* 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. P. 43(c), Shirley S. Chater, Commissioner of Social Security, is substituted 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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.

*** 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 (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 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- Plaintiff appeals the district court’s affirmance o f the Secretary’s decision denying plaintiff’s applications for disability ins urance benefits and supplemental security income. After two hearings and a de novo review of the record, the administrative law judge (ALJ) determined that plai ntiff retained the residual functional capacity (RFC) to perform light work, li mited to jobs with routine repetitive tasks. Because plaintiff’s past relevan t 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 coul d 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 co ncluded at step five, however, that plaintiff could perform a significantnumber 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 whe ther 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 determi ne whether the evidence in support of the Secretary’s decision is substantial, ” id. (quotation and citation omitted), we may not reweigh the evidence or substi tute 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 signific ant number of jobs in the national economy, is supported by substantial evide nce. 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 numbe r of jobs in the economy is not supported by substantial evidence. At step five of the sequential analysis, the Secret ary bears the burden of establishing that, given the claimant’s RFC, age, e ducation, 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 sc hool education and, according to the VE, he had no transferrable skills. Given p laintiff’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 perfo rm 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 deficie ncies in concentration, the ALJ found that plaintiff’s ability to perform lightwork was limited to jobs involving routine repetitive tasks. Because plaint iff could not perform a full range of light work, the Secretary could not rely o n 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, unfortu nately, asked the VE only whether there were sedentary jobs with repetit ive 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 jo bs is “immaterial given his age, education, and work experience,” DeFrancesco v. Bow en , 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 n umber of light jobs that plaintiff can perform despite his impairments, subs tantial evidence does not support the ALJ’s determination at step five that p laintiff is not disabled. Therefore, we must reverse the denial of benefits a nd remand for further proceedings. On remand, the Secretary should elici t 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 fo r the Eastern District of Oklahoma is REVERSED, and the matter is REMANDED wi th directions to remand the action to the Secretary for further proc eedings.

Entered for the Court

Bobby R. Baldock Circuit Judge