                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 19 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ANNIELEE GALLEGOS,

                Plaintiff-Appellant,

    v.                                                   No. 00-1282
                                                     (D.C. No. 97-Z-1226)
    KENNETH S. APFEL, Commissioner,                        (D. Colo.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK , PORFILIO , and BRORBY , 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      This order and judgment is not binding precedent, except under the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.
       Claimant Annielee Gallegos appeals from     the district court’s order

affirming the decision of the Commissioner of Social Security. In that decision,

the Commissioner denied Mrs. Gallegos’s application for disability insurance

benefits under Title II of the Social Security Act. See 42 U.S.C. § 423. We

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


                                   I. Legal standards

       Our review is limited to determining whether the Commissioner’s decision

is supported by substantial evidence on the whole record and comports with

relevant legal standards.   Casias v. Sec’y of Health & Human Servs.   , 933 F.2d

799, 800-01 (10th Cir. 1991). Claims for disability benefits are evaluated

according to the five-step sequential process set forth in 20 C.F.R. § 404.1520.

Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988)    . At step four of the

process, “the claimant must show that the impairment prevents [him] from

performing work he has performed in the past.”     Id. at 751 (quotation omitted and

alteration in original). If the claimant is successful at this stage, then the claimant

       has met his burden of proof, establishing a prima facie case of
       disability. The evaluation process thus proceeds to the fifth and final
       step: determining whether the claimant has the residual functional
       capacity (RFC) “to perform other work in the national economy in
       view of his age, education, and work experience.”




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Id. (citation and footnote omitted).    At step five, the burden shifts to the

Commissioner to show that the claimant retains the RFC to do specific jobs.

Thompson v. Sullivan , 987 F.2d 1482, 1487 (10th Cir. 1993).


                          II. Background facts and proceedings

       Mrs. Gallegos claimed that she is disabled due to a back injury and its

associated pain and other nonexertional impairments. At step four, the

administrative law judge (ALJ) determined that she could not return to her past

relevant work as a nursing assistant in the medium exertion work category.

Appellant’s App. at 16. The ALJ concluded, however, that Mrs. Gallegos’s

allegations that her impairments were of sufficient severity to prevent all

sustained work activity were inconsistent with the record and not credible.         Id.

Claimant does not challenge this credibility finding.

       The ALJ determined at step five that, based upon the medical record and

her level of daily activity,   Mrs. Gallegos retained the RFC to do a full range of

sedentary work limited only by the need to be able to change positions while

seated, id. at 15, but that “the requirement for position changes does not

significantly erode the number of jobs” that Mrs. Gallegos can perform,          id. at 17.

The ALJ concluded that Mrs. Gallegos is not disabled under Rule 201.28 of the

medical-vocational guidelines (the “grids”), 20 C.F.R. Pt. 404, Subpt. P, App. 2.

Id. at 15-16.

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                                      III. Discussion

       Citing Thompson , supra , and focusing on the ALJ’s finding that Mrs.

Gallegos needed to change positions when sitting, Mrs. Gallegos asserts that the

ALJ erred in relying on the grids because the ALJ did not make a finding

specifically stating that Mrs. Gallegos had no nonexertional impairments.

See 987 F.2d at 1488 (“An ALJ may not rely conclusively on the grids unless

he finds . . . that the claimant has no significant nonexertional impairment”).

We disagree. Although the ALJ did not use the exact words claimant desired, the

ALJ did find that claimant’s need to change positions because of pain “does not

significantly erode the number of jobs” she could perform. Appellant’s App.

at 17. This was simply another way of stating that Mrs. Gallegos’s nonexertional

impairment was not significant enough to preclude reliance on the grids.

       Mrs. Gallegos also argues that the fact that she has to change positions

when sitting is a nonexertional impairment that precludes reliance on the grids.

Again, we disagree.     Use of the grids is precluded only when a nonexertional

impairment limits a claimant’s RFC.        Glass v. Shalala , 43 F.3d 1392, 1396

(10th Cir. 1994).   The need to change positions when sitting is not the same as

the need to alternate sitting and standing because the ability to remain seated at

a job is not altered by simply shifting position.   The record contains substantial

evidence to support the ALJ’s finding that claimant’s nonexertional impairment

                                              -4-
of the need to change position had no substantial effect on her RFC for sedentary

work.

        Mrs. Gallegos next argues that the ALJ “dismissed most of the

nonexertional impairments” she alleged, Appellant’s Br. at 8, but she does not

say what those were, other than her need to change positions when sitting. She

also claims that it was error for the ALJ to note that she “testified that one of

her medications had produced sleepiness,” Appellant’s App. at 15, without taking

into account the limitation that impairment may have on her ability to do a full

range of sedentary work. Mrs. Gallegos misinterprets the meaning of the ALJ’s

statement in light of the record. Mrs. Gallegos testified that she could    not sleep

unless she was really exhausted or took Paxil to help her sleep at night.    Id.

at 246. She did not testify that she had to take Paxil during the day such that

its sleep-producing effect would affect her ability to do sedentary work. Thus,

contrary to claimant’s assertion, the ALJ did not find that sleepiness from

medications was a nonexertional impairment. We conclude that the ALJ properly

relied on the grids in determining that Mrs. Gallegos is not disabled.




                                            -5-
     The judgment of the United States District Court for the District of

Colorado is AFFIRMED .


                                                  Entered for the Court


                                                  Wade Brorby
                                                  Circuit Judge




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