UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
ROBERT L. SAIZ,
Plaintiff-Appellant,
v. No. 03-2168
JO ANNE B. BARNHART,
Commissioner of the Social Security
Administration,
Defendant-Appellee.
ORDER
Filed November 15, 2004
Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.
Appellant’s motion to publish the court’s decision in this appeal is granted.
A copy of the published opinion is attached. The panel found appellee’s response
to be both untimely and unpersuasive.
Entered for the Court
PATRICK FISHER, Clerk
By:
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 19 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ROBERT L. SAIZ,
Plaintiff-Appellant,
v. No. 03-2168
JO ANNE B. BARNHART,
Commissioner of the Social Security
Administration,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-01-858-JP/RHS)
Submitted on the briefs:
Michael D. Armstrong, Albuquerque, New Mexico, for Plaintiff-Appellant.
David C. Iglesias, United States Attorney, Tina M. Waddell, Chief Counsel,
Region VI, Michael McGaughran, Deputy Regional Chief Counsel, Linda H.
Green, Assistant Regional Counsel, Office of the General Counsel, Social
Security Administration, Dallas, Texas, for Defendant-Appellee.
Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.
PER CURIAM .
Plaintiff Robert L. Saiz appeals from a district court order affirming the
Commissioner’s decision denying his application for social security benefits. We
review the Commissioner’s decision to determine whether it rests on substantial
evidence and adheres to applicable legal standards. Berna v. Chater, 101 F.3d
631, 632 (10th Cir. 1996). We hold that a significant nonexertional limitation
(involving the sedentary plaintiff’s ability to reach) precluded the Commissioner’s
conclusive reliance on the Medical-Vocational Guidelines (the “grids”). 1 We
therefore reverse and remand for reconsideration of plaintiff’s application in
conjunction with a particularized assessment of the vocational consequences of
his specific combination of exertional and nonexertional limitations. 2
Plaintiff claims that he is disabled primarily by degenerative disc disease
affecting his cervical and lumbar vertebrae. The administrative law judge (ALJ)
found that this condition limited plaintiff’s residual functional capacity (RFC) to
sedentary work, but rejected plaintiff’s allegation that the associated pain further
restricted his ability to work. The ALJ concluded that plaintiff was not disabled
under the grids, based on the premise that plaintiff could perform a full range of
1
The grids are set out at 20 C.F.R. pt. 404, subpt. P, app. 2.
2
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.
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sedentary work. The accuracy of that premise is the focus of this appeal, as it
was the necessary and sufficient condition for application of the operative grid.
See, e.g., Allen v. Barnhart, 357 F.3d 1140, 1143 (10th Cir. 2004).
Use of Grid for Sedentary Work Precluded by Reaching Limitation
Plaintiff contends his capacity for sedentary work is substantially reduced
by two nonexertional limitations associated with his degenerative skeletal
condition: in particular, problems with cervical vertebrae limit his ability to reach
with his upper extremities 3 and, more generally, pain he suffers interferes with his
ability to work. The ALJ expressly considered plaintiff’s allegations of pain and,
based on a range of factors, concluded that the pain involved did not affect
plaintiff’s capacity for sedentary work. In contrast, the ALJ did not address the
reaching limitation in even a facially logical manner. In the body of his decision,
the ALJ acknowledged a significant limitation on plaintiff’s capacity for reaching,
App. Vol. 1 at 14 (noting “no significant postural, manipulative or environmental
limitations except for reaching”) (emphasis added), but in the dispositive findings
recited at the end of the decision this limitation is completely ignored without any
explanation. See id. at 20-21.
3
Reaching, though a physical activity, is characterized as nonexertional
under the relevant regulations. See 20 C.F.R. §§ 404.1569a(a), (c)(1)(vi),
416.969a(a), (c)(1)(vi).
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The Commissioner attempts to fill the gap in the ALJ’s decision by arguing
that the reaching limitation has little support in the record. Not only is this effort
undone by the obvious point that the ALJ himself noted the limitation, see Allen,
357 F.3d at 1143 (holding plain error evident when ALJ “ignored . . . restrictions
that he found”), it is an inaccurate characterization of the evidence. The only
RFC assessment in the record–completed by an agency physician whose “highly
qualified” opinions the Commissioner elsewhere notes, correctly, must be given
weight, Aplee. Br. at 15 (citing 20 C.F.R. §§ 404.1527(f), 416.927(f))–found
plaintiff limited in “[r]eaching [in] all directions (including overhead).” App.
Vol. 1 at 141. The physician based this limitation on upper extremity numbness
and related neck pain caused by several cervical disc bulges. Id. at 140-41.
These problems appear throughout the medical record. See, e.g., id. at 134
(June 1996 report by Dr. Shibuya), 191 (November 1999 report by Dr. Bhasker),
196 (October 1996 report by Dr. Sloan). We therefore reject the Commissioner’s
effort to disavow a significant nonexertional limitation acknowledged by the ALJ
and supported by substantial evidence.
The presence of this particular limitation, specifically in connection with
a sedentary RFC, is not a technical or formalistic point. A sedentary RFC already
“represents a significantly restricted range of work.” Social Security Ruling
(SSR) 96-9p, 1996 WL 374185, at *3. Thus, the Commissioner’s guidelines not
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only exclude the grids if there is “more than a slight impact on the individual’s
ability to perform the full range of sedentary work,” they affirmatively recognize
that “a finding of ‘disabled’ usually applies when the full range of sedentary work
is significantly eroded.” Id. at *3, *5. Hence, it is especially significant that
reaching is “required in almost all jobs” and that a limitation in this regard “may
eliminate a large number of occupations a person could otherwise do.” SSR
(Program Policy Statement) 85-15, 1985 WL 56857, at *7; see Butler v. Barnhart,
353 F.3d 992, 1000-01 (D.C. Cir. 2004) (citing SSR 85-15 for significance of
reaching limitation in sedentary context and reversing ALJ decision that failed to
properly account for evidence of such limitation).
This court has, on occasions too numerous to require citation, reversed
determinations of nondisability for lack of the requisite match between RFC and
grid conditions. We must do so again here. That holding obviates consideration
of plaintiff’s other challenges to the ALJ’s use of the grids.
Other Objections
Plaintiff raises a novel due process objection, based on an assurance he was
given at the close of the evidentiary hearing when the ALJ said he “would get a
favorable ruling from [the ALJ] in about two or three months,” App. Vol. 1 at 53.
Plaintiff contends that this assurance created a false sense of security that lulled
him into believing further efforts in support of his application were unnecessary.
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This contention is moot in light of our disposition here. Any false sense of
security created by the ALJ ’s assurance has since been dispelled, and plaintiff
will presumably have an opportunity on remand to support his position with any
evidence or argument previously foregone on that account.
Plaintiff criticizes the ALJ’s pain assessment in several specific respects
that have a relevance beyond his objection to use of the grids. These criticisms
involve minor, perhaps individually non-dispositive points, but their facial merit
gives pause. For example, the ALJ implied that plaintiff’s pain was precipitated
only by medium to heavy lifting, when the record indicates, rather, that plaintiff
has continued to suffer constant pain after his cessation of any such activity. The
ALJ also stated that the pain was well controlled by medication and exercise,
when the record suggests that nothing plaintiff tried really relieved his pain. In
this regard, we also note that plaintiff has now been found disabled (as of the day
after the decision under review here) on a second application for benefits, and
that favorable determination rested to a substantial extent on his “complain[ts] of
severe pain and an inability to sustain work . . . supported and corroborated by the
medical history and recent clinical findings.” See Aplt. Reply Br., Ex. A. In light
of these considerations, we encourage the Commissioner to ensure that a thorough
reassessment of plaintiff’s allegations of pain is made in conjunction with the
administrative proceedings conducted on remand.
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The judgment of the district court is REVERSED and the cause is
REMANDED with directions to remand, in turn, to the Commissioner for further
proceedings consistent with this opinion.
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