* This order and judgment is not binding precedent, e xcept under the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

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 19 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ANNIELEE GALLEGOS,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration,

Defendant-Appellee. No. 00-1282 (D.C. No. 97-Z-1226) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.

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); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Claimant Annielee Gallegos appeals from the district court’s order affirming the decision of the Commissioner of Socia l Security. In that decision, the Commissioner denied Mrs. Gallegos’s applicationfor disability insurance benefits under Title II of the Social Security Act. See 42 U.S.C. § 423. We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm.
I. Legal standards Our review is limited to determining whether the Co mmissioner’s decision is supported by substantial evidence on the whole r ecord and comports with relevant legal standards. Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 800-01 (10th Cir. 1991). Claims for disability benefits are evaluated according to the five-step sequential process set f orth in 20 C.F.R. § 404.1520. Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) . At step four of the process, “the claimant must show that the impairment prevents [him] from performing work he has performed in the past.” Id. at 751 (quotation omitted and alteration in original). If the claimant is succes sful at this stage, then the claimant has met his burden of proof, establishing a prima f acie case of disability. The evaluation process thus proceeds t o the fifth and final step: determining whether the claimant has the res idual functional capacity (RFC) “to perform other work in the nation al economy in view of his age, education, and work experience.”-3-

Id. (citation and footnote omitted). At step five, the burden shifts to the Commissioner to show that the claimant retains the RFC to do specific jobs. Thompson v. Sullivan , 987 F.2d 1482, 1487 (10th Cir. 1993).

II. Background facts and proceedings Mrs. Gallegos claimed that she is disabled due to aback injury and its associated pain and other nonexertional impairments . At step four, the administrative law judge (ALJ) determined that she could not return to her past relevant work as a nursing assistant in the medium exertion work category. Appellant’s App. at 16. The ALJ concluded, however , that Mrs. Gallegos’s allegations that her impairments were of sufficientseverity to prevent all sustained work activity were inconsistent with the record and not credible. Id. Claimant does not challenge this credibility findin g. The ALJ determined at step five that, based upon th e medical record and her level of daily activity, Mrs. Gallegos retained the RFC to do a full range of sedentary work limited only by the need to be able to change positions while seated, id. at 15, but that “the requirement for position chang es does not significantly erode the number of jobs” that Mrs. Gallegos can perform, id. at 17. The ALJ concluded that Mrs. Gallegos is not disable d under Rule 201.28 of the medical-vocational guidelines (the “grids”), 20 C.F .R. Pt. 404, Subpt. P, App. 2. Id. at 15-16.-4- III. Discussion Citing Thompson , supra , and focusing on the ALJ’s finding that Mrs. Gallegos needed to change positions when sitting, M rs. Gallegos asserts that the ALJ erred in relying on the grids because the ALJ d id not make a finding specifically stating that Mrs. Gallegos had no none xertional impairments.
See 987 F.2d at 1488 (“An ALJ may not rely conclusivelyon the grids unless he finds . . . that the claimant has no significantnonexertional impairment”). We disagree. Although the ALJ did not use the exac t words claimant desired, the ALJ did find that claimant’s need to change positio ns because of pain “does not significantly erode the number of jobs” she could p erform. Appellant’s App. at 17. This was simply another way of stating thatMrs. Gallegos’s nonexertional impairment was not significant enough to preclude r eliance on the grids. Mrs. Gallegos also argues that the fact that she ha s to change positions when sitting is a nonexertional impairment that pre cludes reliance on the grids. Again, we disagree. Use of the grids is precluded only when a nonexerti onal impairment limits a claimant’s RFC. Glass v. Shalala , 43 F.3d 1392, 1396 (10th Cir. 1994). The need to change positions when sitting is not the same as the need to alternate sitting and standing because the ability to remain seated at a job is not altered by simply shifting position. The record contains substantial evidence to support the ALJ’s finding that claimant ’s nonexertional impairment-5-

of the need to change position had no substantial e ffect on her RFC for sedentary work. Mrs. Gallegos next argues that the ALJ “dismissed m ost of the nonexertional impairments” she alleged, Appellant’s Br. at 8, but she does not say what those were, other than her need to change positions when sitting. She also claims that it was error for the ALJ to note t hat she “testified that one of her medications had produced sleepiness,” Appellant ’s App. at 15, without taking into account the limitation that impairment may hav e on her ability to do a full range of sedentary work. Mrs. Gallegos misinterpre ts the meaning of the ALJ’s statement in light of the record. Mrs. Gallegos testified that she could not sleep unless she was really exhausted or took Paxil to help her sleep at night. Id. at 246. She did not testify that she had to take P axil during the day such that its sleep-producing effect would affect her abilityto do sedentary work. Thus, contrary to claimant’s assertion, the ALJ did not f ind that sleepiness from medications was a nonexertional impairment. We con clude that the ALJ properly relied on the grids in determining that Mrs. Galleg os is not disabled.-6-

The judgment of the United States District Court fo r the District of Colorado is AFFIRMED

.
Entered for the Court
Wade Brorby Circuit Judge