                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 25, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT




 PAUL E. SPAULDING,

              Plaintiff-Appellant,
                                                        No. 09-6171
 v.                                             (D.C. No. 5:08-CV-00757-M)
                                                       (W.D. Okla.)
 MICHAEL J. ASTRUE, Commissioner
 of the Social Security Administration,

              Defendant-Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.



      Paul E. Spaulding appeals from a district court order affirming the decision

by the Commissioner of the Social Security Administration (the “Commissioner”)

denying his application for Social Security disability benefits. He alleged

disability based on diabetes, diabetic neuropathy, diabetic retinopathy,

hypertension, chronic obstructive pulmonary disease, obesity, arthritis, mitral

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
regurgitation, obstructive sleep apnea, shoulder and hand problems, and pain. The

agency denied his application initially and upon reconsideration.

      Spaulding subsequently received a de novo hearing before an administrative

law judge (“ALJ”). The ALJ determined that Spaulding retained the residual

functional capacity (“RFC”) to occasionally lift or carry ten pounds, frequently

lift or carry ten pounds, walk at least two hours in an eight-hour workday, and sit

for at least six hours in an eight-hour workday. He found that Spaulding could

not return to his past relevant work, but that there were a significant number of

other jobs in the national economy that he could perform given his age, education,

work experience, and RFC for a full range of sedentary work. Applying rule

201.21 of the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2

(“the grids”), the ALJ concluded that Spaulding was not disabled within the

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

rendering the ALJ’s decision final. Spaulding sought judicial review of the

decision in federal court. Over Spaulding’s objection, the district court adopted

the magistrate judge’s report and recommendation and affirmed the ALJ’s

decision. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse in

part and remand to the district court with instructions to remand to the

Commissioner with instructions for further proceedings as set forth herein.




                                         -2-
                                          I

      We review the Commissioner’s decision to determine whether substantial

evidence in the record supports the factual findings and whether the ALJ applied

the correct legal standards. 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, 750-51 (10th Cir. 1988) (describing process). The claimant bears the burden

of establishing a prima facie case of disability at steps one through four. 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 a

sufficient RFC to perform work in the national economy, given his age, education,

and work experience. See id. at 751.

                                          A

      On appeal, Spaulding raises a number of issues, some of which he did not

preserve for our review. We have “adopted a firm waiver rule . . . that a litigant’s

failure to file timely objections to a magistrate’s report and recommendation

waives appellate review of both the factual and legal determinations.” Key




                                         -3-
Energy Res. Inc. v. Merrill (In re Key Energy Res. Inc.), 230 F.3d 1197,

1199-1200 (10th Cir. 2000) (quotation and alteration omitted).

      Spaulding began his objection to the magistrate judge’s report and

recommendation with a blanket statement that he “reassert[ed] all the arguments

made [in his opening brief] and incorporat[ed] said brief by reference.” Such an

objection was insufficient to preserve specific issues for appellate review.

“[O]nly an objection that is sufficiently specific to focus the district court’s

attention on the factual and legal issues that are truly in dispute will advance the

policies behind the Magistrate’s Act that led us to adopt a waiver rule in the first

instance.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th

Cir. 1996).

      A careful review of both the initial district court brief and the objection

persuades us that the only issues Spaulding specifically preserved and now raises

on appeal are: (1) whether the ALJ provided a proper discussion of the findings

of Spaulding’s doctor concerning manipulative limitations in the use of his left

hand; (2) whether the ALJ appropriately applied the grids, given Spaulding’s

limitations; and (3) whether the ALJ improperly discounted his use of a cane.1

Because the ALJ’s failure to consider the doctor’s findings may have led to an


      1
         Spaulding’s argument involving his use of a cane was not raised in his
initial brief to the district court. But because the magistrate judge raised this
issue and Spaulding included it in his objections to the magistrate judge’s report
and recommendation, we consider it preserved for purposes of appeal.

                                          -4-
inappropriate application of the grids, we reverse and remand for further

proceedings.

                                          B

      The grids comprise tables of rules that determine whether a claimant is

disabled based on his RFC category, age, education, and work experience. See 20

C.F.R. pt. 404, subpt. P, app. 2. But “[t]he grids should not be applied

conclusively in a particular case unless the claimant [can] perform the full range

of work required of that RFC category on a daily basis and unless the claimant

possesses the physical capacities to perform most of the jobs in that range.”

Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (quotation and

alteration omitted). Further, “the grids take into account only exertional or

strength [limitations].” Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987).

Thus, as a general rule, the grids may not be used conclusively if the claimant has

nonexertional limitations, such as pain or manipulative or postural limitations,

that prevent him from performing the full range of work within a classification.

See id.; Thompson, 987 F.2d at 1488.

      Where a claimant suffers impairments causing a combination of exertional

and nonexertional limitations that prevent him from performing the full range of

work at a given exertional level, the Commissioner may not rely on the grids, but

must give “full consideration” to “all relevant facts” in the individual case to

determine if the claimant is disabled. 20 C.F.R. pt. 404 subpt. P, app. 2,

                                         -5-
§ 200.00(e)(2). Relevant facts may include expert vocational testimony, if

necessary. Id. There was no such individualized consideration of all the relevant

facts here, and the Commissioner admits that the ALJ applied the grids to find

Spaulding non-disabled at the sedentary exertional level.

                                          1

      Spaulding contends that he has two impairments causing non-exertional

limitations that preclude application of the grids: pain and manipulative

limitations in his hands. To preclude application of the grids, the pain would

have to limit Spaulding’s ability to perform a full range of sedentary work. Cf.

Glass v. Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994).

      The ALJ concluded that, although Spalding had pain-causing impairments

that limited him to some degree, the limitations were not as severe as he

contended and did not preclude him from performing sedentary work. On our

review, the ALJ’s pain analysis is supported by substantial evidence. Spaulding’s

allegations of non-exertional limitations relating to pain therefore do not preclude

application of the grids.

                                          2

      Spaulding suffered two separate hand problems that he contends caused

disability. First, in early 2007, Spaulding lost consciousness and fell in the

bathroom, injuring his left hand. An X-ray showed small avulsion fractures of the

third and fourth fingers. But, as the ALJ noted, there was no evidence that these

                                         -6-
fractures did not later heal, and Spaulding did not mention them at the hearing.

The ALJ found that the finger fractures had only a minimal effect on his ability to

work. This conclusion is supported by substantial evidence, and the fractures

thus did not preclude application of the grids.

      Spaulding’s other problem with his left hand, however, is not so easily

dismissed. On July 4, 2005, he was seen by a consultative examiner, Dr. Sidney

Williams. Dr. Williams diagnosed Spaulding with diabetic neuropathy, which

caused him “stocking/gloves loss of sensory modalities.” Dr. Williams also

opined that Spaulding had physical symptoms consistent with carpal tunnel

syndrome. While his right hand was essentially normal, his left hand had

weakened grip strength of “4/5 with reduced ability to manipulate small objects

and tools as evidenced by picking up coins and paper clips during the course of

[the] exam.” The ALJ did not mention these manipulative limitations in his

decision, much less give any reasons why they would not affect Spaulding’s

ability to perform a substantial number of sedentary jobs. 2 Even though “an ALJ

is not required to discuss every piece of evidence[,] . . . [he] must discuss the

uncontroverted evidence he chooses not to rely upon, as well as significantly




      2
       In his brief, the Commissioner offers a plethora of reason why the ALJ
might have rejected this hand impairment or viewed it as non-serious. But the
ALJ cited none of these reasons, and this court therefore cannot rely on them.
See Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007).

                                         -7-
probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th

Cir. 1996) (citation omitted).

      Dr. Williams’ evidence was significantly probative because, if the ALJ had

accepted his opinions, application of the grids may have been inappropriate. We

have long recognized that manipulative limitations, even involving only one hand

or arm, preclude application of the grids where the claimant is otherwise limited

to sedentary work. See Trimiar v. Sullivan, 966 F.2d 1326, 1333 (10th Cir.

1992); Frey, 816 F.2d at 515 n.1. A limitation in the use of the claimant’s hands

is particularly relevant when he can do only sedentary work:

      Reaching (extending the hands and arms in any direction) and
      handling (seizing, holding, grasping, turning or otherwise working
      primarily with the whole hand or hands) are activities required in
      almost all jobs. Significant limitations of reaching or handling,
      therefore, may eliminate a large number of occupations a person
      could otherwise do. Varying degrees of limitations would have
      different effects, and the assistance of a [vocational expert (“VE”)]
      may be needed to determine the effects of the limitations.
      “Fingering” involves picking, pinching, or otherwise working
      primarily with the fingers. It is needed to perform most unskilled
      sedentary jobs and to perform certain skilled and semiskilled jobs at
      all levels of exertion. As a general rule, limitations of fine manual
      dexterity have greater adjudicative significance—in terms of relative
      numbers of jobs in which the function is required—as the person’s
      exertional RFC decreases. Thus, loss of fine manual dexterity
      narrows the sedentary and light ranges of work much more than it
      does the medium, heavy, and very heavy ranges of work. The
      varying degrees of loss which can occur may require a
      decision-maker to have the assistance of a [VE].

Social Security Ruling (“SSR”) 85-15, 1985 WL 56857, at *7 (1985).




                                        -8-
      For the foregoing reasons, we must remand for the ALJ to consider and

discuss Dr. Williams’ diagnosis of hand limitations and its effect on Spaulding’s

RFC. In the event the ALJ finds, based on Dr. Williams’ report or other

evidence, that Spaulding’s hand limitations significantly affect his RFC, he

should not rely upon the grids to find Spaulding disabled. Instead, the ALJ

should obtain testimony from a VE to determine the effect of these limitations on

Spaulding’s ability to perform work within the national economy.

                                         C

      We also address Spaulding’s contention that the ALJ made a factually

incorrect finding concerning his use of a cane. The ALJ found that Spaulding

used a cane, but that none was prescribed for him. As Spaulding notes, however,

a cane was provided to him by the Veterans Administration medical service as a

“prosthetic appliance,” apparently at the request of one of his physicians. Thus,

assuming the V.A.’s provision of the cane as a prosthetic appliance constitutes a

“prescription,” the ALJ’s assertion appears factually inaccurate.

      Were this the only error in this case, we would hesitate to remand for two

reasons. First, the legal issue does not turn on whether a cane was “prescribed”

for Spaulding, but whether a cane was “medically required.” See SSR 96-9p,

1996 WL 374185, at *7 (July 2, 1996) (discussing medical necessity standard).

Spaulding does not point to specific record evidence that would satisfy the

medical necessity standard.

                                        -9-
      Second, the ALJ provided an alternative reason for concluding that

Spaulding’s alleged need for a cane would not affect his RFC. In his decision,

the ALJ noted that “the claimant was advised to gradually increase his exercise

tolerance until he could walk briskly for an hour at least 3-4 times a week. It is

reasonable to assume that medical personnel would not recommend brisk exercise

to someone that has to use a cane to ambulate.” Spaulding fails to challenge this

finding.

      Because we must remand on the issue of Spaulding’s ability to perform the

full range of sedentary work, however, the ALJ should also revisit Spaulding’s

use of a cane. In light of the fact that the cane was provided by the V.A. as a

“prosthetic appliance,” 3 and considering that the Commissioner has the burden to

establish at step five that there are jobs Spaulding can fulfill in the national

economy, the ALJ should develop the record with evidence concerning medical

necessity, if any, for use of the cane, and its effect on Spaulding’s RFC.




      3
         While an ALJ obviously “doesn’t have to include canes found on the
street, crutches fished out of dumpsters, or eye patches picked up in costume
shops” in his analysis, Lomax v. Astrue, No. 08 C 3540, 2010 WL 337654, at *15
(N.D. Ill. Jan. 29, 2010) (unpublished), this cane was made available by one of
Spaulding’s medical providers, apparently at his physician’s request, suggesting
medical necessity.

                                         -10-
                                      II

      This case is REVERSED and the case is REMANDED to the district court

with instructions to REMAND to the Commissioner for further proceedings as set

forth herein.


                                                Entered for the Court



                                                Carlos F. Lucero
                                                Circuit Judge




                                     -11-
