* This order and judgment is not binding precedent, e xcept under the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

### MAR 19 1999 

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

JUNA M. LISTENBEE,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-5103 (D.C. No. 97-CV-36-J) (N.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , 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 Juna M. Listenbee appeals from an order of the district court affirming the Commissioner’s decision denying her application for social security disabled surviving divorced spouse insuran ce benefits, social security disability insurance benefits, and Supplemental Sec urity Income (SSI). Appellant filed for these benefits in June 1994. S he alleged disability based on hypertension. The agency denied her application s initially and on reconsideration. Appellant received a de novo hearing on August 10, 1995, before an administrative law judge (ALJ). At the hearing, sh e complained of high blood pressure, chronic fatigue, headaches, pain in her l eft arm and stomach, blurred vision, dizzy spells and confusion. The ALJ determ ined that appellant retained the residual functional capacity (RFC) to perform l ight work, so long as she were allowed to alternate sitting or standing everyhour. He found that she could return to her past relevant work as a credit clerk or, in the alternative, that there were sufficient jobs at the light level in the national economy which she could perform. Applying the Medical-Vocational Gui delines, 20 C.F.R. pt. 404, Subpt. P, App. 2, rules 201.07 and 202.07 (the grid s) as a framework, the ALJ concluded that appellant was not disabled within th e meaning of the Social Security Act. The Appeals Council denied review, m aking the ALJ’s decision the Commissioner’s final decision.-3-

We review the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. See Andrade v. Secretary of Health &
Human Servs. , 985 F.2d 1045, 1047 (10th Cir. 1993). Substantia l 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). 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 the 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 her age , education and work experience. See id. The district court bypassed the ALJ’s determinationat step four that appellant could return to her past relevant work, r easoning that the decision was tainted by the ALJ’s delegation of the step fou r analysis to the vocational expert, citing Winfrey v. Chater , 92 F.3d 1017, 1025 (10th Cir. 1996). The Commissioner does not urge affirmance at step four, and appellant makes no1 In her brief, appellant attempted to incorporate by reference the step four

argument she made before the district court. Feder al Rule of Appellate Procedure 28(a)(9)(A) (1998) requires that an appellant’s arg ument contain her “contentions and the reasons for them, with citations to the aut horities and parts of the record on which the appellant relies.” The rule makes no provision for incorporation by reference of arguments made in the district court. See Graphic Controls Corp. v. Utah Med. Prods., Inc. , 149 F.3d 1382, 1385 (Fed. Cir. 1998) (construing substantially similar Fed. R. App. P. 28(a)(6) (199 5) to prohibit incorporation by reference). We caution counsel to avoid incorporat ion by reference of district court arguments. -4- substantive argument concerning the step four issue s. 1 We therefore move on to consider the issues she raises at step five. Appellant begins by arguing that the ALJ erred by f ailing to take into account the effect that job stress has on her hypertension. The ALJ obtained testimony from the VE concerning the effect of job stress on the number of jobs which she could perform. The VE testified that eve n if appellant could perform only low-stress jobs, there were still 3,700 jobs a s a general office clerk within the state of Oklahoma, and 60,000 such jobs in the national economy. The ALJ made reference to this testimony in his dec ision. Although he did not make a specific finding that appellant’s RFC wa s limited by the need to avoid job stress, that error, if any, is harmless in light of the VE’s uncontroverted testimony that there were low-stress jobs appellantcould perform. Appellant fails to show any reversible error as to this issue

.2 Appellant contends that Nielson v. Sullivan , 992 F.2d 1118, 1120 (10th Cir.

1993), extends the rule to all claimants of advance d age who can do less than medium work. Careful reading of Nielson and of SSR 82-41 on which it relies, however, shows that this is not the case. The claimant in Nielson was both (1) of advanced age, and (2) limited to sedentary w ork, and therefore fell within § 201.00(f). Section 4(c) of SSR 82-41 further expl ains that the narrow definition of transferability applies only to claimants of adv anced age limited to sedentary work, or claimants closely approaching retirement a ge (i.e., ages 60-64) limited to light work. See also App. 2 § 202.00(f) (stating rule in context of lig ht work). Appellant has not shown that she fits within a “bor derline” category which would require us to consider her as a person closely appr oaching retirement age. -5- Appellant next argues that the ALJ erred by failing to take into account that she would be required to make a moderate vocational adjustment to perform the jobs on which he relied at step five. She argues t hat since she was 59 years old at the time of the ALJ’s decision and therefore of “ad vanced age” under the applicable regulations, she would be considered “pr esumptively disabled” unless she had transferable skills. See Rule 201.06 of the grids. Appellant contends that her skills are not transferable to the jobs on whic h the ALJ relied, citing 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.00(f), wh ich states: “In order to find transferability of skills to skilled sedentary workfor individuals who are of advanced age (55 and over), there must be very litt le, if any, vocational adjustment required in terms of tools, work process es, work settings, or the industry.” That rule, however, applies only to skilled sedentary work. 2 The ALJ found that appellant could perform light work. The gener al office clerk job on which he-6-

relied is at the light level. Rule 202.07 of the g rids provides that a person with appellant’s age, education and previous work experi ence is considered not disabled if she has transferable skills at the light level. Her argument therefore fails. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge