*1 § 2250 merce to 18 U.S.C. Clause enact § respectively. U.S.C. v.
May, 535 and United States F.3d
Baccam, 1198-1200
Cir.2009), held that notice this court requirements law
sex offender state moving when register
he must between that a
jurisdictions is sufficient establish register under
prosecution for failure with Due
the SORNA is consistent that a
Process Clause. Baccam also held subject un- prosecution
sex offender is 2250(a) if he has not received
der even registration re-
notice SORNA’s to 42
quirements pursuant U.S.C. 16917. correctly rejected
The district court thus arguments raised Fernandez.
identical reasons, part,
For affirm these we in part,
reverse and remand for further
proceedings. PHILLIPS, Plaintiff-Appellant,
Diana ASTRUE, Commissioner,
Michael J. Security Administration,
Social
Defendant-Appellee.
No. 11-1969. Appeals,
United States Court of Circuit.
Eighth Jan.
Submitted: 2012.
Filed: Feb. 2012. *2 Wallace, Ra- Gregory argued,
Eugene NC, Bartels, Anthony on the leigh, W. brief, Jonesboro, AR, appellant. for AUSA, Chandler, Special ar- found suffered from diabetes Thomas E. mel- TX, McCord, Dallas, diabetic Stacey neuropathy. Although E. litus and gued, Rock, AR, AUSA, had past and Michael the ALJ determined no Little *3 work, Counsel, the Regional Chief relevant ALJ found she had the McGaughran, Dallas, TX, brief, (RFC) SSA, VI, capacity light on the residual functional for Region expert work. A vocational also appellee. for testified perform light that an individual who could WOLLMAN, MURPHY, Before and perform work could work in the national BYE, Judges. Circuit While economy Phillips as sales clerk. “younger was a individual” at the time her BYE, Judge. Circuit filed, application was the ALJ noted she applications sup- Diana filed Phillips for subsequently changed categories plemental security and income benefits “closely approaching age.” advanced In conjunction disabled widow’s benefits. education, Phillips’s age, Based on work with guidelines, the medical-vocational 20 RFC, experience, and the ALJ determined P, 2, 404, Subpart Appendix C.F.R. Part perform she could work as sales clerk (ALJ) Law Judge the Administrative Thus, security guard. and a the ALJ con- found not After Phillips was disabled. Phillips cluded was not disabled. Council, review, granting Appeals and granted The Council Appeals review of court, later the district affirmed the ALJ’s decision. The ALJ’s Council included
finding. appeal The sole issue is Phillips’s previously-asserted disabled wid- whether failed con- the Commissioner decision, its ow’s claim and it moved the Phillips, four sider whether who was 1, of January 2006, onset date her claim to fifty-fifth birthday, shy months of her in order to cover this claim. Adopting the being should have been classified as of findings, agreed ALJ’s Phillips Council “closely ap- “advanced rather than age,” the full of perform range light could work. impacts proaching age,” advanced which recognized Phillips The Council was 54 her we disability determination. Because old, or “closely approaching ad- are unable to determine from the record age.” Accordingly, ap- vanced the Council whether the Commissioner considered plied 202.13 of Rule the medical-vocational Phillips whether should be moved to the guidelines, finding directed a of “not higher age we case category, remand the Phillips sought judicial disabled.” review for proceedings. further decision, of this and the district court af- appeals firmed. now to this court.
I II Phillips’s The ALJ evaluated claims for five-step benefits under the familiar “We review de novo District process proscribed by Security the Social Court’s determination whether substan regulations.1 The ALJ found had tial on the as a evidence record whole engaged gainful activity supports substantial the ALJ’s decision.” Gonzales v. (8th Cir.2006). Barnhart, 890, July appli since date 465 2006—the of her F.3d 894 cation for The determining benefits. ALJ further “Our review limited to five-part perform past 1. "The is whether the claimant er the claimant can relevant test not, (1) work; (5) (2) employed severely currently if and whether claimant (3) impaired; impairment perform any King is or can other kind of work.” whether Astrue, (4) Cir.2009). approximates impairment; wheth- 979 n. 2 listed being if bly, Phillips had been as decision is classified Commissioner’s age,” grids would direct evidence on “advanced supported substantial whole,” disability. “is than a See Part as a less 20 C.F.R. record P, enough that a reason- 202.04. Subpart Appendix but preponderance, mind accept adequate as might able Phillips’s centers on Accordingly, appeal Astrue, a conclusion.” Moore v. support to her age categorization, her which is vital (8th Cir.2009) (internal F.3d regu- disability determination. Under omitted). quotation marks and citation lations, age categories not applied are mechanically in a borderline situation. guide medical-vocational
The *4 404.1563(b). Instead, if a claim- C.F.R. lines, grids, listing of or “are a set charts days ant is “within a few to a few months that a profiles certain warrant vocational age and reaching category, of an older disability non-disability.” or finding of (8th using age category the older would result Astrue, 605, McCoy v. 613 in Cir.2011) a or that 404, [the determination decision Subpt. Part (citing 20 C.F.R. disabled, 2). con- agency] claimant will P, is] [the App. come at grids play The into catego- the age sider whether to use older step analysis, five of where “the bur the ry evaluating impact after the overall of all shifts to show den to the Commissioner the factors of case.” Id. [the claimant’s] physical that the claimant has the residual To to the claim- apply determine whether significant a capacity perform number chronological age age, ant’s higher or the jobs economy of other in the national ap- adopted “sliding Council scale” impairments are consistent with her and proach whereby “the must show education, claimant age, as vocational factors such progressively more additional vocational Holley experience.” and work v. Massa (8th Cir.2001). nari, adversityfies)—to support high- of the 1088, use 253 1093 F.3d age—as period er the time between the RFC, findings age, “If the as to ALJ’s education, age actual and or her attain- claimant’s his experience any and fit of work ment higher age category of the next the combinations of those criteria con lengthens.” Application of the Medical- in the in Appendix tained Tables 2 to Part 404, Age Vocational Guidelines Borderline then the ALJ must reach the conclu (either disabled’) Situations, Admin., Soc. Sec. Office of sion ‘disabled’ or ‘not di Hearings Appeals, Hearings, Appeals, and rected relevant Rule or line (HALLEX) Sullivan, Litigation and Law Manual applicable Table.” Reed v. 988 (8th Cir.1993) (internal II-5-3-2, 812, http://www. available quo F.2d 816 omitted). socialsecurity.gov/OP_Home/hallex/II-05/ marks tation and citation If the does not II-5-3-2.html. claimant three guidelines, age catego- Under justifying adversityfies) show “additional (un- specified: person younger ries are age adjudi- use of higher category, 50), closely age person der approaching chronological cator will use claimant’s 50-54), age (ages person advanced and a of only a age—even when the time period older). or (age advanced 55 20 C.F.R. adjudicator days few need not [and] [t]he 404.1563(c)-(e); also see 20 C.F.R. explain his or her use of the claimant’s 416.963(c)-(e). case, In this since chronological age.” Id. Phillips Council determined was 54 situation, decision, at the old time of the ALJ’s this asserted borderline “closely Phillips thus she ad- she has at two addi- approaching argues was least vanced tional vi- age,” applied it Rule 202.13 of the vocational adversities—reduced work—justifying to find sion grids past not disabled. Nota- and no relevant
703 higher age category, the use of the tion did not exist where the claimant was disability under four from the category. would result months older Chater, Although SI, v. grids. concedes See Woods No. C 95-1748 (N.D.Cal. required apply Council was not at *5 Sept. WL 1996) (“[F]our higher age category, argues she there appear months does not nothing in the decision to indi- be in Council’s the borderline under the circum case.”). applying cate the this Council stances of age category, older which it is bright We decline to draw a line for Therefore, argues do. she the Council’s purposes of this case. See Holland v. deci- decision—the Commissioner’s final Sec., 10-1019, Comm’r Soc. No. supported by sion sub- case—is (W.D.Pa. at *1 WL n. 1 Jan. Astrue, Hulsey stantial evidence. See 2012) (“[C]ourts have held that there is no (8th Cir.2010) (“We re- F.3d brightline rule for what constitutes a bor Ap- view the most recent decision of the situation.”). derline Our review of the Council, peals is the Commissioner’s case law and the circumstances this case benefits.”). final denying decision *5 Phillips’s satisfies us that four-month time period constitutes a borderline situation. A. Borderline Situation in Importantly, addition to the close time We must first examine a bor- period the categories, between we conclude exists, given Phillips derline situation Phillips at established least one additional shy fifty-fifth was four months of her adversity justifying vocational the use of birthday at the time ALJ’s decision. Namely, the higher category. situ- Exactly what constitutes borderline work, past has no relevant in certain by regula- ation is not defined statute or may circumstances be sufficient to estab tion, days other than “few few adversity: lish an additional vocational language months” mentioned above. experience: past no Work Because rel- Phillips argues a devel consensus has evant is more than work adverse other oped a borderline ex establishing situation experience adjudi- work categories, the ists claimant six where the is within past cator considers whether no relevant next category. months from the See might work be an additional vocational Sec., Lewis v. 666 Comm’r Soc. adversity except using when a rule that (“Gen (E.D.Mich.2009) F.Supp.2d an can only having individual meet no erally, person courts hold that a within six past experience. work relevant higher age months of the category next EXAMPLE: Medical-vocational rule ”); v. Gallagher considered ‘borderline.’ work, requires past no 203.02 relevant Astrue, 08-ev-163-PB, No. 2009 WL past so “no relevant work” could not be (D.N.H. 2009) (“Al April at *6 adversity an additional considered when though their the courts have varied in using rule. what interpretation period of in of time-the falls, general range requires borderline consen Medical-vocational rule 203.01 range past sus is that the borderline some or no work expe- falls unskilled relevant past where months older No around six from the rience. relevant work could be (internal age category.”) quotation adversity marks an considered additional when omitted). using and citation The Commissioner this rule because it is a more exist, guidelines and asserts no such fixed adverse vocational factor than unskilled courts situa past have concluded borderline relevant work. in issue first Administration, addressed the pears to have Program Security
Social (3d Heckler, (POMS) F.2d 1130 Cir. v. § DI Kane System Manual Operations ALJ 1985), because the where it remanded (Medical-Vocational Quick Ref- 25001.001 404.1563(a). 20 C.F.R. failed to address Guide), https://secure. available erence could alter the consideration Because this ssa.gov/poms.nsf/lnx/0425001001#b2. “judicial 202.04, the court stated above, disability finding, Rule cited example Like on premised approval of these standards disability direct which would employ that SSA will being the assurance classified as if was this case arbitrary results grids] produce or no requires [the unskilled age,” of “advanced Although thus, at 1134. cases.” Id. individual experience, work past relevant findings are what specify the court did not could be relevant work past no to con- it remanded for the ALJ required, it is a adversity because an additional apply under category past sider factor than unskilled more adverse of the case. Id. circumstances work. relevant Kane, sum, situa- a borderline Furthering import we conclude four Phillips was in a border- tion because also remanded existed Tenth Circuit birthday, she shy fifty-fifth Apfel, of her months line situation Daniels Cir.1998). voca- one additional to consid- By failing at least established higher age situation, if cate- adversity, and the the Tenth Cir- tional er the borderline used, in a deter- misap- it would result gory were cuit determined the Commissioner Therefore, disability. while by relying grids. mination of on the Id. plied the law *6 concluded, ap- sum, not to the was the court Commissioner at 1135. issue, re- age category, finding regard- he was ply higher any the factual “[l]ike next cate- applying category to consider the in which quired ing appropriate age the by gory. supported must be place to a claimant Id. at 1136. substantial evidence.” Con- B. the Commissioner Whether Phil- support and Daniels While Kane Category Age sidered the Older case law casts position, subsequent lips’s Next, the argue the parties First, in Bowie v. on the issue. doubt fact, did, in consider the Commissioner Security, 539 F.3d Commissioner Social category. The Commissioner age older (6th Cir.2008), con- the Sixth Circuit language of 20 C.F.R. argues plain found a a case where the ALJ sidered 404.1563(b) to imposes requirement § no “younger individual” and claimant was a situa- specific findings in borderline make 404.1563, § did not cited but otherwise also claims the The Commissioner tions. characterization, age claimant’s discuss the mentioned specifically Appeals Council within two though the claimant was even found she was Phillips’s date of birth and category. Id. at 397. months of the next old, ap- “person closely or According the court: the ALJ age,” and proaching advanced in may provide, an ALJ need While The Commis- cited 20 C.F.R. 404.953. that record indicates cases where the findings show sioner contends these higher age category appropri- use of made. proper consideration was ate, indication that he some in order to age categorization borderline issue of whether a borderline Like the that his deci- reviewing court exists, satisfy a the case law on the Com- situation by substantial evi- supported sion is considering in such a missioner’s duties 1563(b) dence, impose not on does ap- The Third Circuit situation varies. requirement provided explanation a sufficient per procedural ALJs a se his dis- in age categorization ability address borderline determination to assure the court every borderline case. supported by his decision was sub- evidence”). stantial Bowie also noted the Notably, while ALJs are not to Id. at 399. mechanically, sliding approach, whereby scale categories additional apply “nothing language in this considered, court determined vocational adversities are was obligates an ALJ to address claimant’s Daniels, published after Kane and thus age opinion situation his or borderline distinguishing those cases. 539 F.3d at thought process arriving his at a explain 402-03. determination,”
particular age-category note Bowie We reached its conclusion regulations only require because the “ dissent, strong over a recognized: veering Commissioner to ‘consider’ from guidelines the HALLEX “[t]hat do not chronological-age default borderline require the give explanation ALJ to an for situations.” Id. The court found further discretionary his decision to bump up not regulations, in the internal support “ of a claimant with a borderline note, adjudicator not explain ‘[t]he need §§ status does not mean that 404.1563 and chronologi- his or her use of the claimant’s ” 404.953 require do not ALJ note age.’ (quoting cal Id. at 400 HALLEX whether he has 25498826). even considered the claim- II-5-3-2, 2003 WL potential ant’s borderline status.” procedural lack of a Despite require- (Moore, J., F.3d at 404 dissenting). The findings, ment to make factual Bowie ac- ultimately dissent concluded cannot “[w]e knowledged “provide ALJs must still on appeal review whether the [ap- ALJ enough explanation of their overall disabil- plied grid mechanically] if the ALJ ity determinations to assure reviewers that gives absolutely no indication whether he decisions are supported their substan- or she even considered the claimant’s bor- tial “lack an explanation evidence” and Rather, derline may in status.” Id. some cases mean that the ALJ’s dissent supported by acknowledged ultimate decision is not suffi- the ALJ need explain *7 decision, cient evidence.” Id. at 400-01. As an his or her if even it would be example, the court a cited scenario where preferable—“but at a minimum he has to an individual has additional vocational ad- note that he considered whether to do so might versities which warrant placement in a non-mechanistic manner.” Id. situation, in higher age category; in that Finally, Ninth up Circuit took recognized Boiuie “some discussion of issue in Lockwood v. Commissioner So- of proper age categorization [was merited] Administration, Security cial 616 F.3d order to meet the substantial-evidence (9th Cir.2010), 1068 where it concluded the However, threshold.” at Id. 401. because requirement ALJ satisfied the to consider the claimant in any Bowie did have age the older category based on her men- adversities, additional vocational the court birth, tion of the claimant’s age date of concluded the ultimate benefits determina- category “closely approaching of advanced supported by tion was substantial evi- § age,” and cite to Id. at 404.1563. 1071- Id.; dence. see also Caudill v. Comm’r of noted, 72. “[c]learly The court ALJ Sec., 424 Fed.Appx. Soc. 516-518 Cir.2011) just shy was aware that [the claimant] was (noting although the claimant birthday, point of her 55th at which she was about two months from the next cate- person would gory age.” and his drew to become of advanced case similarities Bowie, hypothetical posed in disagreed “the ALJ Id. at 1072. The court with the 706 choosing a rule from age borderline before the ALJ was to the extent
Tenth Circuit
Indeed,
that
a mere statement
grids.”).
than “show
[]
to do more
required
to use the older
that he considered the
the Commissioner
she considered
n. 4.
likely
Id. at 1072
situation would
suffice.
age category.”
borderline
Sec.,
Der Maas v. Comm’r Soc.
See Van
law, this case
varying case
Based on the
(6th Cir.2006)
521, 527
Fed.Appx.
198
Ultimately, we
presents
question.
a close
(“The
...
that ‘it is not
ALJ
determined
by the Daniels and
persuaded
more
are
to consider the claimant to be
appropriate
reasoning than Bowie and
Kane line of
an
of advanced
on her date
individual
Lockwood,
reasons set forth
largely for the
”).
for benefits.’
last insured
Namely, whether
in the
dissent.
Bowie
specific
forth
must set
the Commissioner
held oth-
Although Bowie
Lockwood
question than wheth
findings is a different
erwise,
acknowledge
those cases
even
something in the record to
er there is
must “show
that she considered
[]
ALJ
ap
indicate the Commissioner
category.”
whether to use the older
age category. But see
plying
higher
Lockwood,
4;n.
from the
trary. SCHAD,
Edward Harold Petitioner-
Appellant, RYAN,* L. Arizona
Charles Corrections,
Department of
Respondent-Appellee.
No. 07-99005. Appeals,
United States Court of
Ninth Circuit.
Argued May 2009. and Submitted Sept.
Filed 2009.
Amended Jan. 2010.
Second Amendment June 2010.
Third Amendment Nov. 2011. * Ryan L. prede- Department Charles for his substituted Arizona of Corrections. See Fed. *10 43(c)(2). R.App. cessor Dora B. Schriro as Director of the P.