                                                                                  FILED
                                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          January 23, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 PAMELA McKENNA,

       Plaintiff - Appellant,

 v.                                                          No. 18-6063
                                                     (D.C. No. 5:17-CV-00157-M)
 COMMISSIONER, SSA,                                         (W.D. Okla.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

      Pamela McKenna appeals from the district court’s order denying her

application for social security disability insurance benefits and supplemental security

income benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.

§ 405(g), we affirm.

      Ms. McKenna worked as a senior programmer analyst until June 3, 2011, when

she was laid off. At the time of the hearing before an administrative law judge (ALJ)



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
she was 55 years old. She claimed she became disabled on the date she was laid off

because of various physical impairments and depressive disorder. The sole testimony

at the ALJ hearing was by Ms. McKenna and a vocational expert (VE). On June 4,

2015, the ALJ determined that Ms. McKenna had the residual functional capacity

(RFC) to perform light work limited by, among other things, an ability to stand

and/or walk for only a total of two hours during an eight-hour workday, the need for

an assistive walking device, and the need to alternate sitting and standing at the

workstation. At step four of the controlling five-step sequential evaluation process,

see Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (explaining the five-step

framework for determining disability), the ALJ concluded that Ms. McKenna could

perform her past work as a senior programmer analyst and she therefore was not

disabled under the Social Security Act. The Appeals Council denied review, and the

district court affirmed.

       Because we review de novo the district court’s rulings in a social security case,

“we independently determine whether the ALJ’s decision is free from legal error and

supported by substantial evidence.” Id. (internal quotation marks omitted). “[W]e

neither reweigh the evidence nor substitute our judgment for that of the agency.”

Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (internal quotation marks

omitted).

       Ms. McKenna challenges the ALJ’s determination of her ability to sit or stand

while working. Although she acknowledges that “[t]he ALJ’s RFC allowed for the

option to alternate sitting and standing positions at the workstation,” Aplt. Br. at 4

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(internal quotation marks omitted), she argues that the ALJ failed to specify the

frequency of the need to sit or stand, so a remand to the ALJ is necessary for

clarification. She relies on SSR 96-9p, 1996 WL 374185, at *7, which states that

“[t]he RFC assessment must be specific as to the frequency of the individual’s need

to alternate sitting and standing.” But the Ruling applies only to people with

sedentary, unskilled occupations. See id. **4-5 (explaining that the Ruling’s purpose

is to provide guidelines for evaluating whether a claimant can perform “sedentary

unskilled occupations”); see also id. at *7 (observing that the need to alternate sitting

and standing may erode “the occupational base for a full range of unskilled sedentary

work”). Ms. McKenna’s past work, however, was skilled work.

      Moreover, at step four it is Ms. McKenna’s burden to establish that she is

unable to perform her job as a senior programmer analyst both as she actually

performed that work in the past and as it is generally performed in the national

economy. See O’Dell v. Shalala, 44 F.3d 855, 859-60 (10th Cir. 1994). The VE

testified that because the essential function of Ms. McKenna’s past work is cognitive,

it allows for flexibility in physical positioning. And Ms. McKenna does not claim

that her past work does not allow her to alternate sitting and standing as needed.

Thus, the ALJ was not required to be more specific concerning Ms. McKenna’s

sit-stand requirements.




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We affirm the district court’s judgment.


                                    Entered for the Court


                                    Harris L Hartz
                                    Circuit Judge




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