7. The standard of review in social security appeals is whether the Commissioner's final decision, in this case the ALJ's decision, is supported by substantial evidence and applies the correct legal tests. See Saiz v. Barnhart, 392 F.3d 397, 398 (10th Cir. 2004) (citing Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) ("We review the Commissioner's decision to determine whether it rests on substantial evidence and adheres to applicable legal standards.")). First and Second Alleged Errors — The ALJ's findings regardingPlaintiff's RFC and nonexertional impairments
We have explained that the ALJ cannot rely on the Grids if a non-exertional impairment has any more than a “negligible” impact on a claimant's ability to perform the full range of work, and instead must obtain the testimony of a vocational expert. See Zabala v. Astrue, 595 F.3d 402, 411 (2d Cir.2010); see also Saiz v. Barnhart, 392 F.3d 397, 400 (10th Cir.2004) (per curiam). A nonexertional impairment is non-negligible “when it ... so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity.”
Moreover, if a claimant has a non-exertional impairment that creates “any more than a ‘negligible' impact on a claimant's ability to perform the full range of work,” the ALJ cannot rely solely on the Medical-Vocational Guidelines and must seek the testimony of a vocational expert in deciding whether the impairment precludes employment. Selian, 708 F.3d at 421 (citing Zabala v. Astrue, 595 F.3d 402, 411 (2d Cir. 2010); Saiz v. Barnhart, 392 F.3d 397, 400 (10th Cir. 2004) (per curiam)); see 20 C.F.R. § 404.1569a(c)(2). A non-exertional impairment is more than negligible “when it . . . so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity.
Sedentary work already "'represents a significantly restricted range of work.'" Saiz v. Barnhart, 392 F.3d 397, 400 (10th Cir. 2004) (citation omitted). And, reaching is "required in almost all jobs," so "significant limitations on reaching . . . may eliminate a large number of occupations . . . ."
The Court thus finds no support for the Commissioner's assertion that the ALJ's RFC determination does not include any reaching limitations because those limitations are included merely "in the body of the RFC portion of the decision" rather than in heading five. (Doc. 8 at 7.) See Saiz v. Barnhart, 392 F.3d 397, 399-400 (10th Cir. 2004) (rejecting Commissioner's effort to disavow a significant reaching limitation, where the ALJ himself acknowledged that limitation in the body of his decision). Though the ALJ's failure to include the limitation for "occasional reaching" in his bold RFC assessment stated next to heading five is not a critical error, it adds confusion to the decision, as acknowledged by the Commissioner.
This court has acknowledged the same point in holding a grid rule may be used to obviate the need for vocational evidence "whenever the claimant can perform a substantial majority of the work in the designated RFC category." Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995) (emphasis added) (citing cases); see also Saiz v. Barnhart, 392 F.3d 397, 400 (10th Cir. 2004) (noting use of grid rule is precluded "if there is 'more than a slight impact on the individual's ability to perform the full range'" of work at that RFC (quoting SSR 96-9p, 1996 WL 374185 at *5 (discussing erosion of sedentary work base)). With respect to the pertinent additional restrictions here the ALJ concluded they precluded heavy lifting, App. Vol. 2 at 12, but imposed only a minimal limitation on Holbrook's ability to perform basic work activities, id. at 15.
This isolated finding, unlike the ALJ's far more substantial RFC findings here, does not suggest an explicit, definitive basis for rejection of the listings. See Saiz v. Barnhart, 392 F.3d 397, 400 (10th Cir. 2004) (noting "[a] sedentary RFC already represents a significantly restricted range of work" and, thus, "a finding of disabled usually applies when the full range of sedentary work is significantly eroded" (internal quotations omitted)). Thus, Clifton properly held the ALJ's bare conclusion in that case precluded meaningful review.
Whether a reaching limitation affects a claimant's ability to work “is not a mere technical or formalistic point.” Selian, 708 F.3d at 422 (first citing Zabala v. Astrue, 595 F.3d 402, 411 (2d Cir. 2010), then citing Saiz v.Barnhart, 392 F.3d 397, 400 (10th Cir. 2004)). “Reaching is ‘required in almost all jobs,' and a reaching limitation ‘may eliminate a large number of occupations a person could otherwise do
Id. (citing Zabala v. Astrue, 595 F.3d 402, 411 (2d Cir. 2010)); see also Saiz v. Barnhart, 392 F.3d 397, 400 (10th Cir. 2004) (per curiam). A non-exertional impairment is non-negligible “‘when it . . . so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity
And, as the Court of Appeals has said, “whether a reaching limitation affects a specific claimant's ability to find work ‘is not a [mere] technical or formalistic point.'” Selian v. Astrue, 708 F.3d 409, 422 (2d Cir. 2013), quoting Saiz v. Barnhart, 392 F.3d 397, 400 (10th Cir.2004) (per curiam). Accurate vocational testimony is needed to answer that question, and, in turn, a proper assessment of a claimant's ability to reach must precede any questioning of a vocational expert.