                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 9 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JAMES TIMMONS,

                Plaintiff-Appellant,

    v.                                                    No. 04-7007
                                                    (D.C. No. CV-02-562-S)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK , Circuit Judges, and             MARTEN , ** District
Judge.



         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      This order and judgment is not binding precedent, except under the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.
**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
      Plaintiff-appellant James Timmons appeals from an order of the district

court affirming the Commissioner’s decision denying his applications for Social

Security disability and Supplemental Security Income benefits (SSI).

Timmons filed for disability benefits on September 11, 2000 and for SSI on

August 18, 2000. The medical evidence revealed that Timmons had impairments

including back problems, loss of his left eye, and alcohol abuse. The agency

denied his applications initially and on reconsideration.

      On December 17, 2001, Timmons received a de novo hearing before an

administrative law judge (ALJ). The ALJ determined that Timmons could not

return to his past relevant work, which required heavy exertion. He found,

however, that Timmons retained the residual functional capacity (RFC) to perform

“very wide essentially full sedentary” work “except jobs requiring good bilateral

vision and good stereoscopic depth perception.” Aplt. App. at 16. Applying the

Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2, table 1, rule

201.27 (the grids), the ALJ concluded that Timmons was not disabled within the

meaning of the Social Security Act. The Appeals Council denied review, making

the ALJ’s decision the Commissioner’s final decision.

                            STANDARD OF REVIEW

      We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the


                                         -2-
correct legal standards were applied. See Andrade v. Sec’y of Health & Human

Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations

omitted).

      The Commissioner follows a five-step sequential evaluation process

to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d

748, 750-52 (10th Cir. 1988). The claimant bears the burden of establishing

a prima facie case of disability at steps one through four. See id. at 751 n.2.

If the claimant successfully meets this burden, the burden of proof shifts to the

Commissioner at step five to show that the claimant retains sufficient RFC to

perform work in the national economy, given his age, education, and work

experience. See id. at 751.

                                       FACTS

      Mr. Timmons is missing his left eye. He lost the eye from glaucoma at the

age of eighteen and has a prosthesis implanted in the socket.

      In 1996, Timmons underwent cataract surgery on his right eye and received

a plastic intraocular lens implant. Dr. Shea, a consulting physician who examined

him, estimated his best corrected visual acuity in the right eye at 20/40.




                                          -3-
Dr. Jaiswal, who also examined Timmons, estimated his uncorrected vision in the

same eye at 20/25.   1



      In August 2000, Timmons was working for a tree trimming company when

a safety rope gave way and he fell at least thirty feet, landing on his buttocks. He

suffered a burst fracture of his spine at the L2-L3 level, with ninety percent

stenosis of the canal. He also broke two ribs. Doctors at Baylor University

Medical Center preformed an anterior corpectomy at L3, with fusion and

instrumentation. Timmons was in a body cast for months, and lost thirty pounds.

By the time of the hearing, although he was over six feet tall, Timmons weighed

only 148 pounds.

      Although follow-up was ordered after the traumatic back injury, Timmons

has not continued to see physicians for his back problems. He explained at the

hearing that he cannot afford medical treatment. Although prescribed painkillers,



1
       Because of the way Dr. Jaiswal’s opinion (exhibit 10F) was collated, there
was some confusion about his opinion at the hearing. Mr. Timmons’ attorney
stated that Dr. Jaiswal’s written report, page one of exhibit 10F, stated that he had
20/25 vision. Aplt. App. at 148. The attorney believed that Dr. Jaiswal’s notes,
however, on page seven of the same report, showed 20/40 vision.       Id. at 154. The
ALJ concluded that the 20/25 reading was an error and stated that he would use
the 20/40 reading as the correct one.     Id. at 220-21. Page seven of exhibit 10F
does not contain Dr. Jaiswal’s notes, however; they are plainly Dr. Shea’s notes,
which have erroneously been attached to exhibit 10F rather than to exhibit 9F.
Thus, the record does not illustrate an inconsistency, and the ALJ correctly stated
in his ultimate decision that Dr. Jaiswal’s report “revealed 20/25 visual acuity in
the right eye without correction.”    Id. at 14.

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he refuses to take them, preferring to live with the pain rather than to become

addicted.

         Despite his serious back injuries, Timmons attempted to continue doing

some work to pay his child support obligations by driving a backhoe for Atoka

County. He was able to perform this part-time work, which he obtained thanks to

his ex-father-in-law’s ties to county government, through an unusual arrangement

that allowed him to skip work on days that his back hurt too badly for him to get

out of bed. He was also permitted to lie down at times on the job site. His visual

impairments did not bother him at this job because “[a] back hoe, I’m off in the

bar ditch, there’s nothing there to hit.” Aplt. App. at 238. The ALJ did not

consider this work for the county to be substantial gainful employment. We

agree.

         At the ALJ hearing, Timmons described his past work, which involves

heavy, unskilled manual labor. There was no vocational expert testimony at the

hearing about the effect of Timmons’ visual deficits on the job base or on his

ability to do sedentary work. There was, in fact, no expert vocational testimony

at all. The ALJ did, however, pose the following hypothetical question to

Timmons:

               Suppose there were a job, this is a lot different than what
         you’ve done, but suppose there was a job, like being a, a, a
         receptionist in an office building, all could, all you had to do was sit
         and stand whenever you needed to for short periods, and people

                                            -5-
      would come in the building and ask questions, such as where’s
      Mr. Saunders office and what time’s Mr. Saunders back and you just
      tell them he’ll be back at 3, or the parking is at the side of the
      building, you don’t have to lift anything heavier than pen, pencil, pad
      of paper, may be somebody leaves a briefcase that weighs less than a
      gallon of milk, you have to put it on the table, and you’re, and when
      you’re sitting, you’re sitting in a chair, like you’re sitting in now, and
      there’s no bouncing around, there’s no hand levers, there’s no foot
      levers, now that’d be a lot easier physically than what you’re doing,
      wouldn’t it?

Id. at 255.

      Timmons responded, “Yeah. As long as they let me lay down when I

needed to.” Id. When the ALJ indicated he could only lay down at breaks,

Timmons indicated that he doubted he could perform such work for eight hours a

day, five days a week. The ALJ’s question did not discuss any visual demands

that the hypothetical receptionist job might entail, despite Timmons’ testimony

that he cannot read fine print in a newspaper and can only watch television for

half an hour at a time before getting a headache.

      Additionally, the ALJ made no effort at the hearing to reconcile the

discrepancies between Dr. Jaiswal’s and Dr. Shea’s estimates of Timmons’ visual

acuity. Instead, he engaged in an impromptu medical examination:

      Q. Yeah. All right. How many fingers am I holding up?

      A. That’s two.

      Q. Okay. All right. Now how many am I holding up?

      A. Four.

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       Q. Okay. And what distance apart are we, about 10 feet?

       A. Yeah, probably.

Id. at 261.

       In his decision, the ALJ found that the loss of Timmons’ left eye was a

severe impairment. He stated that Timmons could not return to any of his past

relevant work. He then opined, however, that “[i]f claimant’s vision were a

serious problem he could not have done his part time back hoe driving job after

the alleged onset of disability.”   Id. at 14. The ALJ did not discuss the visual

requirements of the backhoe job. He made no attempt to correlate the visual

requirements of work part-time driving a backhoe, outdoors during the daytime in

a ditch with no obstacles, with the sort of sedentary office work he believed

Timmons was capable of performing on a full-time basis. He also did not discuss

how the visual requirements of the outdoor driving job correlated with those of

the full range of sedentary jobs.

       The ALJ completed his RFC assessment and found Timmons capable of

performing “very wide essentially full sedentary except jobs requiring good

bilateral vision and good stereoscopic depth perception.”    Id. at 16. He then

applied the grids, concluding that rule 201.27 dictated a finding of “not disabled.”




                                           -7-
                                      ANALYSIS

       There was no basis for mechanical application of the grids here.

Mr. Timmons’ lack of vision in his left eye is a nonexertional impairment that

required consideration of vocational factors specific to his case. Since the ALJ

did not obtain any vocational testimony or cite any other vocational resource, and

since he failed to support his conclusion that Timmons’ eye problems were so

insignificant as to have essentially no impact on the job base, we must reverse and

remand for further consideration of Timmons’ claim.

       The mere existence of a visual impairment did not, of course, prevent the

ALJ from relying on the grids.    Thompson v. Sullivan , 987 F.2d 1482, 1488 (10th

Cir. 1993). If the ALJ found that the visual impairment would have no significant

effect on Timmons’ ability to do a full range of sedentary work, he would still be

free to apply the grids.   Id. Such a finding, however, like any of the ALJ’s

determinations, would have to be supported by substantial evidence.     See Sykes v.

Apfel , 228 F.3d 259, 261 (3d Cir. 2000) (concluding that ALJ erred by failing to

support his conclusion that loss of binocular vision from blindness in one eye

would not significantly erode the occupational base for claimant with other,

exertional impairments).

       Such substantial evidence is absent here. In fact, there are three substantial

difficulties with the ALJ’s approach. The first difficulty arises because he limited


                                           -8-
Timmons to unskilled, sedentary work. The ALJ eliminated Timmons’ past heavy

work from consideration, along with medium and light work, due to his severe

back impairment. He concluded that Timmons can only do sedentary work, and

has no transferable skills.

      The Commissioner has recognized that the visual demands of unskilled

sedentary work differ markedly from those in other categories. While as a general

matter, there will be a substantial number of jobs across exertional levels

available for anyone who “retains sufficient visual acuity to be able to handle and

work with rather large objects,” SSR 85-15, 1985 WL 56857, at *8, this is not

true of sedentary, unskilled work:

      Most sedentary unskilled occupations require working with small
      objects. If a visual limitation prevents an individual from seeing the
      small objects involved in most sedentary unskilled work . . . there
      will be a significant erosion of the sedentary occupational base.
      These cases may require the use of vocational resources.

SSR 96-9p, 1996 WL 374185, at *8.

      The ALJ’s found that Timmons’ loss of his left eye was a “severe”

impairment. Aplt. App. at 14. The second problem with his decision arises

because this finding of severity appears inconsistent with his conclusion that the

eye impairment would pose only an “insignificant” effect on his ability to do the

full range of sedentary work. At the very least, the ALJ should have explained

how a “severe” impairment at step two became “insignificant” at step five.


                                         -9-
      The third problem arises because the only reasons the ALJ gave for

concluding that Timmons’ eye problems were “insignificant” was the fact that he

drives a backhoe part time, and that one consulting physician assigned him

uncorrected 20/25 vision in his right eye. The ALJ made no finding about the

visual demands of the backhoe driving as Timmons performed it, and no attempt

to correlate them with sedentary work. As Timmons explained, the visual

demands of the backhoe job appear to be minimal.

      The ALJ’s hypothetical sedentary receptionist position contained no

specific visual demands. In any event, there was no vocational testimony

concerning the visual demands of the position, or the more general visual

demands of a broad range of sedentary work, as compared to Timmons’ visual

acuity. As for Dr. Jaiswal’s opinion, this concerned only visual acuity in

Timmons’ right eye; the point is that he cannot see with his   left eye at all.

      Finally, although the ALJ made a conclusory statement that he found

Timmons’ testimony “not credible for the reasons set forth in the body of the

decision,” id. at 16, there are no specific reasons given for discounting Timmons’

credibility anywhere in the ALJ’s decision. Timmons testified that his visual

restrictions limited his ability to see small objects, and the ALJ cited no evidence

to contradict this testimony.




                                          -10-
      We must remand for the limited purpose of obtaining vocational expert

testimony or other additional evidence of the effect of the identified nonexertional

limitations on Timmons’ ability to do substantially the full range of sedentary

work. We remind the ALJ that he

      may not rely conclusively on the grids unless he finds (1) that the
      claimant has no significant nonexertional impairment, (2) that the
      claimant can do the full range of work at some RFC level on a daily
      basis, and (3) that the claimant can perform most of the jobs in that
      RFC level. Each of these findings must be supported by substantial
      evidence.

Thompson , 987 F.2d at 1488.

      The judgment of the district court is REVERSED, and the case is

REMANDED with instructions to REMAND to the Commissioner for further

proceedings in accordance with this order and judgment.



                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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