* Effective March 31, 1995, the functions of the Secretary of Health and

Human Services in social security cases were transferred to the Commissioner of

Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. Proc. 43(c), Shirley

S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,

Secretary of Health and Human Services, as the defendant 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 because she was the appropriate

party at the time of the underlying decision. 

** This order and judgment is not binding precedent, except under the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. 

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 designation. 

  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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

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Before TACHA, ALDISERT,** * and BALDOCK, Circuit Judges.****

Plaintiff John T. Wadford appeals from a district court order affirming the

Secretary’s denial of social security disability insurance 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. Shalala, 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); Crow v. Shalala, 40 F.3d

323, 324 (10th Cir. 1994). For the reasons explained below, we reverse and

remand for further proceedings on the sole issue properly before us.

Plaintiff applied for benefits alleging a combination of physical and mental

impairments, including back pain, memory problems, vision and hearing deficits,

and loss of strength and dexterity in his right hand associated with a gunshot

wound and a history of transient ischemic attacks. The ALJ acknowledged
1 The ALJ also discussed the testimony of a vocational 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 which would [preclude reliance on

the grids], then the case must be remanded in light of the inaudible and

non-transcribed testimony of the vocational expert.” Brief for Appellee at 11.

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plaintiff cannot return to his past work as a truck driver, but determined he

nevertheless retains the capacity to perform the full range of light work, and,

accordingly, found him not disabled at step five under the medical-vocational

guidelines (grids).1 See generally Williams 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 improper. Plaintiff’s factual

premise and legal conclusion are both correct. Every pertinent medical report

indicates plaintiff cannot perform fine manipulations with his right hand. See II

R. 107, 126, 176-77, 180. Indeed, the most detailed 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 that significant 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 inappropriate when evaluating
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nonexertional limitations’”)(quoting Hargis v. Sullivan, 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 interfere 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 claimant can 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 shoulders the burden of showing that

the . . . weakness do[es] not substantially diminish it.” Gatson v. Bowen, 838

F.2d 442, 448 (10th Cir. 1988). Because there is nothing in the record to satisfy

the Secretary’s burden in this respect, we cannot say 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 satisfied 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 nonexertional limitation involves

dexterity, citing “the fact that most jobs in the full or wide range of light work
2

Indeed, several decisions of this court presuppose, without any reservation,

the potential significance of manipulative limitations 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. 

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only involve gross manipulative abilities and do not require 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 Ruling (SSR) 83-10, presumably for

the statement that “[unskilled light jobs] generally 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]ost unskilled sedentary jobs require good

use of the hands and fingers for repetitive hand-finger actions,” id. at *5

(emphasis added), SSR 83-10 implies only that dexterity is necessary for some

“fewer-than-most” light jobs. This is obviously not the same thing as saying that

most light jobs do not require dexterity, as the Secretary appears to suggest.2

In essence, the Secretary is asking this court to accept, and thereby

judicially sanction, an unsubstantiated empirical generalization about the nature

and demands of light work in the national economy. Such a request misconceives

our institutional role in these proceedings. Assuming investigation of the relevant

facts and consideration of the operative policies would counsel adoption of the

categorical rule advocated by the Secretary, that is something for Congress to
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establish by legislation and/or the Secretary to effect by formal regulation or

ruling. Unless and until such legislative/administrative action is taken, this court

may not simply presume that a particular nonexertional impairment is vocationally

insignificant without a substantial evidentiary basis in the record. 

The judgment of the United States District Court for 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