Josephine BOWIE, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No. 07-2125
United States Court of Appeals, Sixth Circuit
Aug. 22, 2008
As Amended Nov. 5, 2008
539 F.3d 395
Before: MERRITT, MOORE, and ROGERS, Circuit Judges.
ROGERS, J., delivered the opinion of the court, in which MERRITT, J., joined. MOORE, J. (pp. 403-04), delivered a separate dissenting opinion.
ROGERS, Circuit Judge.
This Social Security disability appeal presents a single procedural issue regarding whether the Social Security Administration adequately explained its decision. At least on the particular facts of this case, it was procedurally acceptable for the ALJ not to address in his opinion that Bowie was “borderline” between age groups under
Suffering from hypertension, aortic stenosis, and recurrent depression, appellant Josephine Bowie filed an application for social security disability benefits on March 29, 2000. Her claim was denied initially and on reconsideration, after which she requested and received a hearing before an ALJ. Bowie was apprised of her right to representation, but proceeded without an attorney. A vocational expert appeared and testified at the hearing. At the time of the ALJ‘s decision, Bowie was 49 years old and less than two months away from her 50th birthday.
The ALJ filed an opinion on July 13, 2005, in which he concluded that Bowie was not disabled. Proceeding through the five steps of the disability-benefits analysis prescribed in the Social Security Administration‘s disability regulations, see
Importantly for purposes of this appeal, the ALJ placed Bowie in the “younger individual” age category: “Claimant is a ‘younger individual’ (
How we apply the age categories. When we make a finding about your ability to do other work under
§ 404.1520(f)(1) , we will use the age categories in paragraphs (c) through (e) of this section. We will use each of the age categories that applies to you during the period for which we must determine if you are disabled. We will not apply the age categories mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case.
Characterizing Bowie‘s argument as that the “ALJ improperly categorized plaintiff as a ‘younger individual’ when she should have properly been considered ‘closely approaching advanced age,‘” the magistrate judge concluded that the ALJ‘s decision was supported by substantial evidence and that Bowie was properly categorized as a “younger individual.” The magistrate judge emphasized that the record contains no evidence of the age-related “additional vocational adversities” described in the Hearings, Appeals and Litigation Law Manual of the Social Security Administration (HALLEX). See Application of the Medical-Vocational Guidelines in Borderline Age Situations, Soc. Sec. Admin., Office of Hearings and Appeals, Hearings, Appeals and Litigation Law Manual (HALLEX) II-5-3-2. Through the HALLEX, the Associate Commissioner of Hearings and Appeals provides “guiding principles, procedural guidance and information” to adjudicators and staff of the Office of Hearings and Appeals. Id. I-1-0-1. The HALLEX provisions relied upon by the magistrate judge became effective on November 2, 1993. Id. II-5-3-2.
According to the HALLEX, a claimant presents a borderline age situation when: (1) the claimant‘s age is within a few days or months of a higher age category; and (2) use of the higher age category would result in a finding of disability. Id. If a claimant presents a borderline situation, the ALJ is directed to decide whether it is more appropriate to use the claimant‘s chronological age or the higher age. To do this, the ALJ takes a “sliding scale” approach:
Under this approach, the claimant must show progressively more additional vocational adversity(ies) to support use of the higher age—as the time period between the claimant‘s actual age and his or her attainment of the next higher age category lengthens.
Id. Examples of “additional vocational adversities” are the presence of an additional impairment that infringes on the claimant‘s remaining occupational base; having only a marginal ability to communicate in English; or a history of work experience in an unskilled job in one isolated industry or work setting.2 Id. “Absent a showing of additional adversity(ies) ... the adjudicator will use the claimant‘s chronological age.” Id. Based on his conclusion that the record was devoid of evidence that Bowie had any such “additional adversities,”3 the magistrate judge recommended that the district court grant summary judgment to the Commissioner.
The district court judge adopted the magistrate‘s report and recommendation, overruled Bowie‘s objections, and granted summary judgment to the Commissioner. The district judge interpreted Bowie as arguing that “the application of the older age category was both mandatory and would result in a finding of disability,” and concluded that Bowie “misinterprets the law,” explaining that the “ALJ simply has discretion to apply the older age category if he believes it is warranted.” The judge also rejected Bowie‘s contention that the ALJ did not apply
On appeal, Bowie argues that because she was borderline between age groups,4 the ALJ was required to apply
In regulations addressed to the claimant in the second person, the Administration provides that if a claimant is unable to perform her past relevant work due to her impairment, the Administration will consider the claimant‘s residual functional capacity combined with her vocational factors—which include age, education, and work experience—to determine if the claimant can make an adjustment to other work. See
Although ALJs are obligated by this text not to apply the age categories mechanically and to consider whether use of an older age category would be appropriate in a borderline case, nothing in this language obligates an ALJ to address a claimant‘s borderline age situation in his opinion or explain his thought process in arriving at a particular age-category determination. Rather, the regulation merely promises claimants that the Administration will “consider” veering from the chronological-age default in borderline situations.
While not binding on this court, the procedural guidance to the staff and adjudicators of the Office of Hearings and Appeals set forth in the HALLEX bolsters this interpretation. In section II-5-3-2, the Associate Commissioner of Hearings and Appeals provided an Appeals Council interpretation of
Absent a showing of additional adversity(ies) justifying use of the higher age category, the adjudicator will use the claimant‘s chronological age—even when the time period is only a few days. The adjudicator need not explain his or her use of the claimant‘s chronological age.
Id. (emphasis added). Moreover, the Appeals Council appears to anticipate that ALJs will not always address the issue of age categorization in cases involving borderline age situations, and explains that in such situations, the Council will typically deny review unless there is a basis in the record for using a higher age category:
The Appeals Council will ordinarily deny review, assuming there is no other basis for granting review, when a borderline age situation exists, the ALJ‘s decision does not address the issue, and the Appeals Council does not find sufficient basis in the record for using the higher age category.
This court‘s decision in Wilson v. Commissioner, 378 F.3d 541 (6th Cir. 2004), is not to the contrary. Although Bowie is correct that Wilson stands for the proposition that remand is appropriate when an agency fails to follow its own procedural requirements, Wilson is distinguishable from the instant case in that the ALJ in Wilson demonstrably violated a clear elaboration requirement imposed explicitly by the regulations. Section 404.1527(d)(2) promises claimants that the Administration will “always give good reasons in our notice of determination or decision” for not giving weight to a treating physician‘s opinion in the context of a disability determination.
That § 1563(b) does not impose a per se procedural requirement to address borderline age categorization explicitly in every borderline case does not relieve ALJs of their obligation to provide enough explanation of their overall disability determinations to assure reviewers that their decisions are supported by substantial evidence. See
Our reasoning is supported by the well-reasoned, albeit unpublished, decision in Van Der Maas v. Commissioner of Social Security, 198 Fed. Appx. 521, 528 (6th Cir. 2006): Van der Maas was within a couple of months of reaching an older age category. Although the ALJ acknowledged that fact, the ALJ did not move her to the higher category, presumably because the ALJ did not find that Van der Maas had demonstrated the “additional vocational adversities” required to do so. See HALLEX II-5-3-2. The ALJ‘s failure to explicitly mention the sliding scale, especially considering that she articulated the two factors relevant to the borderline age analysis, does not undermine the ALJ‘s determination to consider Van der Maas‘s application according to her chronological age. A review of the ALJ‘s decision makes clear that the ALJ was unpersuaded by Van der Maas‘s allegations regarding the extent of her impairments and that the ALJ believed that many of Van der Maas‘s health problems arose after her insured status had expired. Substantial evidence in the record supports the ALJ‘s conclusion.
It is true that in Van Der Maas the ALJ had given a somewhat more explicit indication that she was aware of the claimant‘s borderline age situation: the ALJ had “articulated the two factors relevant to the borderline age analysis” and had stated that “it is not appropriate to consider the Claimant to be an individual of advanced age on her date last insured for benefits.” See id. at 527-28. Van Der Maas nonetheless supports our reasoning in that we did not find problematic the ALJ‘s failure to explain her age-categorization reasoning because the ALJ‘s reasons were apparent from the record.
We recognize that two cases from other circuits could be construed as being in tension with our conclusion. In Daniels v. Apfel, 154 F.3d 1129, 1133-35 (10th Cir. 1998), for example, the Tenth Circuit remanded the claimant‘s case for failure to “consider” the effect of a borderline situation where the ALJ did not explicitly address which age category best suited the borderline claimant. Id. at 1133-35. The court noted that “[d]etermining whether a claimant falls within a borderline situation appears to be a factual rather than discretionary matter, and the ALJ erred by not making the necessary factual finding. Even were this considered a discretionary matter, the ALJ would have abused that discretion by failing to exercise it.” Id. at 1133 n. 5 (internal citations omitted). In addition, in a case decided when the grids were new, the Third Circuit remanded a claimant‘s case for further consideration where the ALJ did not “address” the regulation providing that the Administration “will not apply these age categories mechanically in a borderline situation” and did not consider which age category best suited the borderline claimant. Kane v. Heckler, 776 F.2d 1130, 1132-34 (3d Cir. 1985).
With the HALLEX interpretation, however, came a more concrete standard: The ALJ is to consider, using a sliding scale approach, whether the claimant has presented sufficient additional vocational adversities to justify use of a higher age category. In the absence of such a showing, “the adjudicator will use the claimant‘s chronological age” and “need not explain his or her use of the claimant‘s chronological age.” This interpretation now makes it easier, in some borderline-age cases that lack an explanation for age categorization, for a reviewing court to conclude that a decision to deny benefits is supported by substantial evidence. In particular, in a case such as Bowie‘s where there is no evidence of “additional vocational adversities” or any other consideration that might justify use of a higher age category—and indeed evidence to the contrary—it is not difficult to conclude that the ALJ‘s benefits decision is supported by substantial evidence despite its lack of an explicit discussion regarding age categorization. As a general matter, agencies need not explicitly reject every legal contention for which there is no substantial basis in the record. The Supreme Court for instance held in National Railroad Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 419-20, 112 S. Ct. 1394, 118 L. Ed. 2d 52 (1992), that a court may properly defer to an agency‘s unstated legal interpretation where that interpretation was the “only plausible explanation of the issues that the Commission addressed after considering the factual submissions by all of the parties.” Cf. Heston v. Comm‘r of Soc. Sec., 245 F.3d 528, 535-36 (6th Cir. 2001) (concluding that the ALJ‘s decision was supported by substantial evidence despite the ALJ‘s failure to discuss the report on which the claimant relied, where it was clear from the record that remand for discussion of the report would not change the outcome).
The Tenth Circuit‘s decision in Daniels is also distinguishable. While Daniels was decided—and its underlying administrative determination was made—after publication of the HALLEX interpretation regarding borderline age situations, the Daniels court referred to Kane in support of its conclusion and does not appear to have been aware of the 1993 HALLEX interpretation. See 154 F.3d at 1135 & n. 9 (noting that the Commissioner had provided “virtually no guidance” on the meaning of not applying age categories mechanically and stating “the only guidance of which we are aware that the Commissioner has provided related to this matter is his issuance of an Acquiescence Ruling critical of” Patterson v. Bowen, 799 F.2d 1455 (11th Cir. 1986)). Daniels is therefore distinguishable on the same basis as Kane.
We affirm the district court‘s grant of summary judgment to the Commissioner.
KAREN NELSON MOORE, Circuit Judge, dissenting.
I am writing in dissent because I believe that we should remand the case as a result of the ALJ‘s failure to give any indication in his decision as to whether he performed the requisite inquiry under
I believe that the majority opinion mistakenly concludes that the guidelines set forth in the Hearings, Appeals and Litigation Law Manual of the Social Security Administration (“HALLEX“) negate the extensive precedent requiring ALJs to discuss whether a potential borderline case falls within that category. Instead, I believe that we should follow the lead of the Tenth Circuit decision in Daniels v. Apfel, 154 F.3d 1129 (10th Cir. 1998), and hold that in potential borderline cases, ALJs must provide some record of their thought process regarding the requirements of
Additional support for the holding of Daniels rests with
That the HALLEX guidelines do not require the ALJ to give an explanation for his discretionary decision not to bump up the age of a claimant with a borderline age status does not mean that §§ 404.1563 and 404.953 do not require an ALJ to note whether he has even considered the claimant‘s potential borderline status. Once the claimant falls within a borderline status—that is, his or her age is near that of the next category and bumping him or her up a category would result in a finding of disability—§ 404.1563 mandates that the ALJ not apply the grid mechanistically. We cannot review on appeal whether the ALJ did so if the ALJ gives absolutely no indication whether he or she even considered the claimant‘s borderline status. The ALJ does not have to explain why he decided not to exercise his discretion and bump up the age of a borderline claimant, though this would be preferable, but at a minimum he has to note that he considered whether to do so in a non-mechanistic manner.