Lead Opinion
Diana Phillips filed applications for supplemental security income benefits and disabled widow’s benefits. In conjunction with the medical-vocational guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, the Administrative Law Judge (ALJ) found Phillips was not disabled. After granting review, the Appeals Council, and later the district court, affirmed the ALJ’s finding. The sole issue in this appeal is whether the Commissioner failed to consider whether Phillips, who was four months shy of her fifty-fifth birthday, should have been classified as being of “advanced age,” rather than “closely approaching advanced age,” which impacts her disability determination. Because we are unable to determine from the record whether the Commissioner considered whether Phillips should be moved to the higher age category, we remand the case for further proceedings.
I
The ALJ evaluated Phillips’s claims for benefits under the familiar five-step process proscribed by the Social Security regulations.
The Appeals Council granted review of the ALJ’s decision. The Council included Phillips’s previously-asserted disabled widow’s claim in its decision, and it moved the onset date of her claim to January 1, 2006, in order to cover this claim. Adopting the ALJ’s findings, the Council agreed Phillips could perform the full range of light work. The Council recognized Phillips was 54 years old, or “closely approaching advanced age.” Accordingly, the Council applied Rule 202.13 of the medical-vocational guidelines, which directed a finding of “not disabled.” Phillips sought judicial review of this decision, and the district court affirmed. Phillips now appeals to this court.
II
“We review de novo the District Court’s determination of whether substantial evidence on the record as a whole supports the ALJ’s decision.” Gonzales v. Barnhart,
The medical-vocational guidelines, or grids, “are a set of charts listing certain vocational profiles that warrant a finding of disability or non-disability.” McCoy v. Astrue,
Under the guidelines, three age categories are specified: a younger person (under age 50), a person closely approaching advanced age (ages 50-54), and a person of advanced age (age 55 or older). 20 C.F.R. § 404.1563(c)-(e); see also 20 C.F.R. 416.963(c)-(e). In this case, since the Council determined Phillips was 54 years old at the time of the ALJ’s decision, and thus she was “closely approaching advanced age,” it applied Rule 202.13 of the grids to find Phillips not disabled. Notably, if Phillips had been classified as being of “advanced age,” the grids would direct a finding of disability. See 20 C.F.R. Part 404, Subpart P, Appendix 2, § 202.04.
Accordingly, Phillips’s appeal centers on her age categorization, which is vital to her disability determination. Under the regulations, the age categories are not applied mechanically in a borderline situation. 20 C.F.R. § 404.1563(b). Instead, if a claimant is “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 [the claimant is] disabled, [the agency] will consider whether to use the older age category after evaluating the overall impact of all the factors of [the claimant’s] case.” Id. To determine whether to apply the claimant’s chronological age or the higher age, the Council adopted a “sliding scale” approach whereby “the claimant must show progressively more additional vocational adversityfies)—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.” 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, available at http://www. socialsecurity.gov/OP_Home/hallex/II-05/ II-5-3-2.html. If the claimant does not show “additional adversityfies) 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 [and] [t]he adjudicator need not explain his or her use of the claimant’s chronological age.” Id.
In this asserted borderline situation, Phillips argues she has at least two additional vocational adversities—reduced vision and no past relevant work—justifying
A. Borderline Situation
We must first examine whether a borderline situation exists, given that Phillips was four months shy of her fifty-fifth birthday at the time of the ALJ’s decision. Exactly what constitutes a borderline situation is not defined by statute or regulation, other than the “few days to a few months” language mentioned above.
Phillips argues a consensus has developed establishing a borderline situation exists where the claimant is within six months from the next age category. See Lewis v. Comm’r of Soc. Sec.,
We decline to draw a bright line for purposes of this case. See Holland v. Comm’r of Soc. Sec., No. 10-1019,
Work experience: Because no past relevant work is more adverse than other work experience categories, the adjudicator considers whether no past relevant work might be an additional vocational adversity except when using a rule that an individual can meet only by having no past relevant work experience.
EXAMPLE: Medical-vocational rule 203.02 requires no past relevant work, so “no past relevant work” could not be considered an additional adversity when using this rule.
Medical-vocational rule 203.01 requires unskilled or no past relevant work experience. No past relevant work could be considered an additional adversity when using this rule because it is a more adverse vocational factor than unskilled past relevant work.
*704 Social Security Administration, Program Operations Manual System (POMS) § DI 25001.001 (Medical-Vocational Quick Reference Guide), available at https://secure. ssa.gov/poms.nsf/lnx/0425001001#b2.
Like the example cited above, Rule 202.04, which would direct a finding of disability in this case if Phillips was classified as being of “advanced age,” requires unskilled or no past relevant work experience, and thus, no past relevant work could be considered an additional adversity because it is a more adverse factor than unskilled past relevant work.
In sum, we conclude a borderline situation existed because Phillips was four months shy of her fifty-fifth birthday, she established at least one additional vocational adversity, and if the higher age category were used, it would result in a determination of disability. Therefore, while the Commissioner was not required to apply the higher age category, he was required to consider applying the next category.
B. Whether the Commissioner Considered the Older Age Category
Next, the parties argue whether the Commissioner did, in fact, consider the older age category. The Commissioner argues the plain language of 20 C.F.R. § 404.1563(b) imposes no requirement to make specific findings in borderline situations. The Commissioner also claims the Appeals Council specifically mentioned Phillips’s date of birth and found she was 54 years old, or a “person closely approaching advanced age,” and the ALJ cited 20 C.F.R. § 404.953. The Commissioner contends these findings show the proper consideration was made.
Like the issue of whether a borderline situation exists, the case law on the Commissioner’s duties in considering such a situation varies. The Third Circuit appears to have addressed the issue first in Kane v. Heckler,
Furthering the import of Kane, the Tenth Circuit also remanded in a borderline situation in Daniels v. Apfel,
While Kane and Daniels support Phillips’s position, subsequent case law casts doubt on the issue. First, in Bowie v. Commissioner of Social Security,
While an ALJ may need to provide, in cases where the record indicates that use of a higher age category is appropriate, some indication that he considered borderline age categorization in order to satisfy a reviewing court that his decision is supported by substantial evidence, § 1563(b) does not impose on*705 ALJs a per se procedural requirement to address borderline age categorization in every borderline case.
Id. at 399. Notably, while ALJs are not to apply the categories mechanically, the court determined “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,” because the regulations only require the Commissioner to “ ‘consider’ veering from the chronological-age default in borderline situations.” Id. The court found further support in the internal regulations, which note, “ ‘[t]he adjudicator need not explain his or her use of the claimant’s chronological age.’ ” Id. at 400 (quoting HALLEX II-5-3-2,
Despite the lack of a procedural requirement to make factual findings, Bowie acknowledged ALJs must still “provide enough explanation of their overall disability determinations to assure reviewers that their decisions are supported by substantial evidence” and “lack of an explanation may in some cases mean that the ALJ’s ultimate decision is not supported by sufficient evidence.” Id. at 400-01. As an example, the court cited a scenario where an individual has additional vocational adversities which might warrant placement in a higher age category; in that situation, Boiuie recognized “some discussion of proper age categorization [was merited] in order to meet the substantial-evidence threshold.” Id. at 401. However, because the claimant in Bowie did not have any additional vocational adversities, the court concluded the ultimate benefits determination was supported by substantial evidence. Id.; see also Caudill v. Comm’r of Soc. Sec.,
We note Bowie reached its conclusion over a strong dissent, which recognized: “[t]hat 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 the ALJ to note whether he has even considered the claimant’s potential borderline status.”
Finally, the Ninth Circuit took up the issue in Lockwood v. Commissioner of Social Security Administration,
Based on the varying case law, this case presents a close question. Ultimately, we are more persuaded by the Daniels and Kane line of reasoning than Bowie and Lockwood, largely for the reasons set forth in the Bowie dissent. Namely, whether the Commissioner must set forth specific findings is a different question than whether there is something in the record to indicate the Commissioner considered applying the higher age category. But see Lewis,
Although Bowie and Lockwood held otherwise, even those cases acknowledge the ALJ must “show [] that she considered whether to use the older age category.” Lockwood,
Lockwood is more squarely on point, because the ALJ there found the claimant was 54 years old, was “closely approaching advanced age,” and cited § 404.1563, which are essentially the same findings made here. Nonetheless, to the extent Lockwood concluded these findings are sufficient to show the Commissioner considered the borderline situation, we disagree. Simply noting Phillips’s age and her current age category fails to answer the precise question at hand—whether her borderline situation warranted moving her to the next category. While the ALJ’s cite to the general regulation comes closer to the issue, the cite was in reference to Phillips changing from a younger individual at the time her claim was filed to a person closely approaching advanced age at the time of the decision. Again, the finding had noth
In sum, regardless of the direction to ALJs by the internal regulations as to the lack of fact findings needed, this court still needs to have substantial evidence to support an ALJ’s decision. See Moore,
Notes
. "The five-part test is whether the claimant is (1) currently employed and (2) severely impaired; (3) whether the impairment is or approximates a listed impairment; (4) whether the claimant can perform past relevant work; and if not, (5) whether the claimant can perform any other kind of work.” King v. Astrue,
Dissenting Opinion
dissenting.
The ALJ noted Phillips’s date of birth and cited 20 C.F.R. § 404.1563. Likewise, the Appeals Council specifically mentioned Phillips’s date of birth, finding that she was 54 years old, which perforce rendered her a person closely approaching advanced age at the time of the ALJ’s decision. These references satisfy me that both the ALJ and the Appeals Council considered the use of the older age category in determining that Phillips was not disabled.
Although the majority opinion attempts to minimize the necessity of detailed findings in every “closely approaching advanced age” case (“a mere statement by the Commissioner that he considered the borderline situation would likely suffice”) we can be sure that unsuccessful claimants will not agree. Indeed, the thrust, if not the specific holding, of the majority opinion is that specific findings will be required in the vast majority of these cases. In the abstract, this may be a desirable result. After all, the Social Security Administration has apparently been able to live with the requirements imposed by the Third and the Tenth Circuits in Kane and Daniels. Whether such findings are required by the relevant statutes and regulations is another matter, however, and, on the basis of the record before us, I would not require a more explicit explanation of the ALJ’s and the Appeals Council’s decision not to move Phillips into the higher catego