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** This order and judgment is not binding precedent, except under the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

*** 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

(continued...)

UNITED STATES COURT OF APPEALS

Filed 8/23/96

FOR THE TENTH CIRCUIT

WILLIAM E. PASCHALL,

Plaintiff-Appellant,

v.

SHIRLEY S. CHATER, Secretary of

Health and Human Services,*

Defendant-Appellee.

No. 95-7171

(D.C. No. CV-94-584-B)

(E.D. Okla. )

ORDER AND JUDGMENT**

Before TACHA, ALDISERT,*** and BALDOCK, Circuit Judges. 
** **(...continued)

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. 

-2-

Plaintiff appeals the district court’s affirmance of the Secretary’s decision

denying plaintiff’s applications for disability insurance benefits and supplemental

security income. After two hearings and a de novo review of the record, the

administrative law judge (ALJ) determined that plaintiff retained the residual

functional capacity (RFC) to perform light work, limited to jobs with routine

repetitive tasks. Because plaintiff’s past relevant work was performed at a higher

exertional level, the ALJ concluded at step four of the sequential analysis, see

20 C.F.R. §§ 404.1520, 416.920, that plaintiff could not return to his past work. 

Using the Medical-Vocational Guidelines (grids) as a framework, and relying on

testimony from a vocational expert (VE), the ALJ concluded at step five,

however, that plaintiff could perform a significant number of other jobs in the

national economy and, therefore, was not disabled. When the Appeals Council

subsequently denied review of the ALJ’s decision, that decision became the final

decision of the Secretary.
-3-

We review the Secretary’s decision to determine whether she applied the

correct legal standards and whether her decision is supported by substantial

evidence. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Although

“we must meticulously examine the record to determine whether the evidence in

support of the Secretary’s decision is substantial,” id. (quotation and citation

omitted), we may not reweigh the evidence or substitute our judgment for that of

the Secretary, Broadbent v. Harris, 698 F.2d 407, 414 (10th Cir. 1983).

On appeal, plaintiff contends that neither the ALJ’s determination that

plaintiff retains the RFC to perform light jobs with repetitive tasks, nor his

determination that plaintiff can perform a significant number of jobs in the

national economy, is supported by substantial evidence. Based upon our careful

review of the record, we conclude that substantial evidence supports the ALJ’s

RFC determination. We further conclude, however, that the ALJ’s finding at step

five that plaintiff can perform a significant number of jobs in the economy is not

supported by substantial evidence.

At step five of the sequential analysis, the Secretary bears the burden of

establishing that, given the claimant’s RFC, age, education, and work experience,

a significant number of jobs exist in the national economy that the claimant can

perform. Ragland v. Shalala, 992 F.2d 1056, 1057 (10th Cir. 1993). Both when

he applied for benefits and when the ALJ issued his decision, plaintiff was a
-4-

person closely approaching advanced age. See 20 C.F.R. Pt. 404, Subpt. P, App.

2, § 201.00(g)(age 50-54). Plaintiff had a high school education and, according

to the VE, he had no transferrable skills. Given plaintiff’s age, education, and

work experience, the grids would dictate a finding of disabled if plaintiff were

limited to sedentary work, id. at Table 1, Rule 201.14, but not if he could perform

a full range of light work, id. at Table 2, Rule 202.13. See also id. at

§§ 201.00(g), 202.00(b).

Due to plaintiff’s depression and resulting deficiencies in concentration, the

ALJ found that plaintiff’s ability to perform light work was limited to jobs

involving routine repetitive tasks. Because plaintiff could not perform a full

range of light work, the Secretary could not rely on the grids conclusively to

sustain her burden at step five. Ragland, 992 F.2d at 1058. Instead, the Secretary

had to “produc[e] expert vocational testimony or other similar evidence to

establish the existence of significant work within [plaintiff’s] capabilities.” Id.

The ALJ did elicit testimony from a VE but, unfortunately, asked the VE

only whether there were sedentary jobs with repetitive tasks that plaintiff could

perform. The ALJ did not inquire about light jobs. Therefore, all the jobs that

the VE identified, and upon which the ALJ subsequently relied, were sedentary. 

Because plaintiff’s ability to perform sedentary jobs is “immaterial given his age,

education, and work experience,” DeFrancesco v. Bowen, 867 F.2d 1040, 1045
-5-

(7th Cir. 1989), the VE’s testimony about available sedentary jobs does not

support a finding that plaintiff is not disabled. See Distasio v. Shalala, 47 F.3d

348, 350 (9th Cir. 1995)(concluding that “[b]ecause the Secretary failed to

produce evidence that any job categorized as light work was available to [the

claimant], but only produced evidence of sedentary work available to him,”

substantial evidence did not support the Secretary’s finding that the claimant, who

was closely approaching advanced age and capable of performing only a limited

range of light work, was not disabled).

Absent evidence of the existence of a significant number of light jobs that

plaintiff can perform despite his impairments, substantial evidence does not

support the ALJ’s determination at step five that plaintiff is not disabled. 

Therefore, we must reverse the denial of benefits and remand for further

proceedings. On remand, the Secretary should elicit vocational testimony or other

similar evidence about the existence of light jobs that plaintiff can perform.
-6-

The judgment of the United States District Court for the Eastern District of

Oklahoma is REVERSED, and the matter is REMANDED with directions to

remand the action to the Secretary for further proceedings.

Entered for the Court

Bobby R. Baldock 

Circuit Judge