                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 28 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LEONARD E. BURLAND,

                Plaintiff-Appellant,

    v.                                                    No. 98-7113
                                                    (D.C. No. CV-97-300-S)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before PORFILIO , BARRETT , 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      This order and judgment is not binding precedent, except under the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 Leonard E. Burland appeals from the denial of social security

disability and supplemental security income benefits. He argues that: (1) the

findings of the administrative law judge (ALJ) concerning his residual functional

capacity (RFC) are inconsistent with the ALJ’s discussion of the evidence, are

insufficiently specific to permit review, and are not based on a proper

consideration of the evidence of his mental impairment; (2) the ALJ failed to use

the medical-vocational guidelines (the “grids”) as a framework for

decisionmaking at step five; (3) the ALJ’s step-five findings were based on

vocational testimony elicited by an improper hypothetical; and (4) the district

court failed to address the actual issues raised.

      Plaintiff was born on November 8, 1948, and has a seventh-grade

education. His insured status expired on June 30, 1996, when he was forty-seven

years old. His past jobs included unskilled sedentary, light, and heavy jobs of:

oil field laborer, janitor, and security guard. He alleges that he became disabled

on July 15, 1991, due to the residuals of diabetes, arthritis, a leg fracture, high

blood pressure, and anxiety.

      The ALJ decided the claim alternatively at steps four and five of the

evaluation sequence.   See generally Williams v. Bowen , 844 F.2d 748, 750-52

(10th Cir. 1988) (discussing the five steps). At step four, he found that plaintiff

was capable only of sedentary work with a sit/stand option, and therefore could


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not return to his past, heavy work as an oil field laborer. He decided that plaintiff

could return to his past work as a security guard, however, as it is performed at

the sedentary level. In addition, the ALJ determined at step five that there are

numerous other jobs that plaintiff can perform with the limitations the ALJ found

him to have. The Appeals Council denied review, making the ALJ’s decision the

final agency decision. Plaintiff then filed this suit. In the district court, the

government conceded that plaintiff’s work as a security guard was too far in the

past to be relevant to these proceedings. Based on the recommendation of the

magistrate judge, the district court affirmed the ALJ’s finding of nondisability at

step five.

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

review the agency’s decision on the whole record to determine only whether the

factual findings are supported by substantial evidence and the correct legal

standards were applied.    See Goatcher v. United States Dep’t of Health & Human

Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh the evidence or

substitute our judgment for that of the agency.   See Kelley v. Chater , 62 F.3d 335,

337 (10th Cir. 1995).

       Because the government conceded that the ALJ erred at step four, plaintiff

challenges only the ALJ’s step-five determination in this appeal. He first argues

that the ALJ’s findings concerning his RFC are inconsistent with the ALJ’s


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discussion of the evidence, are insufficiently specific to permit review, and are

not based on a proper consideration of the evidence of his mental impairment.

       We agree that the ALJ’s finding that plaintiff is capable of lifting twenty

pounds, see Appellant’s App., Vol. II at 17, 18 (finding 5), is somewhat

inconsistent with the finding that plaintiff is limited to sedentary work,   see id.

at 17, which requires lifting no more than ten pounds,       see 20 C.F.R.

§§ 404.1567(a), 416.967(a). However, if plaintiff can lift twenty pounds, he can

manage the lifting requirements of sedentary work, and the ALJ was otherwise

consistent in his view that plaintiff is capable only of sedentary work. The ALJ’s

decision is sufficiently specific to be reviewable on this basis. Moreover, the

ALJ’s finding that plaintiff’s anxiety is not a significant nonexertional

impairment is supported by substantial evidence. Although the ALJ might have

been more careful in articulating his decision, we find no reversible error on these

points.

       Next, plaintiff argues that the ALJ improperly failed to use § 201.00(h) in

the grids, 20 C.F.R. pt. 404, subpt. P, app. 2, as a framework for decisionmaking

at step five. This argument is plainly without merit. Section 201.00(h) states that

a claimant who is a younger individual as defined in the regulations, who is

restricted to unskilled, sedentary work, who cannot return to his past relevant

work, and who is illiterate or unable to communicate in English, is presumptively


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disabled. Because there is no evidence that plaintiff is illiterate or unable to

communicate in English, however, § 201.00(h) has absolutely no application to

plaintiff’s claim. Rather, Rule 201.18 of the grids provides a framework for a

decision that plaintiff is   not disabled.

       Third, plaintiff argues that the ALJ’s step-five findings were based on

vocational testimony elicited by an improper hypothetical. Although it is true that

the ALJ failed to include plaintiff’s need to alternate sitting and standing in his

hypothetical questions, plaintiff’s counsel made up for this failing. Further,

plaintiff’s counsel used plaintiff’s own testimony as to his ability to sit and stand

in his hypothetical question. There is no reason to believe that the ALJ would

have found plaintiff to be more restricted than he testified he was, so there is no

reason to remand for the ALJ to make a specific finding on this point. The

vocational expert testified in response to plaintiff’s counsel’s hypothetical

question that an individual could perform thirty different jobs with the sitting and

standing restrictions plaintiff’s counsel presented. The vocational testimony

therefore supports the ALJ’s finding at step five that plaintiff is not disabled.

       Finally, plaintiff argues that the district court failed to address the actual

issues raised. For the reasons explained above, this argument is without merit.




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

Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  James E. Barrett
                                                  Senior Circuit Judge




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