Tenth Circuit

Carr v. Comm’r of SSA, 961 F.3d 1267 (10th Cir. 2020), Atty Paul F. McTighe, Jr., Tulsa, OK

In this case, two separate Plaintiffs raised Lucia arguments while their cases were pending before the district court (after the Lucia decision was issued). The district court agreed with the Appointments Clause challenges, vacated the ALJ’s decisions, and remanded for new hearings before constitutionally appointed ALJs. It found that Plaintiffs had not waived their Appointments Clause challenges by failing to raise them in their SSA proceedings. Id. at 1268. On appeal, the Commissioner argued that Plaintiffs waived their Appointments Clause challenges by failing to exhaust them before the SSA. The Court agreed and reversed the district court’s decision.

After discussing Sims, the Court found that the district court erroneously relied on Sims. Id. at 1273. The Court found that the purposes for the exhaustion rule apply to Plaintiffs’ Appointments Clause challenges. First, Plaintiffs’ “failure to exhaust their Appointments Clause challenges deprived the SSA of its interest in internal error-correction.” Id. Second, an exhaustion requirement “would have promoted both judicial and agency efficiency.” Id.

The Court then found that the district court mistakenly relied on Sims. The Court noted that “the Supreme Court in Sims cautioned that its holding did not apply to the issue before us. It held only that, when the claimant failed to raise issues in her petition for Appeals Council review, she did not waive her ability to raise those issues in district court. The Court emphasized that ‘[w]hether a claimant must exhaust issues before the ALJ is not before us.’” Id. at 1274 (citation omitted). Second, the Court stated that Sims did not require issue exhaustion because that claimant “’did everything that the agency asked of her’ by filling out the form, even though she did not specify the contested issues on appeal,” whereas in this case the regulations require the ALJ to notify claimants of the “specific issues to be decided” and claimants must object to the issues identified; so, in this case, if the ALJs did not identify the Appointments Clause as an issue to be decided, the plaintiffs were required to object and raise it. Id. at 1274-75.

Third, the Court found the district court placed undue weight on the “non-advsersarial” nature of ALJ proceedings, stating that “[a]lthough the Sims majority said the basis for issue exhaustion is weakest when agency determination of benefits is inquisitorial, only the plurality relied on this rationale to hold exhaustion was not required. Id. as 1275. As already discussed, Justice O’Connor’s reasoning in the controlling concurrence “does not apply to SSA ALJ proceedings, where, as noted above, SSA regulations require claimants to object if they dispute the issues to be decided at their ALJ hearings.” Id. Fourth, even if SSA proceedings are largely non-adversarial, Appointments Clause challenges are “adversarial” as described in Sims. Id. Finally, the Court found the Third Circuit’s decision in Cirko to be “unpersuasive and counter to our precedent”, which previously found that an Appointments Clause challenge would not have been futile. Id.

Noreja v. Comm’r of SSA, 952 F.3d 1172 (10th Cir. 2020), Atty Lawrence D. Saunders, Pueblo, CO

Plaintiff challenged the ALJ’s failure to follow an instruction in a remand order from the Appeals Council. Specifically, the AC’s order included instructions to “obtain additional evidence concerning the claimant’s mental impairments in order to complete the administrative record… [t]he additional evidence should include, if available, a consultative mental examination with psychological testing and medical source statements about what the claimant can still do despite the impairment.” Id. at 1175. On remand, the ALJ did not obtain a CE, but she did obtain additional evidence regarding his impairments, including additional treatment records and testimony from a ME. Id. The ALJ gave great weight to the ME’s testimony, but little weight to his treating psychologist. Id. On appeal, Plaintiff argued that the ALJ failed to comply with the AC’s remand order by failing to order a CE. The AC and district court both rejected this argument. Id. at 1176.

To begin, the Court noted that it had previously addressed the import of an ALJ’s failure to follow a directive from the AC, but only in unpublished decisions. Id. After discussing those decisions, the Court found that it had subject matter jurisdiction to consider the issue, and that it would review the case under the substantial evidence standard. Id. at 1178-80. Acknowledging that the AC remand order is not the final decision of the Commissioner, the Court explained:

But reviewing a final decision by an ALJ for compliance with an Appeals Council order is not the same thing as reviewing the Appeals Council order itself. As part of our review of a final decision under § 405(g), we may consider whether the ALJ complied with any legal requirements imposed by the Appeals Council upon remand. Absent a constitutional-level objection, this review is neutral s to the appropriateness of the Appeals Council’s directions. It is thus similar to measuring the ALJ’s decision against other legally binding regulatory requirements concerning the collection and assessment of evidence. Such a review does not culminate in a judicial decision affirming or reversing the remand order from the Appeals Council. It culminates in a judicial decision affirming or reversing the order from the ALJ.

Id. at 1180. Turning to Plaintiff’s substantive argument that the ALJ failed to follow the AC’s directive, the Court found that the ALJ did not violate the remand order. Id. The Court stated that the AC’s remand order stated the ALJ “will obtain additional evidence to complete the administrative record”, which “should” include, if available, a CE. Id. at 1181. The Court stated the language used by the AC was significant, and that “the only mandatory directive was for the ALJ to obtain additional evidence on a particular topic, which evidence might or might now include a new examination.” Id. The Court found the ALJ complied with the AC’s remand order by obtaining additional evidence that, when combined with the other evidence of record, constituted substantial evidence supporting the denial of benefits. Id. Affirmed.

Garcia v. Comm’r of SSA, 2020 U.S. App. LEXIS 19621 (10th Cir. June 24, 2020), Atty Darcie Kathryn Laue, Oklahoma City, OK

Plaintiff filed for disability insurance benefits and supplemental security income based on impairments affecting his back, shoulder, and hands; the adjudicated period was from September 4, 2014, his 50th birthday, until December 31, 2015, his date last insured. There were only two medical records pre-dating his DLI; one record was an ER visit for a spider bite, and the other was for a wrist related injury, during which full range of motion of the arm was exhibited. Id. at *2. There were other records, including a CE, after his DLI. The ALJ limited him to light work except no overhead reaching or using ladders, and found he could perform other light, semiskilled jobs in the economy. Id. at *6-7. The district court affirmed.

On appeal, Plaintiff argued that there was evidence that he met Listing 1.04A shortly after the DLI, which created an ambiguity concerning the onset of his date of disability, which required the ALJ to develop the record to determine the onset date (SSR 83-20). Id. at *9. The Court disagreed. The Court stated “the need to determine an onset date is relevant only when a claimant has been found disabled. Because the ALJ found [Plaintiff] was not disabled, there was no need to consult a medical advisor to determine an onset date. The ALJ did not err in failing to consult a medical advisor under SSR 83-20. Id. at *10.

In response to Plaintiff’s argument that the ALJ failed to inquire about possible reasons for his minimal treatment, the Court noted:

As an initial matter, we note the ALJ specifically addressed the dearth of medical records at the evidentiary hearing. In response, Garcia’s counsel agreed there was not ‘a lot of medical information’ but nonetheless insisted the records were ‘fairly informative.’ App. Vol. II at 31. We will not fault the ALJ when Garcia and his counsel had the opportunity to explain the absence of medical records and never directed the ALJ’s attention to the note in Garcia’s file. See Wilson, 602 F.3d at 1149 (noting “the ALJ should ordinarily be entitled to rely on the claimant’s counsel to structure and present claimant’s case in a way that the claimant’s claims are adequately explored” (internal quotation marks omitted)).

Id. at *15-16.

Finally, in response to Plaintiff’s argument that the ALJ failed to address Trimiar factors of “distance he would have to travel” and “the isolated nature of the jobs”, the Court found “to the extent [Plaintiff] believes the record is inadequate regarding the location and geographical concentration of the occupations the VE identified, his counsel could have asked additional questions at the hearing to clarify such issues.” Id. at *18. Since the VE testified to national job numbers, the Court noted “the proper focus generally must be on jobs in the national, not regional, economy.” Id. at *19. The Court then found that this case is a review of the finding of numerical significance by the ALJ, not a determination of whether 20,500 to 22,000 is a significant number of jobs; the Court refused to “interpose our judgement for that of the ALJ” that Plaintiff could perform jobs that existed in significant numbers in the national economy. Id. at *20. Affirmed.

Pittman v. Commissioner, SSA, 733 Fed. App’x 420 (10th Cir. 2018)

A pro se Plaintiff who alleged disability from visual impairment, post-traumatic stress disorder, insomnia, bipolar disorder/manic depression, and anti-personality disorder brought action for review of ALJ’s denial of his application for disability benefits and supplemental security income. The district court affirmed. Plaintiff appealed arguing, as the court construed his pro se filing, that: (1) he met Listings 12.04 and 12.06 and (2) that the court should supplement the administrative record with the results of a CT scan of his brain performed well after the ALJ’s decision and during the district court proceedings.

The court rejected his arguments. The court held he waived appellate review of ALJ’s determination that he was only moderately limited in social functioning and concentration, persistence, or pace by not explaining why he considered this error. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (“We will consider and discuss only those of [an appellant’s] contentions that have been adequately briefed for our review.”); Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (requiring a pro se appellant’s brief to “contain more than a generalized assertion of error, with citations to supporting authority” (ellipsis and internal quotation marks omitted)). Nevertheless, the court reviewed the findings and concluded substantial evidence supported ALJ’s findings that Plaintiff was no more than moderately limited in social functioning and concentration, persistence, or pace. The ALJ identified various normal findings that he could engage and was moderately receptive to feedback. Plaintiff had reported an ability to concentrate for two hours at a time. Next the court concluded results of CT scan performed after ALJ’s decision were cumulative and did not warrant remand and mere existence of physical impairments potentially underlying Plaintiff’s mental impairments did not warrant reversal. See Wilson v. Astrue, 602 F.3d 1136, 1148 (10th Cir. 2010) (“Evidence is material if the [Commissioner’s] decision might reasonably have been different had the new evidence been before him when his decision was rendered.” (brackets and internal quotation marks omitted)). The court affirmed the district court’s judgment.

Racette v. Berryhill, 734 Fed. App’x 592 (10th Cir. 2018).

Plaintiff allegedly became disabled as result of an immune deficiency disorder known as Common Variable Immune Deficiency (CVID) brought action for review of ALJ’s denial of his application for disability benefits and supplemental security income. The district court affirmed. Plaintiff appealed arguing that: (1) the ALJ’s failure to discuss evidence and explain her determination at step three regarding Listing 14.07A was not in compliance with relevant legal standards; (2) the ALJ failed to discuss evidence and explain her determination at step three regarding Listing 14.07C was not in compliance with relevant legal standards; (3) the ALJ’s RFC determination did not comply with relevant legal standards; (4) the ALJ erred in her treatment of the treating physician opinion; and (5) the ALJ erred in rejecting the opinions of the consulting psychologist.

The Court found that the ALJ erred in her consideration of Listing 14.07A. Listing 14.07A provides that a Plaintiff is presumptively disabled if: (1) the Plaintiff has an immune deficiency disorder (other than HIV) with (2) one or more of six listed infections, including pneumonia and sinusitis, that (3) “must either be resistant to treatment or require hospitalization or intravenous treatment three or more times in a 12-month period.” Here, the court observed the ALJ found at step two that one of Plaintiff’s severe impairments was recurrent pneumonia and noted later in her decision that she also had repeated episodes of sinusitis and other upper respiratory infections. The ALJ omitted from her statement the criterion that if a covered infection “require[s] hospitalization or intravenous treatment three or more times in a 12-month period,” it would qualify. The court noted there was no dispute that Plaintiff received monthly or weekly immunoglobulin infusions. There was no indication in the ALJ’s decision that she considered whether the infusions meet this criterion. Accordingly, the court reversed and remanded for specific findings at step three regarding Listing 14.07A.

Next, the court found that the ALJ erred in her consideration of Listing 14.07C. Under Listing 14.07C, a Plaintiff is presumptively disabled if he has: (1) “[r]epeated manifestations of an immune deficiency disorder,” with (2) “at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss),” and (3) a “marked” limitation in “activities of daily living,” “maintaining social function,” or “completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.” Plaintiff contended that his impairment meets these criteria based on severe fatigue and malaise and marked limitation in his activities of daily living. The Agency responded that while the ALJ had failed to consider this Listing, she had found in her RFC assessment that Plaintiff did not suffer from severe fatigue or marked limitation in his activities of daily living. The court noted these conclusions rested upon an adverse credibility finding which was challenged by Plaintiff. Thus, the court examined the ALJ’s evaluation of Plaintiff’s credibility on these points. “An ALJ’s findings with respect to a claimant’s credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” Hardman v. Barnhart, 362 F.3d 676, 678-79 (10th Cir. 2004) (quotation omitted). The court found that the ALJ had misrepresented Plaintiff’s reports of his daily activities at several points observing that “[t]hese reasons are inadequate because they are either conclusory or based on misstatements and incomplete accounts of the record.” The court concluded the ALJ’s findings in her RFC assessment do not cure her failure at step three to discuss the relevant evidence and explain why Plaintiff’s impairment did not meet Listing 14.07C’s criteria of “severe fatigue.” And in light of the errors in the ALJ’s assessment of Plaintiff’s daily activities, the court noted it could not confidently say that a reasonable administrative factfinder, following the correct analysis, would necessarily find that he did not have Listing 14.07C’s criteria of marked limitation of activities of daily living. The ALJ’s error regarding Listing 14.07C was not harmless. Accordingly, it remanded for the ALJ to set out specific findings at step three regarding Listing 14.07C, as well as Listing 14.07A.

Finally, the court noted that the ALJ’s sole reason for rejecting the treating physician’s opinion was an alleged inconsistency between the opinion and his treatment notes. The court stated on remand the ALJ should provide “specific, legitimate reasons for rejecting” the opinion in light of § 404.1527(c) factors. The court found that there was no error in the ALJ’s evaluation of the opinion of the consultative psychologist as the ALJ had properly found the opinion inconsistent with the examiner’s own mental status exam. The court vacated and remanded.

Arterberry v. Berryhill, 743 Fed. App’x 227 (10th Cir. 2018).

Plaintiff alleged that she suffered from, inter alia, fibromyalgia, obstructive sleep apnea, migraine headaches, post-traumatic stress disorder (PTSD), and major depression, brought action for review of a decision of the Commissioner of Social Security which denied her applications for disability insurance and supplemental security income disability benefits. The district court affirmed the ALJ’s denial. Plaintiff appealed arguing that (1) the ALJ erred in giving little weight to the opinions of her treating physicians; and (2) ALJ erred in finding her not entirely credible.

The court rejected her arguments. First, the court found that the ALJ had properly evaluated the opinions of her treating physicians. The court noted the ALJ’s reasoning with respect to the first doctor that Plaintiff had only: (1) seen the treating physicians two or three times before rendering those opinions; (2) his opinions were inconsistent with the record medical evidence, such as his own examinations, which “show[ed] essentially normal mental status testing”; (3) Plaintiff had not previously sought any specialized mental health treatment; and (4) Plaintiff’s “treatment has consisted of nothing more than basic medication management with no hospitalizations or even counseling services.” While the court concluded that the ALJ wrongly failed to consider other explanations for her lack of specialized treatment, the ALJ accurately noted the doctor’s defined limitations were not consistent with the medical evidence, including his own mental examinations. And the ALJ accurately noted that his treatment plan was limited to medication management. The court found that nature and extent of the treatment provided are legitimate grounds for assessing the weight of a treating physician’s opinions. While Plaintiff relied upon a consultative examiner’s opinion from a previous application to bolster her treating physician’s opinion, the Court held that there was no requirement an ALJ and agency reviewers to discuss the opinions of a consultative examiner from a prior disability proceeding—one that may have involved different medical issues and evidence, and that resulted in a denial of benefits.

With respect to her second treating physician’s opinion which included limitations that Plaintiff had “no ability” to stand/walk, the Court found that the ALJ properly discounted it noting inconsistencies between its conclusions of the physician’s’ contemporaneous treatment notes which documented the doctor’s findings of “intact motor and sensory function, reflexes, gait and coordination. And he recommended that she “consider [a] job or environment change” and “try . . . yoga, regular exercise, [and] stretching exercises.”

Finally, the court found that the ALJ had properly evaluated her credibility thoroughly reviewed the medical evidence and fully substantiated his conclusion that subjective reports of her symptoms and limitations were inconsistent with the record. He specifically identified essentially benign diagnostic imaging and testing along with rather unremarkable neurological findings. He noted that during an appointment for management of her fibromyalgia just four months before her disability hearing, she reported that with her new medication regimen, she was “significantly better compared to where she was 5 years ago,” despite some “residual pain.” And he cited a physical therapy record stating she was “Self Care Independent,” and he noted that her doctor repeatedly recommended that she try regular exercise. The court affirmed the district court’s judgment.

Deardorff v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS 2923, __ Fed. Appx. __ (10th Cir. Jan. 29, 2019).

Plaintiff is a veteran who medically retired from the military after a neck injury; he had a 100% VA disability rating. His severe impairments were degenerative disc disease of the cervical spine, obesity, depression, and PTSD; the ALJ did not consider his migraine headaches at step 2. The ALJ found that he could return to his past relevant work as a security guard and denied benefits; this was affirmed by the district court.

Plaintiff first argued that the ALJ erred in stating that “there was no evidence of record regarding most of the conditions listed [in the VA disability rating], including knee disorder and migraines”. The court found the ALJ’s statement to be incorrect, as there is evidence in the record about migraines and Plaintiff suffering severe headaches. The court found that the ALJ’s step 2 error (not making any finding as to whether Plaintiff’s headaches were a severe impairment) was harmless because he found at least one impairment to be severe. Nevertheless, the court found the ALJ erred because he “never mentioned, let alone considered the effects of, migraines or headaches at step 4 in determining [Plaintiff’s] RFC.”

The court noted that Plaintiff testified regarding his headaches, which the ALJ did not summarize, and the medical record contained ongoing complaints of headaches, some complaints of which were related to his neck pain, along with treatment for the headaches. The court disagreed with the district court that the ALJ considered Plaintiff’s migraine headaches when assessing the RFC; the court found “[t]he ALJ did not consider [Plaintiff’s] migraine headaches in assessing his RFC but instead stated there was no record evidence of migraines.” The court then went on to find that “[t]he district court ignored the medical evidence [Plaintiff] presented in his brief about his headaches. And the district court made it seem as though the ALJ did consider [his] headaches, but assigned them little weight. The district court’s decision did not adequately address [Plaintiff’s] arguments that the ALJ erred in stating there was no evidence of record regarding his migraines and in failing to consider his migraines or headaches when formulating the RFC.”

The court rejected the Commissioner’s argument that Plaintiff’s headaches were related to his neck condition (which the ALJ discussed extensively and addressed in the RFC assessment), as “the ALJ never made such a finding or statement.” The court reiterated that the ALJ never discussed any of the evidence regarding Plaintiff’s headaches and migraines, and “[t]he Commissioner’s post hoc rationale for the ALJ’s failure to discuss the headaches and any limitations they caused is not a basis on which the ALJs’ decision can be affirmed.” See Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008). The court stated that even if the headaches were related to Plaintiff’s neck condition rather than a separate impairment, the ALJ still should have discussed them as a symptom of the neck impairment “given the significant evidence in the record”, and in fact is required to do so pursuant to 20 C.F.R. § 404.1529. The court noted that while the ALJ cited some of the symptoms related to Plaintiff’s neck condition, he never mentioned the complaints of headaches that appeared in the same records. The court concluded that “[t]he ALJ erred by failing to discuss the significant evidence of [Plaintiff’s] headaches and how they might impact his functional abilities – either as a separate impairment or as a symptom of his neck condition. We therefore remand for the ALJ to consider the evidence of [Plaintiff’s] headaches in assessing his RFC.”

Plaintiff’s second argument was that the ALJ erred in failing to include any limitations for his hands and arms, other than limitations on overhead reaching, in the RFC; he argued there was objective evidence of other manipulative limitations related to his difficulties with carrying items without dropping them, decreased grip strength, loss of coordination, numbness and tingling. The court acknowledged that the ALJ discussed pre-surgical deficits, but that post-surgery, “‘the ALJ’s discussion appears only to highlight the physical exams in which [Plaintiff] exhibited normal strength’ and ‘does not appear to acknowledge that studies also showed [Plaintiff] experience[d] decreased grip strength, impaired coordination and dexterity, altered deep tendon reflexes, or the fact that his hand numbness, weakness, and coordination cannot be corrected by neck surgery.’” [NOTE: the court quoted Plaintiff’s reply brief here]. While the court acknowledged that an ALJ is not required to discuss every piece of evidence, it also noted that “the ALJ [] must discuss. . . significantly probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). In addition, “’[i]t is improper for the ALJ to pick and choose among medical reports, using portions of evidence favorable to his position while ignoring other evidence.’” Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004). The court found that the ALJ erred by failing to discuss the conflicting probative evidence; on remand, the ALJ was instructed to discuss the conflicting evidence when assessing the RFC. The court declined to address Plaintiff’s remaining 1527 and 1529 arguments. Reversed and remanded.

Vallejo v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS 3325, __ Fed. Appx. __, (10th Cir. Feb. 1, 2019).

This case is before the 10th Circuit for the second time. Plaintiff filed for supplemental security income based on mental impairments; the ALJ found that she could perform medium work with mental limitations and the VE identified jobs she could perform with those limitations, and so her claim was denied. While the case was pending before the Appeals Council, Plaintiff submitted a medical source statement from a psychiatrist (Dr. Ratner) who assessed extreme limitations; the Appeals Council admitted the evidence into the record and denied review. Plaintiff appealed to the federal district court, which found that the Appeals Council erred in failing to determine what weight to give to Dr. Ratner’s opinion or remanding to the ALJ to make that determination. However, the circuit court found that the Appeals Council was not required to analyze new evidence when it denied review, but “[r]ather, the Appeals Council is required only to ‘consider’ the new evidence – and a conclusory statement that it has done so is sufficient.” Thus, the circuit court reversed and remanded for the district court to consider Plaintiff’s other legal arguments. On remand, the district court rejected Plaintiff’s other legal arguments, and then turned to Dr. Ratner’s opinion; it found that the Commissioner erred in failing to evaluate Dr. Ratner’s opinion under the treating physician rule and then concluded that a remand to the Appeals Council was unnecessary because “on the current record – including Dr. Ratner’s opinion – there is no possible outcome in this case other than the award of benefits to [Plaintiff].” The Commissioner filed an appeal to the circuit court.

The only issue before the circuit court was the district court’s handling of Dr. Ratner’s opinion. The court acknowledged that the ALJ did not give good reasons for the weight assigned to Dr. Ratner’s opinion “because the ALJ did not have Dr. Ratner’s opinion before her and the Appeals Council incorporated the opinion into the record without discussing it.” However, the court stated that “[t]he ALJ can hardly be faulted for failing to weigh evidence that did not exist when she issued her decision” and, as discussed in its first decision, the Appeals Council was not required to analyze the new evidence. The court concluded that under these circumstances, the Commissioner did not fail to apply the correct legal standard even though neither the ALJ nor the Appeals Council expressly weighed Dr. Ratner’s opinion.

Turning to the issue of whether the Agency’s decision was supported by substantial evidence, the court first found that it must consider Dr. Ratner’s opinion as part of the record (as the Appeals Council had admitted it into the record) when considering whether the decision is supported by substantial evidence. The court noted “[o]f necessity, that means that we must speculate to some extent on how the administrative law judge would have weighed the newly submitted reports if they has been available for the original hearing.” Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994). The court found that Dr. Ratner’s opinion was “virtually unsupported”, offering “minimal explanation” and the explanation offered was inconsistent with the single treating note of Dr. Ratner and also other medical evidence in the record and Plaintiff’s own reports. Thus, the court concluded that the ALJ would have not accorded controlling weight to Dr. Ratner’s opinion and the contrary evidence of record constituted substantial evidence supporting the ALJ’s decision; as a result, the court reversed the district court’s judgment and remanded to the district court with instructions to enter judgment in favor of the Commissioner.

McKenna v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS 2108, __ Fed. Appx. __ (10th Cir. Jan. 23, 2019).

Plaintiff appealed the ALJ’s step 4 denial of her disability claims. The ALJ found that Plaintiff has the RFC to perform light work with limitations including an ability to stand and/or walk for only a total of 2 hours in an 8-hour workday, the need for an assistive device, and the need to alternate sitting and standing at the workstation; the ALJ found that Plaintiff could perform her past relevant work as a senior programmer analyst, which was affirmed by the district court.

On appeal, Plaintiff argued that the ALJ failed to specify the frequency of the need to sit or stand in the RFC, citing SSR 96-9p in support of her argument. The court noted that SSR 96-9p only applies to people with sedentary, unskilled occupations, and that Plaintiff’s past work was skilled work. The court also noted that Plaintiff bears the burden at step 4 to establish that she is unable to perform her job as a senior programmer analyst both as actually performed and as generally performed. The court found that the ALJ was not required to be more specific concerning Plaintiff’s sit-stand requirements because (1) the vocational expert testified “the essential function of [Plaintiff’s] past work is cognitive, [which] allows for flexibility in physical positioning; and (2) Plaintiff “does not claim that her past work does not allow her to alternate sitting and standing as needed.” The district court’s judgment was affirmed.