* This order and judgment is not binding precedent, e xcept under the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

### February 1, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

DONAL R. MULLENS, Plaintiff-Appellant,

v. JO ANNE B. BARNHART, Commissioner, Social Security Administration, Defendant-Appellee. No. 04-7132 (D.C. No. 03-CV-677-WH) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and McCONNELL , 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-

Plaintiff-appellant Donal Mullens appeals from an o rder of the district court affirming the Commissioner’s decision denying his application for Social Security disability benefits. Mr. Mullens applied for these benefits on July 26, 2002, alleging disability since December 27, 1999, based on disorders of the back and myoneural disorders. The agency denied his app lications initially and on reconsideration. On April 2, 2003, Mr. Mullens received a de novo he aring before an administrative law judge (ALJ). The ALJ found thatMr. Mullens’s impairments were severe but did not meet the criteria of any of the impairments listed in 20 C.F.R., Pt. 400, Subpt. P, App. 1. The ALJ determi ned that Mr. Mullens could not return to his past relevant work as a machine t ender, forklift operator, and warehouse worker, types of work classified as unski lled to semi-skilled and light to medium work, but that he retained the residual f unctional capacity (RFC) to perform sedentary work “with no bending forward fro m the waist and no extension of the neck.” Aplt. App. at 16. The ALJ also found that while direct application of the sedentary work portion of the Me dical-Vocational Guidelines,

see 20 C.F.R. Pt. 404, Subpt. P, App. 2, rule 201.21 ( the grids), would direct a finding of not disabled, direct application was notallowed because Mr. Mullens could not “do the full range of sedentary work,” du e to the non-exertional restrictions on stooping and extending his neck. Aplt. App. at 17. The ALJ-3-

stated that he was therefore using the grids “as a framework for decision making with vocational expert opinion on the issue of the existence of jobs for which a hypothetical individual such as the claimant can pe rform.” Id. At the hearing, the ALJ had presented a vocational expert (VE) with Mr. Mullens’s exact limitations and asked if there were unskilled jobs in the national economy that could be performed within the limits of Mr. Mullens’s RFC. The VE testified that there were such jobs an d presented three examples, one in the light exertion classification–cashier II –and two in the sedentary exertion classification–surveillance system monitorand food and beverage order clerk. The VE also testified that a significant nu mber these jobs existed both in Oklahoma and nationally, and confirmed on cross-examination that “[s]tooping [was] absolutely not required at all in those two jobs.” Id. at 245. No evidence was presented to dispute this opinion. The ALJ “[f ound] this expert opinion persuasive in showing that jobs exist in significant numbers in the national economy which the claimant can do,” id. at 17, and held that Mr. Mullens was not disabled within the meaning of the Social Security Act. The Appeals Council denied review, making the ALJ’s decision the Commis sioner’s final decision. Mr. Mullens filed his complaint with the district c ourt, arguing that Social Security Ruling 96-9p directed that his inability t o stoop precluded all jobs in the national economy. During his hearing in front of t he ALJ, Mr. Mullens’s attorney-4-

had argued that SSR96-6p directed that the inability to stoop precluded all jobs in the national economy. The ALJ stated in his ruling that he had examined SSR 96-6p and was convinced that it did not require a f inding of disabled. Before the district court, Mr. Mullens argued that his attorne y had erred and that it was actually SSR 96-9p that stated that the inability to stoop precluded all jobs in the national economy and that the ALJ was responsible f or knowing and applying all of the social security rulings. The magistrate judge found that neither circuit cas e law nor SSR 96-9p require a decision of disabled where a claimant is unable to stoop and that, instead, the proper course of action is to consult a VE and consider the claimant’s individual limitations. The magistrate judge found that this was the procedure followed by the ALJ, ruled that the decision of the Commissioner was supported by the substantial evidence of the VE’s testimony, and recommended to the district court that the Commissioner’s ruling be af firmed. Mr. Mullens filed an objection to the magistrate ju dge’s findings and recommendation, arguing that the magistrate judge d id not “adequately consider [Mr. Mullens’s] argument that the [ALJ] erred by fa iling to apply Social Security Ruling 96-9p.” Aplt. App. at 271. The basis for h is complaint was a continued insistence that SSR 96-9p “requires that an individ ual limited to unskilled sedentary work with the added restriction prohibiti ng stooping be found disabled”-5-

and because Mr. Mullens falls within this category he “should have been found disabled.” Id . The district court, in a concise order, overrule d Mr. Mullens’s objection, adopted the findings and recommendation of the magistrate judge, and affirmed the Commissioner’s ruling. Mr. Mullens ap peals this decision. The Commissioner follows a five-step sequential eva luation process to determine whether a claimant is disabled. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). The claimant bears t he burden of establishing a prima facie case of disability at steps one throu gh four. See id. at 751 n.2. If the claimant successfully meets this burden, the burden of proof shifts to the Commissioner at step five to show that the claimantretains sufficient RFC to perform work in the national economy, given his age , education and work experience. See id. at 751. Here the ALJ found that the Commissioner met her burden of proof at step five. We review the Commis sioner’s decision to determine whether the factual findings are supporte d by substantial evidence in the record and whether the correct legal standards were applied. See Andrade v. Sec’y of Health & Human Servs. , 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Fowler v. Bowen , 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations omitted).1 Mr. Mullens also asserts that the ALJ based his dec ision directly on the

grids, despite the fact that the ALJ claimed to be only using them as a framework, because the ALJ did not make sufficient findings to have based his decision on anything but the grids. First, it seems clear that the ALJ agreed with t he VE’s assessment of what jobs Mr. Mullens could perform and based his decision on that testimony and not on a reflexive application o f the grids. Second, to the extent that Mr. Mullens’s argument on appeal attemp ts to directly challenge the form or sufficiency of the ALJ’s findings, it prese nts issues not presented to the district court and such issues will not be consider ed. Berna v. Chater , 101 F.3d 631, 632-33 (10th Cir. 1996) (holding that failure to present issues to the magistrate judge or to include issues in objection to magistrate judge’s recommendation may result in waiver). -6- On appeal, Mr. Mullens again asserts that in light of SSR 96-9p, the ALJ finding that Mr. Mullens was not disabled is not supported by substantial evidence in the record. 1 We disagree . As discussed by the district court, under SSR 96-9p, even where an individual’s exertional capacities, considered alone, would indicate that the individual was not disabled because he could perform a full range of sedentary work, if “the individual al so has a nonexertional limitation(s) [such as the inability to stoop] thatnarrows the potential range of sedentary work to which he or she might be able to adjust” then “the [grids] must be used as a framework for considering the extent o f any erosion of the sedentary occupational base.” SSR 96-9p, 1996 WL 374185 at * 4. The ruling states, “[t]here may be a number of occupations from the approximately 200 occupations administratively noti ced, and jobs that exist in significant numbers, that an individual may still b e able to perform even with a-7-

sedentary occupational base that has been erroded.” Id. While the ruling states that “a complete inability to stoop would significa ntly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply ,” id. at *8 (emphasis added), it also directs that “[c]o nsultation with a vocational resource may be particularly useful fo r cases where the individual is limited to less than occasional stooping.” Id. “The vocational resource may be asked to provide any or all of the following: An a nalysis of the impact of the RFC upon the full range of sedentary work, . . . [a nd] examples of occupations the individual may be able to perform . . . .” Id. at *9. The VE testified that jobs existed in Oklahoma and nationally that Mr. Mullens could perform with his specific limitations, gave examples of those jobs, and testified as to the numbers of the example jobs that existed. Mr. Mullens pres ented no evidence disputing the VE’s testimony and makes no argument that the j obs presented by the VE do not exist in significant numbers. In light of the VE’s testimony regarding the availa bility of sedentary jobs that require no stooping, we hold that the Commissioner’s factual findings are supported by substantial evidence in the record andthe correct legal standards were applied. The decision of the Commissioner is affirmed.

Entered for the Court-8- Paul J. Kelly, Jr. Circuit Judge