* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. App. Proc. 43(c), Shirley S. Chater, Commissioner of Social Security, is subs tituted for Donna E. Shalala, Secretary of Health and Human Services, as the defe ndant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary b ecause she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 7/26/96 FOR THE TENTH CIRCUIT

JOHN T. WADFORD,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 95-7147 (D.C. No. CV-94-585-S) (E.D. Okla. )

ORDER AND JUDGMENT ***** Honorable Ruggero J. Aldisert, Senior Circuit Judge , United States Court

of Appeals for the Third Circuit, sitting by design ation.

  After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. -2- Before TACHA, ALDISERT, ** * and BALDOCK, Circuit Judges. ****

Plaintiff John T. Wadford appeals from a district c ourt order affirming the Secretary’s denial of social security disability in surance benefits and supplemental security income. We carefully examine the record to determine whether the Secretary’s decision is supported by substantial evidence and adheres to applicable legal standards. Washington v. Shal ala , 37 F.3d 1437, 1439 (10th Cir. 1994). As with any other appeal, however, the scope of our review is delimited by the issues preserved and presented by the appellant. See Murrell v. Shalala , 43 F.3d 1388, 1389-90 & n.2 (10th Cir. 1994); Cro w v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). For the reasons explain ed below, we reverse and remand for further proceedings on the sole issue pr operly before us. Plaintiff applied for benefits alleging a combinati on of physical and mental impairments, including back pain, memory problems, vision and hearing deficits, and loss of strength and dexterity in his right han d associated with a gunshot wound and a history of transient ischemic attacks. The ALJ acknowledged1 The ALJ also discussed the testimony of a vocationa l expert, but did not

rely on it for his disposition. In any event, the Secretary concedes “that if this Court finds that appellant has . . . restrictions w hich would [preclude reliance on the grids], then the case must be remanded in lightof the inaudible and non-transcribed testimony of the vocational expert. ” Brief for Appellee at 11. -3- plaintiff cannot return to his past work as a truckdriver, but determined he nevertheless retains the capacity to perform the fu ll range of light work, and, accordingly, found him not disabled at step five un der the medical-vocational guidelines (grids). 1 See generallyWilliams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988)(explaining five-step analysis in detail)

. Plaintiff argues his right hand is capable only of gross motor function and, therefore, the ALJ’s reliance on the grids was impr oper. Plaintiff’s factual premise and legal conclusion are both correct. Eve ry pertinent medical report indicates plaintiff cannot perform fine manipulatio ns with his right hand. See II R. 107, 126, 176-77, 180. Indeed, the most detaile d of these reports goes on to note he is unable even to “effectively grasp tools such as a hammer.” Id. at 177. As for the law, this court repeatedly has held thatsignificant nonexertional impairments, which include manipulative limitations , Trimiar v. Sullivan , 966 F.2d 1326, 1333 (10th Cir. 1992); 20 C.F.R. §§ 404. 1569a(c)(1)(vi), 416.969a(c)(1)(vi), preclude conclusive use of the (exertionally defined) grids to deny disability, see, e.g. , id. ; Thompson v. Sullivan , 987 F.2d 1482, 1488 (10th Cir. 1993)(“‘resort to the grids is particularly in appropriate when evaluating-4-

nonexertional limitations’”)(quoting Hargis v. Sull ivan , 945 F.2d 1482, 1490 (10th Cir. 1991)). Of course, “[t]he mere presence of a nonexertional impairment does not preclude reliance on the grids[;] [it] must interfe re with the ability to do work.” Thompson , 987 F.2d at 1488 (citations omitted). Thus, the Secretary may still use the grids if

, despite a nonexertional impairment, “the claimantcan perform a substantial majority of the work in the designated RFC category.” Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995). However, this being a step-five question, “the claimant does not bear the burden to prove that h[is] . . . right hand weakness substantially diminish[es] h[is] capacity for a full range of light work on a sustained basis; instead, the Secretary should ers the burden of showing that the . . . weakness do[es] notsubstantially diminish it.” Gatson v. Bowen , 838 F.2d 442, 448 (10th Cir. 1988). Because there is n othing in the record to satisfy the Secretary’s burden in this respect, we cannot s ay the ALJ’s grid-based decision is supported by the requisite substantial evidence. See Thompson , 987 F.2d at 1491 (Secretary’s step-five burden is not s atisfied by evidentiary omission: “The absence of evidence is not [substantial] evidence.”). The Secretary urges us to adopt a categorical rule permitting use of the grids for light work when the claimant’s nonexertio nal limitation involves dexterity, citing “the fact that most jobs in the f ull or wide range of light work2 Indeed, several decisions of this court presuppose, without any reservation,

the potential significance of manipulative limitati ons in the light-RFC context. See, e.g. , Evans , 55 F.3d at 531-32; Trimiar , 966 F.2d at 1330, 1333; Gatson , 838 F.2d at 446-48. -5- only involve gross manipulative abilities and do no trequire extensive fine finger manipulative ability.” Brief for Appellee at 12. This crucial vocational “fact” has never been demonstrated in these proceedings. Instead, the Secretary relies on a generalized reference to Social Security Rulin g (SSR) 83-10, presumably for the statement that “[unskilled light jobs] generall y do not require use of the fingers for fine activities to the extent required in much sedentary work.” 1983 WL 31251 at *6. However, since “[m]ostunskilled sedentary jobs require good use of the hands and fingers for repetitive hand-fi nger actions,” id. at *5 (emphasis added), SSR 83-10 implies only that dexte rity is necessary for some “fewer-than-most” light jobs. This is obviously no t the same thing as saying that most light jobs do not require dexterity, as the Se cretary appears to suggest. 2 In essence, the Secretary is asking this court to a ccept, and thereby judicially sanction, an unsubstantiated empirical g eneralization about the nature and demands of light work in the national economy. Such a request misconceives our institutional role in these proceedings. Assum ing investigation of the relevant facts and consideration of the operative policies w ould counsel adoption of the categorical rule advocated by the Secretary, that i s something for Congress to-6-

establish by legislation and/or the Secretary to ef fect by formal regulation or ruling. Unless and until such legislative/administrative action is taken, this court may not simply presume that a particular nonexertio nal impairment is vocationally insignificant without a substantial evidentiary bas is in the record. The judgment of the United States District Court fo r the Eastern District of Oklahoma is REVERSED, and the cause is REMANDED to the district court with directions to remand, in turn, to the Commissioner for further proceedings consistent herewith.

Entered for the Court

Bobby R. Baldock Circuit Judge