, and skin cancer. The

administrative law judge (ALJ) determined, at the fourth step of the disability

analysis, that Mr. Casey could not return to his past relevant work.     See 20 C.F.R.

§ 416.920 (setting out the applicable five-step analysis). At the fifth step,

however, the ALJ decided that Mr. Casey was not disabled because he could

perform a range of sedentary to light work and that a significant number of jobs

were available in the regional and national economies. Reviewing the ALJ’s

decision to determine only whether he applied the law correctly and whether there

was substantial evidence to support his decision,      see Doyal v. Barnhart , 331 F.3d

758, 760 (10th Cir. 2003), we affirm.

       Mr. Casey argues that, under a proper application of the medical-vocational

guidelines, 20 C.F.R. pt. 404, Subpt. P, App. 2 (the grids), he should have been

found disabled. The grids “establish[] through rulemaking the types and numbers



1
      Mr. Casey filed a new application on August 27, 2001. He was found
disabled with an onset date of August 1, 2001.

                                             -2-
of jobs that exist in the national economy.”         Heckler v. Campbell, 461 U.S. 458,

461 (1983). They set forth rules that identify whether jobs requiring specific

combinations of physical ability, age, education, and work experience exist in

significant numbers in the national economy.          Id. at 461-62. Where a claimant’s

qualifications match the criteria of a particular rule, the grids “direct a conclusion

as to whether work exists that the claimant could perform.”           Id. at 462.

       The grids, however, “may not be applied conclusively in a given case

unless the claimant’s characteristics precisely match the criteria of a particular

rule.” Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984). “‘[W]here any

one of the findings of fact does not coincide with the corresponding criterion of a

rule, the rule does not apply in that particular case and, accordingly, does not

direct a conclusion of disabled or not disabled.’”        Id. (quoting 20 C.F.R. Pt. 404,

Subpt. P, App. 2, § 200.00(a)). If there is no “exact fit,” the grids may not be

applied conclusively, and the ALJ must consider all the relevant facts of the case

before reaching a determination.     Id.

       The ALJ’s step-five decision in such a case is to be based on the claimant’s

“remaining occupational base, as determined by [residual functional capacity], in

conjunction with his or her age, education, and work experience.” SSR 83-12,

1983 WL 31253, *1. “Where the extent of erosion of the occupational base is not

clear, the adjudicator will need to consult a vocational resource.”         Id. at *2.


                                               -3-
      Under SSR 83-12,

      2. If the exertional level falls between two rules which direct
      opposite conclusions, i.e., “Not disabled” at the higher exertional
      level and “Disabled” at the lower exertional level, [the ALJ is to]
      consider as follows:

                a. An exertional capacity that is only slightly reduced in terms
                of the regulatory criteria could indicate a sufficient remaining
                occupational base to satisfy the minimal requirements for a
                finding of “Not disabled.”

                b. On the other hand, if the exertional capacity is
                significantly reduced in terms of the regulatory
                definition, it could indicate little more than the
                occupational base for the lower rule and could justify a
                finding of “Disabled.”

                c. In situations where the rules would direct different
                conclusions, and the individual’s exertional limitations
                are somewhere “in the middle” in terms of the regulatory
                criteria for exertional ranges of work, more difficult
                judgments are involved as to the sufficiency of the
                remaining occupational base to support a conclusion as
                to disability. Accordingly, [vocational specialist]
                assistance is advisable for these types of cases.

Id. at *2-*3.

      Here, Mr. Casey acknowledges that his residual functional capacity (RFC)

is not an “exact fit” within a grid. He falls between two grids directing different

conclusions, and, consequently, the grids alone cannot yield the answer as to his

ability to engage in other work in the national economy. If limited to sedentary

work, Mr. Casey would be deemed disabled under the grids.        See 20 C.F.R. Pt.



                                            -4-
404, subpt. P, app. 2, § 201.12. If, however, he could perform a full range of

light work, he would be considered   not disabled. See id. at § 202.13.

       Thus, SSR 83-12 provides guidance in determining Mr. Casey’s possible

entitlement to benefits. And, contrary to Mr. Casey’s contentions, the ALJ

followed the procedure set out in SSR 83-12. The ALJ consulted a VE to

determine the erosion of the occupational base and learned that, for a person with

Mr. Casey’s RFC, the light-work occupational base would be eroded by 98%, but

the full range of unskilled work would be available. The ALJ also elicited VE

testimony to the effect that two light-work jobs existed in the economy in

significant numbers which could be performed by an individual with Mr. Casey’s

RFC.

       We disagree with Mr. Casey’s contention that SSR 83-12 automatically

requires a disability finding whenever the occupational base at the higher

exertional level is significantly reduced. It is true that the ruling would have

supported a finding of disability here, because the eroded base “could indicate

little more than the occupational base for the lower rule and could justify a

finding of ‘Disabled.’” SSR 83-12. This language, however, is permissive and

does not mandate such a finding. The ALJ fulfilled his obligation to determine

Mr. Casey’s occupational base by consulting a VE to determine whether a person

with claimant’s profile could perform substantial gainful work in the economy.


                                          -5-
See Moore v. Apfel , 216 F.3d 864, 870-71 (9th Cir. 2000) (stating that, when a

claimant’s exact place between the grids is difficult to determine, SSR 83-12

mandates the use of a VE, not a finding of “disabled”).      2
                                                                 Based on the VE’s

testimony, the ALJ concluded that Mr. Casey retained the ability to engage in

gainful work and, therefore, was not disabled.

      The ALJ’s conclusion is in accordance with the applicable regulations and

supported by substantial evidence.   3
                                         Applying the relevant standard of review,

we AFFIRM.

                                                          Entered for the Court



                                                          Bobby R. Baldock
                                                          Circuit Judge




2
       Mr. Casey also refers to a provision of the Social Security Administration’s
Program Operations Manual System (“POMS”), which is a set of policies issued
by the agency “to be used in processing claims.”   McNamar v. Apfel , 172 F.3d 764,
766 (10th Cir. 1999). The cited provision states that the finding listed for the
lower exertional level rule “usually” applies where the exertional capacity for the
higher level is significantly reduced.   See POMS No. DI 25025.001(B)(2). The
POMS provision adds nothing to our analysis of this case. The term “usually,”
like the phrase “could justify,” allows the Commissioner to reach a decision based
on the facts relevant to each specific case.
3
      Mr. Casey makes an additional argument on appeal. He contends that
substantial evidence does not support the ALJ’s finding that he is not disabled
because he has transferable computer skills. We have sustained the ALJ’s first
rationale for the finding that Mr. Casey was not disabled. As a consequence, we
do not address the alternative reasoning mentioned in the ALJ’s decision.

                                            -6-
