                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 19 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JUNA M. LISTENBEE,

                Plaintiff-Appellant,

    v.                                                   No. 98-5103
                                                     (D.C. No. 97-CV-36-J)
    KENNETH S. APFEL, Commissioner,                       (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant 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

ordered 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      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 insurance benefits, social security

disability insurance benefits, and Supplemental Security Income (SSI).

Appellant filed for these benefits in June 1994. She alleged disability based

on hypertension. The agency denied her applications initially and on

reconsideration.

      Appellant received a de novo hearing on August 10, 1995, before an

administrative law judge (ALJ). At the hearing, she complained of high blood

pressure, chronic fatigue, headaches, pain in her left arm and stomach, blurred

vision, dizzy spells and confusion. The ALJ determined that appellant retained

the residual functional capacity (RFC) to perform light work, so long as she

were allowed to alternate sitting or standing every hour. 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 Guidelines, 20 C.F.R. pt. 404,

Subpt. P, App. 2, rules 201.07 and 202.07 (the grids) as a framework, the ALJ

concluded that appellant was not disabled within the meaning of the Social

Security Act. The Appeals Council denied review, making the ALJ’s decision

the Commissioner’s final decision.


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      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). Substantial 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 evaluation 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 through 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 claimant retains 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 determination at step four that

appellant could return to her past relevant work, reasoning that the decision

was tainted by the ALJ’s delegation of the step four 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 no


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substantive argument concerning the step four issues. 1 We therefore move on to

consider the issues she raises at step five.

      Appellant begins by arguing that the ALJ erred by failing 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 even if appellant could perform

only low-stress jobs, there were still 3,700 jobs as 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 decision. Although he did

not make a specific finding that appellant’s RFC was 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 appellant could perform. Appellant

fails to show any reversible error as to this issue.




1
       In her brief, appellant attempted to incorporate by reference the step four
argument she made before the district court. Federal Rule of Appellate Procedure
28(a)(9)(A) (1998) requires that an appellant’s argument contain her “contentions
and the reasons for them, with citations to the authorities 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) (1995) to prohibit incorporation by
reference). We caution counsel to avoid incorporation by reference of district
court arguments.

                                          -4-
      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 that since she was 59 years old at

the time of the ALJ’s decision and therefore of “advanced age” under the

applicable regulations, she would be considered “presumptively 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 which the ALJ relied, citing

20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.00(f), which states: “In order to find

transferability of skills to skilled sedentary work for individuals who are of

advanced age (55 and over), there must be very little, if any, vocational

adjustment required in terms of tools, work processes, 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 general office clerk job on which he


2
       Appellant contends that Nielson v. Sullivan , 992 F.2d 1118, 1120 (10th Cir.
1993), extends the rule to all claimants of advanced 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 work, and therefore fell within
§ 201.00(f). Section 4(c) of SSR 82-41 further explains that the narrow definition
of transferability applies only to claimants of advanced age limited to sedentary
work, or claimants closely approaching retirement age (i.e., ages 60-64) limited
to light work. See also App. 2 § 202.00(f) (stating rule in context of light work).
Appellant has not shown that she fits within a “borderline” category which would
require us to consider her as a person closely approaching retirement age.

                                          -5-
relied is at the light level. Rule 202.07 of the grids provides that a person with

appellant’s age, education and previous work experience 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 for the Northern District

of Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      Paul J. Kelly, Jr.
                                                      Circuit Judge




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