McKenna v. Commissioner, SSA ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 23, 2019
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Elisabeth A. Shumaker
Clerk of Court
PAMELA McKENNA,
Plaintiff - Appellant,
v. No. 18-6063
(D.C. No. 5:17-CV-00157-M)
COMMISSIONER, SSA, (W.D. Okla.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McKAY, and MORITZ, Circuit Judges.
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Pamela McKenna appeals from the district court’s order denying her
application for social security disability insurance benefits and supplemental security
income benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g), we affirm.
Ms. McKenna worked as a senior programmer analyst until June 3, 2011, when
she was laid off. At the time of the hearing before an administrative law judge (ALJ)
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
she was 55 years old. She claimed she became disabled on the date she was laid off
because of various physical impairments and depressive disorder. The sole testimony
at the ALJ hearing was by Ms. McKenna and a vocational expert (VE). On June 4,
2015, the ALJ determined that Ms. McKenna had the residual functional capacity
(RFC) to perform light work limited by, among other things, an ability to stand
and/or walk for only a total of two hours during an eight-hour workday, the need for
an assistive walking device, and the need to alternate sitting and standing at the
workstation. At step four of the controlling five-step sequential evaluation process,
see Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (explaining the five-step
framework for determining disability), the ALJ concluded that Ms. McKenna could
perform her past work as a senior programmer analyst and she therefore was not
disabled under the Social Security Act. The Appeals Council denied review, and the
district court affirmed.
Because we review de novo the district court’s rulings in a social security case,
“we independently determine whether the ALJ’s decision is free from legal error and
supported by substantial evidence.” Id. (internal quotation marks omitted). “[W]e
neither reweigh the evidence nor substitute our judgment for that of the agency.”
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (internal quotation marks
omitted).
Ms. McKenna challenges the ALJ’s determination of her ability to sit or stand
while working. Although she acknowledges that “[t]he ALJ’s RFC allowed for the
option to alternate sitting and standing positions at the workstation,” Aplt. Br. at 4
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(internal quotation marks omitted), she argues that the ALJ failed to specify the
frequency of the need to sit or stand, so a remand to the ALJ is necessary for
clarification. She relies on SSR 96-9p, 1996 WL 374185, at *7, which states that
“[t]he RFC assessment must be specific as to the frequency of the individual’s need
to alternate sitting and standing.” But the Ruling applies only to people with
sedentary, unskilled occupations. See id. **4-5 (explaining that the Ruling’s purpose
is to provide guidelines for evaluating whether a claimant can perform “sedentary
unskilled occupations”); see also id. at *7 (observing that the need to alternate sitting
and standing may erode “the occupational base for a full range of unskilled sedentary
work”). Ms. McKenna’s past work, however, was skilled work.
Moreover, at step four it is Ms. McKenna’s burden to establish that she is
unable to perform her job as a senior programmer analyst both as she actually
performed that work in the past and as it is generally performed in the national
economy. See O’Dell v. Shalala, 44 F.3d 855, 859-60 (10th Cir. 1994). The VE
testified that because the essential function of Ms. McKenna’s past work is cognitive,
it allows for flexibility in physical positioning. And Ms. McKenna does not claim
that her past work does not allow her to alternate sitting and standing as needed.
Thus, the ALJ was not required to be more specific concerning Ms. McKenna’s
sit-stand requirements.
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We affirm the district court’s judgment.
Entered for the Court
Harris L Hartz
Circuit Judge
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