                      UNITED STATES COURT OF APPEALS
Filed 1/7/97
                             FOR THE TENTH CIRCUIT



    JOHNIE STUBBLEFIELD,

                Plaintiff-Appellant,

    v.                                                 No. 96-5051
                                                   (D.C. No. CV-94-992)
    SHIRLEY S. CHATER, *                               (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT **



Before EBEL and HENRY, Circuit Judges, and DOWNES, *** District Judge.




*
      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. 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      This order and judgment is not binding precedent, except under the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.
***
       Honorable William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
      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.

      Plaintiff Johnie Stubblefield appeals from an order of the district court that

affirms the decision of the Secretary of Health & Human Services to deny him

social security disability and supplemental security income benefits. We have

jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.

      Plaintiff claims he is disabled due to back problems, pain, depression,

limited work experience, and advancing age. He filed applications for benefits in

1987 and 1988, which were denied. He filed this application on August 9, 1990.

Because the administrative law judge (ALJ) found no good cause for reopening

plaintiff’s previous applications, the ALJ considered his current application from

July 7, 1989, the day after his last most recent application was denied.

      On this application, the ALJ denied benefits both initially and on remand

from the Appeals Council, ultimately deciding at step five of the evaluation

process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988), that

although plaintiff cannot return to his past work, he retains the residual functional

capacity (RFC) to perform a significant number of jobs that exist in the national

economy. The ALJ found that plaintiff did not acquire transferable skills from


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his past work, but can nevertheless perform certain sedentary, unskilled jobs. The

Appeals Council denied review from this determination, making it the final

decision of the Secretary. The magistrate judge 1 determined that the ALJ’s

finding that plaintiff lacks transferable skills was not supported by substantial

evidence, that plaintiff has transferable skills, and that the record supports the

ALJ’s conclusion that significant numbers of jobs exist that plaintiff can perform.

      On appeal, plaintiff contends that the ALJ’s finding that he retains the RFC

to perform a significant number of jobs existing in the national economy is based

on an error of law and is otherwise not supported by substantial evidence.

Specifically, plaintiff argues that: (1) the ALJ’s failure to make a precise finding

as to plaintiff’s need to alternate sitting and standing tainted the hypothetical

question the ALJ posed to the vocational expert (VE); (2) the ALJ should not

have relied on the Medical-Vocational Guidelines since plaintiff alleged a

nonexertional impairment, pain; (3) the ALJ’s finding that plaintiff had no

transferable skills is supported by substantial evidence, contrary to the conclusion

of the magistrate judge; and (4) the ALJ found plaintiff’s testimony concerning

his sitting limitations to be not credible, without giving a valid reason for

rejecting it. After reviewing the ALJ’s decision in light of the whole record, we



1
      The parties consented to proceed before the magistrate judge. See
28 U.S.C. § 636(c).

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agree that the ALJ made a number of legal and evidentiary errors. We therefore

remand for additional proceedings.

      At step five, after the claimant has demonstrated that he cannot return to

his past work, “the burden shifts to the Secretary to show that the claimant retains

the residual functional capacity (RFC) to do other work that exists in the national

economy.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). “‘The

Secretary meets this burden if the decision is supported by substantial evidence.’”

Id. (quoting Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988)). We therefore

review the Secretary's decision to determine whether it is supported by substantial

evidence and whether the correct legal standards were applied. Miller v. Chater,

99 F.3d 972, 975 (10th Cir. 1996). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971)(quotation and citation omitted).

Evidence is not substantial if it is overwhelmed by other evidence or is mere

conclusion. Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). We

may not reweigh the evidence or substitute our judgment for that of the Secretary.

Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).

      As indicated above, plaintiff claims he is disabled due to back problems,

pain, depression, limited work experience, and advancing age. The ALJ found

that plaintiff retains the RFC for sedentary work, II Appellant’s App. at 24


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(finding 5), but that his capacity for the full range of sedentary work is limited by

his need to “change positions to relieve his symptoms,” id. (finding 7). At the

hearing, the ALJ asked the VE what jobs would be available to a 48-year-old man

with a high school education, the RFC for sedentary work, chronic pain, and the

need to “change position from time to time to relieve this symptomatology.” Id.

at 81. Although the VE testified that plaintiff acquired transferable work skills

from his past work assembling prefabricated steel buildings, the ALJ concluded

that plaintiff has no transferable skills, id. at 25 (finding 10), and that plaintiff

can perform such jobs as “dispatcher clerk, 1,046 [jobs in] Oklahoma, 95,432

nationally, inventory stock clerk, 4,101 Oklahoma, 36,059 nationally, assembly,

1,835 Oklahoma, 140,113 nationally, and cashier, 2,154 Oklahoma, 772,370

nationally,” id. at 23.

      There are a number of problems with these findings. First, because the ALJ

failed to make a precise finding as to plaintiff’s sitting limitations, the

hypothetical he posed to the VE was faulty and the response it elicited cannot

constitute substantial evidence. Hargis v. Sullivan, 945 F.2d 1482, 1492

(10th Cir. 1991)(“Testimony elicited by hypothetical questions that do not relate

with precision all of a claimant’s impairments cannot constitute substantial

evidence to support the Secretary’s decision.” (quotation omitted)). Considering

the vague wording used by the ALJ, we cannot tell what assumptions about


                                           -5-
plaintiff’s sitting limitations the VE might have made and whether they mesh with

the medical evidence.

      Second, even assuming the ALJ’s hypothetical was legitimate, he

misconstrued the VE’s testimony in response to it. She plainly stated that there

are no unskilled, sedentary jobs which would allow plaintiff to alternate sitting

and standing. II Appellant’s App. at 85. This eliminates the assembly and

cashier jobs from the pool of jobs which plaintiff can still perform--they are

unskilled, sedentary jobs. See id. at 84.

      The VE did not specify the numerical code in the Dictionary of

Occupational Titles (DOT) for the “stock and inventory clerk” job she said

plaintiff can perform, see id. at 82, and we do not find an exact match for that

title in the DOT. The clerical stock- or inventory-type jobs that are included,

however, are all described as requiring at least light exertion. Therefore, since

the ALJ found that plaintiff was limited to sedentary work, expressly rejecting the

prior assessment by the State that plaintiff can perform light work, id. at 22, these

stock and inventory jobs are also eliminated from plaintiff’s occupational base.

Moreover, even if we could find a sedentary stock or inventory job in the DOT to

match the VE’s testimony on that point, the VE stated that “[t]he stock and

inventory clerk would not have as much liberty” to sit and stand at will as a

dispatcher clerk, id. at 86, again raising the question of what unstated


                                            -6-
assumptions about plaintiff’s sitting limitations the VE was making in response to

the ALJ’s vague hypothetical, and precluding the possibility that this evidence is

substantial evidence.

      The one remaining job named by the VE is dispatcher clerk, and it also

must be eliminated from the occupational base for lack of substantial evidence to

support it. Because the VE identified the dispatcher clerk job based on her belief

that plaintiff has transferable skills, to consider it contradicts the ALJ’s express

finding that plaintiff lacks transferable skills. Id. at 25 (finding 10).

      Moreover, even assuming plaintiff has transferable work skills, the VE

testified that plaintiff can perform a dispatcher clerk job only if he remains in the

steel or building industries. See id. at 82, 87, 89. Although the VE said there

were 1,046 dispatcher clerk jobs in Oklahoma and 95,532 nationally, see id., she

estimated that only ten to twenty percent of these jobs are in the relevant

industries, but that, in any event, she could “not give . . . an accurate figure

without doing an actual labor market survey,” id. at 90. When asked if she

thought there were 200 steel building companies in Oklahoma that would need a

dispatcher, she replied: “As I say, I would have to do an actual labor market

survey.” Id. Thus, the VE herself put into question her own ten to twenty percent

estimate, basically saying she did not know how many dispatcher clerk jobs there

were in the relevant industries. Therefore, there is no substantial evidence to


                                           -7-
support any particular number of dispatcher clerks jobs supposedly available to

plaintiff. Even assuming plaintiff has transferable work skills and plaintiff can

perform a dispatcher clerk job, we cannot determine whether the number of

dispatcher clerk jobs supposedly available to plaintiff is significant. See Trimiar

v. Sullivan, 966 F.2d 1326, 1330 (10th Cir. 1992)(holding 650 to 900 jobs in

Oklahoma is significant when factors relevant to the determination have been

addressed). Therefore, for all the above reasons, the ALJ’s conclusion that

plaintiff can perform jobs that exist in significant numbers in the national

economy is not supported by substantial evidence.

      The magistrate judge determined that there was no substantial evidence to

support the ALJ’s finding that plaintiff does not possess transferable work skills

and found, based on the VE’s testimony, that he has transferable skills. Plaintiff

argues there is substantial evidence to support the ALJ’s finding because the VE

mischaracterized plaintiff’s past relevant work as a high-level semi-skilled

“assembler, metal building (construction),” see DOT 801.381-010, instead of an

unskilled construction worker II, which includes the job of “laborer, steel

handling (construction),” see DOT 869.687-026. Plaintiff correctly points out

that unskilled jobs produce no transferable skills. See 20 C.F.R. §§ 404.1568(a),

416.968(a); S.S.R. 82-41, 1982 WL 31389, at *2. After carefully reviewing the

record, we conclude there is insufficient evidence to determine which DOT job


                                         -8-
description best fits plaintiff’s past work assembling prefabricated steel

buildings. 2 Plaintiff’s testimony describing this past work was quite brief, see II

Appellant’s App. at 68-69, and his application forms provide even less detail

about it, see id. at 99, 117-18, 226-27, 232-33, 242. The ALJ did not ask him

whether the VE’s characterization of his past work was accurate. This issue will

therefore require further development on remand.

      Finally, we note that the ALJ failed to address the factors generally

required to make the step-five determination under Trimiar. See

966 F.2d at 1330. Although this legal error is not a ground for our reversal

because plaintiff did not raise it, we note the error for correction on remand.

      We reject plaintiff’s claim that the ALJ inappropriately relied on the

Medical-Vocational Guidelines (the “grids”), 20 C.F.R., Pt. 404, Subpt. P, App. 2,

Rule 201.21, in making his determination that plaintiff was not disabled. The

ALJ clearly accepted plaintiff’s pain as a nonexertional impairment, and correctly

used the grids only as a framework for making his decision. II Appellant’s App.

at 25 (finding 12); see also Thompson, 987 F.2d at 1488.




2
      In response to the Secretary’s argument that this issue is untimely raised
because it was not presented to the magistrate judge, we point out that plaintiff
had no occasion to raise it in the district court. The ALJ’s finding that plaintiff
had acquired no transferable skills was in plaintiff’s favor.

                                         -9-
      In light of our remand for additional proceedings, we do not reach

plaintiff’s claim that the ALJ improperly rejected as not credible his contention

that he can sit for only fifteen minutes before he must change positions due to his

back pain. Because we decide that the ALJ must make a precise finding as to

plaintiff’s sitting limitations, his testimony, as well as all of the relevant medical

evidence, will have to be reconsidered on remand.

      Plaintiff claims he reached advanced age in 1995, and that his building

assembly job also became vocationally irrelevant in 1995 due to the passage of

time since he last worked in that field. He therefore claims he is now disabled

and requests an immediate award of benefits. We reject this request. Our holding

that the ALJ failed to marshal substantial evidence to support his conclusion that

there is a significant number of jobs in the national economy that plaintiff can

perform does not presuppose a view that adequate evidence cannot be developed

on remand. We need not and do not decide whether plaintiff became disabled in

1995, but leave that decision for the Secretary in the first instance. We note,

moreover, that even if plaintiff became disabled in 1995, that would not compel a

finding that plaintiff was disabled before then.

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

of Oklahoma is REVERSED, and the case is REMANDED with directions to




                                          -10-
remand to the agency for further proceedings not inconsistent with this order and

judgment.



                                                   Entered for the Court



                                                   William F. Downes
                                                   District Judge




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