* This order and judgment is not binding precedent, e xcept under the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

### APR 1 1999 

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

VIVIAN S. SMITH,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-5100 (D.C. No. 96-CV-1155-EA) (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-

Claimant Vivian S. Smith applied for Social Security disability insurance benefits alleging disability since 1988 because of pain in her back, shoulder and hip, poor vision due to glaucoma, and sleepiness, n ausea and dizziness resulting from post-mastectomy medication. The administrativ e law judge (ALJ) determined at step five of the sequential evaluatio n process that claimant was not disabled. The district court affirmed the Commissi oner’s decision, and claimant appeals. Applying the same standard of review as t he district court, we review the Commissioner’s decision to determine whether hi s factual findings are supported by substantial evidence and whether he ap plied the correct legal standards. See Nguyen v. Shalala , 43 F.3d 1400, 1402 (10th Cir. 1994). The ALJ determined that claimant was impaired by ri ght arm pain and that she was limited to sedentary work. See Appellant’s App. at 20. The ALJ further found that this impairment and claimant’s residual functional capacity prevented her from performing her past relevant work as a doc tor’s receptionist which was characterized by the vocational expert as light wor k. Because claimant was fifty-four years old when her insured status expire d (closely approaching advanced age), had no education which would provide her direct entry into skilled work, and was limited to sedentary work, she would be presumptively disabled under the Medical-Vocational Guidelines if she did not have any skills which would be transferable to another job. See 20 C.F.R. Pt. 404, Subpt. P, App. 2,1 We also note that, because claimant was “closely ap proaching advanced

age,” agency regulations require consideration of w hether her age “may seriously affect [her] ability to adjust to a significant num ber of jobs in the national economy.” 20 C.F.R. § 404.1563(c). The vocational expert testified that claimant would have to make a “considerable adjustment” to a ny job requiring computer use. See Appellant’s App. at 58-59. -3- § 201.14. If she had transferable skills, she woul d not be presumptively disabled. See id. § 201.15. The ALJ found that claimant has transferrable cleri cal and filing skills which would enable her to work as an order clerk. The vocational expert, however, testified that the majority of order clerkjobs require computer skills,

see Appellant’s App. at 58-59. There was no evidence regarding the number of order clerk jobs not requiring computer skills that exist either in the regional or national economy, although the vocational expert te stified that those jobs would be at a minimum, see Appellant’s App. at 58-59, and later testified that “everything involves computers as far as clerical a nymore. If you don’t have computer skills you really are out of the job market,” id. at 60. 1 Claimant testified that in her receptionist job she worked with a computer for one hour per day for one week. See Appellant’s App. at 49. Thus, claimant had acquired five hours of computer experience some time between 1981 and 1988.-4-

The Social Security regulations define a skill as knowledge of a work activity which requires the exe rcise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an oc cupation which is above the unskilled level (requires more than 30 days to learn). It is practical and familiar knowledge of the principles and processes of an art, science or trade, combined with the ability to apply them in practice in a proper and approved manner. Soc. Sec. R. 82-41, 1982 WL 31389 at *2. Applying this definition, it is clear that five hours of experience on a computer could n ot result in claimant having acquired computer “skills.” The ALJ’s conclusion that claimant had transferable skills which would enable her to work as an order c lerk is thus unsupported by substantial evidence. “‘In reversing the [Commissioner’s] determination, it is within our discretion to remand to the [Commissioner] for a fu rther hearing or direct the district court to award benefits.’” Emory v. Sullivan , 936 F.2d 1092, 1095 (10th Cir. 1991) (quoting Dixon v. Heckler , 811 F.2d 506, 511 (10th Cir. 1987)). The Commissioner has not articulated any reason whythe presumption of disability established by the Medical-Vocational Gu idelines should not determine the outcome of this case. Claimant applied for ben efits on May 19, 1994, nearly five years ago, and is now fifty-nine years old, or“a person of advanced age” under the regulations. See 20 C.F.R. § 404.1563(d). A remand at this junctur e for a hearing is unnecessary and would be judicially inefficient. See Nielson v.2 Because of our disposition of this appeal, it is un necessary for us to reach

claimant’s contention that the Commissioner did notadequately consider her nonexertional impairments. -5- Sullivan , 992 F.2d 1118, 1122 (10th Cir. 1993) (refusing to remand for a hearing where ALJ failed to make required findings targetedat the level of vocational adjustment needed for fifty-nine-year-old claimant, claimant had made prima facie case of entitlement, and record was fully dev eloped). Accordingly, we direct the district court to award benefits. 2 The judgment of the United States District Court fo r the Northern District of Oklahoma is REVERSED and REMANDED.

Entered for the Court

Mary Beck Briscoe Circuit Judge