* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### OCT 20 1998 

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

INEZ KOOPMAN,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-7002 (D.C. No. 97-CV-153) (E.D. Okla.)

ORDER AND JUDGMENT **

Before PORFILIO , KELLY , and HENRY , 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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Claimant Inez Koopman appeals from the district cou rt’s judgment affirming the Commissioner’s decision denying her c laim for disability insurance benefits at step five of the five-part pr ocess for determining disability,

see 20 C.F.R. § 404.1520. In what now stands as the f inal decision of the Commissioner, the administrative law judge determin ed that claimant was severely impaired by high blood pressure, angina, a nd back pain, and that while she could not return to her past relevant work as acook and housekeeper, she retained the functional capacity to perform the ful l range of light work reduced by a sit or stand option. Relying on a vocational exp ert’s testimony, the ALJ found that there were jobs available that claimant could perform with this limitation and thus found her not to be disabled. We review the C ommissioner’s decision to determine whether factual findings are supported bysubstantial evidence and whether correct legal standards were applied. See Winfrey v. Chater , 92 F.3d 1017, 1019 (10th Cir. 1996). On appeal, claimant contends generally that the ALJ ’s step-five decision is not supported by substantial evidence and that the ALJ failed to meet his burden of showing that there were jobs in the economy thatclaimant could perform. Specifically, she contends that the ALJ erred by re lying on the Medical--3-

Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P. , App. 2 (the “grids”) because her residual functional capacity (RFC) did not prec isely match the definition of light work and therefore there was “no ‘exact fit’ to place this Appellant on the Grid of nondisability.” Appellant’s Br. at 11. Cl aimant’s argument relies primarily on Talbot v. Heckler , 814 F.2d 1456, 1463 (10th Cir. 1987) (“Alternate sitting, standing, or walking by implication preclu des the kind of extensive sitting, standing and walking contemplated by the d efinition of light activity.”). Claimant contends that since she cannot do the full range of light work, she is presumptively able to do only sedentary work, and g iven her age, education and lack of transferable skills, she should be consider ed disabled under the grids, Rule 201.10. The flaw in claimant’s argument is that she complet ely misperceives the ALJ’s basis for finding that there were jobs she co uld perform despite her impairments. While the ALJ did say that he was usi ng the grids as a framework for his analysis, it is clear that he based his ult imate determination that claimant was not disabled on the testimony of a vocational e xpert. The ALJ found that claimant could do the full range of light work redu ced by a sit or stand option. Because her RFC did not precisely fit the definitio n of light work, the ALJ could not rely solely on the grids for his determination. See Daniels v. Apfel , ___ F.3d ___, No. 98-5004, 1998 WL 515160, at *2 (10th Cir. Aug. 18, 1998 ). And-4-

because the ALJ could not and did not rely on the g rids, claimant’s reliance on Talbot is misplaced. While Talbot did say that an alternating sitting, standing and walking requirement was inconsistent with being abl e to do the full range of light work, Talbot is a grids case, 814 F.2d at 1459, where the exactfit or perfect match is generally required. Here, claimant’s RFC was less than the full range o f light work, but that does not mean that it is presumed to be limited to sedentary work. Claimant could perform the lifting requirements of light work, whi ch exceed those for sedentary work, but could not stand as much as the definition of light work required. She thus fell between the two RFC levels, one of which under the grids would have indicated a finding of disability (sedentary) and t he other a finding of nondisability (light). Faced with this situation, the ALJ did exactly what he should have done--he turned to a vocational expert.

In situations where the rules would direct differen t conclusions, and the individual’s exertional limitations are somewhere “in the middle” in terms of the regulatory criteria for exertional ranges of work, more difficult judgments are involved as to the sufficiency of the remaining occupational ba se to support a conclusion as to disability. Accordingly, [vocatio nal expert] assistance is advisable for these types of cases. S.S.R. 83-12, 1983 WL 31253, at *3. The vocational expert identified a variety of light exertional level jobs that claimant could perform with a sit-stand option, and the ALJ properly relied on this testimony.-5-

Claimant also appears to argue that the ALJ erred b y failing to consider the vocational expert’s testimony, in response to hypothetical questions asked by claimant’s counsel, that there would be no jobs cla imant could perform if she were unable to make repetitive use of her left extr emities due to weakness on that side of her body. The ALJ did not find that claima nt was impaired in her use of her left extremities, and claimant does not contend that this lack of a finding was error. The ALJ therefore was under no obligation t o consider the vocational expert’s testimony. See Decker v. Chater , 86 F.3d 953, 955 (10th Cir.1996) (hypothetical questions to the VE need only reflectimpairments and limitations that are borne out by the evidentiary record). The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge